Opinion filed September 30, 2010

In The

Eleventh Court of Appeals 

__________

No. 11-09-00076-CR

__________

CECIL CLAYTON WEEMS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the County Court at Law

Brown County, Texas

Trial Court Cause No. 0800499

O P I N I O N

The jury convicted Cecil Clayton Weems of driving while intoxicated. The trial court 

assessed appellant’s punishment at confinement for 180 days in the Brown County Jail. We 

affirm.

Issues on Appeal

Appellant presents two issues for review. In his first issue, he contends that the 

prosecutor improperly commented during closing argument on his failure to testify. In his brief, 

appellant has failed to identify any alleged error committed by the trial court in connection with 

his first issue. In the trial court, appellant moved for a mistrial and, later, moved for a new trial 
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on the ground that the prosecutor had commented on his failure to testify. The trial court denied 

both motions. Therefore, we construe appellant’s first issue to be that the trial court erred in 

denying his motion for mistrial and his motion for new trial. In appellant’s second issue, he 

challenges the legal and factual sufficiency of the evidence to support his conviction.

Sufficiency of the Evidence Standards of Review

To determine if the evidence is legally sufficient, the appellate court reviews all of the 

evidence in the light most favorable to the verdict and determines whether any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 

443 U.S. 307, 319 (1979); Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009); 

Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is 

factually sufficient, the appellate court reviews all of the evidence in a neutral light. Laster, 275 

S.W.3d at 519; Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Johnson v. State, 23 

S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 

1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court 

determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong 

and manifestly unjust or whether the verdict is against the great weight and preponderance of the 

conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The jury, as the 

finder of fact, is the sole judge of the weight and credibility of the witnesses’ testimony. TEX. CODE 

CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).

The Evidence at Trial

The record shows that a one-vehicle accident involving a Ford pickup occurred in rural 

Brown County in the area where County Road 270, County Road 257, and Farm-to-Market Road 

2525 intersect. On April 5, 2008, at about 4:14 a.m., EMS personnel were dispatched to attend to a 

possible snake bite victim at a residence on a county road in Brown County. Christopher Michael

Bennington and his partner responded to the call. While they were on their way to the residence, 

they came upon the scene. Bennington said that the pickup was ―off the road into the trees.‖ 

Bennington testified that the area in question consisted of a tree-lined dirt road that had ditches 

on both sides. The EMS personnel stopped to see whether anyone was inside the pickup. They 

determined that no one was in the pickup or in the area, and they reported the accident to the 

Brown County Sheriff’s Department. The EMS personnel had not seen anyone along the road as 

they had driven to the accident scene. They continued their trip to attend to the possible snake 

bite victim. As they approached the residence, they did not see anyone along the road.
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Bennington and his partner arrived at the residence at 4:41 a.m. The accident involving 

the pickup had occurred about four-tenths of a mile from the front entrance gate of the residence. 

Appellant was lying down on the front porch of the residence. He told the EMS personnel that a 

snake had bitten his leg and that the snake was still in his pants. Appellant was holding onto his

left pants leg with both hands and believed that he was holding the snake. Eventually, 

Bennington cut off appellant’s pants. Bennington testified that there was no snake in appellant’s 

pants. An examination of appellant revealed that he had not been bitten by a snake. Instead, 

appellant had cactus thorns in his leg. Bennington testified that appellant was ―a little confused 

and disoriented‖ and that appellant gave ―somewhat confused and vague answers.‖ Appellant 

said that his name was ―Cecil Clayton.‖

Brown County Deputy Sheriff Kelly Ray Marsh received a call to assist the EMS 

personnel at the residence on County Road 257. Deputy Marsh drove by the accident scene on 

his way to the residence, and he did not see anybody in the area. Deputy Marsh described the 

area as ―very rural‖ and fenced-in ―pasture land and ranch land.‖ Deputy Marsh then proceeded 

to the residence. He said that appellant’s speech was very slurred. Deputy Marsh asked 

appellant his name a number of times. Appellant responded but Deputy Marsh could not 

understand him. When Deputy Marsh asked appellant for his driver’s license, he had difficulty 

finding it in his wallet. Deputy Marsh said that appellant dug through his wallet and ―pass[ed] 

over his driver’s license about three times‖ before finding the license with Deputy Marsh’s help. 

Appellant’s driver’s license indicated that he lived on Hickory Street. Deputy Marsh testified 

that appellant was unable to get up by himself or to stand on his own. Deputy Marsh said that 

appellant kept saying that he had been ―out for a walk.‖

Appellant wanted to get checked out at the hospital, and the EMS personnel transported 

him to the emergency room at the Brownwood Regional Medical Center. Appellant arrived at 

the hospital at 5:25 a.m. Stephen Ross Nichols, M.D., an emergency room physician, examined 

him. Dr. Nichols testified that appellant was agitated and had an irrational thought that a snake 

had crawled up into his pants and bitten him. The medical records indicate that appellant had 

―decreased mental status,‖ was ―off balance,‖ and had ―involuntary movements.‖ Dr. Nichols 

said that appellant was slow to respond to commands and gave inappropriate responses. While at 

the hospital, appellant tested positive for methamphetamine and tetrahydrocannabinol (THC).

Dr. Nichols testified that THC is a metabolic derivative of marihuana and that ―THC‖ is a 

common abbreviation for marihuana. He said that methamphetamine is a stimulant that is 
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classified as a controlled substance. He also said that stimulant abuse commonly causes 

irrational thoughts, delusional thoughts, and hallucinations. Dr. Nichols diagnosed appellant 

with substance abuse. Dr. Nichols concluded that appellant’s use of methamphetamine and 

marihuana caused his irrational thoughts and that appellant had lost the normal use of his mental 

faculties.

Deputy Marsh went to the accident scene. He said that a pickup had been crashed into a 

group of trees. He said that a name badge in the pickup had the name ―Cecil‖ on it. Deputy 

Marsh believed that only one person was in the pickup when the accident occurred. He said that 

there were blankets in the front passenger seat and several items of clothing in the backseat. 

Deputy Marsh said that there were two properties between the accident scene and the residence 

where appellant was found. He said that the front entrance gates to both of these properties were 

locked.

 Department of Public Safety Trooper Kyle Wayne Cook was dispatched to the accident 

scene. He arrived at the scene at 6:29 a.m. He spoke with Deputy Marsh when he arrived. 

Trooper Cook said that an insurance card that was found in the pickup showed the owner of the 

pickup to be ―Karen Kay Keel.‖ Trooper Cook determined that Keel was the registered owner of 

the pickup. Keel is appellant’s mother. On the date of the accident, she lived at 714 Hickory 

Street in Brownwood. Trooper Cook concluded that, based on his investigation, the driver was 

the only person in the pickup when the accident occurred. He arrived at this conclusion because 

the driver’s side door was unlocked, the passenger’s side door was locked, the driver’s airbag 

deployed, and the passenger’s airbag did not deploy.

Trooper Cook testified that he went to the hospital to interview appellant about the

accident. Trooper Cook said that appellant was slow to answer questions. He said that appellant 

stuttered, slurred his speech, and gave evasive answers. When appellant realized that 

Trooper Cook was a police officer, appellant did not want to have anything to do with him. 

Appellant refused to provide a blood sample upon Trooper Cook’s request. Trooper Cook said 

that Keel came to the hospital. Appellant did not want Keel to talk with Trooper Cook. 

Trooper Cook said that, at one point, when the blood-pressure cuff on appellant’s arm activated, 

appellant ―jumped forward, lunged and screamed like a paranoid person would do.‖

Trooper Cook also testified that, in general, individuals who are under the influence of 

methamphetamine are ―[v]ery paranoid, jumpy, [and] quick to react‖ and ―don’t think logically.‖ 
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He said that individuals who use methamphetamine ―lose control of their mental and physical 

faculties.‖

Keel testified that she owned the pickup that was involved in the accident. Keel said that 

appellant typically drove the pickup and that he had it on the night of the accident. She said that 

appellant called her at 1:00 or 1:30 a.m. on the night of the accident. At that time, appellant was 

―a little upset,‖ and he thought that someone was following him. Keel said that appellant called 

her again later and said that he needed her ―to send those people.‖ Keel responded, ―Okay, what 

people?‖ Appellant then said, ―No, you weren’t there.‖ Keel then asked appellant, ―Are you still 

driving?‖ Appellant responded, ―No,‖ and also said that he was ―out of the vehicle.‖ Keel 

believed that appellant told her that he was in the woods. Keel testified that she had not had any 

conversations with appellant about whether he was driving the pickup when the accident 

occurred.

Analysis

To obtain a conviction for driving while intoxicated, the State must prove that the 

defendant operated a motor vehicle in a public place while intoxicated. TEX. PENAL CODE ANN.

§ 49.04(a) (Vernon 2003). The State need not establish the precise time of an accident or of the 

defendant’s driving to prove the offense of 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); Zavala v. State, 89 S.W.3d 134, 139 (Tex. App.—Corpus 

Christi 2002, no pet.). However, the State must establish ―a temporal link between the 

defendant’s intoxication and his driving.‖ Kuciemba, 310 S.W.3d at 462. Thus, there must be 

proof from which the jury can conclude that, at the time of the driving in question, whenever that 

may have been, the defendant was intoxicated. Zavala, 89 S.W.3d at 139. A conviction for 

driving while intoxicated can be supported solely by circumstantial evidence. Kuciemba, 310 

S.W.3d at 462. Being intoxicated at the scene of a traffic accident in which the defendant was 

the driver is some circumstantial evidence that the defendant’s intoxication caused the accident, 

and the inference of causation is even stronger when the accident is a one-car collision with an 

inanimate object. Id.

Appellant contends that the evidence was legally and factually insufficient to establish 

that he operated a motor vehicle. He also contends that, if the evidence was sufficient to 

establish that he operated a motor vehicle, the evidence was legally and factually insufficient to 

establish that he operated a motor vehicle while intoxicated.
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Appellant’s mother, Keel, owned the pickup. Keel testified that appellant typically drove 

the pickup and that he had it on the night of the accident. Appellant called Keel at 1:00 or 

1:30 a.m. At that time, appellant believed that someone was following him. In the later phone 

call, Keel asked appellant whether he was still driving. Appellant responded that he was not 

driving and was ―out of the vehicle.‖ The evidence showed that the accident occurred in a ―very 

rural‖ area. Appellant was found about four-tenths of a mile from the accident scene. The police 

officers and EMS personnel did not see anyone else at the accident scene or in the surrounding 

area. The evidence was legally and factually sufficient to establish that appellant was driving the 

pickup and, therefore, operating a motor vehicle when the accident occurred. 

In the jury charge in this cause, the trial court defined ―intoxicated‖ as ―not having the 

normal use of one’s physical or mental faculties by reason of the introduction of a controlled 

substance, a drug, or a dangerous drug into the body.‖ See TEX. PENAL CODE ANN. § 49.01(2)(A)

(Vernon 2003). At the hospital, appellant tested positive for methamphetamine and marihuana, 

which are both controlled substances. See TEX. HEALTH & SAFETY CODE ANN. § 481.032 

(Vernon 2010). Dr. Nichols diagnosed appellant with substance abuse. Dr. Nichols attributed 

appellant’s irrational thoughts to his use of methamphetamine and marihuana, and Dr. Nichols 

said that appellant had lost the normal use of his mental faculties. Trooper Cook’s testimony 

supports the conclusion that appellant had lost the normal use of his mental faculties as a result 

of his use of methamphetamine and marihuana. Trooper Cook said that appellant stuttered, 

slurred his speech, and gave evasive answers at the hospital. Trooper Cook also testified about 

appellant’s reaction to the blood-pressure cuff activating.

The State presented evidence that appellant lost the normal use of his mental and physical 

faculties for a lengthy period of time. Appellant had the irrational thought about a snake 

crawling into his pants and biting him when the EMS personnel attended to him at the residence. 

Appellant also thought that the snake was still in his pants and that he was holding it. Appellant 

was confused and disoriented, and his speech was slurred at the residence. Deputy Marsh said 

that appellant could not get up by himself or stand on his own. Keel’s testimony supports a 

reasonable inference that appellant lost the normal use of his mental faculties before the accident 

occurred. According to Keel, appellant thought that he was being followed at 1:00 or 1:30 a.m. 

Later, appellant told Keel that he was no longer driving and that he needed her ―to send those 

people.‖
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Based on the evidence, the jury could have reasonably concluded that appellant operated 

the pickup in a public place while not having the normal use of his physical or mental faculties 

by the reason of the introduction of methamphetamine or marihuana into his body. The evidence

established a temporal link between appellant’s driving and his intoxication. We conclude that 

the evidence was legally and factually sufficient to support his conviction. Appellant’s second 

issue is overruled. 

Prosecutor’s Statements During Closing Argument

In his first issue, appellant contends that the trial court erred in denying his motion for 

mistrial and motion for new trial because the prosecutor commented on his failure to testify. A

comment on a defendant’s failure to testify offends the Texas and United States Constitutions, as 

well as Texas statutory law. U.S. CONST. amend. V; TEX. CONST. art. I, § 10; TEX. CODE CRIM.

PROC. ANN. art. 38.08 (Vernon 2005). A prosecutor’s comment amounts to an impermissible 

comment on a defendant’s failure to testify only if, when viewed from the jury’s standpoint, the 

comment is manifestly intended to be, or is of such character that a typical jury would naturally 

and necessarily take it to be, a comment on the defendant’s failure to testify. Cruz v. State, 225 

S.W.3d 546, 548 (Tex. Crim. App. 2007); Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. 

App. 2001).

Appellant contends that the following statements made by the prosecutor constituted 

comments on his failure to testify:

 (1) Sometimes the only person who is an eye-witness is the person who 

committed the crime, and we’re not allowed to call them as the State, and they 

have a right not to testify and the State – and you can’t hold that against them, but 

we can still as a State prosecute them and prove that they committed a crime, and 

we can do that by looking at circumstantial evidence.

 (2) The only one who can testify to it directly, the law doesn’t allow us to 

even consider whether or not he testifies.

 (3) The only person who can tell us the truth is the person who wouldn’t 

cooperate. He wouldn’t cooperate with the police for a reason, because he knew 

that if he told the police the truth, they would arrest him on the spot and he would 

definitely be convicted.

 Now, you may say, well, you know, he was intoxicated at the time. He was 

paranoid. Of course, he doesn’t want to talk to the police. But, it’s been nine 

months since then. He could have given them any information about who that 

driver was, and he hasn’t cooperated with them since then. This is all about 

taking responsibility, and he doesn’t want to do that.
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Appellant’s counsel did not object to these statements, request an instruction to disregard 

the statements, or move for a mistrial during the prosecutor’s closing argument.1 Instead, after 

the jury retired to deliberate, appellant’s counsel moved the trial court for a mistrial on the 

ground that ―[t]he prosecutor made several references to [appellant] not testifying.‖ The trial 

court denied appellant’s motion. Later, appellant complained of the prosecutor’s closing 

argument in a motion for new trial. The trial court also denied that motion.

If the harm caused by an improper jury argument is incurable, a motion for mistrial is 

sufficient to preserve error for appellate review. Cruz, 225 S.W.3d at 548; Young v. State, 137 

S.W.3d 65, 70 (Tex. Crim. App. 2004). However, to preserve error, a motion for mistrial must 

be timely. Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). A motion for mistrial 

is timely only if it is made as soon as the grounds for it become apparent. Id.

 In this cause, the ground for appellant’s motion for mistrial became apparent during the 

prosecutor’s closing argument. However, appellant failed to move for a mistrial until after the 

prosecutor had concluded her closing argument. As such, appellant’s motion for mistrial was 

untimely and failed to preserve his first appellate issue for review. Id. Appellant’s first issue is 

overruled. 

Assuming that appellant preserved his first issue for review, we conclude that the trial 

court did not err in denying his motion for mistrial and his motion for new trial. We review a 

trial court’s denial of a motion for mistrial under an abuse of discretion standard. Archie v. State, 

221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. 

App. 2004). We review a trial court’s denial of a motion for new trial under the same standard. 

Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). 

Appellant complains about the prosecutor’s statement that ―we’re not allowed to call 

them as the State, and they have a right not to testify and the State -- and you can’t hold that 

against them.‖ The prosecutor made this statement in the context of explaining that the State

may use circumstantial evidence and is not required to present eyewitness testimony to prove 

that an individual committed a crime. Appellant also complains about the prosecutor’s statement 

 

1

In an affidavit in support of appellant’s motion for new trial, appellant’s counsel explained that he had not objected 

during closing argument to the prosecutor’s statements because he had not heard them. If appellant’s counsel could not hear the 

prosecutor’s closing argument, he should have requested relief from the trial court. The trial court, among other things, could 

have instructed the prosecutor to talk louder or permitted appellant’s counsel to move to a place in the courtroom where he could 

hear the prosecutor’s argument. 
9

that ―[t]he only one who can testify to it directly, the law doesn’t allow us to even consider 

whether or not he testifies.‖ The trial court’s jury charge contained the following instruction 

regarding appellant’s election not to testify: 

 Our law provides that a defendant may testify in his own behalf if he elects to 

do so. This, however, is a privilege afforded to a defendant, and, in the event he 

elects not to testify, that fact cannot be taken as a circumstance against him. In 

this case, the Defendant has elected not to testify, and you are instructed that you 

cannot and must not refer or allude to that fact throughout your deliberations or 

take it into consideration for any purpose whatsoever as a circumstance against 

the defendant.2

In the complained-of comments, the prosecutor essentially restated the trial court’s instructions 

to the jury. She reminded the jury that it could not consider appellant’s election not to testify. 

The prosecutor recognized appellant’s right not to testify; she did not comment negatively on 

appellant’s failure to testify. Therefore, the prosecutor’s statements did not amount to improper 

comments on appellant’s failure to testify. Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. 

App. 1999); Bullard v. State, 706 S.W.2d 329, 331 (Tex. App.—Houston [14th Dist.] 1986, pet. 

ref’d).

Appellant also complains about the prosecutor’s statement that ―[t]he only person who 

can tell us the truth is the person who wouldn’t cooperate.‖ As set forth above, immediately 

after this statement, the prosecutor stated that ―[appellant] wouldn’t cooperate with the police for 

a reason.‖ The prosecutor then made additional statements about appellant’s failure to cooperate 

with the police. Trooper Cook’s testimony supports the conclusion that appellant would not 

cooperate with the police. Trooper Cook said that, once appellant realized he was a police 

officer, appellant did not want to have anything to do with him. Appellant also did not want 

Keel to talk to Trooper Cook. Viewed in context, the complained-of statement by the prosecutor

relates to appellant’s lack of cooperation with the police rather than his failure to testify. As 

such, the statement did not constitute an impermissible comment on appellant’s failure to testify. 

The prosecutor did not impermissibly comment on appellant’s failure to testify. 

Therefore, assuming that appellant preserved error, we conclude that the trial court did not abuse 

its discretion in denying appellant’s motion for mistrial and his motion for new trial.

 We also conclude that the trial court did not err in denying appellant’s motions for 

another reason. Except in the most blatant instances, an instruction to disregard a comment on 

 

2The trial court’s written jury charge contained a typographical error. It stated ―what purpose whatsoever‖ instead of 

―any purpose whatsoever.‖ The trial court corrected the instruction when it read the instructions to the jury. 
10

the defendant’s failure to testify will cure any harm caused by the comment. Moore v. State, 999 

S.W.2d 385, 405-06 (Tex. Crim. App. 1999). If a defendant fails to request an instruction to 

disregard and the instruction would have cured any harm, the trial court does not abuse its 

discretion in denying a motion for mistrial. Young, 137 S.W.3d at 72. Even if the prosecutor’s 

statements in this cause amounted to comments on appellant’s failure to testify, they were not so 

blatant that they would have rendered an instruction to disregard ineffective. Moore, 999 S.W.2d 

at 405-06. Because appellant failed to request an instruction to disregard, the trial court did not 

abuse its discretion in denying his motions. Young, 137 S.W.3d at 72.

This Court’s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE 

September 30, 2010

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.