                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-15-00087-CR
                             NO. 09-15-00088-CR
                          ____________________

                     BOBBY GENE MARTIN, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee
_______________________________________________________________________

                  On Appeal from the 221st District Court
                        Montgomery County, Texas
              Trial Cause No. 14-08-08496-CR (Counts 1 and 2)
________________________________________________________          _____________

                         MEMORANDUM OPINION

      In this appeal, Bobby Gene Martin challenges the sufficiency of the

evidence supporting his convictions for driving while intoxicated and retaliation.

Martin received life sentences from the jury after pleading “true” to the State’s

habitual offender allegations. We overrule the issues and affirm the trial court’s

judgment.




                                        1
      We review the sufficiency of the evidence to support a conviction under the

standard set forth in Jackson v. Virginia. 443 U.S. 307, 319 (1979); see Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). The Jackson standard is the

only standard that we apply in an evidentiary-sufficiency review. Adames v. State,

353 S.W.3d 854, 859 (Tex. Crim. App. 2011). Under that standard, we view all of

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

evidence and any reasonable inferences therefrom, whether any rational factfinder

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

Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing Jackson, 443

U.S. at 318–19). The jury is the sole judge of the credibility and weight to be

attached to the testimony of the witnesses. Id. In this role, the jury may choose to

believe all, some, or none of the testimony presented by the parties. Chambers v.

State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Further, the jury is permitted

to draw multiple reasonable inferences from facts as long as each is supported by

the evidence presented at trial. Temple, 390 S.W.3d at 360. When the record

supports conflicting inferences, we presume that the jury resolved those conflicts

in favor of the verdict and therefore defer to that determination. Id.

      In reviewing the sufficiency of the evidence, we consider all of the evidence

in the record, regardless of whether it was properly admitted. Clayton v. State, 235

                                           2
S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are

equally probative of an actor’s guilt, and “‘circumstantial evidence alone can be

sufficient to establish guilt.’” Temple, 390 S.W.3d at 359 (quoting Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). In a circumstantial evidence case, each

fact need not point directly and independently to the guilt of the defendant so long

as the combined and cumulative force of all the incriminating circumstances

warrants the conclusion that the defendant is guilty. Id. (quoting Johnson v. State,

871 S.W.2d 183, 186 (Tex. Crim. App. 1993)); Hooper, 214 S.W.3d at 13. “After

giving proper deference to the factfinder’s role, we will uphold the verdict unless a

rational factfinder must have had reasonable doubt as to any essential element.”

Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).

       “[I]n 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. But a conviction can be supported solely by

circumstantial evidence.” Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim.

App. 2010). A high blood alcohol limit found in a sample taken at the scene of an

accident “supports an inference either that appellant was recently involved in the

accident or that he had been intoxicated for quite a while.” Id. at 463. The




                                         3
appellant’s flight from the scene supports an inference of guilt. Clayton, 235

S.W.3d at 780.

      In his appeal brief, Martin argues the State failed to prove that he was the

person that 911 callers observed driving a truck erratically on the roadway before it

came to rest in a ditch. A wrecker driver, Jason Kroll, testified that he responded to

a dispatch call and arrived at the scene of an accident that night. Kroll identified

Martin as the person he saw standing in the middle of the road as he approached

the scene in his wrecker. Martin was approximately ten feet away from a truck in

the ditch. Martin appeared to be intoxicated, stumbling several times as he walked

100 feet to where Kroll had stopped his wrecker. Kroll did not see Martin behind

the wheel or driving the truck, but no one else was around, and Martin did not

mention that anyone was in the vehicle with him. According to Kroll, Martin asked

him to “get him out of there before the cops got there because he couldn’t afford

another DWI.” Kroll stated that when he refused to help, Martin walked away

towards the woods. When the police arrived five or ten minutes later, Kroll

directed the officers to the spot where Martin approached the tree line.

      Deputy Johnathon Jordan testified that he was dispatched in response to 911

calls describing a male subject wearing dark clothing standing near a black vehicle

in the ditch. As Deputy Jordan pulled up to the scene, he noticed a black pickup

                                          4
truck in the ditch. Kroll pointed down the road and said it looked like Martin went

into the woods. Deputy Jordan found Martin in the creek in chest deep water. It

appeared that Martin was trying to hide, because he was holding a bush or a branch

in front of himself. Martin ignored Deputy Jordan’s attempts to coax him out of the

water for a while, but he eventually climbed out on his own. Deputy Jordan was

able to obtain Martin’s name and date of birth and ran the information through

dispatch. Martin told the officer he was drunk but refused to say whether he had

been driving. The keys on Martin’s belt belonged to the vehicle that was in the

ditch. Martin showed all six signs of intoxication on the horizontal gaze nystagmus

field sobriety test. Martin displayed seven of eight intoxication clues on the walk-

and-turn field sobriety test. Deputy Jordan decided not to administer the one-leg

stand test out of concern for Martin’s safety. Deputy Jordan obtained a warrant for

a blood sample. A blood sample obtained three hours after Deputy Jordan arrived

on the scene revealed that Martin had a blood alcohol concentration level of

approximately 0.217.

      The truck in the ditch was registered to a woman at the same address as the

address that Martin listed in his records with the Department of Public Safety.

Martin repeatedly referred to the vehicle as his truck and told Deputy Jordan, “I am




                                         5
a better driver than that.” Deputy Jordan never saw anyone other than Martin who

could have been driving the truck that evening.

      The jury heard recordings of motorists who called 911. One caller reported

that it appeared that a man had been drinking and was driving. The caller stated

that he observed the vehicle swerving and followed it until it ran off the road into a

ditch. Another caller reported that an older white male wrecked his black truck.

She stated the driver was standing by the guardrail 100 feet from the truck. A third

caller, the tow truck driver, reported that the vehicle was in the ditch and the

driver, wearing solid black clothing, was out in the road and in danger of being

struck by passing vehicles. He reported that the driver of the vehicle asked to be

pulled out of the ditch. Another caller reported that a vehicle drove into the ditch.

The caller stated that she had spoken to the man who drove his truck into the ditch.

She indicated that he was so intoxicated that he could barely speak or walk but had

proceeded along the guardrail and off of the side of the road. None of the callers

observed another person in the vehicle. Additionally, on one recording that was

published to the jury, Martin can be heard stating, “I can’t believe I run the truck

over the [expletive] ditch, you know that? I’m a better [expletive] driver than that.”

      Martin also argues that the evidence is insufficient to prove that he was

driving while intoxicated because none of the witnesses saw him driving. He

                                          6
concedes that the jury heard 911 recordings in which callers reported following an

erratically-driven vehicle until the vehicle went into the ditch, and a caller

described Martin as he stood on the side of the road after the accident, but he

argues none of the callers identified Martin as the person operating the truck.

Martin argues that his statement to the wrecker driver that he could not afford

another DWI amounted to nothing more than his realization that the police would

accuse him because he was the only one at the scene. He claims his statement that

he was a better driver than that was intended to be a comparison with the real

driver, as opposed to a comment on his own driving, and that his expressed

concern about the truck arose from the fact that he would be held accountable for

the damage and not because he caused it.

      Evidence that supports a conclusion that Martin operated the vehicle

includes his being outside the truck immediately after the accident, asking for

assistance removing the vehicle before the police arrived, attempting to escape

from the scene of the accident, and his admission to the driver of the wrecker that

he would be arrested for driving while intoxicated. The truck was registered to a

person at Martin’s residential address, but that person was not at the scene and

Martin was, and the keys used to operate the truck were in his pocket. Martin was,

by his own admission, intoxicated immediately after the accident and for hours

                                           7
thereafter. “Being intoxicated at the scene of a traffic accident in which the actor

was a driver is some circumstantial evidence that the actor’s intoxication caused

the accident[.]” Kuciemba, 310 S.W.3d at 462. The jury could reasonably infer that

Martin drove the vehicle on a public roadway, because shortly after a truck was

observed being driven erratically into a ditch on a country road, a person matching

Martin’s description was seen trying to leave the scene and a few minutes later,

Martin was hiding in the creek with the keys to the truck in his pocket. Viewed in

the light most favorable to the verdict, the jury could conclude that Martin drove

the vehicle on a public roadway while he was intoxicated.

      Martin argues that insufficient evidence supports his conviction for

retaliation. A person commits the offense of retaliation if the person intentionally

or knowingly harms or threatens to harm another by an unlawful act in retaliation

for or on account of the service or status of another as a public servant. See Tex.

Penal Code Ann. § 36.06(a)(1)(A) (West Supp. 2016). “Comments can be

evaluated as threats based, not just on the language used, but also the context

within which they are uttered, even veiled threats.” Meyer v. State, 366 S.W.3d

728, 731 (Tex. App.—Texarkana 2012, no pet.). Martin became verbally abusive

after being arrested by Deputy Jordan. Martin threatened to kill Deputy Jordan and

his family and repeated this threat several times during his transport and booking.

                                         8
Martin argues his threats were merely drunken ramblings expressing his anger over

being arrested but lacking any intent or ability to act on the threat. An intent to

follow through with the threat is not an element of the crime of retaliation. Lebleu

v. State, 192 S.W.3d 205, 211 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).

“The [retaliation] statute does not require the threatened retaliatory harm be

imminent, nor does it require that the actor actually intend to carry out his threat.”

In the Matter of B.P.H., 83 S.W.3d 400, 407 (Tex. App.—Fort Worth 2002, no

pet.). Among other threatening statements made in this case, Martin stated, “If you

don’t get these cuffs off me, I’m going to kill your brains out.” When Deputy

Jordan was preparing to remove the handcuffs at the jail, Martin stated he would

“whop your A.” The jury could infer that Martin intentionally and knowingly

threatened Deputy Jordan on account of Deputy Jordan’s service as a law

enforcement officer. Therefore, the evidence is legally sufficient to support a

conviction for retaliation. We overrule issues one and two. The trial court’s

judgments and sentences are affirmed.


      AFFIRMED.


                                              ________________________________
                                                      CHARLES KREGER
                                                            Justice

                                          9
Submitted on February 1, 2016
Opinion Delivered January 18, 2017
Do Not Publish

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




                                       10
