                                  NO. 12-18-00136-CR

                             IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 RICKY TAYLOR WATSON,                             §      APPEAL FROM THE 114TH
 APPELLANT

 V.                                               §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Ricky Taylor Watson appeals his conviction for driving while intoxicated (DWI). In one
issue, Appellant challenges the legal sufficiency of the evidence. We affirm.


                                         BACKGROUND
       At approximately 3:00 p.m. on Memorial Day, May 29, 2017, Shirley Clark was driving
south on Farm-to-Market Road Fourteen (FM 14), a two-lane highway just north of Tyler, Texas.
She saw a vehicle, later determined to be operated by Appellant, turn left from County Road 3154
(CR 3154) into her lane of traffic on FM 14. She immediately took evasive action, but the two
vehicles collided. Clark could no longer drive her vehicle, whereas Appellant drove away from
the scene of the accident.
       Clark’s sister, Beverly Ates, had been driving behind her and upon seeing that Appellant
failed to stop, she immediately followed him. Appellant made a U-turn to return from the direction
he had been traveling on CR 3154. Ates followed Appellant for between five and ten minutes until
he pulled into a driveway near his residence. Ates testified at trial that Appellant was driving
erratically as she followed him. This was confirmed at trial by Appellant’s neighbor, Maurice
Longbreak, who observed him pulling into the driveway “a little bit sporadic” and “a little bit out
of control.” After Ates observed Appellant pulling into the driveway, she was instructed by the
9-1-1 dispatcher to return to the scene of the accident where law enforcement officers were
investigating the incident.
         Texas Department of Public Safety (DPS) Trooper Joe Hogue arrived at the accident scene
at approximately 3:04 p.m.            Hogue stated that after he spoke with witnesses, he drove to
Appellant’s house where he was met by Appellant’s daughter, Heather Dear. Dear told Hogue
that Appellant was not in the house and that she thought he went to another neighbor’s house.
Hogue went to that neighbor’s house only to find that Appellant had not been there. This raised
concerns for Hogue that Dear was not being truthful with him. Hogue returned to speak with Dear
at Appellant’s home. Dear told Hogue that Appellant had two beers before 11:00 a.m. that day.
Initially, she denied that Appellant was in the house but eventually confessed that he was home.
She directed Hogue and another DPS officer to the closet where Appellant was hiding. Hogue
testified that Appellant told him that he “messed up.” Hogue observed that Appellant had blood
shot eyes and mumbling speech, to the point of being unintelligible at times. Appellant admitted
to Hogue that he drank a couple of beers before 11:00 a.m. Further, Appellant told Hogue that he
was returning from buying more beer at the time of the accident.
         Hogue arrested Appellant for DWI around 6:15 p.m. At 7:32 p.m., in the Smith County
jail, Appellant had a blood alcohol concentration (BAC) of 0.088. Appellant was indicted for
DWI. At the conclusion of trial, the jury found Appellant “guilty” and assessed his punishment at
five years of imprisonment.1 This appeal followed.


                                       SUFFICIENCY OF THE EVIDENCE
         In his sole issue, Appellant contends that the evidence is insufficient to support his
conviction. Specifically, he argues that the state failed to prove that he was intoxicated at the time
of the accident.
Standard of Review
         When determining if evidence is sufficient to sustain a conviction, the court must apply the
Jackson v. Virginia standard. See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App.

         1
           The offense is a third-degree felony because Appellant has two previous DWI convictions. See TEX. PENAL
CODE ANN. § 49.09(b)(2) (West Supp. 2018); Oliva v. State, 548 S.W.3d 518, 519 (Tex. Crim. App. 2018) (holding
existence of two prior DWI convictions is essential element of offense because it establishes jurisdictional fact needed
to make DWI offense triable in district court).




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2010). This standard requires the court to determine whether, considering all the evidence in the
light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560
(1979); Brooks, 323 S.W.3d at 899. In order to consider the evidence in the light most favorable
to the verdict, 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 their testimony. Brooks,
323 S.W.3d at 899; see Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. This standard recognizes “the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319,
99 S. Ct. at 2789; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). The
fact finder is entitled to judge the credibility of the witnesses, and can 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); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). When
conflicting evidence is presented, we must resolve those conflicts in favor of the verdict and defer
to the fact finder’s resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. We may not substitute
our own judgment for that of the fact finder. See id., 443 U.S. at 319, 99 S. Ct. at 2789; Thornton
v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014); King v. State, 29 S.W.3d 556, 562 (Tex.
Crim. App. 2000). Direct evidence and circumstantial evidence are equally probative, and
circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative
force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v.
State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015).
Applicable Law
        A person commits the offense of DWI if the person is intoxicated while operating a motor
vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2018). “Intoxicated” is
defined as:
        (A) 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

        (B) having an alcohol concentration of 0.08 or more.

Id. at 49.01(2) (West 2011). The definitions contained in Section 49.01(2) set forth alternative
means by which the state may prove intoxication, rather than alternate means of committing the
offense. Bagheri v. State, 119 S.W.3d 755, 762 (Tex. Crim. App. 2003). The conduct proscribed


                                                        3
by the penal code is the act of driving while in a state of intoxication. Id. That does not change
whether the state uses the per se definition or the impairment definition to prove the offense. Id.
Finally, the offense of DWI is a third-degree felony if the defendant has two previous DWI
convictions. See TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2018).
Discussion
       Appellant correctly notes that the BAC test was not performed until 7:32 p.m. on the day
of the accident. The collision occurred at approximately 3:00 p.m. He contends the only evidence
in the record of the alcohol he consumed that day was two twenty-five ounce beers between 6:30
and 11:00 a.m. that day prior to the accident, and therefore, he could not have been intoxicated at
the time of the accident. Scott Brown, the DPS technical supervisor, testified that “it was not
scientifically possible” for Appellant to have consumed alcohol only in those amounts until 11:00
a.m. that day and still be at 0.088 at 7:32 p.m. on the same day. This is because, Brown testified,
taking Appellant’s statement that he stopped drinking at 11:00 a.m. as true, he would have needed
to consume twelve standard twelve ounce beers to still have a BAC of 0.088 at 7:32 p.m.
       However, Brown testified, taking Dear’s testimony as true, that if Appellant consumed two
twenty-five ounce beers prior to 11:00 a.m., and then had only two eighteen-ounce beers after the
accident up until the time of his apprehension at 6:15 p.m., the morning beers would have
dissipated by the time of the accident, yet it was still possible that the afternoon beers “could get
someone to a 0.08.” Brown was also asked what Appellant’s BAC would have been at 3:00 p.m.
had he consumed only the two twenty-five ounce beers that morning as he and his daughter
testified. Brown stated that the potential BAC would have been in a range from 0.00 to 0.06.
Appellant contends that this evidence shows that he could not have been intoxicated at the time of
the accident.
       However, the jury was entitled to judge the credibility of Appellant and Dear and could
choose to believe all, some, or none of their testimony. See Chambers, 805 S.W.2d at 461. Dear
first testified that Appellant drank only a few beers that morning. Later she testified that he drank
only two beers during the morning. Further, Hogue testified that Dear had not been truthful with
him when he asked her about Appellant’s location after the accident. The jury was able to view
video evidence of Hogue’s second interview with Dear following the accident. The jury was
entitled to believe Dear’s testimony that Appellant had been drinking that day but not her testimony
as to the amount he drank and during what time period. Brown testified that had Appellant



                                                 4
consumed twelve beers by 11:00 a.m. prior to the 3:00 p.m. accident, as would be necessary to
have a 0.088 BAC at 7:32 p.m. with no further alcohol consumption, Appellant would still have
approximately eight beers in his system at the time of the accident. Brown testified that Appellant
would not likely have the normal use of his mental or physical faculties if he had eight beers
remaining in his system at the time of the accident. When conflicting evidence is presented, we
must defer to the fact finder’s resolution of the facts. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
       In any event, this evidence relates only to the per se definition of intoxication. See Bagheri,
119 S.W.3d at 762. There is also the alternative means of proving intoxication through the
impairment method. Id. Evidence that can logically raise an inference that Appellant was
intoxicated at the time of driving includes his erratic driving and his admission that he had been
drinking. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010). Specifically, there
was testimony from both Ates and Longbreak that Appellant was driving erratically following the
accident. Moreover, both Appellant and Dear testified that he had been drinking that morning
prior to the accident. Appellant also admitted to Hogue that he “messed up.” Additionally, Hogue,
based on his experience and observations of Appellant, concluded that Appellant had been
intoxicated while operating a motor vehicle. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim.
App. 1979). The combination of these facts is sufficient to support Appellant’s conviction for
DWI. See Kirsch, 306 S.W.3d at 746.
       Moreover, a fact finder may draw an inference of guilt from the circumstances of the
Appellant’s flight from the scene of the collision and hiding from law enforcement. Clayton v.
State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007). This constitutes additional incriminating
circumstantial evidence. Id. Fleeing the scene of an accident and hiding from law enforcement,
when combined with the circumstances shown above, further supports the jury’s verdict. Id. at
781.
       Viewing all of the evidence in the light most favorable to the verdict, we conclude that the
jury was rationally justified in finding Appellant guilty of DWI beyond a reasonable doubt. See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Brooks, 323 S.W.3d at 899. Because the
evidence is sufficient to support Appellant’s conviction, we overrule his sole issue.


                                           DISPOSITION
       Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.



                                                 5
                                                                JAMES T. WORTHEN
                                                                   Chief Justice



Opinion delivered March 29, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          6
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 29, 2019


                                         NO. 12-18-00136-CR


                                    RICKY TAYLOR WATSON,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-1519-17)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
