NO. 03

- 16

- 00226

- CR

COURT OF APPEALS

FOR THE

THIRD SUPREME JUDICIAL DIS TRICT

JAMES BEALL
, Appellant

VS. THE STATE OF TEXAS, Appellee

APPEAL FROM

THE 22ND JUDICIAL DISTRICT CO URT

HAYS COUNTY, TEXAS

TRIAL COURT CAUSE NO S

. 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

CLERKii 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 Attorney s for the State of Texas
On appeal : Wesley H. Mau, Criminal District Attorney Brian Erskine, Assistant Criminal District Attorney
Appellant: James Beall
Attorney s :

At trial : Lowell Kendall 524 Exchange Ave., Ste

. D Schertz, Texas 78154
On appeal : Kristen Jernigan 207 S. Austin Ave. Georgetown, Texas 78626iii TABLE OF CONTENTS

NAMES OF PARTIES

................................ ................................ ............................... II TABLE OF CONTENTS

................................ ................................ .......................... III INDEX OF AUTHORITIES

................................ ................................ .................... IV STATEMENT OF THE CAS E

................................ ................................ .................. 2 STATEMENT REGARDING ORAL ARGUMENT

................................ .............. 2 STATEMENT OF FACTS

................................ ................................ ......................... 2 SUMMARY OF THE ARGUM ENT

................................ ................................ ........ 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 COMPL IANCE WITH TEX. R. APP. P., RULE 9.4

....... 10 CERTIFICATE OF SERVI CE

................................ ................................ ................ 11iv 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. Stat e , 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).

................................ ...... 4v 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

T EX

. R. A PP

. P. 38.2

................................ ................................ ................................ ....... 1
Tex. Transp. Code Ann. § 724.061

................................ ................................ ................ 9Page 1 NO. 03

- 1 6

- 00 226

- CR

COURT OF APPEALS

FOR THE

THIRD SUPREME JUDICIAL DIS TRICT

JAMES BEALL
, Appellant

VS. THE STATE OF TEXAS, Appellee

APPEAL FROM

THE 22ND JUDICIAL DISTRICT CO URT

HAYS COUNTY, TEXAS

TRIAL COURT CAUSE NO

. CR

- 15

- 0485

STATE ’ S BRIEF

TO THE HONORABLE JUSTICE S 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 R ule 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 , 201 5
, 1

for Driving While Intoxicated, 3 rd or m ore. The jury conv icted and sentenced Beall to
eight ( 8 ) years confinement in the Texas Department of Criminal Justice ’ s

Institutional Division (TDCJ

- ID)

. 2

STATEMENT REGARDING ORAL ARGUM ENT 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 intoxicat ed finding.

N o 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 SUFFICIE NT FOR A RATIONAL TR IER OF FACT TO HAVE FOUND THE ES SENTIAL ELEMENTS BEY OND A REASONABLE DOUBT

A. Suffic iency 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 st andard 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 cou ld have found the essential elements of
the crime beyond a reasonable doubt, and

(2) a ssume 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 5 12, 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... [I t] 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 so lely 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 C ircumstantial 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, 41 7 (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. A pplication of Law to Facts: Evidence Suffic ient 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

intoxica tion, 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

alcoho l 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

.
N o blood alcohol concentration evidence was presented

. But the evidence does not

need to be o verwhelming to be legally sufficient. Many defendants risk a jury tr ial
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. Sta te , 275 S.W.3d 512, 522 (Tex. Crim. App. 2009 ) (stating that under the Jackson standard, “ it is the jury ’ s duty ‘ to resolve c onflicts 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

len s , 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 d riving while intoxicated if he operate s 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 officer s ’ beliefs that Beall was
intoxicated for a myriad of reasons including
, but not limited to
, unsteadiness, slurred
speech, alcohol odor
, and bloodshot eyes

. A ll of these facts support the jury ’ s

intoxica tion 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 evidenc e to establi sh 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 p m

. 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 f aculties 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 hi s vehicle ’ s passenger seat. 23

Additionally, b oth 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 fie ld

- sobriety tests or follow directions logically raise an inference th at 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

continual ly. 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 T he
cumulative force of all the incriminating circumstances clearly support s 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 physic al 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 th is 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 65 4 (Tex. Crim.App.1990) (holding there is no significant difference between refusal to take fie ld

- 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 consc iousness 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. r ef'd) (stating that concealment of pertinent evidence supports inference of guilt)Page 10 CERTIFICATE OF COMPL IANCE

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, state me nt of
jurisdiction, statement of procedural history, signature, proof of service, certification,
certificate of compliance, and appendix.

Wes Mau Criminal District AttorneyPage 11 CERTIFICATE OF SERVI C E I certify that a true copy of the foregoing brief has been e mail

- delivered to :
Kristen Jernigan via email to Kristen@txcrimapp.com
, on this the 6th day of

October, 2016

.

Wes Mau Criminal District Attorney