                                                                                 ACCEPTED
                                                                             01-15-00303-CR
                                                                  FIRST COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                       11/30/2015 2:39:01 PM
                                                                       CHRISTOPHER PRINE
                                                                                      CLERK

                            NO. 01-15-00303-CR

                 IN THE FIRST COURT OF APPEALS     FILED IN
                                             1st COURT OF APPEALS
                                                        HOUSTON, TEXAS
                            HOUSTON, TEXAS           11/30/2015 2:39:01 PM
                                                     CHRISTOPHER A. PRINE
                                                              Clerk



      GARY LAVERN WYMORE AKA CALVIN MCCOLLUM,
                     APPELLANT
                          V.
             THE STATE OF TEXAS, APPELLEE



              BRIEF FOR THE STATE OF TEXAS

                    CAUSE NUMBER 14CR1334
             IN THE 405th JUDICIAL DISTRICT COURT
                 OF GALVESTON COUNTY, TEXAS

                  ATTORNEYS FOR THE STATE OF TEXAS

REBECCA KLAREN               ASSISTANT CRIMINAL DISTRICT ATTORNEY
                             STATE BAR NO. 24046225

JACK ROADY                   CRIMINAL DISTRICT ATTORNEY

600 59TH STREET, SUITE 1001
GALVESTON TX 77551
(409) 770-6004, FAX (409) 621-7952
rebecca.klaren@co.galveston.tx.us

ORAL ARGUMENT WAIVED
                     IDENTITY OF PARTIES AND COUNSEL



Presiding Judge                           Honorable Dibrell

Appellant                                 Gary Lavern Wymore aka
                                          Calvin McCollum

Appellee                                  The State of Texas

Attorney for Appellant                    Calvin Parks

      (Trial Only)                        Pearland, Texas

Attorney for Appellant                    Joseph Kyle Verret

      (Appeal Only)                       Galveston, Texas

Attorney for State                        Christopher Henderson &
                                          Matthew Shawhan

      (Trial Only)                        Galveston, Texas

Attorney for State                        Rebecca Klaren

      (Appeal Only)                       Galveston, Texas




                                    ii
                                   TABLE OF CONTENTS

SECTION                                                                          PAGE

Identity of Parties and Counsel                                                  ii

Table of Contents                                                                iii

Index of Authorities                                                             iv

Summary of the Argument                                                          2

Statement of Facts                                                               2

Sole Issue                                                                       9
              Viewing the evidence in the light most favorable to the jury’s
              verdict, how’s the evidence insufficient to prove
              Wymore/McCollum was intoxicated when it showed he drove
              erratically, slurred his speech, had glassy bloodshot eyes,
              smelled of alcohol, told an incoherent story, had a wet spot on
              the front of his pants, swayed, had an unsteady gait, failed the
              only SFST he performed, refused to give a breath sample, and
              lied about his name?

       Argument and Authorities                                                  9

       I.      Sufficiency Standard Of Review                                    9

       II.     Driving While Intoxicated                                         10

       III.    The Evidence Overwhelming Proves Wymore/McCollum
               Was Intoxicated                                                   10

       IV.     Conclusion: The Evidence Was Legally Sufficient                   13

Conclusion and Prayer                                                            14

Certificate of Service                                                           15

Certificate of Compliance                                                        15

                                             iii
                                        INDEX OF AUTHORITIES


CASES 

Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) .......................................12

Barraza v. State, 733 S.W.2d 379, 381 (Tex. App.---Corpus Christi 1987), aff’d, 790
 S.W.2d 654 (Tex. Crim. App. 1990) ........................................................................12

Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) .....................................12

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). ....................................10

Cotton v. State, 686 S.W.2d 140, 142-43 & 142 n. 3 (Tex. Crim. App. 1985) ... 11, 12, 13

Felder v. State, 848 S.W.2d 85, 98 (Tex. Crim. App. 1992) ...........................................12

Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). ................................... 9, 10

Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.---Houston [1st Dist.] 2000, pet.
 ref’d).......................................................................................................................12

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ...........................................10

Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.---Houston [1st Dist.] 2011, pet. ref’d) .10

Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) .......................................11


STATUTES 

TEX. PENAL CODE ANN. § 49.01(2). ..........................................................................10

TEX. PENAL CODE ANN. § 49.04(a). ..........................................................................10

TEX. TRANSP. CODE §724.012 (b)(3). .........................................................................12



                                                               iv
                                   NO. 01-15-00303-CR


                                          IN THE

                                  COURT OF APPEALS

                                         FOR THE

                              FIRST DISTRICT OF TEXAS

                                   HOUSTON, TEXAS


      GARY LAVERN WYMORE AKA CALVIN MCCOLLUM, Appellant
                            V.
                 THE STATE OF TEXAS, Appellee


                       Appealed from the 405th Judicial District
                         Court of Galveston County, Texas
                                Cause No. 14CR1334



                        BRIEF FOR THE STATE OF TEXAS




TO THE HONORABLE COURT OF APPEALS:

       Now comes Jack Roady, Criminal District Attorney for Galveston County, Texas,

and files this brief for the State of Texas.


 The one-volume Clerk’s Record is referred to in the State’s Brief as “C.R. page”. The Reporter’s
 Record is multiple volumes and is referred to as “R.R. volume number: page”.
                        SUMMARY OF THE ARGUMENT

        In one issue, Gary Lavern Wymore also known as Calvin McCollum, argues the

evidence is insufficient to prove he was intoxicated when he was arrested for driving

while intoxicated. Viewing the evidence in the light most favorable to the jury’s verdict,

the evidence proves Wymore/McCollum changed lanes without signaling, abruptly

changed lanes again, lied about his name, slurred his speech, told an incoherent story,

was unsteady on his feet, swayed as he walked, smelled of alcohol, had bloodshot glassy

eyes, had a wet spot on the front of his pants in the groin area, failed the walk and turn

test, and refused a breath test. His van also smelled strongly of alcohol. The evidence

was more than sufficient to prove Wymore/McCollum was intoxicated.



                              STATEMENT OF FACTS

        Sergeant White and Officer Santiago were dispatched to find an erratic reckless

driver.1 The caller described the erratically driving vehicle as a grey van with a tire

strapped on the top.2

        Within 3 minutes of the dispatch, the officers saw the grey van.3 Officer Santiago

testified the driver swerved a little within his lane.4 The driver was going faster than the




1
  R.R.II: 141, 199.
2
  R.R.II: 199.
3
  R.R.II: 199-200.
4
  R.R.II: 142.

                                             2
cars around him on a wet road.5 As soon as the officers got behind the van, the driver

changed lanes without signaling.6 Then, abruptly, turned on his signal and changed lanes

again.7 Sergeant White testified the driver’s maneuvers appeared to be an evasive move

away from being in front of the patrol car.8 The officers turned on their overhead lights.9

The driver pulled over.10

        As soon as the driver pulled onto the shoulder of the road, he got out of his

van.11 He wasn’t told to get out by the officers.12 The driver stood close to the traffic

lane.13 He put his hands toward his waist.14 The officers testified it’s concerning when a

driver reaches towards his waist because the driver could be reaching for a weapon.15

Because of the driver’s behavior, the officers asked him to move away from the traffic,

towards the front of the patrol car.16 The officers also told the driver to keep his hands

in front of him.17

        As the driver walked towards the back of his van and towards the front of the




5
  R.R.II: 166.
6
  R.R.II: 142, 200.
7
  R.R.II: 142, 200-01.
8
  R.R.II: 200-01.
9
  R.R.II: 142-43.
10
   R.R.II: 143-44.
11
   R.R.II: 144.
12
   R.R.II: 144.
13
   R.R.II: 145, 202.
14
   R.R.II: 201-02.
15
   R.R.II: 145, 201-02.
16
   R.R.II: 202.
17
   R.R.II: 202.

                                             3
patrol car, the officers noticed he was unsteady on his feet.18 They noted he took long

strides and swayed.19

        Once the driver got to the front of the patrol car, the officers asked the driver to

identify himself.20 The driver gave the officers an expired Kentucky driver’s license with

the name of Gary Wymore.21 Officer Santiago ran the name Gary Wymore through the

police department’s communications.22 It returned a Texas driver’s license.23 The driver

did not tell the officers his real name is Calvin McCollum. This wasn’t discovered until

sometime after Wymore/McCollum was arrested.24

        The officers smelt a strong odor of alcohol emitting from Wymore/McCollum’s

breath and body.25 Officer Santiago testified, that based on his experience, the odor

smelled like beer.26 The officers testified Wymore/McCollum’s speech was slurred.27 He

had a thick tongue.28 His eyes were glassy and bloodshot.29 The officers also saw that

Wymore/McCollum had a wet spot on the front of his pants that spread from his groin

to his thighs.30


18
   R.R.II: 146, 203.
19
   R.R.II: 146, 203.
20
   R.R.II: 144, 202.
21
   R.R.II: 144, 202.
22
   R.R.II: 144.
23
   R.R.II: 144.
24
   R.R.II: 145.
25
   R.R.II: 146, 203, 205.
26
   R.R.II: 146.
27
   R.R.II: 146.
28
   R.R.II: 146.
29
   R.R.II: 146.
30
   R.R.II: 189, 194.

                                              4
        The     officers     asked   Wymore/McCollum     where    he    was    going.31

Wymore/McCollum said he was going to Freeport because a friend had a stroke and

needed help.32 The officers testified Wymore/McCollum’s story was incoherent and

odd.33 The officers testified Wymore/McCollum was driving in the opposite direction

and wasn’t heading towards Freeport.34 The officers asked him if EMS was called for his

friend.35 Wymore/McCollum said no.36 The officers testified that Wymore/McCollum

repeated himself.37 Sergeant White testified he had to ask Wymore/McCollum several

questions to get any detail about his story.38 Wymore/McCollum didn’t give the officers

the name of his friend or the friend’s address.39 The officers testified they couldn’t

corroborate Wymore/McCollum’s story.40

        Sergeant White testified he asked Wymore/McCollum to do several standard field

sobriety tests (SFSTs).41 Sergeant White asked Wymore/McCollum if he had any

medical issues.42 Wymore/McCollum said he didn’t.43

        Sergeant White testified he didn’t do the horizontal gaze nystagmus because it


31
   R.R.II: 203.
32
   R.R.II: 203.
33
   R.R.II: 150, 203-04.
34
   R.R.II: 150, 203.
35
   R.R.II: 150, 203-04.
36
   R.R.II: 150, 203-04.
37
   R.R.II: 205.
38
   R.R.II: 205.
39
   R.R.II: 151.
40
   R.R.II: 204.
41
   R.R.II: 210-11, 213-14.
42
   R.R.II: 207.
43
   R.R.II: 207.

                                           5
was misting.44 He didn’t want a false reading in Wymore/McCollum’s eyes.45

        Sergeant White explained and showed Wymore/McCollum how to do the walk

and turn test.46 Wymore/McCollum said he understood.47 Wymore/McCollum failed

the test.48 He stepped off the imaginary line.49 He used his arms for balance.50 And he

didn’t step heel to toe.51 Based on Wymore/McCollum’s performance on the test,

Sergeant White testified Wymore/McCollum was intoxicated.52

        Sergeant White explained the one leg stand test to Wymore/McCollum.53 He said

he understood and attempted the test.54 Wymore/McCollum stopped the test and said

he had a bad back.55 Despite being directly asked before any of the tests if he had a

medical issue, this was the first time Wymore/McCollum claimed to have a medical

problem.56

        Even though Wymore/McCollum failed the SFSTs and claimed he hadn’t drank

any alcohol, Sergeant White offered to let him blow into a portable breath test (PBT).57

The sergeant testified the PBT is a tool that shows whether a person has consumed

44
   R.R.II: 208.
45
   R.R.II: 208.
46
   R.R.II: 212.
47
   R.R.II: 212.
48
   R.R.II: 212.
49
   R.R.II: 213.
50
   R.R.II: 213.
51
   R.R.II: 213.
52
   R.R.II: 213.
53
   R.R.II: 213-14.
54
   R.R.II: 214.
55
   R.R.II: 214.
56
   R.R.II: 214-15.
57
   R.R.II: 215.

                                           6
alcohol.58 Wymore/McCollum agreed to do the test.59 The sergeant held the PBT while

Wymore/McCollum blew.60 Sergeant White testified he could feel Wymore/McCollum

not blow hard enough.61 Wymore/McCollum also didn’t close his lips around the tube.62

        Sergeant White testified he concluded Wymore/McCollum was intoxicated based

on the 4 walk and turn clues, that he couldn’t complete the one leg stand, that his story

didn’t add up, that he repeated himself, that his speech was slurred, that he spoke with a

thick tongue, he swayed while he walked, and smelled of alcohol.63 The officers arrested

Wymore/McCollum for driving while intoxicated.64

        The officers explained that when a driver is arrested, his vehicle is inventoried.65

Officer Santiago testified when he attempted to inventory Wymore/McCollum’s van, he

found a small puppy sitting in the passenger seat.66 He also found the van was filthy.67

The officer testified he found a cup sitting in the front center console that smelled like

beer.68 He said he smelled an extremely strong odor of alcohol emitting from between

the center console and the driver’s seat, as if beer was just poured out into the van.69 He



58
   R.R.II: 216.
59
   R.R.II: 216.
60
   R.R.II: 216-17.
61
   R.R.II: 216-17.
62
   R.R.II: 217.
63
   R.R.II: 217-18.
64
   R.R.II: 217-18.
65
   R.R.II: 151.
66
   R.R.II: 190.
67
   R.R.II: 152.
68
   R.R.II: 152.
69
   R.R.II: 152.

                                              7
also found several old cans of beer.70

        The officers testified that after they arrested Wymore/McCollum, they brought

him to the police department and asked him to give a breath sample on the intoxilyzer

machine.71 He refused.72

        The in-car video of the stop and arrest was admitted into evidence.73 The video of

Wymore/McCollum refusing to give a breath sample in the intoxlizyer room was also

admitted.74

        At no point did Wymore/McCollum tell the officers his name wasn’t Wymore

and that his true name was McCollum. Sergeant White testified people lie about their

names to hide their criminal histories.75 The sergeant testified that at the time of

Wymore/McCollum’s arrest, if the driver had 2 DWI convictions, the police would

conduct a mandatory blood draw.76

        At trial, Wymore/McCollum stipulated that he was twice convicted of DWI.77

The jury convicted him of felony DWI 3rd or more.78

        Wymore/McCollum elected to have the Trial Court assess his punishment.



70
   R.R.II: 190.
71
   R.R.II: 155-56, 218-19.
72
   R.R.II: 156, 218-19.
73
   R.R.II: 153; State Exhibit 1.
74
   R.R.II: 184; Defense Exhibit 1.
75
   R.R.II: 207.
76
   R.R.II: 206-07.
77
   R.R.II: 256-57; State Exhibit 3.
78
   R.R.III: 28.

                                             8
During the punishment hearing, Wymore/McCollum pled true to both enhancements.79

The enhancements were for a 3rd DWI and for felony tampering with evidence.80 The

Trial Court sentenced Wymore/McCollum to 30 years confinement.81

       This appeal followed.




                                          SOLE ISSUE

       Viewing the evidence in the light most favorable to the jury’s verdict,
       how’s the evidence insufficient to prove Wymore/McCollum was
       intoxicated when it showed he drove erratically, slurred his speech,
       had glassy bloodshot eyes, smelled of alcohol, told an incoherent
       story, had a wet spot on the front of his pants, swayed, had an
       unsteady gait, failed the only SFST he performed, refused to give a
       breath sample, and lied about his name?



                           ARGUMENT AND AUTHORITIES

       I.      Sufficiency Standard Of Review

       Under a legal sufficiency standard of review, appellate courts review all the

evidence in the light most favorable to the verdict and determines, based on that

evidence and any reasonable inferences therefrom, whether any rational fact finder

could have found the elements of the offense beyond a reasonable doubt.82 This

standard gives full play to the responsibility of the trier of fact fairly to resolve
79
   R.R.III: 32-33.
80
   R.R.III: 32-33.
81
   R.R.III: 37.
82
   Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).

                                                  9
conflicts in the testimony, weigh the evidence, and draw reasonable inferences from

basic facts to ultimate facts.83 Appellate courts presume that conflicting inferences

were resolved in favor of the conviction and defer to that resolution.84 Circumstantial

evidence is as probative as direct evidence in establishing guilt.85 Each fact need not

point directly and independently to guilt, as long as the cumulative force of all

incriminating circumstances is sufficient to support the conviction.86

       II.     Driving While Intoxicated

       A person commits DWI if he “is intoxicated while operating a motor vehicle in a

public place.”87

       “Intoxicated” means “not having the normal use of mental or physical faculties

by reason of the introduction of alcohol ... into the body.”88

       III. The Evidence Overwhelming Proves Wymore/McCollum

               Was Intoxicated

       Wymore/McCollum only challenges the sufficiency of the evidence that

establishes he was intoxicated. Consequently the State’s argument is limited to that

element.


83
   Id.
84
   Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
85
   Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Kiffe v. State, 361 S.W.3d 104, 108 (Tex.
App.---Houston [1st Dist.] 2011, pet. ref’d).
86
   Hooper, 214 S.W.3d at 13.
87
   TEX. PENAL CODE ANN. § 49.04(a).
88
   TEX. PENAL CODE ANN. § 49.01(2).

                                                 10
        Viewing the evidence in the light most favorable to the jury’s verdict, the jury

could’ve found beyond a reasonable doubt that Wymore/McCollum was intoxicated

when stopped by the officers based on the following:

      Wymore/McCollum was driving erratically. The officers saw Wymore/McCollum

        change lanes without signaling, then abruptly change lanes again, and breaking

        suddenly.

      Wymore/McCollum got out of his van without being asked, he was unsteady on

        his feet, he swayed, and used a large gait.89

      Wymore/McCollum had a wet spot on his pants at his groin and thighs.

      Wymore/McCollum’s story wasn’t coherent and he repeated himself. He was

        driving in the opposite direction he claimed to be headed.

      Wymore/McCollum’s speech was slurred.90 He spoke with a thick tongue. His

        eyes were glassy and bloodshot.91

      Wymore/McCollum’s breath and body smelled strongly of alcohol, his van

        smelled strongly of beer recently poured from a cup, and there was cup in the

        center console that smelled of alcohol.92

89
   See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) (recognizing evidence raising
inference of intoxication includes erratic driving, post-driving behavior such as stumbling, swaying,
slurring or mumbling words, and bloodshot eyes).
90
   See id.
91
   See Cotton v. State, 686 S.W.2d 140, 142-43 & 142 n. 3 (Tex. Crim. App. 1985) (identifying
characteristics that may constitute evidence of intoxication to include slurred speech, bloodshot
eyes, unsteady balance, and staggering gait).
92
   See id. at 142 n. 3 (including the odor of alcohol on the person or his breath as characteristic that

                                                  11
     Wymore/McCollum failed the walk and turn standard field sobriety test. He

        refused to do the one leg stand test.93

     Sergeant White testified that based on the above, he believed Wymore/

        McCollum was intoxicated.94

     Wymore/McCollum refused to submit to a breath test.95

     Wymore/McCollum gave the officers a false name. This indicates a

        consciousness of guilt.96 And it prevented the officers from obtaining

        Wymore/McCollum’s criminal history. Had they had his criminal history, they

        would’ve seen Wymore/McCollum had more than two DWI convictions. The

        officers would’ve been obligated to obtain a mandatory blood draw from

        Wymore/McCollum.97




may constitute evidence of intoxication).
93
   See Barraza v. State, 733 S.W.2d 379, 381 (Tex. App.---Corpus Christi 1987), aff’d, 790 S.W.2d 654
(Tex. Crim. App. 1990) (holding there is no significant difference between refusal to take field-
sobriety test and refusal to perform breath test for evidentiary purposes).
94
   See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (reasoning that an officer’s
testimony that a person was intoxicated provided sufficient evidence to establish the element of
intoxication); see also Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.---Houston [1st Dist.] 2000,
pet. ref’d) (stating that the testimony of a police officer that an individual is intoxicated is probative
evidence of intoxication).
95
   See Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (recognizing defendant’s refusal to
submit to breath test is relevant to show consciousness of guilt).
96
   See Felder v. State, 848 S.W.2d 85, 98 (Tex. Crim. App. 1992) (giving false identification to a police
officer indicates a consciousness of guilt).
97
   See TEX. TRANSP. CODE §724.012 (b)(3).

                                                   12
          IV. Conclusion: The Evidence Was Legally Sufficient

          Evidence of intoxication may be proven by a combination of individual

symptoms of intoxication that when taken individually do not necessarily prove

intoxication.98 Here, the officers were confronted with overwhelming symptoms of

Wymore/McCollum’s intoxication---his driving behavior, slurred speech, glassy

bloodshot eyes, smell of alcohol, incoherent story, failed SFST, breath test refusal, and

false name. Viewing the evidence in the light most favorable to the jury’s verdict, the

evidence was more than sufficient.




98
     See Cotton, 686 S.W.2d at 142 n. 3.

                                           13
                           CONCLUSION AND PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State prays that the judgment

of the Trial Court be affirmed in all respects.

                                           Respectfully submitted,

                                           JACK ROADY
                                           CRIMINAL DISTRICT ATTORNEY
                                           GALVESTON COUNTY, TEXAS


                                                  /s/ Rebecca Klaren
                                           REBECCA KLAREN
                                           Assistant Criminal District Attorney
                                           State Bar Number 24046225
                                           600 59th Street, Suite 1001
                                           Galveston, Texas 77551
                                           Tel (409)770-6004/Fax (409)621-7952
                                           rebecca.klaren@co.galveston.tx.us




                                             14
                           CERTIFICATE OF SERVICE

      The undersigned Attorney for the State certifies a copy of the foregoing brief was

sent via email, eFile service, or certified mail, return receipt requested, to Kyle Verret,

attorney for Gary Lavern Wymore aka Calvin McCollum, at kyle@verretlaw.com or

2029 Strand Suite 3, Galveston, Tx 77550, on November 30, 2015.




                                              /s/ Rebecca Klaren
                                         REBECCA KLAREN
                                         Assistant Criminal District Attorney
                                         Galveston County, Texas



                        CERTIFICATE OF COMPLIANCE

      The undersigned Attorney for the State certifies this brief is computer generated,

and consists of 2,436 words.




                                              /s/ Rebecca Klaren
                                         REBECCA KLAREN
                                         Assistant Criminal District Attorney
                                         Galveston County, Texas




                                            15
