                                   NO. 12-17-00200-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

 WALTER LEWIS GRIFFIS,                             §      APPEAL FROM THE 369TH
 APPELLANT

 V.                                                §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                          §      ANDERSON COUNTY, TEXAS

                                  MEMORANDUM OPINION
        A jury convicted Appellant, Walter Lewis Griffis, of felony driving while intoxicated and
assessed his punishment at four years imprisonment. In one issue, Appellant complains that the
evidence is insufficient to support his conviction. We affirm.


                                          BACKGROUND
        On April 4, 2016, Appellant drove his pickup around a curve in the highway when,
according to his testimony, he swerved to avoid an oncoming car. Appellant lost control of his
pickup. The vehicle came to rest in the ditch beside the road after it began to roll over on its side
and then righted itself.
        Troy Mortenson testified that Appellant passed him at a high rate of speed just before losing
control of his vehicle. Mortenson testified that Appellant was alone in the vehicle, and that he
helped Appellant exit the passenger side window of the wrecked pickup. He described Appellant’s
behavior as erratic. Mortenson said that Appellant appeared to be drunk, although he conceded
that Appellant’s conduct could be due to shock. Mortenson remained at the scene until Texas State
Trooper Jack Hallock arrived at the scene and took Mortenson’s statement.
        Appellant told Trooper Hallock that he was the driver of the wrecked pickup, and that he
was not injured. Trooper Hallock detected a strong odor of an alcoholic beverage on Appellant’s
breath. He observed Appellant’s balance was unsteady, his eyes were watery, and his speech
slurred. Trooper Hallock concluded Appellant may be impaired. When Trooper Hallock asked
him how much he had to drink, Appellant replied, “I’m not taking a Breathalyzer.” Appellant
refused to stand up straight to allow Hallock to administer the horizontal gaze nystagmus test.
Based on Appellant’s refusal to comply with instructions, Hallock concluded it was useless to
attempt to administer other field sobriety tests.
          When the paramedics arrived, Appellant told them he was injured and wanted to be taken
to the hospital. Hallock followed Appellant’s ambulance to the hospital where he found Appellant
loudly shouting and cursing in the emergency room. After Appellant’s refusal to voluntarily
provide a blood sample, Hallock secured a warrant authorizing the taking of a blood sample from
Appellant. The sample showed a blood alcohol concentration of 0.173 grams of alcohol per 100
milliliters of blood.
          While at the hospital, Appellant refused medical treatment, although he previously asked
to be taken to the hospital for treatment of his injuries. Later on, at the jail, Appellant told Trooper
Hallock, “I hope somebody shoots you in the head and blows your brains out.”
          Appellant testified that when the accident occurred, he and his brother were both in the
pickup on the way to pick up their mother and take her to the hospital. Only his brother was present
when Appellant climbed out of the window, and not Mr. Mortenson. Appellant’s brother testified
that he helped Appellant out of the vehicle. According to Appellant, his brother left the scene
almost immediately after the accident to see about their mother. The brother was gone before
Trooper Hallock arrived.
          Appellant testified that he “was shaking like a leaf” after the accident. An unknown
bystander gave him a pint bottle of whiskey and told him that the whiskey would help him calm
down. Appellant took several generous swigs from the bottle, amounting in total, to probably a
half pint. Appellant told the court that he drank no alcoholic beverage for several years before the
accident. He testified that the whiskey he drank on the roadside after the accident was the first
alcoholic beverage he consumed since being sent to prison after a previous DWI conviction years
before.
          Appellant’s brother testified that he was constantly with Appellant for many hours before
the accident, and that he was a passenger in Appellant’s pickup when the accident occurred. He




                                                    2
told the court that he knew Appellant drank no alcoholic beverage before the accident. After the
jury found Appellant “guilty” and assessed his punishment, this proceeding followed.


                                   EVIDENTIARY SUFFICIENCY
       In his only issue, Appellant contends the evidence is insufficient to support his conviction
for driving while intoxicated.
Standard of Review
       In reviewing the sufficiency of the evidence, the appellate court must determine whether,
considering all of the evidence in the light most favorable to the verdict, any rational trier of fact
could have found all of the essential elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State,
323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Considering the evidence “in the light most
favorable to the verdict” requires the reviewing court 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.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 899.
       Circumstantial evidence is as probative a direct evidence in establishing the guilt of an
actor. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “[T]he standard of review
on appeal is the same for both direct and circumstantial evidence cases.” Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004). An appellate court presumes that the factfinder resolved
any conflicting inferences in favor of the verdict and defers to that resolution. Jackson, 443 U.S.
at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
Applicable Law
       A person commits an offense if the person is intoxicated while operating a motor vehicle
in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2017). An offense under Section
49.04 is a felony of the third degree if it is shown on the trial of the offense that the person has
previously been convicted two times of any other offense relating to the operating of a motor
vehicle while intoxicated. Id. § 49.09(b)(2) (West Supp. 2017). “Intoxicated” means (A) not
having the normal use of 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, (B) having an alcohol concentration of 0.08 or more. Id.
§ 49.01(2) (West 2011).



                                                  3
       In order for the evidence to be sufficient to support a conviction for driving while
intoxicated, there must be a temporal link between a defendant’s intoxication and his driving.
Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). “Indications that the accused
was intoxicated when the police arrived do not, in themselves prove that the accused was
intoxicated at the prohibited time, i.e., when the accused was driving.” Stoutner v. State, 36
S.W.3d 716, 721 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (op. on reh’g). There must be
evidence from which a rational jury could have concluded that, beyond a reasonable doubt, the
defendant was intoxicated while operating a vehicle in a public place. See id. A defendant’s
intoxication at the scene of an accident in which he was the driver is some circumstantial evidence
that his intoxication caused the accident. Kuciemba, 310 S.W.3d at 462. The evidence is even
more compelling when the accident is a one car collision with an inanimate object. Id.
       The Texas Transportation Code allows the court to admit evidence of the defendant’s
refusal to submit to a specimen of breath or blood. TEX. TRANSP. CODE ANN. § 724.061 (West
2011); Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim. App. 2008). Speeding is also a factor
to be considered, because it can indicate impaired judgment. Zill v. State, 355 S.W.3d 778, 786
(Tex. App.—Houston [1st Dist.] 2011, no pet.). The testimony of a police officer that an individual
is intoxicated is probative evidence of intoxication. Gruber v. State, 812 S.W.2d 368, 370 (Tex.
App.—Corpus Christi 1991, pet. ref’d). Evidence that would raise a rational inference that the
defendant was intoxicated while driving includes erratic driving, post driving behavior such as
stumbling, swaying, slurring, or mumbling words, inability to perform field sobriety tests or follow
directions, blood-shot eyes, and any admissions by the defendant about what, when, and how much
he had been drinking. Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010).
Discussion
       Appellant contends that none of the evidence of his intoxication relates to the time he was
driving his pickup. All of the evidence, he insists, shows only that he became intoxicated after the
wreck after drinking a half pint of whiskey on the roadside to calm his nerves. Appellant testified
that this was his first drink since going to prison for another DWI conviction some years earlier.
His brother told the court that he was riding with Appellant at the time of the accident. According
to the brother, he was with Appellant continuously for several hours before the accident. He also
testified that Appellant had been a teetotaler since his prior conviction.




                                                  4
         However, there is evidence that Appellant was already intoxicated at the time of the
accident. Mortenson testified that Appellant sped past him and lost control of his pickup.
According to Mortenson, Appellant was alone in the vehicle. Mortenson, not Appellant’s brother,
helped Appellant exit the passenger window of the wrecked vehicle. Mortenson said Appellant
smelled of beer, acted erratically, and appeared intoxicated. A paramedic who was with Appellant
in the ambulance on the way to the hospital testified that Appellant told her that he had a twelve
pack of beer approximately eight hours ago. No witness, other than Appellant, saw the man who
gave him the pint bottle of whiskey or saw Appellant drink from it. There is nothing in the record
to show that Appellant offered this explanation at the scene. When the officer at the scene asked
him how much he had to drink, Appellant simply replied that he would not take a Breathalyzer. It
is within the jury’s province to resolve any conflicts and inconsistencies in the evidence and to
draw reasonable inference therefrom. See Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App.
2016). The record justifies the jury’s rejection of Appellant’s explanation of his admitted
intoxication after the accident.
         Viewing all of the evidence in the light most favorable to the verdict, we conclude that a
rational jury could have found Appellant guilty, beyond a reasonable doubt, of driving while
intoxicated. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Brooks, 323 S.W.3d at 899;
TEX. PENAL CODE ANN. §§ 49.01(2), 49.04. Because the evidence is sufficient to support
Appellant’s conviction, his sole issue is overruled.


                                                   DISPOSITION
         The judgment is affirmed.

                                                                               BILL BASS
                                                                                Justice

Opinion delivered September 19, 2018.
Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                             (DO NOT PUBLISH)




                                                          5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 19, 2018


                                          NO. 12-17-00200-CR


                                    WALTER LEWIS GRIFFIS,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 369th District Court
                    of Anderson County, Texas (Tr.Ct.No. 369CR-17-33080)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Bill Bass, Justice.
                    Panel consisted of Worthen, C.J., Neeley, J. and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.
