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
04-14-00070-CR 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 -2-
04-14-00070-CR 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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04-14-00070-CR
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). -4-
04-14-00070-CR 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 -5-
04-14-00070-CR 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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