## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 21

- 00136

- CR

_________ __ ________________

On Appeal from County Criminal Court No. 3 Denton County, Texas Trial Court No. CR

- 2021

- 00148 -C
Before Kerr, Birdwell, and Wallach, JJ. M emorandum Opinion by Justice Wallach 

### J ONATHAN 

### G ILL 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appellan t Jo nathan Gill appeals his con victio n for driving while intoxicated
because it is not supported by legal ly sufficient evide nce . For th e reas o ns set forth below, we affirm. Background
O n January 5, 2020, at approximat ely 1:34 a.m., Officer Brooke Taylo r p ulled
Gill over for f ailure to dim his bright lights as he drove toward her. Upon initia ting
th e tr affic stop, Officer Taylor noticed t hat Gi ll s melled of alcoho l, had red and glossy
eyes , and slurred his speech. Gill admi t ted t o c onsuming fou r beers and an additional
shot while at Walter ’ s Tavern, a local bar not far from where Of ficer Taylo r pull ed
him over. Based upon her observations and Gi ll ’ s admission th at he had been drinking, Officer Taylor began an inv estigat ion for driving while int oxicated and
administ ered th ree standard ized field sobriety tes ts , incl uding t he horizontal gaze

n ystagmus test, the “ walk

- and

- turn ” test, and the “ one

- leg ge d stand ” test. Gill faile d
all three t ests
. A s a r e s u l t , Officer Taylor , find ing that Gill had lost the normal use of his mental and ph ysic al faculties due to th e intro duction of alcohol , placed him under

arres t. Upon initi ating th e ar rest, Of ficer Taylor r ead Gill the statutory warning

. She
then r e quested and received Gill ’ s consent t o draw h is bloo d for alcohol te sting

. The
lab test of Gill ’ s blood sample revealed a blood alcohol concentration of 0.193

.3 The State presente d t hree witn es ses at trial : Offi c er Taylor , Of ficer Bradford Nelson, who had served as the backup officer during O fficer Tayl or ’ s investigation , and Tempest Brooks , the chemist who tested Gill ’ s blood sample. Officer Taylor

tes tified regarding the basis for her determ inat ion that Gill wa s i ntoxicated, including
his fail ure of all three standard fi eld sobriety test s she administered. Of ficer Nelson

tes tified that he, like Officer Taylor, noticed several signs th at Gill w as intoxicated,
incl uding lack of balance and inab ility to focus

. Broo k s confirm ed that sh e h ad tes ted
Gill ’ s blood sample using headspace g as chrom atography and found a blood a lcohol
concentration of 0.193.
After th e St ate reste d, Gill presented four witnesses of his own : Andr ew Walter, a bartender a t W alter ’ s T avern, Mich e lle Dando and he r mother Lin d a Schoc h, who spe nt time with Gill at the tavern on the night of his arrest , and , finally,
Gill h imself

. Walter testified that he did not notice any signs that Gill was int oxicated
but that he did not watch hi m all nigh t long. Dando and Schoch both te stified to seeing Gill at Wal ter ’ s Tavern

. Each stated that she did not w itness Gi ll d rin k an alcoholic beverage during the time they were with him, which was ro ughly between
8:45 p.m. and 10:30 p .m. Neither ob serve d any sign that Gill was intoxicated. Lastly,
Gill testified that he arr i ved at th e ta vern around 4:15 p .m. and only consumed three drinks that evening, despite having told Officer Taylor that he had consumed four4 beers and a shot

. 1 Gill attributed hi s ab n orma l beh a vior t o having the flu. He st ated
his belief that he was not in toxi cated on the night in question and that the blood test results were in ac curate
. At th e conclusion of evidence, the jury found Gill guilty of driving while
intoxicated with a blood alcoho l conce n t rati on of 0.15 or higher. The trial court
sentenced Gill to 3 65 d ays in jail, probated for 12 month s, and a $500 fine. Gill now appeals.
Discussion
In h is sole issue , Gill argues that the evi dence presented at trial was ins uf ficient to support his convi c t ion for driving while intoxicated

. Specifi cal l y, Gil l asserts th a t he effectively “ negated ” all of the State ’ s inculpatory evi dence and that no rational
fact finder would find him gui lty based upo n the evidence presented at trial

. I. Stan dard o f Review
In ou r evidentiary

- suffic iency review, we view all the evidence in the light most
favora ble to the verdict to determine whether any rational factfinder cou ld have f ound
th e crime’s essential elements beyond a reasonable doubt. Jackson v. Vir ginia , 443 U.S. 307, 319 , 99 S. Ct

. 2781 , 2789 (1979) ; Queeman v. State , 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This sta ndard gives full play to the factfinder’s responsibility to
resolve conflict s in the tes timony, to weigh the evidence, and to draw reasonable

1 Gill explained that the “shot ” he mentioned to Off icer Tayl or had been an allergy sho t, not a sho t of alcohol.5 inferences from basic facts to ultimate facts. See Jackson , 443 U.S. at 319 , 99 S. Ct

. at
2789 ; Harrell v. State , 620 S.W.3d 910, 914 (Tex. Crim. App. 2021)

. The factfinder alone judges the evidence’s weight a nd c redibility. See Tex. Code
Crim. Proc. Ann. art. 38.04 ; Martin v. State , 6 35 S.W.3d 672, 679 (Tex. Crim. App.
2021 )

. We may not re

- evaluate the evidence’s weight and credibility and substitute our judgment for the factfinder’s. Queeman , 520 S .W .3d at 62 2. Instead, we determine whether the necessary inference s are reasonable ba s ed on the evidence’s cumulative
force wh en viewed in the light most favorable to the verdict. Braughton v. State , 569 S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State , 5 14 S .W.3d 227, 232 (Tex. Crim. App. 2017) (“The court con ducting a sufficien c y review must not engage in a
‘divide an d conquer’ strategy but must consider the cumulative force of a ll the evidence.”). We must presume that the factfinder re solved an y conflic ting inferences in favor of the verdict, and we must defe r to that resolutio n . Braughton , 569 S.W.3d at
608

. II. Evaluati ng the Sufficiency of the Evidence in This Case
In this case, t he jury convicted Gill of the Class A misd em eano r offense of
dri vin g w hile i ntox ic ated with an alc ohol concentration of 0.15 or more

. 2 In order to
suppo r t this verdict , the ju ry had to find the following elements beyond a reasonable

2 Or dinar ily , d ri v i ng whil e intoxicated is a Class B misdemeanor

. H owever, the Texas Penal Code provides that t he offense sh all be upgr aded to a Class A mi sdemeanor if the de fendant is shown to ha ve had a n a lc ohol concentration of 0.15 or higher

. Tex . Penal Code An n. § 49.0 4 ( b) , (d)

.6 doubt : that on January 5, 2020, Gill (1) operated a motor v ehi cle; (2) i n a publi c pl ace; (3) while intoxicated ; 3 ( 4 ) with a n alcohol concentration level of 0.15 or more as
de t ermined by a blood, br eat h, or urine test

. Id

. § 49 .0 4(a) , (d). In h is testimony, Gill
admitted that he was driving a v ehicle on a pu blic road way and, t herefore, onl y contests the sufficiency of th e intoxication and blood alcohol concen tration elements.
A t tr ial, t he S tate presented a gre at deal of evidence demonstrat ing t hat Gill was
intoxicated. Officer Taylor t estified at l ength regarding the signs of intoxication that
she observed after initiating the traffic stop , including Gill ’ s h eavily slurred spe e ch, glossy and re d eyes, and the strong o dor of alcohol on hi s breath. She also testified
tha t Gill admi tted to her tha t he had consumed alcohol

. O f ficer Tayl or des cribed in
detail how Gill failed all three fie ld sobriety tests that she administ ered and h o w he
had great difficulty understanding the simple instructions for the “ walk

- and

- tu rn ” t est
. Based on these obse rvat io ns and tests, Officer Taylor confidently testified that sh e deter mined “ [ w

] ith out a doubt in [her] mind ” that Gill wa s intoxicate d at th e time she pulled him over. Officer Taylor ’ s assessment was c orro borat ed b y Of ficer Nelson, the

3 T he Texas Penal Code de fines “intoxi cated ” as (A) n ot having the nor mal use of menta l or p h ysical faculties by reason of the introducti on of alcohol, a controlled su bst ance, a drug, a danger ous drug, a combination of two or more s ubstance s, o r any oth er substance into the body; or (B) having an alcohol concentration of 0.08 or more. Tex. Pen al Code Ann. § 49.01(2).7 backup officer during Gill ’ s arrest , who testified that he also obse rved signs that Gill

wa s int oxicated , including a lack of balance and an inab ility to focus

. I n addition to the testimony of th e po lice off icers , th e St ate in tro du ced
evidence from Brooks, a forensic analyst for th e Texas Department of Public Safety , who analyzed G ill ’ s blood sample. Brooks testif ied regarding her education , tr ainin g in toxicolog y , her lab ’ s a ccreditation, the met hodology of t esting blood samples, and
how she tested Gill ’ s blood specimen to determin e its blood a lcohol concentration , incl uding the protoco ls she f ollowed both prior to and during testing of the sam ple to
ensure the a c curacy of th e results

. Brooks r ecog nized her signature on the vial of
Gill ’ s bloo d, which confirm ed that she tested th e blood in that vi al. Based on the results of her analysis of Gill ’ s sample, Brooks con cluded with 99.7% certainty th a t Gill had a b lood a lcohol conce ntration of b etween 0.184 and 0.202 , t h e average of
which is 0.193. Viewed in the light most favorable to t he verdict, the evi dence is sufficient to
support Gill ’ s conviction. See Jackson , 443 U.S. at 319 , 99 S. Ct

. at 2789 ; Queeman , 520
S.W.3d at 622 . Whi le Gi l l p r ese nted evi dence conflicting with the police officers ’
determination that he was into xicated, this is not sufficient to sati sfy his bur den on appeal. The jury , as the trier of fact, heard the testimony of both the State ’ s and Gill ’ s witnes ses and weig h ed thei r credi bility. Fuentes v. State , 991 S.W.2d 267, 271 (Tex. Crim. App. 1999)

. The ju ry wa s free to accept or rejec t any or all evidence on either
side. Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Tho ugh G ill8 presented evidence p urpor t ing to con tradict that presented by the State , t he j ury ’ s determinat ion that Gill was intoxicated was not irrat ional

. Se e McFadden v. State , 541 S.W.3d 277, 28 4 (Tex. App.

— Texarkana 2018, pet. ref ’ d) ( “ A jury ’ s ultima te conclusion must be rational in ligh t of all the evidence

. ” ). While the bartender Walter
testified that he did not notice any “ red fla gs ” of intoxicat ion fro m Gill on th e night in que stion, he also admitted that he was not watch ing Gill all night long. T hough
Dando and Sch och likew ise t estif i ed tha t they did no t observe any sign s th at Gill was
int oxicate d while they were with him t hat night , Gill was already at the bar before they arrived and remained there after they lef t ; thus, they cannot account for G il l ’ s alcohol
intak e or leve l of intox i ca tion for the entir e night

. Gill ’ s own test imony that he had only three d rinks that evening conflicts with his previous statement s to Officer Taylor
that he had consumed four beers and a sho t. 4 Alt hough Gill attribut ed his abn ormal behavior and appearanc e that night to the flu, the jury , as the finder o f fact, was free

t o reject th at explanation

. See Lancon v. State, 253 S.W.3d 699, 70 7 (Tex. Crim. App. 2008)

. Thus, even set ting aside the blo od test result s , which , a s d iscussed b elow,
Gill ’ s evidence fai l ed to controvert in any meaningful way , Gill did not “ negate ” all of
the State ’ s inculpator y evidence, and , based on the evidence presente d, a r ea sonable
factfinder could h ave fou nd that h e wa s intoxicated. See Jackso n , 443 U.S. at 3 20 , 99 S.
Ct

. at 2789

.

4 As not ed above, Gill explained at trial that the “shot ” he m entioned to Officer Ta ylor was actually an allergy shot, not a sho t o f alc oho l

.9 Signif icantly , Gil l pre sented no evi dence c ha llenging or questioni ng the methodology Brooks utilized or the procedures she followed to test Gil l ’ s blood sampl e . 5 Rather, t he only evidence cont ra dict ing Brook s ’ d etermi nation that Gill had a
blood alcohol concentration of 0.1 9 3 was Gill ’ s naked , uns ubstantiated assertion tha t he did not believe that the test results were accurate. Gill presented no evidence that
would call the accurac y of the t est res u lts into question a nd , therefore, raise d no

me aningful challenge to them

. Th e se test result s, taken together with th e polic e officers ’ testimony , a re sufficient to sup port the jury ’ s v erdic t
. B e cause a rational factfinder , having consider ed the evidence pres ented at trial,
could have found beyond a reasonab le doubt that Gill wa s i ntoxicat ed with a blood

a lc oh ol concent ration of 0.15 or higher , we o verru le Gill ’ s sole issue

. See Jackson , 443
U.S. at 3 20 , 99 S. Ct

. at 2789

. Conclus ion Having o verruled Gill ’ s sole i ssue , we a ffi rm the trial court ’ s judgment.

5 At trial, Gill s tipulated that the blood specimen was drawn by a qualifi e d technician pur suant to standard medical procedures, in a clean an d s anitary place, w ith the chain of custody intact. Thus , Gill al so di d not dis pute th at the bl ood samp le was his and was taken properly.10 /s/ Mike Wallach Mike Wallach Justice
D o Not Publish Tex

. R. App. P. 47.2(b)
Delivered : A ugust 18, 2022