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 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 

ACCEPTED

03-16-00226-CR

13098823

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/6/2016 11:45:24 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/6/2016 11:45:24 AM JEFFREY D. KYLE Clerk
ii

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
iii

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
iv

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
v

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
Page 1

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 2

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 3

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 4

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 5

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 6

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 7

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 8

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 9

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 10

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 11

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