NO. 12-08-00401-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JUSTIN DON COX, § APPEAL FROM THE 114TH

APPELLANT

V. § JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE § SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION

Justin Don Cox appeals his conviction for driving while intoxicated. In his sole issue, 

Appellant argues that the evidence is factually insufficient to prove that he was intoxicated. We 

affirm.

BACKGROUND

Appellant was driving a van on Highway 64 from Tyler to Canton. Cory Weatherford 

was driving a large pickup truck on the same highway traveling in the opposite direction. As 

Weatherford approached Appellant’s van, he noticed that Appellant was driving on the wrong 

side of the road. Realizing that Appellant was not taking corrective measures, Weatherford 

steered to the right, driving his vehicle almost off the side of the road. Despite Weatherford’s 

evasive maneuver, the vehicles still made contact.

Weatherford and the two occupants of his vehicle, Josh Heddin and Kobey Kimbrell, 

then realized that Appellant was not pulling over. Weatherford turned his truck around, chased 

Appellant, and turned on the truck’s wigwag lights. Appellant pulled over, and Weatherford 

positioned his truck in front of Appellant’s van so that Appellant was blocked in. Appellant 

exited his van, and Weatherford, Heddin, and Kimbrell saw him stumble. Appellant admitted 
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that he caused the accident, and claimed that he pulled over as quickly as he safely could do so. 

He also claimed that the accident occurred before a long bridge and that he wanted to get across 

the bridge before pulling over.

Appellant’s conversation was rambling, and he became argumentative as he and 

Weatherford discussed whether the police should be called. Appellant stated that he did not want 

the police to investigate the accident, but Weatherford disagreed. Ultimately, Weatherford used 

Appellant’s cell phone to call the police. Before the police arrived, Appellant went to his van, 

retrieved a bottle of whiskey, and threw it onto the land adjoining the road.

Trooper Tracey Tullis, a veteran trooper with the Texas Department of Public Safety, 

arrived to investigate the accident. Trooper Tullis first spoke with Weatherford, Heddin, and 

Kimbrell. She then approached Appellant to obtain his version of the accident. Appellant 

admitted to causing the accident. During the trooper’s investigation, she determined that the 

accident may have been caused by Appellant’s intoxication. Appellant admitted that he had 

bought a bottle of whiskey that day. He also admitted that he had taken “a couple of swigs” from 

the bottle before driving. Appellant smelled of alcohol, had bloodshot eyes, and could not keep 

his balance. Trooper Tullis performed the horizontal gaze nystagmus test on Appellant, and she 

observed all six clues of intoxication possible from that test. She then conducted the vertical 

gaze nystagmus test on Appellant, and again she observed clues suggesting intoxication. 

Trooper Tullis asked Appellant to perform the walk and turn test, and he failed to perform that 

test correctly. The trooper also asked Appellant to recite the alphabet from A to M. He recited 

the alphabet correctly, but he did not stop at M. Appellant then failed to follow instructions on a 

test in which he was asked to count his fingers. Trooper Tullis also saw Appellant stumbling and 

losing his balance. 

Trooper Tullis arrested Appellant for driving while intoxicated. She then retrieved 

Appellant’s whiskey bottle from the land adjoining the road. She asked Appellant to submit to a 

breathalyzer examination, but he refused.

A Smith County grand jury indicted Appellant for the offense of driving while 

intoxicated. The grand jury alleged that the offense was a felony because Appellant had two 

prior convictions for offenses related to the operation of a motor vehicle while intoxicated. The 

grand jury also alleged that Appellant used his vehicle as a deadly weapon. Appellant pleaded 
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not guilty to the charge of driving while intoxicated. The case proceeded to trial, and the jury 

found Appellant guilty as charged. Appellant elected to have the trial court determine his 

sentence. The trial court assessed punishment at imprisonment for ten years and a fine of 

$5,000. This appeal followed.

SUFFICIENCY OF THE EVIDENCE

In his sole issue, Appellant contends that the evidence is factually insufficient to support 

his conviction. Specifically, Appellant argues that the evidence is insufficient to establish that he 

was intoxicated.

Standard of Review

When reviewing the factual sufficiency of the evidence to support a conviction, we view 

the evidence in a neutral light and ask whether the evidence supporting the verdict is so weak or 

so against the great weight and preponderance of the evidence as to render the verdict manifestly 

unjust. Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009). In conducting a factual 

sufficiency review, we must discuss the evidence that, according to the appellant, most 

undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). 

Although we are authorized to disagree with the jury’s determination to a very limited degree, 

we must nevertheless give the jury’s verdict a great degree of deference. Steadman, 280 S.W.3d 

at 246. Our evaluation should not substantially intrude upon the jury’s role as the sole judge of 

the weight and credibility of witness testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex. 

Crim. App. 1997); see Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). 

Any issue in a criminal case may be proven circumstantially. See Jordan v. State, 707 

S.W.2d 641, 644-45 (Tex. Crim. App. 1986). Circumstantial evidence is as probative as direct 

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient 

to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In a 

circumstantial evidence case, it is unnecessary for every fact to point directly and independently 

to the defendant’s guilt; rather, it is sufficient if the finding of guilt is supported by the 

cumulative force of all the incriminating evidence. Powell v. State, 194 S.W.3d 503, 507 (Tex. 

Crim. App. 2006). Further, the factual sufficiency of the evidence is measured against the 

elements of the offense as defined by a hypothetically correct jury charge. Grotti v. State, 273 
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S.W.3d 273, 281 (Tex. Crim. App. 2008). Such a charge would include one that accurately sets 

out the law, is authorized by the indictment, does not unnecessarily increase the state’s burden of 

proof or restrict the state’s theories of liability, and adequately describes the particular offense 

for which the defendant was tried. Id. at 280-81.

As alleged in the indictment in this case, the State was required to prove that Appellant 

drove a motor vehicle in a public place while intoxicated and that he had two prior convictions 

for driving while intoxicated. TEX. PENAL CODE ANN. §§ 49.04 (Vernon 2003), 49.09(b)(2) 

(Vernon Supp. 2008). As relevant here, a person is intoxicated if he does not have the normal use 

of his 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. See id. § 49.01(2) (Vernon 2003).

Analysis

Appellant argues that there was insufficient evidence to show that he was intoxicated. We 

disagree.

In this case, the State presented direct opinion testimony as well as convincing 

circumstantial evidence that Appellant was intoxicated. Weatherford, Heddin, and Kimbrell

testified that they observed Appellant driving erratically. Specifically, they saw Appellant cross 

the center line, fail to take evasive action to avoid a head on collision, and fail to stop after being 

involved in an accident. When Appellant did stop, Weatherford, Heddin, and Kimbrell observed 

that Appellant had difficulty maintaining his balance, became antagonistic, and engaged in 

rambling conversation. Weatherford and Kimbrell saw Appellant throw a bottle of whiskey out 

of his van.

Further, Trooper Tullis, the investigating officer, testified that Appellant admitted he had 

caused the accident and had been drinking. Trooper Tullis detected a strong odor of alcohol on 

Appellant and observed that Appellant had bloodshot eyes and an unsteady walk. She also 

conducted several sobriety tests, which Appellant failed. These tests were videotaped, and the 

jury was able to see Appellant’s performance. Trooper Tullis retrieved Appellant’s whiskey 

bottle from the scene of the accident, and the bottle was only two-thirds full. The trooper also 

testified that, in her opinion, Appellant was intoxicated. 
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Appellant presented some evidence that is contrary to the verdict. Specifically, Appellant

testified that he did not believe he was intoxicated. He admitted causing the accident, but he 

maintained that it was a minor accident which involved only the contacting of the mirrors of the 

vehicles. He explained that he did not immediately pull over because it was unsafe to do so. He 

said that he pulled over as soon as he got past a long bridge, and Trooper Tullis confirmed that 

Appellant stopped his vehicle just past a bridge. He stated on the video that he had been having 

a bad day because his pet raccoon had died that morning, his mother had told him that his 

grandfather had passed away, and he was having some financial difficulties. Appellant claimed 

that his eyes were bloodshot because he had been crying. He said he smelled of alcohol because 

he had spilt some on his shirt. He also claimed that he performed poorly on the sobriety tests 

because of the stress of his bad day, the effects of having just been in an accident, and the wind, 

traffic, and lights.

The jury heard all of the evidence and resolved the issues of witness credibility in favor 

of the State. After reviewing the evidence in a neutral light and giving the required deference to 

the jury’s verdict, we hold that the evidence is factually sufficient to support the verdict. Our 

review of the record as a whole, with consideration given to all of the evidence both for and 

against the jury's finding, has not caused us to conclude that the proof of guilt is so obviously 

weak or is otherwise so greatly outweighed by contrary proof as to render Appellant's conviction 

clearly wrong or manifestly unjust. We overrule Appellant's sole issue.

DISPOSITION

Having overruled Appellant's sole issue, we affirm the judgment of the trial court.

BRIAN HOYLE

 Justice

Opinion delivered January 6, 2010.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)