IN THE

TENTH COURT OF APPEALS

No. 10-16-00169-CR

BILLY JOE BOOKER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 413th District Court

Johnson County, Texas

Trial Court No. F48257

MEMORANDUM OPINION

The jury convicted Billy Joe Booker of the offense of driving while intoxicated 3rd

offense or more, found the enhancement paragraphs to be true, and assessed punishment 

at 99 years confinement. We affirm.

Directed Verdict

In the first issue, Appellant argues that the trial court erred in denying his motion 

for directed verdict. We review an issue complaining about a trial court's failure to grant 
Booker v. State Page 2

a motion for directed verdict as a challenge to the sufficiency of the evidence. See Williams 

v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996). The Court of Criminal Appeals has 

expressed our standard of review of a sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support 

a conviction, a reviewing court must consider all of the evidence in the light 

most favorable to the verdict and determine whether, based on that 

evidence and reasonable inferences therefrom, a rational fact finder could 

have found the essential elements of the crime beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 

13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the 

responsibility of the trier of fact fairly 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. "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." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d, 132 S.Ct. 2712, 183 

L.Ed.2d 71 (2012). 

The Court of Criminal Appeals has also explained that our review of "all of the 

evidence" includes evidence that was properly and improperly admitted. Conner v. State, 

67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting 

inferences, we must presume that the factfinder resolved the conflicts in favor of the 

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307, 

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence 

are treated equally: "Circumstantial evidence is as probative as direct evidence in 

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to 
Booker v. State Page 3

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well 

established that the factfinder is entitled to judge the credibility of witnesses and can 

choose to believe all, some, or none of the testimony presented by the parties. Chambers 

v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

On January 31, 2014, Nicole Stokley and Porsha Gaut observed Appellant slumped 

over the steering wheel of his vehicle at an intersection. Gaut got out of the vehicle and 

knocked on Appellant’s window, and Stokley honked the horn on her vehicle. Appellant 

then began to drive forward, and Stokley followed behind Appellant. Appellant hit a 

pole and a retaining wall with his vehicle. Gaut and Stokley both observed Appellant 

driving the vehicle, and there were no other passengers in the vehicle. Gaut called 9-1-1, 

and officers from the Cleburne Police Department responded to the call.

Officer Craig Huskey initiated the traffic stop of Appellant’s vehicle, and he 

observed damage to Appellant’s vehicle. Officer Huskey testified that Appellant smelled 

of alcohol and had slurred speech and glassy eyes. Officer Carmack arrived at the scene 

and had appellant perform three field sobriety tests. Officer Carmack testified that 

Appellant exhibited six out of six clues for intoxication on the HGN test, five out of eight 

clues on the walk-and-turn-test, and three out of four clues on the one-legged stand test. 

Appellant told the officers that he consumed six beers and that he was intoxicated. 

A person commits an offense if the person is intoxicated while operating a motor 

vehicle in a public place. TEX. PENAL CODE ANN. 49.04 (a) (West Supp. 2016). Intoxicated 
Booker v. State Page 4

means not having the normal use of mental or physical faculties by reason of the 

introduction of alcohol into the body. TEX. PENAL CODE ANN. 49.01 (2) (A) (West 2011). 

The jury heard evidence that Appellant was the driver of the vehicle and that he 

was driving in a reckless manner striking a pole and a retaining wall. Appellant smelled 

of alcohol, had slurred speech, and glassy eyes. Appellant failed three field sobriety tests 

designed to indicate the loss of a person’s mental or physical faculties. We find that the 

evidence is sufficient to support Appellant’s conviction for driving while intoxicated. We 

overrule the first issue.

Search Warrant

In the second issue and third issues, Appellant argues that the trial court erred in 

admitting into evidence both the affidavit used to obtain the search warrant and the 

search warrant. Officer Carmack prepared an affidavit to obtain Appellant’s blood 

sample. The affidavit had pre-printed boxes for the officer to check. Officer Carmack 

checked the box indicating that he observed Appellant driving a motor vehicle and that 

he initiated a traffic stop. During trial, Officer Carmack testified that the affidavit 

contained an error because he checked the wrong box on the affidavit. Officer Carmack 

clarified that he did not observe Appellant driving and that Officer Huskey initiated the 

traffic stop. Appellant objected to the admission of the affidavit and the search warrant 

into evidence. After a hearing, the trial court admitted the affidavit and search warrant, 

but excluded the results of the blood test. 
Booker v. State Page 5

Appellant argues that the trial court erred in admitting the affidavit because it 

contained false statements and also because it contained conclusory statements that 

lacked specificity to support the issuance of the warrant. In determining whether a trial 

court erred in admitting evidence, the standard for review is abuse of discretion. 

McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005). A trial court abuses its 

discretion when its decision is so clearly wrong as to lie outside that zone within which 

reasonable persons might disagree. Id. 

The affidavit accurately described the field sobriety tests administered to 

Appellant and noted the areas where Appellant was unable to successfully complete the 

field sobriety tests. The affidavit describes in detail the reason Appellant failed each field 

sobriety test. On the affidavit, Officer Carmack made a notation “see back” in the preprinted area. On the reverse side of the form, Officer Carmack gave a handwritten 

narrative that described the events surrounding the arrest. In the narrative, Officer 

Carmack notes that “officers” responded to a call of a vehicle crash and that “a traffic 

stop was initiated” without identifying the specific officer. The narrative gave an 

accurate account of the events surrounding the arrest. Officer Carmack testified at trial 

without objection concerning the errors on the affidavit and corrected the inaccurate 

information. Admitting the affidavit allowed the jurors to compare the affidavit with 

Officer Carmack’s testimony and to judge the credibility of the officer’s testimony. 
Booker v. State Page 6

We find that any error in admitting the affidavit and search warrant did not affect 

Appellant’s substantial rights. TEX.R.APP.P. 44.2 (b). Appellant cross-examined Officer 

Carmack about the incorrect information in the affidavit. The affidavit provided the 

correct narrative on the details surrounding Appellant’s arrest and gave detailed 

information about the field sobriety tests. The affidavit provided probable cause to issue 

the search warrant. See TEX. CODE CRIM. PROC. art. 18.01 (b) (West Supp. 2016). The jury 

heard evidence from other witnesses supporting the narrative contained in the affidavit. 

The jury heard evidence that Appellant’s blood was drawn pursuant to the search 

warrant; however, the results from the blood test were suppressed. We overrule the 

second and third issues. 

In the fourth issue, Appellant complains that the trial court erred in initially 

denying his motion to suppress the blood test results. When reviewing a trial court's 

ruling on a motion to suppress, we view the evidence in the light most favorable to the 

trial court's ruling. State v. Robinson, 334 S.W.3d 776, 778 (Tex.Crim.App.2011); State v. 

Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006). The trial judge is the sole trier of fact and 

judge of the credibility of the witnesses and the weight to be given to their testimony. 

Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.2007). Therefore, we give almost total 

deference to the trial court's rulings on (1) questions of historical fact, even if the trial 

court's determination of those facts was not based on an evaluation of credibility and 

demeanor; and (2) application-of-law-to-fact questions that turn on an evaluation of 
Booker v. State Page 7

credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007). But 

when application-of-law-to-fact questions do not turn on the credibility and demeanor of 

the witnesses, such as the determination of reasonable suspicion, we review the trial 

court's ruling on those questions de novo. Hereford v. State, 339 S.W.3d 111, 118 

(Tex.Crim.App.2011); Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000). 

The trial court held a hearing prior to trial on Appellant’s motion to suppress. At 

that time, the trial court was not aware that the affidavit in support of the search warrant 

contained an error. Officer Carmack testified at the hearing on the motion to suppress 

that he observed Appellant at the scene and that appellant smelled of alcohol, had glassy, 

bloodshot eyes, and slurred speech. Officer Carmack stated that he administered the field 

sobriety tests and detailed Appellant’s performance on the tests. Officer Carmack 

prepared the affidavit in support of the search warrant, and the affidavit further provided 

details of the incident and specifically stated how Appellant failed the field sobriety tests.

When the trial court is determining probable cause to support the issuance of a 

search warrant, there are no credibility determinations, rather the trial court is 

constrained to the four corners of the affidavit. State v. McLain, 337 S.W.3d 268, 271 

(Tex.Crim.App. 2011). The magistrate had a substantial basis for concluding that 

probable cause existed, and the trial court did not err in denying the motion to suppress 

prior to trial. We overrule the fourth issue.
Booker v. State Page 8

Jury Panel

In the fifth issue, Appellant argues that the trial court erred in denying his motion 

to strike the jury panel. In the sixth issue, Appellant argues that the trial court erred in 

granting the State’s motion to strike venireperson 18 for cause. During voir dire, the State 

asked the panel if everyone could sit in judgment of the Appellant. Venireperson 18 

stated that because of her religious belief, she could not sit in judgment of another person. 

Appellant’s counsel later questioned venireperson further, and she again stated that 

because of her religious belief she could not judge another person and could not reach a 

verdict. The State challenged venireperson 18 for cause. Appellant’s counsel did not 

have any response or objection to the State’s challenge for cause, but requested that the 

trial court strike the jury panel. 

The record indicates that Appellant is African-American. Venireperson 18 was the 

only African-American in the jury panel. Appellant argues that the trial court erred in 

granting the challenge for cause for the only African-American member of the panel and 

in refusing to strike the jury panel with no remaining African-Americans on the panel.

We review a trial court's ruling on a challenge for cause with considerable 

deference because the trial judge is in the best position to evaluate a veniremember's 

demeanor and responses. Gardner v. State, 306 S.W.3d 274, 295-296 (Tex.Crim.App. 2009). 

A trial judge's ruling on a challenge for cause may be reversed only for a clear abuse of 

discretion. Gardner v. State, 306 S.W.3d at 296. A veniremember is challengeable for cause 
Booker v. State Page 9

if he has a bias or prejudice against the defendant or against the law upon which either 

the State or the defense is entitled to rely. TEX. CODE CRIM. PROC. art. 35.16(a)(9) (West 

2006); Gardner v. State, 306 S.W.3d at 295. The test is whether the bias or prejudice would 

substantially impair the prospective juror's ability to carry out his oath and instructions 

in accordance with the law. Gardner v. State, 306 S.W.3d at 295. 

Venireperson 18 stated that she could not sit in judgment of Appellant and that 

she could not reach a verdict. The trial court did not err in granting the State’s challenge 

for cause of venireperson 18. Moreover, Appellant did not object to the challenge for 

cause, and therefore, waived the complaint for review. TEX.R.APP.P. 33.1 (a). We 

overrule the sixth issue.

The court shall hear and determine a challenge to the array before interrogating 

those summoned as to their qualifications. TEX. CODE CRIM. PROC. art. 35.06 (West 2006). 

Article 35.07 provides:

Each party may challenge the array only on the ground that the 

officer summoning the jury has wilfully summoned jurors with a view to 

securing a conviction or an acquittal. All such challenges must be in writing 

setting forth distinctly the grounds of such challenge. When made by the 

defendant, it must be supported by his affidavit or the affidavit of any 

credible person. When such challenge is made, the judge shall hear 

evidence and decide without delay whether or not the challenge shall be 

sustained.

TEX. CODE CRIM. PROC. art. 35.07 (West 2006). Appellant did not challenge the array 

before voir dire began, and he did not challenge the array in writing supported by an 

affidavit. 
Booker v. State Page 10

Under Batson1, a defendant may be entitled to "a new array" if he can demonstrate, 

by a preponderance of the evidence, that the prosecutor indulged in purposeful 

discrimination against a member of a constitutionally protected class in exercising his 

peremptory challenges during jury selection. Blackman v. State, 414 S.W.3d 757, 764 

(Tex.Crim.App. 2013). Appellant has not shown that the State was discriminatory in 

exercising his peremptory challenges. The trial court did not err in denying Appellant’s 

request to strike the jury panel. We overrule the fifth issue. 

Admission of Evidence

In the seventh issue, Appellant complains that the trial court erred in admitting 

his statement to police during the traffic stop. Appellant was convicted by the jury, but 

that jury was unable to reach a verdict on punishment. The trial court declared a mistrial 

during the punishment phase, and a new jury was empaneled approximately eighteen 

months later to determine punishment. During the second hearing on punishment, 

Officer Husky testified that Appellant told him he was not driving the vehicle at the time 

of the crash because he was under the influence. 

During cross-examination, Officer Huskey stated that there was no recording of 

the traffic stop available. Officer Huskey further stated that because of the age of the case, 

he was unsure and unable to recall why there was no video available of the traffic stop. 

Appellant requested the trial court to strike the testimony of Officer Huskey concerning 

 

1 Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986).
Booker v. State Page 11

any statements made by Appellant and instruct the jury to disregard those statements. 

Appellant argues on appeal that the trial court erred in admitting the testimony 

concerning Appellant’s statements because the State suppressed the videos of the 

conversation between him and the police officers. 

In determining whether a trial court erred in admitting evidence, the standard for 

review is abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 

2005). A trial court abuses its discretion when its decision is so clearly wrong as to lie 

outside that zone within which reasonable persons might disagree. Id. 

Appellant requested that the trial court strike the testimony of Officer Husky, but 

did not request that the trial court hold a hearing to determine whether there had been a 

spoliation of the evidence or whether there had been an intentional, or negligent, 

withholding of evidence, or a destruction of the evidence that is favorable to the defense. 

Jackson v. State, 495 S.W.3d 398, 419 (Tex.App.-Houston [14th Dist.] 2016, pet. ref’d). 

Appellant did not preserve his complaint for review. Id. Moreover, Appellant did not 

show that (1) any video of the traffic stop existed; (2) the State in fact destroyed or 

withheld any videos of the traffic stop; (3) the videos contained "material exculpatory 

evidence"; or (4) if they were not material, that they were destroyed in bad faith. See

Jackson v. State, 495 S.W.3d at 419. We overrule the seventh issue.

Conclusion

We affirm the trial court’s judgment.
Booker v. State Page 12

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed February 15, 2017

Do not publish

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