                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-14-00070-CR

                                            Stefan Kirk GAY,
                                                Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                    From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 13-1169-CR-A
                              Honorable Gary L. Steel, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: February 25, 2015

AFFIRMED

           A jury found Stefan Kirk Gay guilty of driving while intoxicated, third offense. The trial

court sentenced Gay to ten years’ confinement, but suspended the sentence and placed Gay on ten

years’ probation. Gay appeals, arguing that the evidence is legally insufficient to support his

conviction. We affirm the trial court’s judgment.

                                              BACKGROUND

           At trial, the State called four witnesses. Yvonne Fletcher testified that around 2:30 a.m. or

3:00 a.m., she was delivering newspapers in a rural area when she saw a vehicle “wrecked out” in
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a ditch on the side of the road. When she approached the vehicle, Gay was standing outside the

vehicle, calling for help. Ms. Fletcher told Gay she had called the Luling Police Department for

help, and Gay responded by saying she was “going to get him arrested.” Ms. Fletcher testified she

saw Gay remove bottles from the passenger seat of his vehicle and throw them in the front of the

vehicle. Ms. Fletcher also testified Gay was slurring his words and staggering when he walked.

However, she admitted she never saw Gay behind the wheel of the vehicle, and she did not know

how long Gay had been waiting for help.

       Guadalupe County Deputy Clinton Garza testified he received a dispatch for a one-vehicle

accident. When he arrived, he found Ms. Fletcher and Gay standing near a vehicle in a ditch about

thirty yards from the main road. Deputy Garza testified that when he approached Gay, he smelled

alcohol, and he noticed that Gay was unsteady on his feet and slurring his words. According to

the deputy, Gay told him he was on his way home when he missed a stop sign and wrecked around

8:00 p.m. the previous evening, and he had been waiting for someone to stop and help him because

his cell phone was broken and he could not call anyone. Deputy Garza testified he conducted a

visual inspection of the scene and saw an open beer bottle in the vehicle next to the driver’s seat

and five or six empty beer bottles on the ground outside the vehicle.

       Department of Public Safety Trooper Chris Worley testified that when he arrived at the

scene, he noticed a strong odor of alcohol emanating from Gay, and that Gay had bloodshot eyes

and slurred speech. Gay told Trooper Worley he had “a few beers” at a friend’s house around 8:30

or 9:00 p.m. that previous evening — despite having told Deputy Garza that he wrecked his vehicle

around 8:00 p.m. Trooper Worley testified he administered standardized field sobriety tests,

consisting of: (1) the horizontal gaze nystagmus (“HGN”), (2) the one-legged stand, and (3) the

walk and turn. Gay exhibited all six clues of intoxication on the HGN test, three out of a possible

four clues of intoxication on the one-legged stand test, and five out of a possible eight clues of
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intoxication on the walk and turn test. Gay was placed under arrest for driving while intoxicated

and transported to the Guadalupe County Jail. Gay refused to provide a breath or blood sample;

however, due to Gay’s prior DWI convictions, Gay was transported to the Guadalupe Regional

Medical Center for a mandatory blood draw. 1 See TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B)

(West 2011) (stating that officer shall take blood draw if person arrested for DWI has two prior

DWI convictions).

         Anna Mudd, a toxicologist with the Department of Public Safety crime lab, testified she

performed an analysis of Gay’s blood sample. Ms. Mudd testified Gay’s blood contained 0.225

grams of alcohol per one hundred milliliters of blood, well over the legal limit of. 0.08. Ms. Mudd

opined that if Gay had stopped drinking around 2:30 a.m. — around the time he encountered the

original witness and law enforcement — Gay’s blood alcohol content would have been even

higher, between 0.265 and 0.345

         After hearing the evidence, the jury found Gay guilty, and the trial court placed Gay on ten

years’ probation. This appeal timely followed.

                                                     ANALYSIS

         On appeal, Gay claims that the evidence is legally insufficient to support his conviction.

Specifically, he argues there is no evidence to prove he was operating a motor vehicle while

intoxicated, i.e., any evidence to prove a temporal link between his intoxication and driving.




1
 Gay does not challenge the warrantless blood draw based on the Supreme Court’s decision in Missouri v. McNeely,
__ U.S. __, 133 S.Ct. 1552 (2013), which held that in the absence of a warrant, the State must demonstrate the existence
of exigent circumstances or some other exception to the warrant requirement prior to obtaining a nonconsensual blood
draw. See State v. Villarreal, No. PD-0306-14, 2014 WL 6734178, at *9 (Tex. Crim. App. Nov. 26, 2014); Aviles v.
State, 443 S.W.3d 291, 294 (Tex. App.—San Antonio 2014, pet. filed) (holding blood draw pursuant to section
724.012(b) of Transportation Code violated Fourth Amendment); McNeil v. State, 443 S.W.3d 295, 300 (Tex. App.—
San Antonio 2014, pet. filed) (same); Weems v. State, 434 S.W.3d 655, 665 (Tex. App.—San Antonio 2014, pet.
granted) (same).

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                                        Standard of Review

       In Texas, when reviewing the sufficiency of the evidence in a criminal appeal, we apply

the only standard for reviewing the sufficiency of evidence — the legal sufficiency standard as set

out in Jackson v. Virginia. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010);

Mayberry v. State, 351 S.W.3d 507, 509 (Tex. App.—San Antonio 2011, pet. ref d). Under this

standard, we must consider all of the evidence in the light most favorable to the verdict and

determine whether a rational fact finder could have found the essential elements of the crime

beyond a reasonable doubt. See Brooks, 323 S.W.3d at 899; Mayberry, 351 S.W.3d at 509. As a

reviewing court, we may not sit as the “thirteenth juror,” and we must 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 to the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010);

Brooks, 323 S.W.3d at 899; Mayberry, 351 S.W.3d at 509. The standard requires us to resolve

any inconsistencies in the testimony in favor of the verdict. Accordingly, in analyzing a legal

sufficiency challenge, we will determine whether the necessary inferences are reasonable based

on the combined force of the evidence, direct and circumstantial, when viewed in the light most

favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Mayberry,

351 S.W.3d at 509.

                                            Application

       A person commits the offense of driving while intoxicated “if the person is intoxicated

while operating a motor vehicle in a public place.” TEX. PENAL CODE ANN. § 49.04(a) (West

Supp. 2014). The Penal Code defines “intoxicated” as “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 “having an alcohol concentration of 0.08 or more.” Id. § 49.01(2)(A), (B) (West 2011).
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The State does not need to establish the exact time of an accident or when the defendant was

operating the vehicle to prove the defendant was driving while intoxicated. Kuciemba v. State,

310 S.W.3d 460, 462 (Tex. Crim. App. 2010); Kennemur v. State, 280 S.W.3d 305, 314 n.8 (Tex.

App.—Amarillo 2008, pet. ref’d). However, the State must show a “temporal link” between the

defendant’s intoxication and his operation of the vehicle. Kuciemba, 310 S.W.3d at 462. Driving

while intoxicated may be supported solely by circumstantial evidence. Id.

       Here, the responding officer, Deputy Garza, testified he suspected Gay was intoxicated

when he arrived at the scene. Deputy Garza also stated Gay smelled of alcohol, was slurring his

words, and was unsteady on his feet. Corroborating these observations, Trooper Worley testified

Gay smelled strongly of alcohol, was slurring his words, and had bloodshot eyes. Trooper Worley

also testified Gay admitted he had consumed a few beers earlier that evening, around 8:30 or 9:00

p.m., before he drove his vehicle home. In addition to the testimony from the officer and the

trooper, the jury heard testimony from Ms. Fletcher, who testified Gay removed open beer bottles

from his vehicle before law enforcement arrived. The evidence also showed Gay was unable to

successfully perform standard field sobriety tests, and his blood sample showed an alcohol

concentration level of 0.225 grams of alcohol per one hundred milliliters of blood, more than two

times the legal limit. Although the blood sample was taken approximately three hours after Deputy

Garza first encountered Gay, Gay’s high alcohol concentration level was still more than twice the

legal limit, and according to the testimony of Ms. Mudd, this supported an inference that Gay’s

blood alcohol content would have been between 0.265 and 0.345 if he had stopped drinking at

2:30 a.m. See Kuciemba, 310 S.W .3d at 463 (stating that appellant’s high blood alcohol level –

more than twice the legal limit – supports inference he had been intoxicated for “quite some time”).

       We hold the evidence admitted during the trial — Gay’s admission that he drank earlier

that evening, his failure to successfully complete the field sobriety tests, and the testimony of the
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investigating authorities and the toxicologist — is sufficient to support Gay’s conviction. See,

e.g., Gigliobianco v. State, 210 S.W.3d 637, 639–42 (Tex. Crim. App. 2006) (holding that 0.09

and 0.092 alcohol concentration results of breath tests taken seventy-five minutes after defendant

was operating vehicle had considerable probative value in proving either statutory definition of

intoxication); Stewart v. State, 129 S.W.3d 93, 95–97 (Tex. Crim. App. 2004) (holding that 0.154

and 0.160 alcohol concentration results of breath tests taken eighty minutes after defendant was

operating vehicle had considerable probative value). Accordingly, when viewing the evidence in

the light most favorable to the conviction, we hold there is sufficient evidence for a rational trier

of fact to have found Gay guilty of the offense of DWI. Gay’s sole issue is overruled.

                                           CONCLUSION

       Based on the foregoing, we affirm the trial court’s judgment.

                                                  Marialyn Barnard, Justice

Do Not Publish




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