                                                                  ACCEPTED
                                                              03-16-00226-CR
                                                                    13098823
                                                   THIRD COURT OF APPEALS
                                                              AUSTIN, TEXAS
                                                        10/6/2016 11:45:24 AM
                                                            JEFFREY D. KYLE
                                                                       CLERK
        NO. 03-16-00226-CR

       COURT OF APPEALS                    FILED IN
                                    3rd COURT OF APPEALS
                                         AUSTIN, TEXAS
            FOR THE                 10/6/2016 11:45:24 AM
                                        JEFFREY D. KYLE
THIRD SUPREME JUDICIAL     DISTRICT          Clerk




          JAMES BEALL,
             Appellant
               VS.
      THE STATE OF TEXAS,
             Appellee


          APPEAL FROM

THE 22ND JUDICIAL DISTRICT COURT

      HAYS COUNTY, TEXAS

TRIAL COURT CAUSE NOS. CR-15-0485


         STATE’S BRIEF


              Wes Mau
              Criminal District Attorney
              State Bar No. 00784539
              Brian Erskine
              Assistant Criminal District Attorney
              State Bar No. 24074182
              712 South Stagecoach Trail, Suite 2057
              San Marcos, Texas 78666
              Attorney for the State of Texas
              brian.erskine@co.hays.tx.us
                           NAMES OF PARTIES

Appellee:                  State of Texas

Attorneys for the State:   Wesley H. Mau, Criminal District Attorney

At trial:                  Brian Erskine, Assistant Criminal District Attorney
                           712 South Stagecoach Trail, Suite 2057
                           San Marcos, Texas 78666
                           Attorneys for the State of Texas

On appeal:                 Wesley H. Mau, Criminal District Attorney
                           Brian Erskine, Assistant Criminal District Attorney

Appellant:                 James Beall

Attorneys:

At trial:                  Lowell Kendall
                           524 Exchange Ave., Ste. D
                           Schertz, Texas 78154

On appeal:                 Kristen Jernigan
                           207 S. Austin Ave.
                           Georgetown, Texas 78626




                                                                                 ii
                                         TABLE OF CONTENTS

NAMES OF PARTIES ............................................................................................... II
TABLE OF CONTENTS ..........................................................................................III
INDEX OF AUTHORITIES .................................................................................... IV
STATEMENT OF THE CASE .................................................................................. 2
STATEMENT REGARDING ORAL ARGUMENT.............................................. 2
STATEMENT OF FACTS ......................................................................................... 2
SUMMARY OF THE ARGUMENT ........................................................................ 2
ARGUMENT................................................................................................................ 3
  STATE’S RESPONSE TO POINT OF ERROR ONE ........................................ 3
   EVIDENCE IS SUFFICIENT FOR A RATIONAL TRIER OF FACT TO
   HAVE FOUND THE ESSENTIAL ELEMENTS BEYOND A
   REASONABLE DOUBT
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P., RULE 9.4....... 10
CERTIFICATE OF SERVICE ................................................................................ 11




                                                                                                                       iii
                                        INDEX OF AUTHORITIES

CASES

Annis v. State, 578 S.W.2d 406 (Tex. Crim. App. 1979) .............................................. 6

Barraza v. State, 733 S.W.2d 379 (Tex.App.–Corpus Christi

    1987), aff'd, 790 S.W.2d 654 (Tex. Crim.App.1990) .............................................. 9

Bartlett v. State, 270 S.W.3d 147 (Tex.Crim.App.2008) .............................................. 9

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)............................................ 3

Carrizales v. State, 414 S.W.3d 737 (Tex. Crim. App. 2013) ...................................... 4

Griffith v. State, 55 S.W.3d 598 (Tex. Crim. App. 2001) ............................................. 6

Guevara v. State, 152 S .W.3d 45 (Tex.Crim.App.2004) ............................................. 9

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ........................................... 4, 8

Jackson v. State, 468 S.W.3d 189 (Tex. App.—Houston [14th

    Dist.] 2015, no pet.) .................................................................................................. 9

Jackson v. Virginia, 443 U.S. 307 (1979). ................................................................ 3, 6

Kirsch v. State, 306 S.W.3d 738 (Tex. Crim. App. 2010) ............................................ 7

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) ..................................... 3, 4, 5

Lopez v. State, 03-11-00086-CR, 2013 WL 4487555 (Tex.

    App.—Austin Aug. 15, 2013, no. pet. h) ............................................................. 3, 5

Margraves v. State, 34 S.W.3d 912 (Tex. Crim. App. 2000). ...................................... 4


                                                                                                                           iv
Tezino v. State, 765 S.W.2d 482 (Tex.App.-Houston [1st Dist.]

    1988, pet. ref'd) ......................................................................................................... 9

Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006). .......................................... 4

STATUTES

Tex. Penal Code Ann. § 49.04 ....................................................................................... 6

TEX. R. APP. P. 38.2 ....................................................................................................... 1

Tex. Transp. Code Ann. § 724.061................................................................................ 9




                                                                                                                               v
                             NO. 03-16-00226-CR

                            COURT OF APPEALS

                                   FOR THE

                   THIRD SUPREME JUDICIAL DISTRICT


                                JAMES BEALL,
                                   Appellant
                                      VS.
                           THE STATE OF TEXAS,
                                  Appellee


                                APPEAL FROM

                  THE 22ND JUDICIAL DISTRICT COURT

                           HAYS COUNTY, TEXAS

                   TRIAL COURT CAUSE NO. CR-15-0485


                               STATE’S BRIEF


TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      COMES NOW the State of Texas, by and through her Assistant District

Attorney, Brian Erskine, and files this Brief in Opposition to Appellant’s Brief

pursuant to Texas Rules of Appellate Procedure Rule 38.2 and would show the Court

the following:


                                                                          Page 1
                              STATEMENT OF THE CASE
          A Hays County Grand Jury indicted James Beall (“Beall”) on August 5, 2015,1

for Driving While Intoxicated, 3rd or more. The jury convicted and sentenced Beall to

eight (8) years confinement in the Texas Department of Criminal Justice’s

Institutional Division (TDCJ-ID). 2


                  STATEMENT REGARDING ORAL ARGUMENT
          The State requests oral argument to aid the Court in the decisional process

related to Beall’s assertions.


                                 STATEMENT OF FACTS
          The State does not object to Beall’s statement of facts in total, however,

pertinent facts have been supplemented to resolve the issue presented by Beall.


                           SUMMARY OF THE ARGUMENT
          Evidence was sufficient to support the jury’s driving while intoxicated finding.

No evidence exists to support the contention that the jury’s verdict was determined

by any other manner than a fair expression of the jurors’ opinions. The evidence is

sufficient to sustain the verdict.




1
    CR 5.
2
    CR 59-60.

                                                                                   Page 2
                                              ARGUMENT

             STATE’S RESPONSE TO POINT OF ERROR ONE
        EVIDENCE IS SUFFICIENT FOR A RATIONAL TRIER OF FACT
        TO HAVE FOUND THE ESSENTIAL ELEMENTS BEYOND A
        REASONABLE DOUBT

            A. Sufficiency of Evidence Standard of Review

        Sufficient evidence was presented to support the jury’s driving while

intoxicated finding. Due process requires the State to prove beyond a reasonable

doubt every element of the crime charged.3 In Texas, the Jackson standard is the only

standard applied when courts are reviewing sufficiency of evidence claims.4 Under

the Jackson standard appellate courts:

    (1) view all the evidence in the light most favorable to the verdict to determine

         whether any rational trier of fact could have found the essential elements of

         the crime beyond a reasonable doubt, and

    (2) assume that the jury resolved conflicts in the testimony, to weigh the

         evidence, and to draw reasonable inferences from basic facts to ultimate

         facts.5




3
  Jackson v. Virginia, 443 U.S. 307, 316 (1979).
4
  See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).
5
  Lopez v. State, 03-11-00086-CR, 2013 WL 4487555 (Tex. App.—Austin Aug. 15, 2013, no. pet. h) (citing
Laster v. State, 275 S.W.3d 512, 522 (Tex. Crim. App. 2009) (stating that under the Jackson standard, “it is
the jury’s duty ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts’”).

                                                                                                       Page 3
        The appellate court’s “role on appeal is restricted to guarding against the rare

occurrence when a factfinder does not act rationally… [It] will uphold the verdict

unless a rational factfinder must have had reasonable doubt as to any essential

element.”6 There must be an objective basis in the record in order to say that the great

weight and preponderance of the evidence contradicts the jury’s verdict.7 Because the

jury is the sole judge of a witness’s credibility, and the weight to be given the

testimony, it may choose to believe some testimony and disbelieve other testimony.8

Where testimony at trial definitively favors or contradicts the jury’s verdict, the

jury’s credibility determination is paramount.9 Therefore, a decision is not manifestly

unjust solely because the court of appeals would have resolved the conflicting

evidence in a different way.10 Each fact need not point directly and independently to

the guilt of the appellant, as long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction.11 Circumstantial evidence is as

probative as direct evidence in establishing the guilt of the actor, and circumstantial

evidence alone may be sufficient to establish guilt.12




6
  Laster, 275 S.W.3d at 522.
7
  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).
8
  Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
9
  Watson, 204 S.W.3d at 417.
10
   Id.
11
   Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
12
   Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013).

                                                                                 Page 4
            B. Application of Law to Facts: Evidence Sufficient to Support Jury’s

                 Verdict

        In arguing that the evidence was legally insufficient to support the jury’s

verdict, Beall focuses this Court’s attention solely on the facts that do not support the

jury’s verdict. Beall’s argument mentions only those facts which are indeterminate of

intoxication, and ignores any evidence which would support such a finding.13 His

analysis inverts the applicable standard of review: to view all of the evidence in a

light most favorable to the verdict and to assume the jury resolved any testimonial

conflicts and drew reasonable inferences to support their finding.14

        The State concedes that there have been DWI cases with stronger evidence.

Beall did not confess to driving while intoxicated. Beall was not seen consuming

alcohol while he was driving. Beall was not passed out behind the wheel drooling on

himself. Beall did not urinate or vomit on himself at any time during his detention.

No blood alcohol concentration evidence was presented. But the evidence does not

need to be overwhelming to be legally sufficient. Many defendants risk a jury trial

precisely because the evidence is not overwhelming.



13
   For example, while Beall’s Statement of Facts references his refusal to perform sobriety testing or to
submit a breath sample, his argument does not even mention those two critical facts.
14
   Lopez v. State, 03-11-00086-CR, 2013 WL 4487555 (Tex. App.—Austin Aug. 15, 2013, no. pet. h) (citing
Laster v. State, 275 S.W.3d 512, 522 (Tex. Crim. App. 2009) (stating that under the Jackson standard, “it is
the jury’s duty ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts”).

                                                                                                       Page 5
        When this Court views the evidence the State presented through the Jackson

lens, it will find a legally sufficient jury verdict. The State presented sufficient

evidence such that a rational trier of fact could have found that Beall operated a

motor vehicle in a public place while he was intoxicated. A person commits the

offense of driving while intoxicated if he operates a motor vehicle in a public place

while intoxicated.15 As a general rule, the testimony of a peace officer that a person is

intoxicated provides sufficient evidence to establish the element of intoxication.16

The record contains evidence of two separate officers’ beliefs that Beall was

intoxicated for a myriad of reasons including, but not limited to, unsteadiness, slurred

speech, alcohol odor, and bloodshot eyes. All of these facts support the jury’s

intoxication finding.17

        Officer Kyle Lobo’s (hereafter “Officer Lobo”) body camera video was

admitted as State’s Exhibit 3 and published to the jury. 18 Officer Lobo initiated a

traffic stop when Beall failed to stop at a designated stop sign at approximately 7:25




15
   See Tex. Penal Code Ann. § 49.04(a).
16
   See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (reasoning that an officer’s testimony that
a person was intoxicated provided sufficient evidence to establish the element of intoxication).
17
   3 RR 40, 45, 46, 98-99, 105, and 106. See also Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App.
2001) (“Since the definition of ‘intoxicated’ includes ‘not having the normal use of mental or physical
faculties,’ any sign of impairment in the appellant’s ability to speak would be circumstantially relevant to
whether he was legally intoxicated while driving.”); Cotton v. State, 686 S.W.2d 140, 143 n. 3 (Tex. Crim.
App. 1985) (enumerating non-exhaustive list of signs of intoxication, including slurred speech, bloodshot
eyes, the odor of alcohol, unsteady balance, and staggered gait).
18
   3 RR 127; 5 RR 9.

                                                                                                    Page 6
pm. 19 When Officer Lobo approached the vehicle, the window was not rolled down

completely, Beall was attempting to light a cigarette, and Beall asked Officer Lobo

for a light.20 Officer Lobo noted Beall was fidgeting, directing his attention

downwards, kept trying to use his mobile phone, and was failing to follow Officer

Lobo’s instructions by continuing to move his hands in dangerous positions.21 Any

rational jury could reasonably infer that Beall’s actions evidenced a loss of normal

physical and/or mental faculties resulting from the consumption of the alcohol Beall

admitted consuming, the odor of which remained detectable by the police.22

        Both Sergeant Joseph Moreno (hereinafter “Sergeant Moreno”) and Officer

Lobo noted Beall had an unopened beer can in his vehicle’s passenger seat.23

Additionally, both officers could smell a strong odor of alcohol on Beall,24 noted

Beall’s slurred speech,25 and Beall’s bloodshot eyes.26 When asked to exit his

vehicle, Beall staggered while being otherwise unsteady on his feet.27 Beall told

officers he had had a couple of beers and he was coming from the river.28 Beall



19
   3 RR 88-89.
20
   3 RR 92.
21
   3 RR 92-95. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) (providing that inability to
perform field-sobriety tests or follow directions logically raise an inference that the accused was intoxicated).
22
   3 RR 48; 3 RR 106
23
   3 RR 56; 3 RR 91.
24
   3 RR 45; 3 RR 105.
25
   3 RR 46; 3 RR 106.
26
   3 RR 106.
27
   3 RR 40; 3 RR 98-99.
28
   3 RR 48; 3 RR 106.

                                                                                                        Page 7
appeared confused on many simple matters.29 During the traffic stop’s pendency,

Beall was negotiating with officers to leave his vehicle and his dog at the scene and

just walk home.30 Beall subsequently refused to participate in standard field sobriety

tests.31 Additionally, Beall refused to provide a sample of his breath for alcohol

concentration analysis.32 During transport to the jail, Beall asked to urinate

continually.33 While at the jail and during the booking process, Beall told Sergeant

Moreno the last time he ate was 10 o’clock in the morning at a local restaurant.34 The

cumulative force of all the incriminating circumstances clearly supports the jury’s

finding.35

        Viewing the evidence in the light most favorable to the jury’s verdict, a

rational factfinder could have determined from the evidence that Beall committed the

offense of driving while intoxicated by operating a motor vehicle in a public place

while intoxicated. Beall admitted to consuming alcohol on an empty stomach prior

to his driving. Officers observed actions consistent with a loss of physical and

mental faculties. His subsequent refusal to perform field sobriety and breath testing is




29
   3 RR 49.
30
   3 RR 108.
31
   3 RR 47; 3 RR 107.
32
   3 RR 55.
33
   3 RR 48; 3 RR 110-111.
34
   3 RR 48.
35
   Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

                                                                                 Page 8
significant evidence of Beall’s own consciousness of his guilt.36 Further, Beall’s

actions in attempting light a cigarette and keeping his window partly up could have

been viewed by the jury as further attempts by Beall to conceal evidence of his

drinking from the officers.37 Therefore, the evidence is legally sufficient to support

the jury’s verdict. Beall’s issue one claim is meritless.


                                                 PRAYER
        The State prays this Court affirm the conviction and sentence.


                                                   Respectfully submitted,

                                                   By:
                                                   Wesley Mau
                                                   Criminal District Attorney
                                                   712 South Stagecoach Trail, Suite 2057
                                                   San Marcos, Texas 78666
                                                   State Bar No. 00784539
                                                   Attorney for the State of Texas
                                                   wes.mau@co.hays.tx.us



36
   Jackson v. State, 468 S.W.3d 189, 193 (Tex. App.—Houston [14th Dist.] 2015, no pet.), citing Bartlett v.
State, 270 S.W.3d 147, 153 (Tex.Crim.App.2008) (recognizing defendant's refusal to submit to breath test is
relevant to show consciousness of guilt); Barraza v. State, 733 S.W.2d 379, 381 (Tex.App.–Corpus Christi
1987), aff'd, 790 S.W.2d 654 (Tex. Crim.App.1990) (holding there is no significant difference between
refusal to take field-sobriety test and refusal to perform breath test for evidentiary purposes). See also Tex.
Transp. Code Ann. § 724.061 (“A person’s refusal of a request by an officer to submit to the taking of a
specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the
specimen, may be introduced into evidence at the person’s trial.”)
37
   Attempts to conceal evidence also show consciousness of guilt. See Guevara v. State, 152 S .W.3d 45, 50
(Tex.Crim.App.2004) (concluding that “[a]ttempts to conceal incriminating evidence, inconsistent
statements, and implausible explanations to the police are probative of wrongful conduct and are also
circumstances of guilt”); Tezino v. State, 765 S.W.2d 482, 485 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd)
(stating that concealment of pertinent evidence supports inference of guilt)

                                                                                                       Page 9
                        CERTIFICATE OF COMPLIANCE
                         WITH TEX. R. APP. P., RULE 9.4
      I certify that this brief contains 1,87 words, exclusive of the caption, identity of

parties and counsel, statement regarding oral argument, table of contents, index of

authorities, statement of the case, statement of issues presented, statement of

jurisdiction, statement of procedural history, signature, proof of service, certification,

certificate of compliance, and appendix.




                                         Wes Mau
                                         Criminal District Attorney




                                                                                 Page 10
                         CERTIFICATE OF SERVICE
      I certify that a true copy of the foregoing brief has been email-delivered to:

Kristen Jernigan via email to Kristen@txcrimapp.com, on this the 6th day of

October, 2016.




                                      Wes Mau
                                      Criminal District Attorney




                                                                            Page 11
