 
 




                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-12-00247-CR
                           ____________________

                   MARK RANDALL BRISTER, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________            ______________

                    On Appeal from the 128th District Court
                           Orange County, Texas
                         Trial Cause No. A-090719-R
________________________________________________________             _____________

                                    OPINION

      In this appeal, Mark Randall Brister contends the evidence is legally

insufficient to support the jury’s conclusions that he operated a motor vehicle

while intoxicated and that he used a deadly weapon in the commission of the

offense. We hold the evidence is sufficient to support the jury’s finding that he was

intoxicated while operating a vehicle in a public place; however, we hold the

evidence does not support a conclusion that any rational trier of fact could have

found the legal elements of using the vehicle as a deadly weapon beyond a

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reasonable doubt and we strike that portion of the judgment. We affirm the trial

court’s judgment as modified.

                                    Background

      A jury convicted Brister of driving while intoxicated, an offense that

occurred on or about October 17, 2008. Prior to trial, Brister stipulated that he was

guilty of having committed two prior offenses of driving while intoxicated. In the

punishment phase of the trial, Brister pled true to the enhancement paragraphs,

establishing that he was guilty of committing two prior felonies. At the conclusion

of the punishment hearing, the jury assessed a sentence of forty years in prison,

and the trial court then pronounced a forty year sentence.

      In two issues, Brister challenges the sufficiency of the evidence to support

the verdict of guilt and the deadly weapon finding. We review all of the evidence

in the light most favorable to the verdict and determine if a rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893,

894-95 (Tex. Crim. App. 2010). In reviewing the evidence, we give deference to

the jury’s responsibility to resolve any conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from facts. See Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007).

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                                     Evidence

      Officer Donathan Warner testified that he stopped Brister on Highway 12

after observing him cross his lane into “[o]ncoming traffic.” According to Officer

Warner, there were “[v]ery few, if any, cars on the roadway[]” at that time of night.

After stopping Brister, Officer Warner noted Brister was unsteady on his feet when

exiting his car, smelled strongly of alcohol, and had slurred speech and bloodshot

eyes. Officer Warner decided not to require that Brister perform field sobriety tests

because Brister “was so intoxicated I figured that he may fall while trying to stand

on his own.”

      When Officer Warner placed Brister under arrest, Brister resisted by pulling

away and asking questions about “why I was doing what I was doing.” Brister was

very agitated during the stop, requiring Officer Warner to force Brister onto the

ground to cuff him, which resulted in Brister receiving a small abrasion to his

forehead. Before taking Brister to jail, an ambulance was summoned; when the

ambulance arrived, Brister refused treatment.

      According to Officer Warner, Brister was belligerent during the entire stop.

The jury heard that during an inventory search of Brister’s car, Officer Warner

found an ice chest that contained five beers, and he noted their presence on the




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automobile impound inventory sheet. According to Officer Warner, Brister was

intoxicated.

      Detective James Blankenship took Brister to jail. Detective Blankenship

testified that Brister had glassy, bloodshot eyes, and a strong odor of alcohol on his

breath. According to Detective Blankenship, Brister was “[e]xtremely agitated,

belligerent[,]” and “[u]nsteady on his feet[.]” Brister refused to get into Detective

Blankenship’s vehicle and had to be pushed in; Brister continued to curse during

the fifteen minute trip to jail. According to Detective Blankenship, when being

given various warnings that concern the consequences of failing to voluntarily

provide a specimen at the jail, Brister continued to scream and use profanity. Due

to Brister’s belligerence, Detective Blankenship stated that he chose not to conduct

any field sobriety tests.

      Officer Jonathan Baggett explained that he was asked to go to the jail to

assist in the process of booking Brister into jail. When he arrived, he saw Brister

yelling and cursing. According to Officer Baggett, Brister was highly agitated and

smelled strongly of alcohol. He also noticed that Brister constantly swayed back

and forth and that Brister refused to remain on the spot in the intoxilyzer room

where he had been told to stand.




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      Officer Warner did not make a videotape of Brister’s stop because the

camera in his patrol vehicle was not working properly. Also, because the tape

recorder at the jail failed to function properly, only a portion of Brister’s interview

at the jail was recorded. The brief recording captured on the video from Brister’s

booking process confirms that Brister’s speech was slurred and that he was

agitated and cursing.

      Two witnesses, Detective Blankenship and Detective L.B. Cupit, testified

that the type of car Brister was driving is capable of causing serious bodily injury

or death. However, neither detective saw Brister while he was driving on the night

he was stopped.

      Brister called one witness during the guilt-innocence phase of his trial.

Brister’s employer, Rose Mary Pipps, testified that Brister quit drinking

approximately eight months before the offense occurred. According to Rose, she

saw Brister almost every day in the eight months before the offense but had never

seen him drinking. Rose also explained that Brister worked for her six days a week

and lived near her home. On cross-examination, Rose agreed that Brister was not

working for her on the date of the offense, October 17, 2008, and she agreed that

she had not seen him on October 17. Rose also agreed that Brister did not have a




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problem with his balance or his speech, that Brister was not loud or argumentative,

and that he was normally clear-eyed.

                                   Intoxication

      To prove that a person is guilty of driving while intoxicated, the State must

prove that the defendant was intoxicated while operating a motor vehicle in a

public place. Tex. Penal Code Ann. § 49.04(a) (West Supp. 2012). “‘Intoxicated’”

means not having the normal use of one’s mental or physical faculties by reason of

the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a

combination of two or more of those substances, or any other substance into the

body or having an alcohol concentration of 0.08 or more. Id. § 49.01(2)(A), (B)

(West 2011). Circumstances raising an inference of intoxication when driving

include “erratic driving, post-driving behavior such as stumbling, swaying, slurring

or mumbling words, inability to perform field sobriety tests or follow directions,

bloodshot eyes, [and] any admissions by the defendant concerning what, when, and

how much he had been drinking[.]” Kirsch v. State, 306 S.W.3d 738, 745 (Tex.

Crim. App. 2010).

      Brister argues the evidence is insufficient due to a lack of objective clues

showing that he was intoxicated—the types of clues typically provided by field

sobriety tests. But, although the standard field sobriety tests were not performed

                                         6
 
 
 




and the record does not contain testimony about them, the record does contain

substantial evidence raising a reasonable inference that Brister did not have the

normal use of his faculties when he was stopped. For example, the jury could

accept as credible Officer Warner’s testimony that Brister failed to remain in his

lane of traffic, and that he exhibited the types of signs that are associated with

intoxication. In Brister’s case, the record contains circumstances tending to show

intoxication that includes testimony by officers that Brister had bloodshot eyes,

smelled strongly of alcohol, had slurred speech, exhibited poor balance, and

showed belligerence during and after the stop. Officer Warner’s observations about

Brister supports Warner’s opinion that Brister was intoxicated, and the jury’s

finding is further supported by the testimony and opinions of the other officers who

observed Brister after his arrest. When based upon facts an experienced officer

observes and then describes to the jury, an officer’s opinion concerning a person’s

intoxication provides sufficient evidence of intoxication. See Annis v. State, 578

S.W.2d 406, 407 (Tex. Crim. App. 1979).

      The brief video admitted into evidence, which depicts Brister having slurred

speech and acting in a belligerent manner, further supports the jury’s conclusion

that Brister was intoxicated. The testimony of Brister’s employer, explaining that

Brister did not normally have blood-shot eyes and that Brister did not have

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problems with his speech or balance reinforces the jury’s conclusion that on the

night of the offense, Brister did not possess the normal use of his mental and

physical faculties.

      Having carefully reviewed the record, we conclude the jury’s finding that

Brister was driving his car in a public place while intoxicated is supported by

legally sufficient evidence. See Tex. Penal Code Ann. §§ 49.01(2)(A), 49.04(a).

We overrule issue one.

                                     Deadly Weapon

      In determining whether the evidence is legally sufficient to support a deadly

weapon finding, a reviewing court must consider all of the evidence in the light

most favorable to the verdict and determine whether, based on that evidence and

reasonable inferences therefrom, a rational factfinder could have found the

essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at

318-19; Brooks, 323 S.W.3d at 894-95. Under this standard, evidence is

insufficient to support a conviction if considering all record evidence in the light

most favorable to the verdict, a factfinder could not have rationally found that each

essential element of the charged offense was proven beyond a reasonable doubt.

See Jackson, 443 U.S. at 319; In re Winship, 397 U.S. 358, 361 (1970); Brooks,

323 S.W.3d at 899; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009);

                                         8
 
 
 




Williams, 235 S.W.3d at 750. Evidence is insufficient under this standard in four

circumstances: (1) the record contains no evidence probative of an element of the

offense; (2) the record contains a mere “modicum” of evidence probative of an

element of the offense; (3) the evidence conclusively establishes a reasonable

doubt; and (4) the acts alleged do not constitute the criminal offense charged. See

Jackson, 443 U.S. at 314, 318 n.11, 320; Laster, 275 S.W.3d at 518; Williams, 235

S.W.3d at 750.

      This standard gives full play to the responsibility of the factfinder to fairly

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Jackson. 443 U.S. at 319. An

appellate court determines whether the necessary inferences are reasonable upon

the combined and cumulative force of all the evidence viewed in the light most

favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007) (quoting Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)).

When the record supports conflicting inferences, we presume the jury resolved the

conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S.

at 326. Our duty, as a reviewing court, is not to reweigh the evidence from reading

a cold record but to act as a “‘due process safeguard ensuring only the rationality




                                         9
 
 
 




of the factfinder.’” Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996)

(quoting Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995)).

      The gravamen of the offense of driving while intoxicated is the operation of

a motor vehicle upon the roadways while intoxicated, which creates an obvious

danger to the public. “An automobile can be a deadly weapon if it is driven so as

to endanger lives.” Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003).

To establish a deadly-weapon finding, the State must demonstrate that: (1) the

object was something that in the manner of its use or intended use was capable of

causing death or serious bodily injury; (2) the weapon was used or exhibited during

the transaction from which the felony conviction was obtained; and (3) other

people were actually endangered. Drichas v. State, 175 S.W.3d 795, 797 (Tex.

Crim. App. 2005); see also Garza v. State, 298 S.W.3d 837, 843 (Tex. App.—

Amarillo 2009, no pet.) (citing Cates, 102 S.W.3d at 738).

      A deadly-weapon finding is justified if a rational jury could have concluded

that the appellant’s vehicle posed an actual danger of death or serious bodily

injury. Sierra v. State, 280 S.W.3d 250, 254, 256-57 (Tex. Crim. App. 2009). An

actual danger means one that is not merely hypothetical. Drichas, 175 S.W.3d at

797-98. In Drichas, the Texas Court of Criminal Appeals described the type of

evidence needed to support a deadly-weapon finding. See id. at 799. The Court

                                        10
 
 
 




wrote that the statute “does not require pursuing police officers or other motorists

to be in a zone of danger, take evasive action, or require appellant to intentionally

strike another vehicle[.]” Id. “The volume of traffic on the road is relevant only if

no traffic exists.” Id. “Capability is evaluated based on the circumstances that

existed at the time of the offense.” Id. The Court explained that “a deadly weapon

finding is appropriate on a sufficient showing of actual danger, such as evidence

that another motorist was on the highway at the same time and place as the

defendant when the defendant drove in a dangerous manner.” Id.

      The Court rejected the notion that every defendant charged with evading

arrest or detention should also be charged with using a vehicle as a deadly weapon.

Id. The Court characterized the determination of whether a deadly-weapon finding

is justified as “a fact-specific inquiry” and recognized that the facts will not always

support such a finding. Id. Therefore, we examine the record for evidence

demonstrating that others were present when the reckless driving occurred. See

Foley v. State, 327 S.W.3d 907, 916-17 (Tex. App.—Corpus Christi 2010, pet.

ref’d); Williams v. State, 946 S.W.2d 432, 435 (Tex. App.—Fort Worth 1997),

aff’d in part, rev’d in part, 970 S.W.2d 566 (Tex. Crim. App. 1998) (reversing the

jury’s deadly weapon finding and concluding that to find a vehicle capable of

causing death or serious bodily injury the evidence must show that there was

                                          11
 
 
 




someone present who was placed in danger of serious bodily injury or death when

the DWI offense occurred).

      The evidence in this case shows Officer Warner conducted a traffic stop in

the early morning hours on Highway 12 in Orange County, Texas, after he

observed a vehicle being operated by Brister crossing the lane of traffic into the

“on bound traffic” or “oncoming traffic.” At the place of the stop, Highway 12 is a

two-lane roadway. According to Officer Warner, there were “[v]ery few, if any,

cars on the roadway[]” at that time of night. Officer Warner did not recall how

long he had followed Brister before he observed the traffic violation. The patrol

car was equipped with a video recorder that was set to automatically record

through the front windshield of the patrol car whenever the officer activated his

emergency lights. However, Officer Warner testified the equipment failed during

this particular traffic stop. Officer Warner testified that Brister crossed over the

center line only one time. At all times after Officer Warner activated his

emergency lights, he observed Brister drive in a single lane and come to a stop in a

normal distance in a convenience store parking lot. The officer characterized

Brister’s driving from the time he activated his emergency lights until Brister

stopped as “normal driving.” The State offered no further evidence regarding the

manner in which Brister was operating his vehicle at the time of the offense.

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      For a jury to find that Officer Warner’s testimony that he observed Brister’s

vehicle cross his lane into “oncoming traffic” sufficient to sustain a finding of a

deadly weapon, the jury would have had to infer from this statement “that another

motorist was on the highway at the same time and place as the defendant when the

defendant drove in a dangerous manner.” Before making a traffic stop, an officer

must have reasonable suspicion that some crime was, or is about to be committed.

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). When an

officer observes a driver commit a traffic offense, reasonable suspicion exists to

justify stopping the driver. See Arizona v. Johnson, 555 U.S. 323, 331 (2009).

Officer Warner’s testimony that Brister “violated a traffic law by crossing the lane

of traffic into the on bound traffic” was elicited to prove that Officer Warner had

reasonable suspicion to make the initial traffic stop. The State offered no evidence

to attempt to show that Brister’s operation of the vehicle during the offense put

another person or motorist in actual danger. While recognizing no evidence is

presented in closing argument, a review of the record shows that in its closing

argument, the State did not discuss or point to any evidence of Brister’s operation

of his vehicle on the evening in question and did not otherwise discuss the deadly

weapon issue with the jury.




                                        13
 
 
 




      In Cates, the Court of Criminal Appeals reversed a jury’s deadly weapon

finding on a conviction for failing to stop and render aid. 102 S.W.3d at 738-39.

Noting that the gravamen of that offense is leaving the scene of the accident, the

Court found the evidence showed there was no other traffic on the roadway at the

time Cates left the scene, the vehicle never left the roadway, and there was no

evidence offered by the State that anyone was actually endangered by the vehicle

while it left the scene. Id. at 738. “To sustain a deadly weapon finding requires

evidence that others were endangered, and not merely a hypothetical potential for

danger if others had been present.” Mann v. State, 13 S.W.3d 89, 92 (Tex. App.—

Austin 2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001). In Foley, while there

were businesses close to the accident scene and persons inside those buildings, the

Court rejected a deadly weapon finding when there was no evidence in the record

that there were other persons or vehicles at the same “time and place” as Foley.

327 S.W.3d at 917 (“Although Foley’s driving may have been reckless or

dangerous, it could not cause death or serious bodily injury to others because no

other persons or vehicles were in the immediate vicinity of Foley’s crash.”)

      Here, we have testimony that Brister’s car crossed the center line one time

and nothing further. Officer Warner’s testimony that Brister’s car crossed into

“oncoming traffic” amounts to, at most, a mere “modicum” of evidence probative

                                        14
 
 
 




of the deadly weapon element. See Jackson, 443 U.S. at 314, 318 n.11. In light of

Officer Warner’s further testimony that there were “[v]ery few, if any, cars on the

roadway[,]” the only reasonable inference that can be drawn is that Brister crossed

the center line into the lane of “oncoming traffic” and not into the path of an

oncoming car. On this record, no reasonable inference arises that Brister used the

motor vehicle as a deadly weapon on the night in question because the State failed

to show that Brister’s use of his motor vehicle placed others in actual danger of

death or serious bodily injury. See Pointe v. State, 371 S.W.3d 527, 532 (Tex.

App.—Beaumont 2012, no pet.) (recognizing that “[w]hile a jury may draw

multiple reasonable inferences from the evidence, it cannot draw conclusions based

on speculation.”) (citing Hooper, 214 S.W.3d at 16). The State failed to present

evidence from which a reasonable jury could conclude beyond a reasonable doubt

that people were actually endangered by Brister’s operation of the vehicle during

the offense. See Foley, 327 S.W.3d at 917; Drichas, 175 S.W.3d at 798. The record

evidence, viewed in a light most favorable to the prosecution, does not support a

conclusion that a rational trier of fact could have found the legal elements of using

the vehicle as a deadly weapon beyond a reasonable doubt. We sustain issue two

and strike that portion of the judgment wherein the trial court finds that the

defendant used or exhibited a deadly weapon, namely, a vehicle, during the

                                         15
 
 
 




commission of a felony offense, and affirm the judgment as modified. See

Williams, 970 S.W.2d at 566.

      AFFIRMED AS MODIFIED.
                                             __________________________
                                                 CHARLES KREGER
                                                      Justice

Submitted on August 30, 2013
Opinion Delivered October 16, 2013
Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




                                       16
 
 
 




                             DISSENTING OPINION

      Because I do not agree with the majority’s conclusion that the evidence was

legally insufficient to support the jury’s finding that Brister exhibited or used his

automobile as a deadly weapon, I respectfully dissent.

      According to the majority’s opinion, “[t]he State failed to present evidence

from which a reasonable jury could conclude beyond a reasonable doubt that

people were actually endangered by Brister’s operation” of his automobile “during

the offense.” In my opinion, the majority finds the evidence legally insufficient by

reweighing the evidence and viewing it in a neutral light, not the light most

favorable to the jury’s verdict. The Court of Criminal Appeals has explained:

“Viewing the evidence ‘in the light most favorable to the verdict’ under a legal-

sufficiency standard means that the reviewing court is required to defer to the

jury’s credibility and weight determinations because the jury is the sole judge of

the witnesses’ credibility and the weight to be given their testimony.” Brooks v.

State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).

      With respect to the evidence, the jury heard evidence regarding the manner

Brister used his automobile as well as evidence that Brister’s automobile, given the

manner it was used, was capable of causing a death or a serious bodily injury. With

respect to the manner that Brister drove his automobile, Officer Warner testified

                                         17
 
 
 




that he saw Brister cross into oncoming traffic—an observation that allowed the

jury to conclude Brister was driving recklessly. See Sierra v. State, 280 S.W.3d

250, 256 (Tex. Crim. App. 2009). With respect to whether Brister’s automobile

was capable of causing death or serious injury, Detective Blankenship and

Detective Cupit testified that the type of car Brister was driving is capable of

causing serious bodily injury or death. The majority has not taken issue with these

aspects of the jury’s verdict.

      The majority strays from its task of reviewing the evidence in the light most

favorable to the verdict because it weighs whether the amount of traffic created a

probability of injury. In reweighing the testimony, the majority puts great weight

on Officer Warner’s testimony there was little to no traffic. However, the question

that should be the focus of the court’s analysis is whether, given the presence of

any traffic that existed, Brister’s automobile was capable of causing death or

serious bodily injury. See Drichas v. State, 175 S.W.3d 795, 799-800 (Tex. Crim.

App. 2005) (“[A] deadly weapon finding is appropriate on a sufficient showing of

actual danger, such as evidence that another motorist was on the highway at the

same time and place as the defendant when the defendant drove in a dangerous

manner.”). Instead of looking at Officer Warner’s testimony in the light most

favorable to the verdict, the majority weighs the testimony that there was generally

                                        18
 
 
 




little or light traffic more heavily than the testimony that Brister drove into

“oncoming traffic,” testimony that reasonably suggests the presence of some traffic

when the offense occurred.

      With respect to reviewing sufficiency challenges to deadly weapon findings

in cases involving automobiles, the Court of Criminal Appeals has explained that

driving while intoxicated is actually dangerous only if the conduct creates a danger

to pedestrians or other motorists present on the roadway. See id. at 799. Under

Brooks, the jury is the sole judge of the weight to be given to the testimony of the

witnesses. 323 S.W.3d at 899. In my opinion, the danger to the traffic that Officer

Warner saw on the roadway, even if it was only one other automobile, when

coupled with Officer Warner’s testimony that Brister drove into oncoming traffic,

is legally sufficient evidence to support, beyond reasonable doubt, the jury’s

conclusion that another motorist was actually placed in danger of death or serious

bodily injury due to Brister’s reckless conduct. See Drichas, 175 S.W.3d at 798.

Because the majority reweighs the testimony to reach a conclusion that contradicts

the jury’s verdict, I do not join in the court’s opinion; instead, in my opinion, the

court should affirm the jury’s finding that Brister was driving while intoxicated,

affirm the jury’s finding that Brister used or exhibited his automobile as a deadly

weapon, and affirm the trial court’s judgment.

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                         _________________________
                              HOLLIS HORTON
                                   Justice

Dissent Delivered
October 16, 2013
       

       

       

       




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