Opinion filed August 6, 2015

In The

Eleventh Court of Appeals 

__________

No. 11-13-00238-CR

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JASON VERNOY KIRKPATRICK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law

Ector County, Texas

Trial Court Cause No. 12-2759

M E M O R A N D U M O P I N I O N

Jason Vernoy Kirkpatrick appeals his conviction for the offense of driving 

while intoxicated. See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2014). The 

trial court sentenced Appellant to confinement in the Ector County Jail for a term of 

180 days. The trial court also suspended his driver’s license for 180 days and 

assessed court costs against him. In one issue on appeal, Appellant challenges the

sufficiency of the evidence to support his conviction. We affirm. 
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Background Facts

Officer Jorge Amezola of the Odessa Police Department testified that at 11:00 

p.m. on July 31, 2012, he saw a man on a moped run a stop sign. Officer Amezola 

turned around and followed the moped. Officer Amezola then saw the moped driver 

run a red light. He stopped the moped driver for the traffic violations. Appellant 

was identified as the man driving the moped.

Officer Amezola approached Appellant and observed that Appellant “had 

bloodshot eyes and a strong odor of alcohol.” Officer Amezola asked Appellant if 

he would perform any field sobriety tests. Appellant consented to the tests. 

Appellant first performed the horizontal gaze nystagmus (HGN) test. Officer

Amezola testified that Appellant showed six of six possible clues for intoxication on 

the HGN test. Appellant next performed the walk-and-turn field sobriety test. 

Officer Amezola observed that Appellant showed five out of eight possible clues for 

intoxication. Finally, Appellant performed the one-leg stand field sobriety test. 

Officer Amezola testified that Appellant also failed this test.

After the field sobriety tests, Officer Amezola determined that Appellant was 

too intoxicated to drive. After receiving the required statutory warning, Appellant 

refused Officer Amezola’s request to submit a breath specimen for testing. See TEX.

TRANSP. CODE ANN. § 724.015 (West Supp. 2014). Officer Amezola then arrested

Appellant for driving while intoxicated.

Analysis

In his sole issue, Appellant challenges the sufficiency of the evidence to 

support his conviction. We review a sufficiency of the evidence issue under the 

standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. 

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 

288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we 

review all of the evidence in the light most favorable to the verdict and determine 
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whether any rational trier of fact could have found the elements of the offense 

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 

633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we 

consider all the evidence admitted at trial, including pieces of evidence that may 

have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. 

App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In 

conducting a sufficiency review, we defer to the factfinder’s role as the sole judge 

of the witnesses’ credibility and the weight their testimony is to be afforded. Brooks, 

323 S.W.3d at 899. This standard accounts for the factfinder’s duty 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; Clayton, 235 S.W.3d at 

778. When the record supports conflicting inferences, we presume that the factfinder 

resolved the conflicts in favor of the prosecution and defer to that determination. 

Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.

A person commits the offense of driving while intoxicated “if the person is 

intoxicated while operating a motor vehicle in a public place.” PENAL § 49.04(a). 

Appellant only attacks the element of intoxication. Under the Texas DWI statute, 

intoxication may be proven in either of two ways: (1) loss of normal use of mental 

or physical faculties or (2) alcohol concentration in the blood, breath, or urine of 

0.08 or more. Id. PENAL § 49.01(2) (West 2011); Kirsch v. State, 306 S.W.3d 738, 

743 (Tex. Crim. App. 2010). The first definition is the “impairment” theory, while 

the second is the “per se” theory. Kirsch, 306 S.W.3d at 743. We are only concerned 

with the impairment theory in this appeal because Appellant did not provide a 

specimen for testing. For purposes of the DWI statute, proving an exact intoxicant 

is not an element of the offense. Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim.

App. 2004). Circumstantial evidence may prove that a person has lost the normal 

use of his mental or physical faculties by reason of introduction of a controlled 
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substance or drug into his body. See Smithhart v. State, 503 S.W.2d 283, 284 (Tex.

Crim. App. 1973).

Appellant contends that the State’s evidence was deficient in a number of 

respects. He contends that there was no evidence from a third party or an admission 

by Appellant indicating that that had consumed any alcohol. Appellant argues that 

“the State’s entire case boiled down to Officer Amezola’s testimony.” He faults the 

testimony given by Officer Amezola based on his contention that the officer was 

inexperienced and that he had a predisposition in favor of prosecuting individuals 

for DWI. He also faults the officer for failing to preserve the video recording of

Appellant’s performance on the field sobriety tests.

Officer Amezola testified that he saw Appellant run a stop sign. 

Officer Amezola followed Appellant and then saw him run a red light. 

Officer Amezola stopped Appellant and immediately observed that Appellant “had 

bloodshot eyes and a strong odor of alcohol beverage coming from his person.” 

Appellant then performed three field sobriety tests. Despite Appellant’s contention 

that Officer Amezola was inexperienced, the officer testified that he had investigated 

“many” DWI cases. He also testified that he was certified to perform all three of the 

field sobriety tests that he administered.

Officer Amezola testified that Appellant failed all three tests. Based on his 

observations, Officer Amezola concluded that Appellant was intoxicated while 

operating a motor vehicle. Officer Amezola’s testimony is probative evidence of 

intoxication. Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 

1979) (as a general rule, the testimony of an officer that a person is intoxicated 

provides sufficient evidence to establish the element of intoxication for the offense 

of DWI); Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, 

pet. ref’d) (same); Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston 

[1st Dist.] 2000, pet. ref’d) (same). 
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The applicable standard of review requires us to view the evidence in the light 

most favorable to the verdict. Clayton, 235 S.W.3d at 778. We presume that the 

factfinder resolved Appellant’s perceived deficiencies in the evidence in favor of the 

verdict, and we defer to that resolution. Jackson, 443 U.S. at 326; Clayton, 235 

S.W.3d at 778. We conclude that the evidence is sufficient to support Appellant’s 

conviction because a rational trier of fact could have found the elements of the 

offense beyond a reasonable doubt based upon Officer Amezola’s testimony. We 

overrule Appellant’s sole issue.

This Court’s Ruling

We affirm the judgment of the trial court. 

JOHN M. BAILEY 

JUSTICE

August 6, 2015

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.