
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-05-00369-CR


Gary Hayden Gibbs, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 04-159-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N


		A jury convicted Gary Hayden Gibbs of felony driving while intoxicated (DWI), (1) see
Tex. Penal Code Ann. § 49.04 (West 2003), § 49.09(b)(2) (West Supp. 2006), and made an
affirmative finding that Gibbs used or exhibited a deadly weapon during the commission of the
offense.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (West 2006).  The jury found two
enhancement paragraphs in the indictment true and sentenced Gibbs to life in prison. (2) See Tex.
Penal Code Ann. § 12.42(d) (West Supp. 2006).  In his sole point of error on appeal, Gibbs argues
that the evidence presented at trial is insufficient to support the jury's deadly weapon finding.  We
will affirm the judgment of the trial court.
 
BACKGROUND

		Around 1:00 a.m. on December 5, 2003, Roy Black, a truck driver with 28 years'
experience, was driving an 18-wheeler towing a double trailer southbound on IH-35 between Jarrell
and Georgetown.  While Black was driving his truck in the right lane, he noticed a white van moving
erratically.  Black testified that the driver of the white van moved from the middle lane to the right
lane and "cut [him] off," avoiding a collision with Black's truck by "a few feet."  Black estimated
that the white van was traveling at 66 miles per hour and that his truck was traveling at 65 miles per
hour.  Black testified that he "probably" reduced his speed after the van cut in front of him, although
he did not have to apply his brakes or take evasive action.
		Black testified that the white van then veered onto the right shoulder and crossed back
through the right lane while returning to the middle lane.  Black estimated that he saw the driver of
the white van weave back and forth between the middle lane and the shoulder "[p]robably three or
four times" while following the van for six or seven miles.  Black testified that his truck and the
white van were the only vehicles on the road during the time that he was following the van.
		Black called 911 to report the driver of the white van because he was concerned that
the driver might seriously injure or kill someone.  Black testified,

Q.	In the manner that that white van was driving that night, on December 5th of
2003, cutting you off, weaving in front of you, was the manner in which he
was driving or using that vehicle--was it capable of causing serious bodily
injury or death?

A.	Yes, sir.  Like I say, that's the reason I called.  If I didn't think that, I
wouldn't have called.
Black described the van and the erratic driving to the dispatcher and stayed on the line until the
driver of the van exited IH-35 at the Highway 29 exit.  Black did not follow the van after the driver
exited the highway.  
		Officer Jason Jones of the Georgetown Police Department responded to a call from
dispatch about a reckless driver on IH-35.  Jones was given a description of the van and its
approximate location.  Jones spotted a van that met the description turning westbound onto Highway
29 from the IH-35 frontage road.  Jones suspected that the van that he saw was the subject of the call
from dispatch because "there's not a lot of white vans in that area traveling southbound on the
frontage road."  Jones testified that immediately after turning onto Highway 29, the driver of the
white van moved onto the unimproved shoulder and stopped the van.  
		Jones testified, 

At that point we weren't real sure what we had.  I wasn't sure if I had an intoxicated
driver, or I wasn't sure if I had a person that had a medical emergency that needed
help or somebody that was lost or something of that nature.  So not really knowing
what I had, I pulled in behind the vehicle and turned my lights on and made contact
with the driver.  


Gibbs, the van's driver, told Jones that he was lost and looking for Highway 29.  Jones testified that
Gibbs's speech was slurred and that Jones noticed a strong odor of alcoholic beverages on Gibbs's
breath.  Jones testified that Gibbs admitted that he drank two large drinks containing vodka
and soda that evening.
		Jones asked Gibbs to get out of his vehicle so that Jones could administer field
sobriety tests.  Jones testified that Gibbs "was unsteady on his feet while walking, and he had to use
his vehicle to maintain his balance."  Jones first administered the horizontal gaze nystagmus test;
Jones testified that Gibbs failed this test because Jones observed all six "clues" of intoxication. 
Gibbs then failed the walk-and-turn test; Jones testified that he observed both "clues" in the
instructional phase of the test and four out of six "clues" in the walking phase of the test.  Jones then
began administering the one-leg-stand test; however, he cut the test short because Gibbs was drifting
into the middle of the road, creating a safety hazard, and because Jones "knew that [Gibbs] was
intoxicated."  Even though Jones told Gibbs that he had "seen enough," Gibbs requested that he be
allowed to perform the one-leg-stand test.  Jones testified that he administered the test and that Gibbs
failed because Jones observed two of four "clues" of intoxication. (3)
		Jones arrested Gibbs and took him to the police station.  Although Gibbs had agreed
at the scene of his arrest to submit to Intoxilyzer breath testing, when he arrived at the jail he refused
to provide a breath sample.  The State brought Gibbs to trial on May 24, 2005, and presented the jury
with Black's and Jones's testimony and the videotape of Gibbs's arrest, which shows the field
sobriety tests that were administered to Gibbs and is consistent with Jones's account.  As mentioned
above, the jury convicted Gibbs of felony DWI, made an affirmative finding that Gibbs used or
exhibited his vehicle as a deadly weapon during the commission of the offense, and sentenced Gibbs
to life in prison.  This appeal followed.

DISCUSSION


		In his sole point of error, Gibbs contends that the evidence presented at trial is
insufficient to uphold the jury's finding that he used or exhibited his van as a deadly weapon. (4)  When
reviewing a challenge to the legal sufficiency of the evidence supporting a deadly weapon finding,
we view the evidence in the light most favorable to the State and determine whether any rational trier
of fact could have found beyond a reasonable doubt that the object in question was used or exhibited
as a deadly weapon.  Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003).  In a factual
sufficiency review, we view the evidence in a neutral light and reverse the finding only if it is so
against the weight and preponderance of the evidence that it is clearly wrong and unjust.  Drichas
v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim.
App. 2000).  A deadly weapon includes "anything that in the manner of its use or intended use is
capable of causing death or serious bodily injury."  Tex. Penal Code Ann. § 1.07(a)(17)(B)
(West Supp. 2006).
		Gibbs argues that the opinion of the court of criminal appeals in Cates mandates
reversal of the deadly weapon finding.  We disagree.  In Cates, the driver of a truck was convicted
for failing to stop and render aid to a pedestrian whom he struck with his car and killed.  102 S.W.3d
at 736-37.  Cates appealed the jury's finding that he used or exhibited his truck as a deadly weapon
during the commission of the offense.  Id. at 737.  Because Cates was convicted of failing to stop
and render aid, the court of appeals had to decide whether Cates used or exhibited his truck as a
deadly weapon after striking the pedestrian with it.  Id.  The court of appeals held that testimony by
two eyewitnesses that they drove between 85 and 90 miles per hour to catch up with Cates after he
drove away from the scene of the accident was sufficient to support the deadly weapon finding.  Id. 
		The court of criminal appeals, however, reversed, holding that the witnesses'
testimony regarding how fast they were traveling was no evidence of how fast Cates was driving. 
Id. at 738.  The court also noted that testimony indicated that no other cars were on the roadway, that
Cates's truck did not leave the road, and that the "chase" ended quickly at a traffic light.  Id.  The
court held that "[t]o sustain a deadly weapon finding, there must be evidence that others were
actually endangered, not 'merely a hypothetical potential for danger if others had been present.'" Id. 
		Gibbs argues that, at most, he created a hypothetical potential for danger.  He insists
that because Black did not feel the need to take evasive action to avoid a collision with Gibbs, Black
was not actually endangered by Gibbs's driving.  Gibbs contends that because no other motorists
were on the roadway, no one was actually endangered by his driving.  However, the court of criminal
appeals has held,

[T]he statute itself does not require pursuing officers or other motorists to be in a
zone of danger, take evasive action, or require appellant to intentionally strike
another vehicle to justify a deadly weapon finding.  The volume of traffic on the road
is relevant only if no traffic exists. . . .  [A] deadly weapon finding will be sustained
if the definition of deadly weapon is met. . . .  [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.


Drichas, 175 S.W.3d at 799. 
		This case is unlike Cates.  Here, Black was driving on the highway in the early
morning hours when he encountered Gibbs, who was under the influence of alcohol and driving in
a dangerous manner, weaving back and forth between multiple lanes of traffic and the shoulder and
cutting in front of Black within a few feet, nearly causing a high-speed collision.  Considering all
the evidence before it, a reasonable jury could have found that the van driven in this manner by
Gibbs was capable of causing death or serious bodily injury to another person driving on the highway
at the same time.  Further, the jury's finding to that effect is not so against the weight and
preponderance of the evidence that it is clearly wrong and unjust.  We overrule
Gibbs's point of error.

CONCLUSION

		Having overruled Gibbs's issue on appeal, we affirm the judgment of the district
court.
 

							_____________________________________
							Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed:   March 1, 2007
Do Not Publish
1.  Gibbs stipulated to two prior DWI convictions that made the current offense a felony.
2.  Prior to his arrest on December 5, 2003, for the current offense, Gibbs had been convicted
of DWI seven times and had served two prison terms, including a four-year prison term from 1998
to 2002.  
3.  Examples of "clues" of intoxication include stepping off the line or using arms to balance
on the walk-and-turn test and swaying or hopping during the one-leg-stand test.  National Highway
Traffic Safety Admin., U.S. Dep't of Transp., Development of a Standardized
Field Sobriety Test (SFST) Training Management System (Nov. 2001),
http://www.nhtsa.dot.gov/people/injury/alcohol/SFST/appendix_a.htm.
4.  It is unclear whether Gibbs challenges only legal sufficiency or factual and legal sufficiency. 
Gibbs argues that the "evidence is insufficient" and cites the legal sufficiency standard of review. 
However, in the interest of justice, we review both the factual and legal sufficiency of the evidence.
