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.

Memorandum Opinion by Justice Wallach

JONATHAN GILL, Appellant

V. 

THE STATE OF TEXAS
2

MEMORANDUM OPINION

Appellant Jonathan Gill appeals his conviction for driving while intoxicated 

because it is not supported by legally sufficient evidence. For the reasons set forth 

below, we affirm. 

Background

On January 5, 2020, at approximately 1:34 a.m., Officer Brooke Taylor pulled 

Gill over for failure to dim his bright lights as he drove toward her. Upon initiating 

the traffic stop, Officer Taylor noticed that Gill smelled of alcohol, had red and glossy 

eyes, and slurred his speech. Gill admitted to consuming four beers and an additional 

shot while at Walter’s Tavern, a local bar not far from where Officer Taylor pulled 

him over. Based upon her observations and Gill’s admission that he had been 

drinking, Officer Taylor began an investigation for driving while intoxicated and 

administered three standardized field sobriety tests, including the horizontal gaze 

nystagmus test, the “walk-and-turn” test, and the “one-legged stand” test. Gill failed 

all three tests. As a result, Officer Taylor, finding that Gill had lost the normal use of 

his mental and physical faculties due to the introduction of alcohol, placed him under 

arrest.

Upon initiating the arrest, Officer Taylor read Gill the statutory warning. She 

then requested and received Gill’s consent to draw his blood for alcohol testing. The 

lab test of Gill’s blood sample revealed a blood alcohol concentration of 0.193. 
3

The State presented three witnesses at trial: Officer Taylor, Officer Bradford 

Nelson, who had served as the backup officer during Officer Taylor’s investigation, 

and Tempest Brooks, the chemist who tested Gill’s blood sample. Officer Taylor

testified regarding the basis for her determination that Gill was intoxicated, including 

his failure of all three standard field sobriety tests she administered. Officer Nelson 

testified that he, like Officer Taylor, noticed several signs that Gill was intoxicated, 

including lack of balance and inability to focus. Brooks confirmed that she had tested 

Gill’s blood sample using headspace gas chromatography and found a blood alcohol 

concentration of 0.193. 

After the State rested, Gill presented four witnesses of his own: Andrew 

Walter, a bartender at Walter’s Tavern, Michelle Dando and her mother Linda 

Schoch, who spent time with Gill at the tavern on the night of his arrest, and, finally, 

Gill himself. Walter testified that he did not notice any signs that Gill was intoxicated

but that he did not watch him all night long. Dando and Schoch both testified to 

seeing Gill at Walter’s Tavern. Each stated that she did not witness Gill drink an 

alcoholic beverage during the time they were with him, which was roughly between 

8:45 p.m. and 10:30 p.m. Neither observed any sign that Gill was intoxicated. Lastly, 

Gill testified that he arrived at the tavern around 4:15 p.m. and only consumed three 

drinks that evening, despite having told Officer Taylor that he had consumed four 
4

beers and a shot.

1 Gill attributed his abnormal behavior to having the flu. He stated 

his belief that he was not intoxicated on the night in question and that the blood test 

results were inaccurate.

At the conclusion of evidence, the jury found Gill guilty of driving while 

intoxicated with a blood alcohol concentration of 0.15 or higher. The trial court 

sentenced Gill to 365 days in jail, probated for 12 months, and a $500 fine. Gill now 

appeals.

Discussion

In his sole issue, Gill argues that the evidence presented at trial was insufficient 

to support his conviction for driving while intoxicated. Specifically, Gill asserts that he 

effectively “negated” all of the State’s inculpatory evidence and that no rational

factfinder would find him guilty based upon the evidence presented at trial.

I. Standard of Review

In our evidentiary-sufficiency review, we view all the evidence in the light most 

favorable to the verdict to determine whether any rational factfinder could have found

the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 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 standard gives full play to the factfinder’s responsibility to 

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable 

1

Gill explained that the “shot” he mentioned to Officer Taylor had been an 

allergy shot, not a shot 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 and credibility. See Tex. Code 

Crim. Proc. Ann. art. 38.04; Martin v. State, 635 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 622. Instead, we determine 

whether the necessary inferences are reasonable based on the evidence’s cumulative 

force when 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, 514 S.W.3d 227, 232 (Tex. 

Crim. App. 2017) (“The court conducting a sufficiency review must not engage in a 

‘divide and conquer’ strategy but must consider the cumulative force of all the 

evidence.”). We must presume that the factfinder resolved any conflicting inferences 

in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at 

608.

II. Evaluating the Sufficiency of the Evidence in This Case

In this case, the jury convicted Gill of the Class A misdemeanor offense of 

driving while intoxicated with an alcohol concentration of 0.15 or more.

2 In order to 

support this verdict, the jury had to find the following elements beyond a reasonable

2

Ordinarily, driving while intoxicated is a Class B misdemeanor. However, the 

Texas Penal Code provides that the offense shall be upgraded to a Class A 

misdemeanor if the defendant is shown to have had an alcohol concentration of 0.15 

or higher. Tex. Penal Code Ann. § 49.04(b), (d).
6

doubt: that on January 5, 2020, Gill (1) operated a motor vehicle; (2) in a public place; 

(3) while intoxicated;

3 (4) with an alcohol concentration level of 0.15 or more as 

determined by a blood, breath, or urine test. Id. § 49.04(a), (d). In his testimony, Gill

admitted that he was driving a vehicle on a public roadway and, therefore, only 

contests the sufficiency of the intoxication and blood alcohol concentration elements.

At trial, the State presented a great deal of evidence demonstrating that Gill was 

intoxicated. Officer Taylor testified at length regarding the signs of intoxication that 

she observed after initiating the traffic stop, including Gill’s heavily slurred speech, 

glossy and red eyes, and the strong odor of alcohol on his breath. She also testified 

that Gill admitted to her that he had consumed alcohol. Officer Taylor described in 

detail how Gill failed all three field sobriety tests that she administered and how he 

had great difficulty understanding the simple instructions for the “walk-and-turn” test.

Based on these observations and tests, Officer Taylor confidently testified that she 

determined “[w]ithout a doubt in [her] mind” that Gill was intoxicated at the time she 

pulled him over. Officer Taylor’s assessment was corroborated by Officer Nelson, the 

3

The Texas Penal Code defines “intoxicated” as 

(A) not having the normal use of mental or physical faculties by 

reason of the introduction of alcohol, a controlled substance, a 

drug, a dangerous drug, a combination of two or more substances, 

or any other substance into the body; or

(B) having an alcohol concentration of 0.08 or more.

Tex. Penal Code Ann. § 49.01(2).
7

backup officer during Gill’s arrest, who testified that he also observed signs that Gill 

was intoxicated, including a lack of balance and an inability to focus.

In addition to the testimony of the police officers, the State introduced 

evidence from Brooks, a forensic analyst for the Texas Department of Public Safety, 

who analyzed Gill’s blood sample. Brooks testified regarding her education, training in 

toxicology, her lab’s accreditation, the methodology of testing blood samples, and 

how she tested Gill’s blood specimen to determine its blood alcohol concentration, 

including the protocols she followed both prior to and during testing of the sample to 

ensure the accuracy of the results. Brooks recognized her signature on the vial of 

Gill’s blood, which confirmed that she tested the blood in that vial. Based on the 

results of her analysis of Gill’s sample, Brooks concluded with 99.7% certainty that 

Gill had a blood alcohol concentration of between 0.184 and 0.202, the average of 

which is 0.193. 

Viewed in the light most favorable to the verdict, the evidence 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. While Gill presented evidence conflicting with the police officers’

determination that he was intoxicated, this is not sufficient to satisfy his burden on 

appeal. The jury, as the trier of fact, heard the testimony of both the State’s and Gill’s 

witnesses and weighed their credibility. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.

Crim. App. 1999). The jury was free to accept or reject any or all evidence on either

side. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Though Gill 
8

presented evidence purporting to contradict that presented by the State, the jury’s 

determination that Gill was intoxicated was not irrational. See McFadden v. State, 541 

S.W.3d 277, 284 (Tex. App.—Texarkana 2018, pet. ref’d) (“A jury’s ultimate 

conclusion must be rational in light of all the evidence.”). While the bartender Walter 

testified that he did not notice any “red flags” of intoxication from Gill on the night 

in question, he also admitted that he was not watching Gill all night long. Though

Dando and Schoch likewise testified that they did not observe any signs that Gill was 

intoxicated while they were with him that night, Gill was already at the bar before they 

arrived and remained there after they left; thus, they cannot account for Gill’s alcohol

intake or level of intoxication for the entire night. Gill’s own testimony that he had 

only three drinks that evening conflicts with his previous statements to Officer Taylor 

that he had consumed four beers and a shot.4 Although Gill attributed his abnormal 

behavior and appearance that night to the flu, the jury, as the finder of fact, was free 

to reject that explanation. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 

2008). Thus, even setting aside the blood test results, which, as discussed below,

Gill’s evidence failed to controvert in any meaningful way, Gill did not “negate” all of 

the State’s inculpatory evidence, and, based on the evidence presented, a reasonable 

factfinder could have found that he was intoxicated. See Jackson, 443 U.S. at 320, 99 S. 

Ct. at 2789.

4

As noted above, Gill explained at trial that the “shot” he mentioned to Officer 

Taylor was actually an allergy shot, not a shot of alcohol.
9

Significantly, Gill presented no evidence challenging or questioning the 

methodology Brooks utilized or the procedures she followed to test Gill’s blood

sample.

5 Rather, the only evidence contradicting Brooks’ determination that Gill had a 

blood alcohol concentration of 0.193 was Gill’s naked, unsubstantiated assertion that 

he did not believe that the test results were accurate. Gill presented no evidence that 

would call the accuracy of the test results into question and, therefore, raised no 

meaningful challenge to them. These test results, taken together with the police 

officers’ testimony, are sufficient to support the jury’s verdict. 

Because a rational factfinder, having considered the evidence presented at trial,

could have found beyond a reasonable doubt that Gill was intoxicated with a blood 

alcohol concentration of 0.15 or higher, we overrule Gill’s sole issue. See Jackson, 443 

U.S. at 320, 99 S. Ct. at 2789.

Conclusion

Having overruled Gill’s sole issue, we affirm the trial court’s judgment.

5

At trial, Gill stipulated that the blood specimen was drawn by a qualified 

technician pursuant to standard medical procedures, in a clean and sanitary place, with 

the chain of custody intact. Thus, Gill also did not dispute that the blood sample was 

his and was taken properly.
10

/s/ Mike Wallach

Mike Wallach

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: August 18, 2022