
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-02-00809-CR


Tommy Lynn Drake, Appellant

v.


The State of Texas, Appellee







FROM THE DISTRICT COURT OF CALDWELL COUNTY, 274TH JUDICIAL DISTRICT

NO. 2002-115, HONORABLE FRED R. CLARK, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N

A jury found appellant Tommy Lynn Drake guilty of felony driving while intoxicated. 
See Tex. Pen. Code Ann. § 49.04(a) (West 2003), § 49.09(b)(2) (West Supp. 2004).  The jury
assessed punishment, enhanced by two other felony convictions, at imprisonment for thirty years. 
In two points of error, appellant challenges the legal and factual sufficiency of the evidence.  We will
affirm the conviction.
On the late afternoon of November 7, 2001, William Allen was driving his pickup
truck along farm road 20 in Caldwell County.  His friend Mark Blazek was with him.  The two men
noticed a cloud of dust and taillights along the side of the road.  When they stopped to investigate,
they noticed a  flatbed truck that appeared to have run off the road and struck a tree.  They saw a man
they identified as appellant get out of the driver's side of the truck; they saw no one else.  Appellant
had a large cut on his arm and was covered with blood.  Both Allen and Blazek testified that
appellant smelled strongly of alcoholic beverage.  Appellant forced his way into the cab of Allen's
pickup truck and asked to be taken to his wife at church.  Allen later discovered appellant's keys
under the seat of his truck.
Department of Public Safety Trooper Martin Conley responded to the accident call. 
He saw no skid marks on the highway and testified that it appeared that the flatbed truck's driver left
the road, traveled through the grass, and struck the tree without braking.  The officer noticed a large
amount of blood on the driver's side of appellant's truck.  A television set and other items were on
the passenger's seat; there was no blood there.
Conley spoke to appellant at the scene.  Appellant told him that a friend named Greg
had been driving his truck at the time of the accident.  Appellant did not know Greg's last name or
where he lived.  Conley testified that appellant had an "overwhelming odor" of alcoholic beverage
on his breath.  His eyes were glassy and bloodshot, and his speech was slurred.  Conley was of the
opinion that appellant was intoxicated.  Conley later located appellant's wife, who told the officer
that she left her husband at home at about 5:30 p.m.  At that time, he was intoxicated and alone.
Appellant was taken to a hospital by emergency medical personnel.  There, a sample
of his blood was drawn and tested.  His alcohol concentration was .28.
Appellant does not deny that he was shown to be intoxicated, nor does he challenge
the proof of his previous convictions.  He contends, however, that the evidence is legally insufficient
to sustain a conviction for driving while intoxicated because no witness actually saw him drive.  He
relies on the opinion in Reddie v. State, 736 S.W.2d 923 (Tex. App.--San Antonio 1987, pet. ref'd). 
In that case, the defendant was discovered slumped over the steering wheel of a car stopped in the
middle of the road, its engine running.  Id. at 924.  Although there was ample evidence of
intoxication, the court concluded that the evidence was not legally sufficient to prove that the
defendant operated the car while intoxicated.  Id. at 926.  Without evidence as to when the defendant
became intoxicated, how he had gotten to the location where he was found, or how long he had been
there, the court believed that reasonable hypotheses other than guilt existed.  Id.  The holding in
Reddie was followed in Ballard v. State, 757 S.W.2d 389, 391 (Tex. App.--Houston [1st Dist.]
1988, pet. ref'd), a case involving similar facts on which appellant also relies.
Reddie and Ballard predate the opinion in Geesa v. State, 820 S.W.2d 154 (Tex.
Crim. App. 1991).  In Geesa, the court of criminal appeals held that the reasonable alternative
hypothesis test was no longer to be used to determine whether circumstantial evidence supports a
criminal conviction.  Id. at 161.  The only standard for determining the legal sufficiency of the
evidence to support any criminal conviction is whether, after viewing all the evidence in the light
most favorable to the verdict, a rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307, 324 (1979); Griffin v.
State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981).  Applying that standard to the evidence
before us, we hold that the circumstances support the jury's finding that appellant operated his truck
in a public place while intoxicated.  Point of error one is overruled.
In a factual sufficiency review, the evidence is not viewed in the light most favorable
to the verdict.  Instead, all the evidence is considered equally, including the testimony of defense
witnesses and the existence of alternative hypotheses.  Orona v. State, 836 S.W.2d 319, 321 (Tex.
App.--Austin 1992, no pet.).  A factual sufficiency review asks whether a neutral review of all the
evidence, both for and against the finding of guilt, demonstrates that the proof of guilt is either so
obviously weak or so greatly outweighed by contrary proof as to undermine confidence in the jury's
determination.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Due deference must be
accorded the fact finder's determinations, particularly those concerning the weight and credibility
of the evidence, and the reviewing court may disagree with the fact finder only when the record
clearly indicates that such a step is necessary to prevent a manifest injustice.  Id. at 9.
Appellant testified that Greg came to his house and asked for a ride to Lockhart and
back.  Appellant, who had been drinking, agreed to let Greg drive his truck.  Appellant accompanied
him as passenger, holding in his lap the television set that was already in the truck.  Greg drove too
fast, lost control of the truck, and struck the tree.  Appellant did not know if Greg was injured, did
not see him leave the scene, and had not seen him since the accident.  Appellant got out of the truck
on the driver's side, cutting his arm as he did so, because the passenger door was difficult to open. 
The driver of the wrecker that towed appellant's truck confirmed that the passenger door was
damaged.
Clearly, the jury did not believe appellant's defensive testimony.  Giving the jury's
credibility determination the respect it deserves, we hold that the proof of appellant's guilt is neither
so obviously weak nor so greatly outweighed by contrary proof as to undermine confidence in the
jury's determination.  Point of error two is overruled.

The judgment of conviction is affirmed.


				__________________________________________
				W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices B. A. Smith and Patterson
Affirmed
Filed:   May 6, 2004
Do Not Publish
