Opinion issued August 27, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-10-00871-CR

———————————

RICHARD STERLING PHILLIPS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 212th District

Galveston County, Texas

Trial Court Case No. 09CR1557

MEMORANDUM OPINION

Richard Sterling Phillips was convicted by a jury of the felony offense of 

driving while intoxicated.1

 Following the punishment hearing, the trial court 

 1 Appellant stipulated to two prior misdemeanor DWI convictions. 
2

sentenced appellant to six years’ confinement, suspended imposition of the 

sentence and placed him on community supervision for a period of ten years, 

sentenced him to sixty days in county jail, and imposed several alcohol-related 

conditions to his community supervision. In three issues, appellant contends that 

the trial court erred in not granting a mistrial, and that the evidence was insufficient 

to support the judgment. We affirm.

Background

In the early morning hours of September 20, 2008, Texas Department of 

Public Safety Trooper Stephen Culling was sitting with a DWI suspect in his patrol 

car on the shoulder of Interstate 45 North while he waited for the wrecker to tow 

the suspect’s car. When he looked in his rearview mirror, Trooper Culling saw 

appellant’s vehicle about fifty yards behind him splitting the lane of traffic and the 

shoulder. When he looked again, he noticed that appellant’s vehicle was driving 

entirely on the shoulder and approaching his patrol car at approximately 40 miles 

an hour. Believing that appellant was about to hit his patrol car, Trooper Culling 

braced for impact.

Appellant steered around the patrol car and wrecker and continued 

northbound. Trooper Culling pulled off of the shoulder and began to pursue 

appellant, with his patrol lights activated. After appellant did not immediately pull 
3

over, Trooper Culling blew his air horn but appellant still did not stop. After 

Trooper Culling turned his siren on, appellant eventually pulled over.

Trooper Culling instructed appellant to get out of his truck and go to the 

back of the vehicle. When Trooper Culling asked appellant if he had been 

drinking, appellant first replied that he had not but eventually admitted that he had 

had two shots fifteen minutes before the trooper stopped him, and that he had not 

eaten anything the previous day. Trooper Culling noticed that appellant smelled of 

alcohol, had bloodshot and glassy eyes, and that he spoke haltingly. Appellant said 

he was on his way to pick someone up in LaMarque. However, Trooper Culling 

testified that appellant had passed LaMarque and was heading in the wrong 

direction.

Appellant performed several sobriety tests which were videotaped by the 

patrol car’s dashboard camera. Trooper Culling testified that he administered the 

horizontal gaze nystagmus (HGN) test to appellant. Appellant’s counsel

approached the bench, and the following exchange took place:

TRIAL COUNSEL: Your Honor, my objection is I believe this 

Trooper is about to say that they can tell by a person’s performance on 

field sobriety tests what their breath alcohol level would be, and the 

case number is Lorenzo v. State, and in short it says a peace officer 

may give qualitative but not quantitative results in field sobriety tests. 

So he is not able to say, because of this result, he would have blew 

[sic] this on a test; and I think he was headed down that road.
4

THE COURT: The court didn’t hear him try to say that yet, but I’m 

going to direct counsel to ask your questions so that it specifically is 

not calculated –

THE STATE: We have no intent to.

THE COURT: The objection is sustained. Make sure you correct 

him.

THE STATE: Let me explain it.

Trooper Culling continued to testify about how the HGN test works. When the 

State asked him what he observed when he performed the test on appellant, 

Trooper Culling testified as follows:

I observed – as part of the evaluation of this test there are clues that 

we look for. There are six clues. As the test is evaluated, if the 

subject shows four clues, they are considered to be intoxicated by 

alcoholic beverage above .08. 

Counsel objected and requested a mistrial. The trial court stated that it would 

instruct the jurors to disregard Trooper Culling’s answer and gave the following 

instruction:

THE COURT: Members of the jury, at this time this court is going to 

direct you in the strongest language to disregard the last portion of the 

witness’ answer. Any portion of that answer that referred to a number 

is to be disregarded by you. Is there anyone on this jury who feels 

that he or she cannot disregard that last part of the answer?

No juror raised a hand, and the trial court allowed the State to continue with its 

examination. Trooper Culling stated that appellant exhibited all six clues on the 

HGN test, indicating intoxication. Because appellant walked with a cane, Trooper 
5

Culling did not administer the one-leg stand test or the walk-and-turn test. Trooper 

Culling testified that appellant did not follow his instructions on the fingercounting test2 by failing to stop after two passes, and that appellant missed his third 

finger every time. Trooper Culling also stated that appellant did not follow 

instructions on the Rhomberg test3 because he opened his eyes and stared at 

Trooper Culling at twenty-four seconds and then said “thirty” when he estimated 

thirty seconds had passed. According to Trooper Culling, appellant also swayed 

during the test.

Trooper Culling testified that when he asked appellant if he would take a 

portable breath test, appellant did not answer but instead responded that he used to 

be a police officer, that his father is a police officer who was about to receive a 

lifetime achievement award, and that appellant’s house was just around the corner. 

According to Trooper Culling, appellant was very uncooperative, did not answer 

his questions, and answered questions he was not asked. 

Based on his belief that appellant was intoxicated, Trooper Culling arrested 

appellant. At the police station, appellant refused to take a blood test. More than 

 2 The finger-counting test requires a person to touch each finger to his thumb while 

counting from one to four and then back from four to one.

3 The Rhomberg test requires the person to tilt his head back, close his eyes, 

estimate thirty seconds, and then say “stop.”
6

an hour later, appellant requested that he be allowed to take the Intoxilyzer breath 

test while being videotaped; his request was denied.

Appellant testified at trial that he had sustained a knee injury and some 

memory loss due to a work-related accident six years earlier. He also testified that 

although he has not noticed a difference in his speech since the accident, it was

possible that he takes longer to think about his answers. Appellant also stated that 

he was born with an eye condition that required him to have three surgeries as a 

child. According to appellant, he veered off the road before he was stopped 

because he was attempting to adjust the radio station in his truck and did not stop 

immediately because he was hoping the Trooper Culling was pursuing someone 

else, did not immediately realize that the trooper was trying to stop him, and 

panicked because he could still taste the shots in his mouth. Appellant stated that 

he missed a finger on the finger counting test because he has carpel tunnel 

syndrome, and that he opened his eyes during the Rhomberg test because he was 

agitated. He testified that he did not perform the portable breath test because it 

was inaccurate, he thought he had residual alcohol in his mouth from the shots, and 

he did not know whether the person who took the test before him had AIDS. 

Appellant stated that he refused the blood test because he has phlebitis. He 

testified that he never stumbled or swayed during the tests. He also stated that he 
7

mentioned his dad to Trooper Culling because he thought using his father’s name 

might influence the trooper to let him go.

At the conclusion of the trial, the jury found appellant guilty of felony DWI. 

After hearing testimony from appellant and several members of his family, the trial 

court sentenced appellant to six years’ confinement, suspended for ten years, sixty 

days in county jail, and ordered several alcohol-related conditions. Appellant 

timely filed this appeal.

Discussion

A. Sufficiency of the Evidence

In his third issue, appellant contends that the evidence is insufficient to 

support the jury’s verdict that he was intoxicated. The State argues that there was 

more than a modicum of evidence to support the judgment. 

1. Standard of Review

This Court reviews legal and factual sufficiency challenges using the same 

standard of review. Kiffe v. State, 361 S.W.3d 104, 107–08 (Tex. App.—Houston 

[1st Dist.] 2011, pet. ref’d). Under this standard, evidence is insufficient to support 

a conviction if, considering all the record evidence in the light most favorable to 

the verdict, no rational factfinder could have found that each essential element of 

the charged offense was proven beyond a reasonable doubt. See Jackson v. 

Virginia, 443 U.S. 307, 319 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.
8

Crim. App. 2009). Viewed in the light most favorable to the verdict, the evidence 

is insufficient under this standard in two circumstances: (1) the record contains no 

evidence, or merely a “modicum” of evidence, probative of an element of the 

offense; or (2) the evidence conclusively establishes a reasonable doubt. See

Laster, 275 S.W.3d at 518.

The jurors are the exclusive judges of the facts, the credibility of the 

witnesses, and the weight to be given to the testimony. Brooks v. State, 323 

S.W.3d 893, 918 n.33 (Tex. Crim. App. 2010). A jury may accept one version of 

the facts and reject another, and it may reject any part of a witness’s testimony. 

See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), overruled on 

other grounds, Laster, 275 S.W.3d at 516–17; see also Henderson v. State, 29 

S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (holding jury 

can choose to disbelieve witness even when witness’s testimony is uncontradicted). 

We may not re-evaluate the weight and credibility of the evidence or substitute our 

judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007). We afford almost complete deference to the jury’s 

determinations of credibility. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.

Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of the 

verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record 
9

supports conflicting inferences, we presume that the factfinder resolved the 

conflicts in favor of the prosecution and therefore defer to that determination.”).

2. Analysis

To establish that appellant committed the offense of driving while 

intoxicated due to alcohol, the State was required to prove that appellant was 

“intoxicated while operating a motor vehicle in a public place.” TEX. PENAL CODE 

ANN. § 49.04(a) (West Supp. 2011). A person is intoxicated when he does not 

have “the normal use of mental or physical faculties by reason of the introduction 

of alcohol . . . into the body.” Id. § 49.01(2)(A). Driving while intoxicated is a 

third-degree felony if it is shown at trial that the defendant has previously been 

convicted “two times of any other offense relating to the operating of a motor 

vehicle while intoxicated . . . .” Id. § 49.09(b)(2).

In Kirsch v. State, the Court of Criminal Appeals stated that “evidence that 

would logically raise an inference that the defendant was intoxicated . . . includes, 

inter alia, erratic driving, post-driving behavior such as stumbling, swaying, 

slurring or mumbling words, inability to perform field sobriety tests or follow 

directions, bloodshot eyes, [and] any admissions by the defendant concerning 

what, when, and how much he had been drinking . . . .” 306 S.W.3d 738, 745 

(Tex. Crim. App. 2010); see Cotton v. State, 686 S.W.2d 140, 142–43 & 142 n.3 

(Tex. Crim. App. 1985) (identifying characteristics constituting evidence of 
10

intoxication to include slurred speech, bloodshot or glassy eyes, unsteady 

balance, “staggering gait,” and odor of alcohol on person or on her breath). 

Moreover, as a general rule, the testimony of a police officer regarding the 

defendant’s behavior and the officer’s opinion that the defendant is intoxicated 

provides sufficient support to uphold a jury verdict. See Zill v. State, 355 S.W.3d 

778, 785–86 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The jury may also 

consider the defendant’s refusal to submit a blood or breath specimen as evidence 

of intoxication. See TEX. TRANSP. CODE ANN. § 724.061 (West Supp. 2011); 

Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008) (“Evidence of the 

appellant’s refusal to submit to a breath test is relevant for precisely the reason that 

the trial court identified in the contested jury instruction, namely, that it tends to 

show a consciousness of guilt on his part.”); Zill, 355 S.W.3d at 786. 

Here, Trooper Culling testified that appellant was driving on the shoulder of 

the freeway when he nearly hit the trooper’s patrol car. He further testified that 

appellant did not pull over immediately and only stopped after Trooper Culling had 

activated his patrol lights, blown his air horn, and turned his siren on. When asked 

if he had been drinking, appellant admitted that he had had two shots fifteen 

minutes before the trooper stopped him, and that he had not eaten anything the 

previous day. Trooper Culling testified that appellant smelled of alcohol, that he 

had bloodshot and glassy eyes and a blank stare, and that he spoke haltingly. 
11

Trooper Culling stated that although appellant told him that he was going to pick 

someone up in LaMarque, appellant had passed LaMarque and was heading in the 

wrong direction.

Trooper Culling testified that appellant exhibited six out of six clues on the 

HGN test. On the finger-counting test, appellant did not follow instructions to stop 

after two passes and missed his third finger every time. Trooper Culling also 

stated that appellant failed to follow instructions on the Rhomberg test and opened 

his eyes and stared at the trooper before thirty seconds had elapsed. Trooper 

Culling also noticed that appellant swayed during the test. Appellant refused to 

take the portable breath test or a blood test at the station. Trooper Culling testified 

that appellant was very uncooperative, did not answer his questions, and answered 

question he was not asked. The trooper also stated that appellant told him that he 

had been a police officer for twenty years and that his father was a police officer 

who was about to receive a lifetime achievement award. Trooper Culling testified 

that he believed that appellant was intoxicated.

Appellant contends that the evidence was insufficient to show he was 

intoxicated because he had only had two drinks which would have been out of his 

system by the time of the stop. However, appellant presented no expert retrograde 
12

extrapolation testimony in this regard.4 He also contends that Trooper Culling 

wanted appellant to take the portable breath test—which appellant alleges is 

inaccurate and the results of which are not reviewable by a jury—so that the 

trooper could interpret the results as positive and appellant could not refute his 

testimony. Appellant argues that Trooper Culling wanted him to take a blood test 

because he suspected appellant might also have taken drugs. Notwithstanding 

appellant’s belief as to Trooper Culling’s motivations, the jury could consider 

appellant’s refusal to submit a blood or breath specimen as evidence of his 

intoxication. See Bartlett, 270 S.W.3d at 150.

Appellant further argues that Trooper Culling was determined that appellant 

fail all the field sobriety tests. In support of this contention, appellant argues that 

Trooper Culling positioned appellant so that the video did not show him taking the 

finger-counting test, and the trooper concluded that appellant had failed the 

Rhomberg test even though he had accurately estimated thirty seconds. As noted 

above, an officer’s testimony that a defendant performed poorly on a field sobriety 

 4 “Retrograde extrapolation is the computation back in time of blood-alcohol levelthat is, the estimation of the level at the time of driving based on a test result from 

some later time.” Mata v. State, 46 S.W.3d 902, 908–09 (Tex. Crim. App. 2001). 

Following this procedure, an expert possessing sufficient information concerning 

such variables as an individual’s weight, age, mental state, drinking pattern, type 

and amount of alcohol consumed, amount of food in the stomach, and the time 

period of alcohol consumption, can reliably estimate a person’s blood-alcohol 

concentration at the time of driving. See Kirsch v. State, 306 S.W.3d 738, 744 n. 

19 (Tex. Crim. App. 2010). 
13

test and failed to follow directions is evidence raising an inference of intoxication. 

See Kirsch, 306 S.W.3d at 745 (listing “inability to perform field sobriety tests or 

follow directions” as evidence that raises inference of intoxication); Finley v. State, 

809 S.W.2d 909, 913 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (“Texas 

courts consistently uphold DWI convictions based upon the opinion testimony of 

police officers who observed the defendant’s unsatisfactory performance in field 

sobriety tests.”).

It is the province of the jury to decide conflicts in the evidence, and, in a 

sufficiency of the evidence review, we will not re-evaluate the weight and 

credibility of the evidence or substitute our judgment for that of the jury. See

Williams, 235 S.W.3d at 750. We resolve all inconsistencies in the evidence in 

favor of the verdict. Curry, 30 S.W.3d at 406. Furthermore, even when there is no 

conflict in the evidence, “the jury may give no weight to some evidence, and 

thereby reject part or all of a witness’ testimony.” Zill, 355 S.W.3d 787. Although 

appellant offered various reasons for his erratic driving, his post-driving behavior, 

his inability to perform the sobriety tests, his refusal to take the portable breath test 

or a blood test, and his failure to follow directions, the jury was fully entitled to 

believe Trooper Culling’s testimony that appellant was intoxicated and disbelieve 

appellant’s alternative explanations for his behavior. See id. (noting that although 

defendant’s behavior during traffic stop may have been consistent with head 
14

injury, her behavior also constituted recognized evidence of intoxication); Russell 

v. State, 290 S.W.3d 387, 397 (Tex. App.—Beaumont 2009, no pet.) (holding 

evidence sufficient to support intoxication finding despite defendant’s contention 

that his behavior and symptoms were caused by hypoglycemia and diabetes).

Viewing all of the evidence in the light most favorable to the jury’s verdict, 

we hold that the evidence was sufficient for a rational fact finder to have found 

beyond a reasonable doubt that appellant was intoxicated by alcohol at the time he 

was stopped by Trooper Culling. We overrule appellant’s third issue.

B. Mistrial

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

motion for mistrial based upon Trooper Culling’s testimony that when a driver 

exhibits four clues on the HGN test that means that the driver is intoxicated above 

.08 blood-alcohol content (“BAC”) level. The State argues that the trooper’s 

answer did not constitute a highly prejudicial and incurable error requiring mistrial.

1. Standard of Review

We review a trial court’s denial of a motion for a mistrial for an abuse of 

discretion. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We view 

the evidence in the light most favorable to the trial court’s ruling, considering only 

those arguments before the court at the time of its ruling. Wead v. State, 129 
15

S.W.3d 126, 129 (Tex. Crim. App. 2004). We uphold the ruling if it was within 

the zone of reasonable disagreement. Id.

2. Applicable Law

A mistrial is an appropriate remedy in extreme circumstances for a narrow 

class of highly prejudicial and incurable errors. Hawkins v. State, 135 S.W.3d 72, 

77 (Tex. Crim. App. 2004). A mistrial halts trial proceedings when error is so 

prejudicial that expenditure of further time and expense would be wasteful and 

futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The particular 

facts of the case determine whether an error requires a mistrial. Id. Because a 

mistrial is an extreme remedy, a trial court should grant it “only when residual 

prejudice remains” after less drastic alternatives are explored. Bokemeyer v. State, 

355 S.W.3d 199, 202–03 (Tex. App.—Houston [1st Dist.] 2011, no pet.). “Less 

drastic alternatives include instructing the jury ‘to consider as evidence only the 

testimony and exhibits admitted through witnesses on the stand,’ and, questioning 

the jury ‘about the extent of any prejudice,’ if instructions alone do not sufficiently 

cure the problem.” Ocon, 284 S.W.3d at 885 (quotation omitted).

We generally consider instructions to the jury to be sufficient to cure most 

improprieties that occur during a trial. Gamboa v. State, 296 S.W.3d 574, 580 

(Tex. Crim. App. 2009). And, we presume that a jury will follow the judge’s 

instructions. Id.; see also Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App.
16

1998) (jury presumed to disregard parole during deliberation when so instructed); 

Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988) (jury presumed to 

follow instruction to disregard testimony regarding defendant’s post-Miranda 

silence); Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987) (jury 

presumed to follow instruction after accomplice witness alluded to defendant’s 

previous incarceration).

3. Analysis

Appellant complains of the following testimony by Trooper Culling:

I observed – as part of the evaluation of this test there are clues that 

we look for. There are six clues. As the test is evaluated, if the 

subject shows four clues, they are considered to be intoxicated by 

alcoholic beverage above .08. 

Appellant argues that the State deliberately elicited this testimony despite the trial 

court’s prior ruling that Trooper Culling could not testify that appellant’s 

performance on the sobriety tests indicated his BAC level. He argues that because 

this testimony was the State’s only evidence regarding appellant’s alcohol 

concentration, the trial court committed error in denying a mistrial. The State does 

not dispute that Trooper Culling’s testimony that a person who shows four clues is 

considered to have a BAC level above .08 was impermissible. Rather, the State 

argues that this comment did not warrant a mistrial in light of the trial court’s 

instruction to disregard and the overwhelming evidence of appellant’s guilt.
17

In Emerson v. State, the Court of Criminal Appeals held that a peace officer 

may not correlate a defendant’s BAC level with the defendant’s performance on 

field sobriety tests. See 880 S.W.2d 759, 769 (Tex. Crim. App. 1994); see also 

Smith v. State, 65 S.W.3d 332, 345–48 (Tex. App.—Waco 2001, no pet.) (holding 

that trial court erred by allowing peace officer to testify, among other things, that 

defendant who had four clues on HGN would have BAC over .08 percent). In 

short, a peace officer may give qualitative, but not quantitative, results from field

sobriety tests. Youens v. State, 988 S.W.2d 404, 406 (Tex. App.—Houston [1st 

Dist.] 1999, no pet.).

We hold that the trial court did not abuse its discretion in denying appellant’s 

request for a mistrial. On this record, the trial court reasonably could have 

concluded that the conduct did not establish an extreme circumstance warranting a 

mistrial. See Hawkins, 135 S.W.3d at 77. The objectionable comment was part of 

more than one hundred pages of testimony by Trooper Culling. The trial court 

immediately instructed the jury “in the strongest language to disregard the last 

portion of [Trooper Culling’s] answer.” The court then asked if any juror felt that 

he or she could not disregard the last part of the witness’s answer, and no juror 

raised a hand. There is nothing to suggest that the trial court’s instruction failed to 

remedy the situation. See Bokemeyer, 355 S.W.3d at 205 (concluding no 

indication existed that curative instructions failed to remedy situation where two 
18

jurors disagreed with defense counsel regarding where trooper stood during traffic 

stop and prosecutor responded to jurors by giving them two thumbs up); Ocon, 284 

S.W.3d at 883, 887 (finding no evidence showing curative instructions failed to 

remedy situation where juror had phone call in presence of another juror in which 

he described defendant as “bastard” and case as “dirty, disgusting”). Moreover, we

presume that a jury will follow the judge’s instructions. See Gamboa, 296 S.W.3d 

at 580 (jury presumed to follow instruction to disregard after family member of 

murder victim shouted in open court, “You did this for 200 dollars?”). In sum, 

there is nothing in the record indicating that the trooper’s statement—particularly 

in light of the other evidence of appellant’s intoxication—influenced the jury’s 

decision as to whether appellant was driving while intoxicated. See Robinson, 851 

S.W.2d at 230 (trial court did not abuse discretion in denying mistrial when juror 

received evidence outside record but did not share it with other jurors and said 

information would not influence her in reaching verdict). We overrule appellant’s 

first issue. 

C. Jury Argument

In his second issue, appellant contends that the trial court erred in not 

granting a mistrial based on the State’s improper jury argument. The State argues 

that appellant failed to obtain a ruling from the court. Alternatively, it argues that 

even if appellant had preserved error, the State’s jury argument was permissible.
19

In its closing argument, the State argued, “Ladies and gentlemen, you know 

what the difference between a DWI and intoxicated manslaughter is? Chance. 

That’s all it is.” Trial counsel objected, and counsel approached the bench. 

However, trial counsel did not obtain a ruling on her objection. See TEX. R. APP.

P. 33.1(a)(2) (requiring that trial court rule on objection or that complaining party 

object to court’s refusal to rule). Having failed to pursue the objection to an 

adverse ruling, appellant failed to preserve his complaint for our review. Cockrell 

v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (concluding defendant’s 

failure to object to jury argument or to pursue to adverse ruling his objection to 

jury argument forfeits his right to complain about argument on appeal).

However, even if appellant had preserved his complaint, the State’s 

argument was not improper. Jury argument by the State is generally considered 

permissible if it falls within one of the following categories: (1) summation of the 

evidence adduced at trial; (2) reasonable deductions from that evidence; (3) 

answer to argument of defense counsel; and (4) pleas for law enforcement. 

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). The State is 

allowed wide latitude in drawing inferences from the evidence as long as the 

inferences are reasonable and offered in good faith. See Brown v. State, 270 

S.W.3d 564, 572 (Tex. Crim. App. 2008). For reversal to be warranted, the 
20

remarks must have constituted a willful and calculated effort to deprive appellant 

of a fair and impartial trial. Id. at 572–73.

Trooper Culling testified that he was sitting in his patrol car with a DWI 

suspect on the shoulder of the freeway when he saw appellant’s vehicle in his 

rearview mirror about fifty yards away splitting the lane of traffic and the shoulder. 

When he looked again, appellant’s vehicle was driving completely on the shoulder 

and approaching his patrol car at approximately forty miles an hour. Trooper 

Culling testified that he believed that appellant was about to hit his patrol car, and 

that he braced for impact. Based on this evidence and the evidence of appellant’s 

intoxication, it is a reasonable deduction that appellant could have killed Trooper 

Culling and the DWI suspect had appellant not been able to veer back into his lane 

in time to avoid hitting the patrol car, and, if that had occurred, appellant might 

have been charged with intoxication manslaughter.5

 We overrule appellant’s 

second issue.

Conclusion

We affirm the trial court’s judgment.

 5 A person commits the offense of intoxication manslaughter if the person (1) 

operates a motor vehicle in a public place, (2) is intoxicated, and (3) by reason of 

that intoxication, causes the death of another by accident or mistake. See TEX.

PENAL CODE ANN. § 49.08(a)(1), (2) (West Supp. 2010). 
21

Jim Sharp

Justice 

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).