Opinion filed July 1, 2010




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-08-00306-CR
                                        __________

                          JULIAN L. REYES, JR., Appellant

                                               V.

                              STATE OF TEXAS, Appellee


                           On Appeal from the 32nd District Court

                                    Mitchell County, Texas

                                 Trial Court Cause No. 7008A


                             MEMORANDUM OPINION

       The jury found Julian L. Reyes, Jr. guilty of the felony offense of driving while
intoxicated. After the jury also found “True” to an enhancement paragraph in which it was
alleged that Reyes previously had been convicted for the felony offense of intoxication
manslaughter, it assessed his punishment at confinement for twenty years. We affirm.
       Reyes argues one issue in this appeal: that the evidence was factually insufficient to
prove that Reyes was guilty of driving while intoxicated. Specifically, Reyes maintains that the
evidence was factually insufficient to show that he was intoxicated.
        In order to determine if the evidence is factually sufficient, we must review all of the
evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to
render the conviction clearly wrong and manifestly unjust or whether the evidence supporting
guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight
of the contrary evidence as to render the conviction clearly wrong and manifestly unjust.
Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Goodman v. State, 66 S.W.3d 283
(Tex. Crim. App. 2001); Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State,
922 S.W.2d 126 (Tex. Crim. App. 1996). We review the factfinder’s weighing of the evidence
and cannot substitute our judgment for that of the factfinder. Cain, 958 S.W.2d at 407; Clewis,
922 S.W.2d at 135. Due deference must be given to the jury’s determination, particularly
concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex.
Crim. App. 2000); Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996). The court has the
authority to disagree with the factfinder’s determination “only when the record clearly indicates
such a step is necessary to arrest the occurrence of a manifest injustice.” Johnson, 23 S.W.3d
at 9.
        Mitchell County Deputy Sheriff Chris Duerstine testified that, on the day of the offense,
he stopped Reyes because Reyes was speeding. A video was made of the traffic stop, and the
State introduced it into evidence and published it to the jury. We have reviewed the video, and
the scenes depicted in it support the evidence we outline in this opinion.
        When Deputy Duerstine contacted Reyes, he discovered that Reyes had not renewed his
driver’s license in several years, and he also noticed that there was a very strong smell of alcohol
coming from inside the vehicle.         When Reyes got out of the vehicle, it appeared to
Deputy Duerstine that he stumbled. He also leaned against the vehicle and was unsteady on his
feet. Deputy Duerstine asked Reyes to move to the rear of the vehicle, and he noticed that
Reyes’s breath smelled of alcohol. On cross-examination, Reyes attempted to establish that the
wind was blowing in such a direction that it would have blown any smell of alcohol away from
Reyes and not toward Deputy Duerstine. Reyes at first told Deputy Duerstine that he had had a
few beers and later said that he had consumed “about a six-pack.”
        Deputy Duerstine told the jury that Reyes’s eyes were bloodshot and glassy and that,
when standing in one place, Reyes swayed and had trouble standing still. For those reasons,
Deputy Duerstine asked Reyes to sit down or to lean against the vehicle so that he would not fall.

                                                 2
Deputy Duerstine attempted to perform a horizontal gaze nystagmus test but was unable to
complete the test because Reyes would not hold his head still and move only his eyes.
       Reyes’s attorney asked Deputy Duerstine whether he was familiar with twenty clues or
signs that the National Highway Traffic Safety Administration recommends to help determine
whether a person is driving while intoxicated. These clues or signs are observed while the
vehicle is in motion. Although there are others, some of these clues or signs are turning in a
wide radius, straddling the center or lane marker, striking other vehicles or objects, and driving
less than ten miles below the speed limit. The deputy did not observe that any of the twenty
clues or signs were present in this case. Deputy Duerstine also testified that he followed Reyes
only for ten to fifteen seconds.
       Deputy Duerstine called Trooper Ricardo Molina for assistance. Trooper Molina also
testified at the trial. He received the call to assist at about 11:30 p.m. A separate video was
made that showed Trooper Molina’s involvement in this case. The State introduced it into
evidence and published it to the jury. We have reviewed this video, and the scenes depicted in it
support the evidence we outline in this opinion.
       When Trooper Molina contacted Reyes, his breath smelled of alcohol, his eyes were red
and glassy, and his responses to Trooper Molina’s questions were slow.            Trooper Molina
administered a horizontal gaze nystagmus test to Reyes.          Of the six clues that indicate
intoxication during such a test, Reyes exhibited all six.
       After completing the HGN test, Trooper Molina began to administer various field
sobriety tests. Reyes did not successfully complete any of the tests except that he was able to say
his ABCs perfectly. During one of the tests, Deputy Duerstine had to stand behind Reyes to
keep him from falling over. The evidence shows that Reyes told Trooper Molina that he had bad
knees as the result of a car accident in which he was involved in 1995 and that he still had a bad
bruise from that. The trooper was able to observe Reyes long enough to see that there were clues
present that indicated that Reyes was intoxicated.
       Although Reyes was cooperative with Trooper Molina and was not belligerent, obscene,
or rude, at times he either refused to, or could not, answer the trooper’s questions. Trooper
Molina told the jury that that was common with persons who are intoxicated. Reyes refused to
submit to a blood or breath test.



                                                   3
       Trooper Molina testified that it was his opinion that Reyes did not have the normal use of
his mental and physical faculties and that he was driving while intoxicated. When asked if there
was any doubt in his mind that, when he arrested Reyes, Reyes was intoxicated, Trooper Molina
responded, “No, no doubt.”
       Manuel Reyes, one of Julian Reyes’s younger brothers, testified for Reyes. Manuel told
the jury that he had picked Reyes up late in the evening to go to a barbecue in the neighborhood.
Manuel bought a six-pack of beer at some point in time, although the record is not entirely clear
when. Manuel had had a twenty-four ounce beer earlier, but as far as he knew, Reyes had not
had any beer before he drank two beers out of the newly purchased six-pack; there was no beer at
the barbecue. In addition to the twenty-four ounce beer, Manuel had drunk one beer out of the
new six-pack and was in the process of drinking another when Deputy Duerstine stopped them.
There were two unopened beers in the vehicle when they were stopped. Manuel did not think
that Reyes was intoxicated or impaired in any way. The jury was informed that the witness,
Manuel, had been convicted twice for felony driving while intoxicated.
       We have reviewed all of the evidence in a neutral light, and we determine that the
evidence supporting guilt is not so weak as to render the conviction clearly wrong and manifestly
unjust. Further, the evidence supporting guilt is not so greatly outweighed by the overwhelming
weight of any evidence to the contrary as to render the conviction clearly wrong and manifestly
unjust. The evidence is factually sufficient to support the verdict of the jury. Reyes’s sole issue
on appeal is overruled.
       We affirm the judgment of the trial court.




                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE


July 1, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




                                                4
