G i b b s s t i p u l a t e d t o t w o p r i o r

D W I c o n v i c t i o n s t h a tm a d e th e c u r r e n to f f e n s e a f e l o n y. 1 Prior to his arre st on Dec ember 5, 2003, for the c urre nt offense , Gibbs had bee n convicted 2 of DWIseven times and ha d serve d two prison terms, including a four- y ear prison term fr om 1998 to 2002. 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 5 -00 369 -CR

G ar y Ha yde n G ibbs , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF WI LLIAM SO N COUNTY , 368TH JUDICIAL DISTRICT

NO. 04- 159- K3 68 , HO NORAB LE B URT CARNES , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury convicted G ary

Hayden Gibbs of f

elony driving while intox icated ( DWI ), see 1 Tex. P enal Code A nn. § 49.04 (West 2003), § 49.09 (b )( 2 ) (W es t Supp. 2006), and made an aff irmative finding that Gibbs used o r exhibi ted a de adly wea pon during the commission of the offe nse. See Tex. Code Crim. P roc. A nn. art. 42.12, § 3g (a) (2) ( West 2006). The jury found two enhanc ement par ag raphs in the indictment true and sentenc ed Gibbs to life in prison. See T e x. 2 Penal Code Ann. § 12.42(d) (West Supp. 2006). I n his sole point of error on appea l, Gibbs argues th a t t h e e v id e n c e p r e s e n te d a t t r ia l i s in s u f

f ic ie n t t o s u

p p o rt t h e ju r y ’ s d e a d ly

w e a p o nf in d in g . We wi ll a ff ir m th e jud g me nt o f t

he tr ia l c ourt
.2 BACK GR OUND Ar ound 1:00 a .m. on

De c e mbe r 5 , 2 00 3, Roy

B la c k, a tr uc k d ri ve r w ith28 y e ars ’
e xpe ri e nc e , w a s d

ri vin g an 1 8- wh e e le r t ow inga do ub le tr a ile r so uth bo un d on I H- 35 be tw e e n Jar re ll and Ge org etown. Whil e Bla ck was driving his truc k in the rig ht lane, he notice d a white va n moving
err atically . Bla ck testified that the driver of the white van moved from the middle la ne to the rig ht lane a nd “cut [him] off,” avoiding a collision with Black’ s truck by “a f ew f eet.” Bla ck estimated that the white van w as trave ling at 66 miles per hour and that his truck was trave ling at 65 miles per h o u r. Bl ac k

t es t i fi edt h at h e “ p ro b ab l y ” r edu ce d h i s s p ee d af t er t h e va ncu ti nfr o n to f h i m , al t h o u gh he did not have to a

pply his brakes or

take e vasive a ction. Bla ck testified that the white va n then vee red onto the r ight shoulder and cr ossed bac k throug h the rig ht lane while r eturningto the middle lane. B lack estimated that he saw the driver of the white van w eave back and forth betwee n the m iddle lane and the s houlder “[p] robably three or four times” w hile following the van f or s i x o r s ev en miles. Blac k testified that his truck and the white van we re the only

vehicles on the road dur ing the time that he was f ollowing the va

n. Bla ck ca lled 911 to report the dr iver of the white van beca use he w as conc erne d that the driver might ser iously

injure or kill someone. B lack testified, Q. I n the manner that that white van was drivingthat night, on De cembe r 5th of 2003, cutting y ou off, weavingin front of you, was the ma nner in whic h he wa s dri vin g or us ing that veh ic le —w a s it c a pa ble of c a us ingse ri ou s b od ily injury or death? A. Yes, sir. L ike I

say , that’s the re ason I

called. I f I

didn’t think that, I wouldn’t have called.3

Bla ck desc ribed the va

n and the e rratic driving to the dispatcher and stay ed on the line until the driver of the van exit ed I H-35 at the Hig hway 29 exit
. Bla ck did not follow the van af ter the dr iver exit ed the hig hway
.

Offic er Jason J ones of the Geor g etown Police De partment re sponded to a c all from dis pa tc h a

b o u t a r e c k l e s s d

r i v e r o n I H
- 3 5
. Jo n e s w a s g i v e n a d e s c r i p t i o n o f t h e v an an d its approximate location. J ones spotted a van that met the de scription turning westbound onto Hig hway 29 fr om t he I H- 35 fr on ta g e ro a d. Jone s su sp e c te d th a t th e va n th a t he sa

w w a s th e su

bje c t of the c a ll from dispatch be cause “ther e’s not a lot of w hite vans in t h at ar ea t rave ling southbound on the fr o n t age ro ad.” Jones testified that immediately afte r turning onto Highw ay 29, the driver

of the white van moved onto the unimprove d shoulder and stoppe d the van.

J ones testified, At that point we wer en’t re al sure what we ha d. Iwasn’t sure if I had an intoxicated driver, or I wa s n ’t s ure if I

had a pe rson that had a

medical e merg ency

that neede d help or somebody that was lost or som ething of t hat nature. So not rea lly knowing what I had, I pulled in behind the vehicle and turned my lights on and ma de conta ct with the driver. Gibbs, the van’s dr iver, told J ones that he w as lost and looking for Highwa y 29. J ones testified that Gibbs’s speec h was slurred a nd that J ones noticed a

strong odor of a lcoholic beve rag es on Gibbs’s breath. J ones testified that Gi b b s admitted that he dra nk two larg e drinks conta ining vodka
an d s o d a t h at ev en i n g.

Jone s a sked Gibb s to g e t out of his ve hic le so that Jone s c ou ld a dmi nis te r f ie ld
so br ie ty te sts . J on e s tes tif

ie d that Gibb s “w a s unst e a dy on his fe e t w hil e wa lki ng , a

nd he ha d to us eEx amples of “ clues” of intox ication include stepping off the line or using arms to balanc e 3 on the walk- and-turn te st and sway ing or hopping dur ing the one-le g -stand test. National Hig hway Traf fic Safe ty

A dmi n . , U
. S. D e p ’ t o f T r an s p . , D evelopment of a Standar dized Field Sobriety Test (SFST) Tr ain in g Manag ement Sy stem (Nov. 2001), htt p:/ /w ww .nhts a .d ot. g ov /pe op le /in jur y /a lc oh ol/ SF ST/ a

pp e nd ix_a .h tm. 4 his ve hic le to m a int a in h is b a lanc e .” Jone s f ir st a dmi nis ter ed th e ho ri zon ta l g a ze ny sta g mus te st; J ones t est if

ie d th a t G ib b s f

a il e d th is te s t b e c a

u s e Jo n e s o b s e r

v e d a ll s ix “ c lu e s ” o f

in to xic a ti on. Gibbs then failed the walk-a nd-turn test; J ones testified that he observe d both “clues” in the instructional phase of

the test and four

out of si x “clue s” i n the walkingphase of the test. J ones then beg an administeringthe one-leg -stand test; howeve r, he cut t he test short bec ause G ibbs was drifting into the middle of the road, c reating a safe ty hazard, a nd b ec au s e J o n es “knew that [Gibbs] was intox icated.” Even thoug h J ones told Gibbs that he had “see n enoug h,” Gibbs requested that he be allowed to per form the one -leg -stand test. J ones t estified that he a dminist ere d the test and that Gibbs failed be cause J ones obser ved two of f

our “c lues” of intoxication. 3 J ones ar rested G ibbs and took him to t he poli ce station. Although Gibbs had ag ree d at the sce ne of his arr est to submit to I ntox ilyzer breath testing, whe n he ar rived at the jail he re fused to provide a br eath sample. The State broug ht Gibbs to trial on Ma y 24, 2005, and prese nted the jury wi thB l a c k ’ s an d

Jo n e s ’ s t e s t i m o n y

an d t h e v i d e o t a

p e o f G i b b s ’ s ar

r e s t , w h i c h s h o w s t h e f

i e ld sobriety tests that were administered to Gibbs and is consistent with J ones’s account. As mentioned above, t h e j u ry convicted G ibbs of felony DWI , made a

n aff irmative finding that Gibbs used or exhibi ted his vehicle as a dea dly wea pon during the commission of the offe nse, and se ntence d Gibbs to life in prison. This appea l followed.It i s u n c l e ar w h e t h e r G i b b s c h a l l e n g e s o n l y l e g a l s u f f i c i e n c y o r f a c tu a l an d l e g a l s u f f i c i e n c y. 4 Gibbs argues that the “ evidenc e is insuffi cient” and cites the le g al suffic iency standard of

revie w. Howeve r, in the intere st of justice, we revie w both the fac tual and leg al sufficie ncy of the e vidence
. 5 DI SCU SSIO N
I n h is s ole po int

of e rr or , G ibb s c on te nd s th a t th e e vid e nc e pr e se nte d at tr ia l is insufficient to uphold the jury ’s finding that he used or exhibi ted his va n as a de adly

wea pon. When 4
re v i ew i n g a c h al l en ge to t h e le gal s u ff i ci en cy o f th e ev i d en ce s u p p o rt i n g a d ea d l y

we ap o nfi n d i n g, we view the evidenc e in the lig ht most favorable to the State and dete rmine whe ther a ny rational trier of fa ct could have found bey ond a re asonable doubt that the object in question was use d or exhibit ed as a de adly

wea pon. Cat es v . S

tate , 102 S.W .3d 735, 738 (Tex. Cr i m . Ap p . 2 003). In a fa ctual
su ff ic ie nc y re vi ew, we vie w the e vid e nc e in a ne utr a l li g ht a

nd re ve rs e the fi nd ingon ly

if it i s so ag ainst the weig ht a

nd preponde ranc e of the evidenc e that it is cle arly wrongand unjust. Drichas

v . S tate , 175 S.W .3d 795, 799 (Tex. Crim. App. 2005); J oh ns on v . S

tate , 23 S.W.3 d 1 , 7 (T e x. Cr im. Ap p. 20 00 ). A d e a dly

we a po n in c lud e s “ any

thi ngthat in

the mann e r o f i ts u se or

int ended us e is capab le o f cau si ng d e a t h o rser io us bo di ly in ju ry .” T ex . P enal Co de A nn . § 1. 07 (a)(1 7)( B) (West Supp. 2006).

Gibbs argues that the opinion of the c ourt of cr iminal appeals in Cates mandates
reve rsal of the deadly

wea pon finding
. We disa g ree . I n Cates , the driver of a truc k was c onvicted for f ailing to stop a

nd rende r aid to a pede strian whom he struc k with his car a nd killed. 102 S.W .3d at 736–37. Cates appe aled the jur y ’s findi ng that he used or exhibi ted his truck as a deadly wea pon during the commission of the offe nse. Id. at 737. B eca use Cates wa s convicted of faili n g to stop6

a n d r e n d e r a i d , t h e c o u rt o f a p p e a l s h a d t o d e c i d e w h e t h e r C a t e s u s e d o r e xh i b i t e d h i s tr uc k a s a deadly wea

pon afte r st riking the pedestrian wit h it. Id. The court of appea ls held that testimony by two ey ewitnesses that they drove betwee n 85 and 90 mi les per hour to catch up w ith Cates after he drove a way from the scene of t he accident was sufficie nt to support the deadly wea pon finding
. Id. The cou rt of

c ri min a l a

pp e a ls, ho we ve r, re ve rs e d, ho ldi ngthat th e wi tne sse s’ t es t i m o n y re gar d i n g h o w f

as tt h ey we re t ra v el i n g wa s n o ev i d e n c e o f h o w f as tC at es wa s dri v i n g. Id. at 738. The court also noted t hat t estimony indicated that no other car s were on the roa dway , that Cates’s truc k did not leave the r oad, and that the “cha se” e nded quickly at a tra ffic lig ht. Id. The court he ld that “[t] o sustain a dea dly wea p o n fi nding, the re must be e vidence that others we re actua lly endang ere d, not ‘mere ly a hy pothetical potential for dang er if others had been pr esent.’” Id. Gi bb s argue s th a t, at mo st, he c re a te d a hy po the tic a l po te nti a l f

or da ng e r. He ins ist s that beca use B lack did not fe el the nee d to take evasive action to avoid a collision with Gibbs, Blac k
was no t act ua lly

e nd ang e re d b y

Gi bb s’ s d

ri vin g . G ibb s c on te nd s th a t be c a us e no oth e r m oto ri sts
wer e on the r oadwa

y , no one wa s actua lly

endang ere d by

his driving. How ever , the cour t of criminal appea ls has held, [T] he statute itself doe s not require pursuing o ff i ce rs or other motorists to be in a zone of dang er , take e vasive a ction, or re quire a ppellant to intentionally

strike another vehicle to justify

a dea dly wea pon finding . The volume of traff ic on t he roa d is releva nt only if no traff

ic ex ists.
. . . [A] deadly

wea pon finding will be sustained if the de fi nit ion

of de a dl y weap on is met.
. . . [A ] de a dly we a po n f ind ingis appropr iate on a suf

ficient showing of actual dang er, suc h as evide nce that another motorist was on the hig hway at t he same time and place as the def endant whe n the defe ndant drove in a dang erous manne r.
Drichas , 175 S.W .3d at 799.7 This case is unlike Ca tes . He re , B la c k w a s d ri vin g on the hig hw ay

in t he e arl y
mor nin g ho ur s w he n h e e nc ounte re d G ibb s, wh o w a s und e r t he inf lue nc e of a lc oh ol a nd dr ivi ngin a dang erous manne r, weaving back and forth betwee n multipl e lanes of t raf fic a nd the shoulder a

nd
c utt ingin f

ro nt o f B la c k w ith in a

fe w f e e t, n e arl y

caus in g a h ig h- sp e e d c oll isi on . Co ns ide ri nga ll the evidenc e bef

ore it, a r easona

ble jury could have found that the va n driven in thi s manner by Gibbs was capa

ble of causing death or

serious bodily

injury to another pe rson driving on the hig hway at the same time. Furthe r, the jury ’s fin d i n g t o that eff ect is not so ag ainst the weig ht and pr e po nd e ra

nc e of t he evi de nc e that it is c le arl y

wr on g and

un jus t. We ov e rr

ule Gibbs’s point of err or.
CO NC LU SION

Havi n g o v er rul ed Gibbs’s issue on a ppeal, we aff

irm the judg ment of the district
c ourt
.

____________________ _ _ _ _ _ _ _ _ _ _ _ _ _ ____ Diane H enson, Jus tice Be fore Chief J ustice L aw, Justi ces Pury ear and He nson Affir med Filed: Mar ch 1, 2007 Do No t Pu

bli sh