                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                            ____________________

                             NO. 09-13-00084-CR
                            ____________________

                  KENNETH WAYNE GLOVER, Appellant

                                       V.

                  THE STATE OF TEXAS, Appellee
_________________________________        ______________________

                On Appeal from the 359th District Court
                      Montgomery County, Texas
                    Trial Cause No. 11-06-06204 CR
____________________________________________                       ____________

                         MEMORANDUM OPINION

      A jury convicted Kenneth Wayne Glover of driving while intoxicated, third

offense or more, and sentenced Glover to life in prison. In two appellate issues,

Glover challenges his sentence as excessive and the evidence as insufficient to

support a deadly weapon finding. We affirm the trial court’s judgment as modified.

                           Sufficiency of the Evidence

      In issue two, Glover argues that the evidence is insufficient to support a

deadly weapon finding because the evidence does not show that he lost control of

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his vehicle, swerved into other lanes, or disregarded traffic signs and that the

presence of other drivers does not establish that his vehicle was capable of causing

death and serious bodily injury. Under a legal sufficiency standard, we assess all

the evidence in the light most favorable to the prosecution to determine whether

any rational trier of fact could find the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We give deference to the jury’s

responsibility to fairly resolve conflicting testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d

at 13.

         A person commits the offense of driving while intoxicated when he is

intoxicated while operating a motor vehicle in a public place. Tex. Penal Code

Ann. § 49.04(a) (West Supp. 2013). 1 A “deadly weapon” is “anything that in the

manner of its use or intended use is capable of causing death or serious bodily

injury.” Id. at § 1.07(a)(17)(B) (West Supp. 2013). Texas law authorizes a deadly

weapon finding in felony DWI cases. Sierra v. State, 280 S.W.3d 250, 254 (Tex.

Crim. App. 2009). We first address the manner in which the defendant used the

motor vehicle during the offense, considering factors such as (1) intoxication; (2)
         1
      In this opinion, we cite to the current versions of the Texas Penal Code
because the amendments to those statutes do not affect the outcome of this appeal.
                                         2
speeding; (3) disregarding traffic signs and signals; (4) driving erratically; and (5)

failure to control the vehicle. Id. at 255; Pointe v. State, 371 S.W.3d 527, 532 (Tex.

App.—Beaumont 2012, no pet.). We then address whether, during the offense, the

motor vehicle was capable of causing death or serious bodily injury. Sierra, 280

S.W.3d at 255. The record must demonstrate more than a merely hypothetical

potential for danger. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003).

“[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 v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).

      Deputy Keith Berger testified that on June 4, 2011, he stopped a pick-up

truck that had been speeding. Berger identified Glover as the driver of the pick-up,

and he testified that a female passenger was in the pick-up. Glover told Berger two

different stories regarding the location from which he was traveling and

erroneously gave Berger his Houston Port Authority identification card instead of

his license. Berger smelled a strong odor of alcohol on Glover’s breath and noticed

that Glover’s speech was slurred and his eyes were watery and glossy. Berger

found bottles of tequila and margarita mix in the pick-up. Berger testified that

Glover cooperated and told Berger that he had two margaritas that night.

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      Berger administered the horizontal gaze nystagmus field sobriety test and

observed lack of smooth pursuit and distinct and sustained nystagmus at maximum

deviation in Glover’s eyes. Berger also conducted the walk and turn test, during

which Glover failed to keep his balance during the instructional phase, stepped off

the line, used his arms for balance, stopped walking, and missed heel to toe.

Finally, Berger administered the one leg stand, and Glover swayed while

balancing, hopped, put his foot down, and raised his arms for balance. Berger

testified that the results of these tests indicated intoxication. Berger also testified

that Glover’s demeanor changed from nice to belligerent at times, which is

consistent with intoxication. Berger concluded that Glover had lost his ability to

drive safely.

      Berger testified that Glover submitted to the portable breath test, but that a

reading could not be obtained because Glover did not give a proper breath sample,

which Berger stated is a sign of intoxication. Stephanie Olofson, a forensic

scientist, testified that Glover’s blood alcohol concentration was .132 grams of

alcohol per 100 milliliters of blood. Dr. Ronald Tisdell testified that Glover’s

blood alcohol content was over .08 at the time of the traffic stop.

      Debra Johnson testified that she was the passenger in Glover’s pick-up.

Johnson testified that Glover had three to five alcoholic beverages that night. She

                                          4
also admitted to mixing a drink inside the vehicle before the traffic stop. She

opined that Glover was intoxicated and had too many drinks to be driving. In a

letter to Johnson, Glover stated that he “got drunk[]” and “none of whatever

happened would have happened if I obeyed the law.” Glover testified that

operating a vehicle over the speed limit is dangerous and that his pick-up is

capable of causing death or serious bodily injury.

      The record demonstrates that Glover was both intoxicated and speeding and

that other drivers were present during commission of the offense. However, the

record does not contain any other evidence that Glover was driving recklessly, and

the jury could not speculate that Glover’s operation of the pick-up during the

offense put another person or motorist in actual danger of death or serious bodily

injury. See Brister v. State, 414 S.W.3d 336, 344 (Tex. App.—Beaumont 2013,

pet. granted) (“[N]o reasonable inference arises that Brister used the motor vehicle

as a deadly weapon on the night in question because the State failed to show that

Brister’s use of his motor vehicle placed others in actual danger of death or serious

bodily injury.”); see also Pointe, 371 S.W.3d at 532 (“While a jury may draw

multiple reasonable inferences from the evidence, it cannot draw conclusions based

on speculation.”). Even viewing the evidence in the light most favorable to the

verdict, a rational jury could not find, beyond a reasonable doubt, that the manner

                                         5
in which Glover used his vehicle was capable of causing death or serious bodily

injury. See Tex. Penal Code Ann. § 1.07(a)(17)(B); see also Sierra, 280 S.W.3d at

255; Hooper, 214 S.W.3d at 13; Brister, 414 S.W.3d at 344; Pointe, 371 S.W.3d at

532. We sustain issue two.

                               Excessive Sentence

      In issue one, Glover contends that the trial court erroneously denied his

verbal motion challenging his sentence. He concedes that his sentence is within the

statutory punishment range, but argues that his sentence is disproportionate to the

crime. Before closing arguments during the punishment phase of trial, Glover

asserted an Eight Amendment objection to the punishment range, which the trial

court denied. Glover did not object when his sentence was pronounced, and his

motion for new trial does not include an argument challenging his sentence.

Accordingly, Glover’s complaint on appeal is not preserved for our review. See

Tex. R. App. P. 33.1(a); see also Castaneda v. State, 135 S.W.3d 719, 723 (Tex.

App.—Dallas 2003, no pet.).

      Even if the issue had been preserved, Glover’s sentence is within the

applicable punishment range. See Tex. Penal Code Ann. § 49.09(b)(2) (West Supp.

2013) (The offense of driving while intoxicated is a third-degree felony if the

defendant has previously been convicted two times of any other offense relating to

                                        6
the operation of a motor vehicle while intoxicated); see also Tex. Penal Code Ann.

§ 12.42(d) (West Supp. 2013) (If in the trial of a felony offense other than a state

jail felony, the defendant has previously been finally convicted of two felony

offenses, the second of which occurred subsequent to the first previous conviction

having become final, the defendant shall be punished by imprisonment for life, or

for any term of 25 to 99 years.). The record demonstrates that Glover was

convicted of two previous offenses for operating a motor vehicle while intoxicated.

Glover also pleaded true to two enhancement paragraphs for the felony offenses of

credit card abuse and arson. The jury heard evidence that Glover has prior offenses

for evading detention and theft; Johnson obtained a protective order against Glover

for assaulting her; Glover had assaulted Johnson on more than one occasion;

Glover violated a protective order; Glover abused, assaulted, and stalked a former

girlfriend and assaulted her son; Glover has been charged with aggravated battery,

criminal restraint, and sexual assault; and Glover has violated parole approximately

five times. Under these circumstances, we cannot say that there is a gross

disproportionality between the gravity of the offense and the severity of the

sentence. See Graham v. Florida, 560 U.S. 48, 60 (2010); see also Moore v. State,

54 S.W.3d 529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d) (“We are to judge

the gravity of the offense in light of the harm caused or threatened to the victim or

                                         7
society, and the culpability of the offender.”); Hicks v. State, 15 S.W.3d 626, 632

(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (A repeat offender’s sentence is

based on his most recent offense and his criminal history.). We overrule issue one.

      In conclusion, we modify the judgment to delete the deadly weapon finding.

We affirm the judgment as modified. See Tex. R. App. P. 43.2(b).

      AFFIRMED AS MODIFIED.



                                             ________________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice

Submitted on March 12, 2014
Opinion Delivered March 26, 2014
Do Not Publish

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




                                         8
                              DISSENTING OPINION

        The majority holds that “viewing the evidence in the light most favorable to

the verdict, a rational jury could not find, beyond a reasonable doubt, that the

manner in which Glover used his vehicle was capable of causing death or serious

bodily injury.” In my opinion, the majority concludes that the evidence is legally

insufficient by reweighing the evidence and by viewing it in a neutral light, not the

light most favorable to the jury’s verdict. The evidence shows that Deputy Berger

pulled Glover over for speeding after determining that Glover was moving at 71

miles per hour in a 55 mile per hour zone. The video from Deputy Berger’s patrol

car depicts five cars being driven on the opposite side of the highway from the

truck Glover was driving. The video also shows that just before Glover changed

lanes, moving from the fast lane to the slow lane, the tires on the left side of his

truck crossed into the middle turning lane, which was marked by a solid yellow

line.

        The Court of Criminal Appeals has explained: “Viewing the evidence ‘in the

light most favorable to the verdict’ under a legal-sufficiency standard means that

the reviewing court is required 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.” Brooks v. State, 323 S.W.3d 893, 899

                                          1
(Tex. Crim. App. 2010). With respect to the evidence, the jury saw the video

depicting the manner that Glover was using his truck; given the additional

evidence before the jury showing the speed Glover was driving, Glover’s blood-

alcohol level, and the traffic on the highway in the vicinity of his truck, it was

reasonable for the jury to infer that Glover’s truck was capable of causing a death

or a serious bodily injury. Also, the evidence showing the manner that Glover used

his truck allowed the jury to conclude that Glover drove his truck recklessly. See

Sierra v. State, 280 S.W.3d 250, 256 (Tex. Crim. App. 2009) (noting that speeding

is a factor in evaluating whether a driver has been reckless); Drichas v. State, 219

S.W.3d 471, 476 (Tex. App.—Texarkana 2007, pet. ref’d) (stating that a reviewing

court must examine the record for “evidence that there were other motorists

present at the same time and place as the reckless driving occurred”).

      In reviewing the jury’s findings, the focus of the Court’s analysis should be

whether, given Glover’s intoxication and the traffic that did exist at the same time

and place when Glover drove in a reckless manner, was Glover’s truck capable of

causing death or serious bodily injury. This would focus our review on whether the

evidence shows that others were actually endangered by Glover’s driving before he

was stopped. See Drichas v. State, 175 S.W.3d 795, 799-800 (Tex. Crim. App.

2005) (“[A] deadly weapon finding is appropriate on a sufficient showing of actual

                                         2
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.”). In my view, the jury’s deadly weapon finding is supported by the

evidence because Glover’s speed and state of intoxication exposed others who

were using the highway to the danger of being killed or suffering a serious injury

due to impairments in Glover’s ability to competently drive his truck. The fact that

there was no evidence before the jury of a near miss does not make the jury’s

inference that Glover’s truck was capable of causing a serious injury

unreasonable—the capability existed even if a collision did not occur or nearly

occur. Glover also exposed a passenger in his truck to those same dangers,

regardless of the presence of other traffic.

      Under Brooks, the jury is the sole judge of the weight to give to the

testimony of the witnesses. 323 S.W.3d at 899. In my opinion, the danger that

Glover posed to his passenger and other motorists due to his intoxication and the

speed he chose to travel, when coupled with the jury’s opportunity to see the tires

of his truck enter the turning lane, is legally sufficient evidence that justifies the

jury’s conclusion that Glover’s reckless conduct, beyond reasonable doubt,

actually placed other motorists in danger of death or serious bodily injury. See




                                           3
Drichas, 175 S.W.3d at 798. I would not overturn the jury’s deadly weapon

finding; because the majority does so, I respectfully dissent.



                                                     _________________________
                                                          HOLLIS HORTON
                                                               Justice
Dissent Delivered
March 26, 2014




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