CAUSE NO. 03-14-00483-CR

________________________________________________________________________ 

IN THE COURT OF APPEALS FOR THE 

THIRD DISTRICT OF TEXAS 

AUSTIN 

________________________________________________________________________ 

TERRY LYNN STEVENS,

Appellant

V.

THE STATE OF TEXAS, 

Appellee 

________________________________________________________________________ 

ON APPEAL FROM CAUSE NO. 41839 

424th JUDICIAL DISTRICT COURT OF BURNET COUNTY, TEXAS 

________________________________________________________________________ 

BRIEF FOR APPELLEE 

______________________________ 

OFFICE OF THE DISTRICT ATTORNEY 

33RD AND 424TH JUDICIAL DISTRICTS 

Wiley B. McAfee, District Attorney 

P.O. Box 725 

Llano, TX 78643 

Telephone: 325-247-5755

Facsimile: 325-247-5274

By: R. Blake Ewing 

 Assistant District Attorney 

 State Bar No. 24076376

 asstda2@burnetcountytexas.org 

 Gary W. Bunyard 

 Assistant District Attorney 

 State Bar No. 03353500 

 g.bunyard@co.llano.tx.us 

ATTORNEYS FOR APPELLEE 

July 27, 2015

ORAL ARGUMENT REQUESTED

ACCEPTED

03-14-00483-CR

6244366

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/27/2015 8:07:24 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/27/2015 8:07:24 PM JEFFREY D. KYLE Clerk
- ii -

IDENTITY OF THE PARTIES AND COUNSEL

Trial Court

Honorable Dan H. Mills (Retired)

424th Judicial District

Burnet County Courthouse Annex (North)

1701 E. Polk St., Suite 74

Burnet, TX 78611

Attorney for State/Appellee

R. Blake Ewing (Trial and Appellate Counsel)

Assistant District Attorney

1701 E. Polk, Suite 24

Burnet, TX 78611

512-756-5449

State Bar No. 24076376

Gary W. Bunyard (Appellate Counsel)

Assistant District Attorney

P.O. Box 725

Llano, TX 78643

325-247-5755

State Bar No. 03353500

Richard Crowther (Trial Counsel)

Assistant District Attorney

1701 E. Polk, Suite 24

Burnet, TX 78611

512-756-5449

State Bar No. 05174200
- iii -

Attorney for Appellant

Tracy D. Cluck (Appellate Counsel)

1450 West Highway 290, #855

Dripping Springs, TX 78620

512-264-9997

State Bar No. 00787254

Michelle Moore (Trial Counsel)

1008 N. Water

Burnet, TX 78611

512-234-3074

State Bar No. 14362150

Michael Watson (Trial Counsel)

1008 N. Water

Burnet, TX 78611

512-234-3074

State Bar No. 24060804

Appellant

Terry Lynn Stevens

TDCJ# 01942880

SID# 05052947

TDCJ, Alfred Hughes Unit

Rt. 2 Box 4400

Gatesville, TX 76597
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TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL..................................................................... ii

TABLE OF AUTHORITIES........................................................................................................ v 

STATEMENT OF THE CASE .................................................................................................... 2

STATEMENT ON ORAL ARGUMENT.................................................................................... 2

REPLY TO ISSUE PRESENTED ............................................................................................... 3

EXPLANATION OF CITATION OF RECORDS..................................................................... 3

STATEMENT OF FACTS ........................................................................................................... 4

SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 1 ........................................... 8

ARGUMENT ON REPLY TO ISSUE NO. 1 ............................................................................. 9

I. The trial court properly denied Appellant’s motion to suppress evidence of blood 

test results based on alleged deficiencies in the warrant affidavit................... 9

II. If the trial court did err in admitting the evidence of blood results, any such 

error was harmless in light of the overwhelming evidence of Appellant’s 

intoxication..................................................................................... 17

SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 2 ......................................... 27

ARGUMENT ON REPLY TO ISSUE NO. 2 ........................................................................... 28

SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 3 ......................................... 34

ARGUMENT ON REPLY TO ISSUE NO. 3 ........................................................................... 35

PRAYER FOR RELIEF............................................................................................................. 39

CERTIFICATE OF WORD COUNT ....................................................................................... 39

CERTIFICATE OF SERVICE.................................................................................................. 40
- v -

TABLE OF AUTHORITIES

Cases

Annis v. State, 578 S.W.2d 406 (Tex. Crim. App. 1979)....................................................18

Ashford v. State, 658 S.W.2d 216 (Tex. App. Texarkana 1983)................................22

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007).................................28, 29

Cotton v. State, 686 S.W.2d 140 (Tex. Crim. App. 1985)......................................19

Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010)............................................9

Denton v. State, 911 S.W.2d 388 (Tex. Crim. App. 1995)......................................29

Flores v. State, 319 S.W.3d 697 (Tex. Crim. App. 2010)........................................11

Gilbert v. State, 808 S.W.2d 467 (Tex. Crim. App. 1991)..................................................35

Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989)........................................18

Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001)..............................................17

Hitt v. State, 53 S.W.3d 697 (Tex.App.—Austin 2001).........................................36

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007).................................................29

Hyde v. State, 846 S.W.2d 503 (Tex. App.—Corpus Christi 1993, pet. ref’d)...............20

Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983)............9, 10, 11

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)...........28

Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990).....................................11

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991)................................35

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998).......................................17

Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999)......................................35

Poole v. State, 974 S.W.2d 892 (Tex.App.—Austin 1992).....................................36
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Rabbani v. State, 847 S.W.2d 555 (Tex. Crim. App. 1992), 

cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731 (1993)................26

Rodriguez v. State, 232 S.W.3d 55 (Tex. Crim. App. 2007)....................................10

State v. Jordan, 342 S.W.3d 565 (Tex. Crim. App. 2011).......................................11

State v. McLain, 337 S.W.3d 268 (Tex. Crim. App. 2011)..................................9, 10

State v. Webre, 347 S.W.3d 381 (Tex. App.—Austin 2011, no pet.).......................9, 10

Stovall v. State, 440 S.W.3d 661 (Tex. App.—Austin 2011, no pet.)..................9, 15, 16

Swearingen v. State, 143 S.W.3d 808 (Tex. Crim. App. 2004)....................9, 10, 13, 26

United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)............10

Villareal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009)....................................28

Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000)....................................18

Yates v. State, 941 S.W.2d 357 (Tex.App.—Waco 1997, pet. ref’d)......................36, 38

Zill v. State, 355 S.W.3d 778 (Tex. App.—Houston [1st Dist.] 2011, no pet.................21

Statutes and Constitutions

Tex. Evid. R. 403......................................................................................35

Tex. Penal Code Sec. 1.07(a)(40)..................................................................33

Tex. Penal Code Sec. 12.42...........................................................................2

Tex. Penal Code Sec. 49.04..........................................................................29

Tex. Penal Code Sec. 49.09...........................................................................2

Tex. R. App. P. 44.2(a)...............................................................................17

Tex. Transp. Code Ann. § 724.061............................................................15, 22

U.S. Const. amend IV................................................................................10
- vii -

Treatises

W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 

§ 11.7(c) at 452 (4th ed. 2004 & Supp. 2009-2010)).............................................11
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CAUSE NO. 03-14-00483-CR

________________________

IN THE COURT OF APPEALS FOR THE

THIRD DISTRICT OF TEXAS

AUSTIN

________________________

TERRY LYNN STEVENS,

Appellant

V.

THE STATE OF TEXAS,

Appellee

________________________

ON APPEAL FROM CAUSE NO. 41839

424th JUDICIAL DISTRICT COURT OF BURNET COUNTY, TEXAS

________________________

BRIEF FOR APPELLEE

________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW the Appellee, the State of Texas, and files this brief 

pursuant to the provisions of the Texas Rules of Appellate Procedure in reply 

to the brief by the Appellant, and in support thereof would show the Court as 

follows:
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STATEMENT OF THE CASE

The Appellant’s statement of the case is largely accurate, but 

incorrectly describes the contents of the indictment. The indictment contains 

allegations of four prior convictions against the Appellant: two convictions

for offenses relating to the operation of a motor vehicle while intoxicated,

making the indicted offense a third degree felony under Sec. 49.09(b)(2) of 

the Texas Penal Code, and two other sequential felony convictions for 

driving while intoxicated, enhancing the charged offense to a habitual range 

of punishment under Sec. 12.42(d) of the Penal Code. Tex. Pen. Code 

§§12.42, 49.09.

STATEMENT ON ORAL ARGUMENT

The undersigned requests oral argument. While the undersigned 

believes that the issues raised by Appellant and addressed herein are 

straightforward and do not present any novel or complex questions on which 

oral argument would be beneficial to the Court, Appellant has requested oral 

argument and the undersigned is willing to participate if the Court believes 

that oral argument will assist the Court in any way.
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REPLY TO ISSUES PRESENTED

Reply to Issue One:

The trial court properly denied Appellant’s motion to suppress evidence of 

blood test results based on alleged deficiencies in the supporting affidavit. 

Even if the trial court did err in allowing the blood evidence to be admitted,

any such error was harmless in light of the overwhelming evidence of the 

Appellant’s guilt.

Reply to Issue Two:

The evidence that Appellant operated a motor vehicle was legally sufficient 

to support a finding of guilt by the jury.

Reply to Issue Three:

The trial court applied the necessary balancing test under Rule 403 and 

properly admitted recordings of Appellant’s jail phone calls.

EXPLANATION OF CITATION OF RECORDS

The Clerk’s Record will be cited by page number as “C.R. _____ 

[page number].” The Court Reporter’s Record will be cited by volume and 

page number as “R.R. Vol. _____ [volume number], p. ______ [page 

number]” and, where necessary, “l. _____ [line number].”
- 4 -

STATEMENT OF FACTS

Appellant’s statement of the facts is inaccurate or incomplete with 

respect to certain details relevant to the issues presented. 

The charge at issue arose from events occurring at the gated entrance 

to the Ridgemont Village apartment complex in Burnet County, Texas on the 

evening of May 9, 2013. R.R. Vol. 3, pp. 29-47. Socorro McCrum, a 

resident of the complex, was standing outside her apartment and saw a white 

pickup truck drive in from a public street and pull up to the “code box” 

controlling the gate at the entrance of the complex. Id. at 38-39, 44. A short 

time later, another car pulled in behind the white pickup truck. Id. at 38. 

Once the gate opened, the second vehicle to arrive drove around the white 

pickup truck and entered the complex. Id. at 40. The white pickup truck 

then rolled backward into a fence. Id. McCrum called the police and stayed 

in her apartment until Officer Justin Boucher of the Marble Falls Police 

Department arrived. Id. McCrum was not able to see or describe the person

driving the white pickup truck. Id. at 41. She did not see anyone enter or 

exit the vehicle until police arrived, and did not see any other persons in the 

area. Id. 

Officer Boucher was dispatched to the Ridgemont Village complex at 

9:34 p.m. in response to a report that a white pickup truck had backed into a 
- 5 -

fence. Id. at 49. Boucher arrived at the apartment complex at 9:39 p.m. Id. 

at 50. Boucher saw a white pickup truck backed up against a fence column 

outside the complex’s gate. Id. at 52. The truck’s brake lights were 

illuminated when Boucher first observed it. Id. at 51, 80. As Boucher 

approached the truck, Appellant opened the driver’s side door and stepped 

out. Id. at 54. Boucher noticed immediately that Appellant was “unstable on 

his feet” and was “staggering.” Id. at 54-55. When asked to step away from 

the vehicle, Appellant “ran into the side mirror” of the truck. Id. at 55. 

Boucher detected the strong odor of an alcoholic beverage and asked 

Appellant how much he had had to drink that evening, to which Appellant 

replied “a couple beers.” Id. at 56; R.R. Vol. 6, State’s Exhibit 7. When 

asked the same question again a short time later, Appellant said “about three 

beers.” Id. Boucher asked Appellant whether he had ever been this 

intoxicated before, to which Appellant replied “No I haven’t.” Id.

Boucher conducted field sobriety tests on Appellant and observed 

numerous signs of intoxication. R.R. Vol. 3, p. 57-64, 81-90; R.R. Vol. 6, p. 

104-105. After attempting unsuccessfully to complete one of the tests, 

Appellant said to Boucher “Hell, why don’t you just arrest me?” R.R. Vol. 

3, p. 64; R.R. Vol. 6, State’s Exhibit 7. After Appellant was taken into 
- 6 -

custody, an opened alcoholic beverage was found in the white truck. R.R. 

Vol. 3, p. 65.

Boucher transported Appellant to the Marble Falls Police Department, 

where he read to Appellant the DIC-24 statutory warning and requested a 

specimen of Appellant’s blood. Id. at 71. Appellant refused. Id. Boucher 

submitted an affidavit for a search warrant to Judge Don Adams and 

obtained a warrant for Appellant’s blood. Id. at 73. A specimen was taken 

and submitted to the Texas Department of Public Safety crime lab for 

analysis. Id. at 73-80, 117-118. The blood contained an alcohol 

concentration of 0.25 grams per 100 milliliters. Id. at 118.

At trial, Appellant objected to the admission of the blood test results 

and moved for the court to suppress them, alleging deficiencies in the 

affidavit. Id. at 78-79, 106-107. The trial court found “under the totality of 

the circumstances that the search warrant affidavit is sufficient” and 

overruled Appellant’s objection that the affidavit was conclusory. Id. at 107. 

Appellant also objected under Rule 403 to the admission of recorded 

jail phone calls containing statements by Appellant that he had been “out 

pulling [his] truck in” and “couldn’t get the gate open.” R.R. Vol. 4, p. 5-7, 

12-21; R.R. Vol. 6, State’s Exhibits 13, 14. Appellant argued that the 

evidence contained on the recordings was cumulative. R.R. Vol. 4, p. 5-6. 
- 7 -

The trial court overruled Appellant’s objection, finding that the recordings 

were not cumulative and were relevant to the question of whether the 

Appellant was driving the vehicle. Id. at 6-7. 

At the conclusion of evidence the trial court instructed the jury on both

meanings of intoxication, i.e., not having the normal use of mental or 

physical faculties by reason of the introduction of a substance into the body, 

or having an alcohol concentration of 0.08 or more. Id. at 26. The jury

found Appellant guilty of felony Driving While Intoxicated as alleged in the 

indictment. Id. at 49. Appellant testified at the punishment phase of trial 

and admitted to each element of the indicted offense. R.R. Vol. 5, p. 57-58. 

The State presented evidence that Appellant had been convicted of driving 

while intoxicated on six prior occasions, four of which were felony offenses. 

Id. at 9-23. The jury assessed a sentence of life. Id. at 85. 
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SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 1

The trial court properly denied Appellant’s motion to suppress 

evidence of blood test results. The affidavit supporting the warrant to obtain 

Appellant’s blood contained sufficient facts and circumstances from which 

the magistrate could have found a substantial basis for concluding that a 

search would uncover evidence of wrongdoing. Even if the trial court did err 

in allowing the blood evidence to be admitted, any such error was harmless 

in light of the other overwhelming evidence of the Appellant’s guilt.
- 9 -

ARGUMENT ON REPLY TO ISSUE NO. 1

I. The trial court properly denied Appellant’s motion to 

suppress evidence of blood test results based on alleged 

deficiencies in the warrant affidavit.

A. Standard of Review

A trial court’s ruling on a motion to suppress is reviewed on appeal for 

abuse of discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 

2010). Normally, appellate courts apply this standard in a bifurcated 

fashion, giving almost total deference to the trial court’s determinations of 

fact, including witness credibility and demeanor, while reviewing de novo its 

applications of law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 

2011); Crain, 315 S.W.3d at 48. 

However, a court’s after-the-fact scrutiny of the sufficiency of an 

affidavit should not take the form of de novo review. Swearingen v. State, 

143 S.W.3d 808, 810 (Tex. Crim. App. 2004) (quoting Illinois v. Gates, 462 

U.S. 213, 234-237, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983)). Rather, in the 

case of a motion to suppress based on a magistrate’s decision to issue a 

search warrant, both trial and appellate courts apply a unique and highly 

deferential standard of review. Stovall v. State, 440 S.W.3d 661, 666 (Tex. 

App.—Austin 2011, no pet.) (citing McLain, 337 S.W.3d at 271); State v. 
- 10 -

Webre, 347 S.W.3d 381, 384 (Tex. App.—Austin 2011, no pet.). So long as 

the magistrate had a substantial basis for concluding that a search would 

uncover evidence of wrongdoing, the Fourth Amendment requires no more. 

U.S. Const. amend. IV; Swearingen v. State, 143 S.W.3d 808, 810 (quoting

Gates, 462 U.S. at 234-237). 

The deference paid to the magistrate’s determination of probable cause 

is based on the Fourth Amendment’s strong preference for searches 

conducted pursuant to a warrant. Id.; see also United States v. Ventresca, 

380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (“[Affidavits for 

search warrants] are normally drafted by nonlawyers in the midst and haste 

of a criminal investigation. Technical requirements of elaborate specificity 

once exacted under common law pleadings have no proper place in this area. 

A grudging or negative attitude by reviewing courts toward warrants will 

tend to discourage police officers from submitting their evidence to a judicial 

officer before acting.”)

When an appellate court reviews an issuing magistrate’s 

determination, that court should not analyze the affidavit in a hyper-technical 

manner but in a commonsensical and realistic manner, recognizing that the 

magistrate may draw reasonable inferences. McLain, 337 S.W.3d at 271;

Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007). The 
- 11 -

magistrate should not be bound by standards such as proof beyond a 

reasonable doubt or by a preponderance of the evidence; the magistrate’s 

sole concern should be probability. Johnson v. State, 803 S.W.2d 272, 288

(Tex. Crim. App. 1990) (citing Gates, 462 U.S. at 238-39). While that 

probability cannot be based on mere conclusory statements of an affiant’s 

belief, reviewing courts, when in doubt, should defer to all reasonable 

inferences that the magistrate could have made from the facts and 

circumstances contained within the four corners of the affidavit. Rodriguez, 

232 S.W.3d at 61; State v. Jordan, 342 S.W.3d 565, 569 (Tex. Crim. App. 

2011). The magistrate’s decision should carry the day in doubtful or 

marginal cases, even if the reviewing court might reach a different result 

upon de novo review. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. 

App. 2010) (citing W. LaFave, Search and Seizure: A Treatise on the Fourth 

Amendment § 11.7(c) at 452 (4th ed. 2004 & Supp. 2009-2010)). 

B. Argument

In his first point of error Appellant argues that the trial court erred by 

admitting evidence of blood test results over his objection. At trial, 

Appellant objected to the admission of blood evidence and blood test results, 

alleging that the affidavit supporting the warrant to obtain his blood was 

deficient. R.R. Vol. 3, p. 78, 107. The trial court heard Appellant’s 
- 12 -

argument outside the presence of the jury, treating Appellant’s objection as a 

motion to suppress. Id. at 107. Appellant’s counsel argued, in reference to 

the affidavit, as follows:

Paragraph Four is conclusory, no facts given to support that 

conclusion. Paragraph Five, there’s [sic] no facts that Terry 

Lynn Stevens was, in fact, the driver or even operated the 

motor vehicle in accordance with the law. So based on that, 

there is no evidence that Terry Lynn Stevens was driving or 

operating that vehicle inside the four corners of that affidavit 

and, therefore, the blood should be suppressed.

Id. The trial court overruled Appellant’s objection, finding “under the 

totality of the circumstances that the search warrant affidavit is sufficient....” 

Id. 

Appellant now argues that “there are no facts to support whether the 

vehicle in question was in a public rather than private drive, no facts to 

support whether Appellant was ‘operating’ the vehicle in question (or in any 

manner connected to this or any other motor vehicle), and no facts to 

establish when exactly the incident in question happened.” Appellant’s 

Brief, p. 18 (emphasis and parenthetical in original). 
- 13 -

Assuming, without conceding, that Appellant’s trial objection 

preserved error as to each of the arguments he now advances on appeal, the 

trial court correctly overruled Appellant’s objection. The affidavit, when 

analyzed in a non-technical, common-sense manner, does contain sufficient 

facts and circumstances from which the magistrate could have found a 

substantial basis for concluding that a search would uncover evidence of 

wrongdoing. See Swearingen, 143 S.W.3d at 810.

The affidavit states that Officer Boucher made contact with Appellant 

at approximately 9:39 p.m. on May 9, 2013. R.R. Vol. 6, p.104. It further 

states that “the reason for the contact” with Appellant was that Boucher

“responded to 92 Gateway North in reference to a vehicle that was stopped at 

a gate code entry point trying to enter a gate code to enter the property. The 

complainant advised that the vehicle then slowly rolled backwards and 

struck a fence.” Id. The statement that the suspect vehicle was attempting 

to gain entry to property by entering a “gate code” supports the reasonable 

inference that the suspect vehicle was being operated in a public place. 

It is common knowledge that the purpose of encoded gates is to 

restrict access to private property, and so the magistrate could have 

reasonably inferred that the vehicle attempting to gain entry to the gated 

property was in a public place while stopped at the gate code entry point. 
- 14 -

The fact that the vehicle was “trying to enter the property” and “rolled 

backwards and struck a fence” also supports the inference that the vehicle in 

question was being operated by some person. Thus a commonsensical, 

realistic reading of the affidavit supports the conclusion that the suspect 

vehicle was being operated in a public place. 

While it is true that the affiant made no direct statements identifying 

Appellant as the person operating the vehicle, the reviewing magistrate could 

have inferred from the facts and circumstances set forth in the affidavit that 

the Appellant was reasonably likely to have been operating the vehicle. The 

affidavit’s description of the vehicle’s movements (i.e., slowly rolling 

backward and striking a fence after being stopped at a gate code entry point 

trying to enter the property) indicate that the person operating the vehicle –

whoever that may have been – was intoxicated or otherwise impaired. The 

magistrate could then have inferred that there was a reasonable probability 

that Appellant was the person who had been operating the vehicle, based on

the fact that Boucher made contact with Appellant as a result of the reported 

accident and observed numerous signs of intoxication in Appellant while 

responding to the complaint. Id. 

The affidavit stated that Appellant staggered and was unsteady when 

walking; he swayed and used support when balancing; his speech was 
- 15 -

slurred and incoherent; his eyes were bloodshot; Boucher detected the strong 

odor of an alcoholic beverage while talking with him; he performed poorly 

on field sobriety tests. Id. Finally, Appellant refused to voluntarily provide 

a blood sample. Id. See Stovall, 440 S.W.3d at 668, n.7 (citing Tex. Transp. 

Code Ann. § 724.061) (“The magistrate could also have inferred that Stovall 

had driven while intoxicated from his refusal to submit to a breath test.”) 

In other words, that facts in the affidavit describing Appellant’s 

intoxication are circumstantial evidence that Appellant was the person who 

had been operating the erratically driven vehicle also described in the 

affidavit, and the magistrate could have concluded that the nexus between 

those facts provided a substantial basis to support a finding of probable 

cause.

Appellant also argues that the affidavit contains no facts to establish 

when exactly the incident in question happened, and that Officer Boucher 

could have been dispatched to take a report about an incident that happened 

at some point much earlier in time. A common-sense analysis of the 

affidavit makes this scenario implausible and supports the conclusion that 

the reported auto accident had occurred shortly before Boucher’s response. 

It is common knowledge that complainants who have witnessed auto 

accidents generally call authorities immediately to report the incident. It is 
- 16 -

also common knowledge that authorities generally respond promptly to 

complaints relating to auto accidents. See Stovall, 440 S.W.3d at 667-68

(discussing common knowledge relating to the promptness of police dispatch 

for auto accidents). Furthermore, Boucher responded to the witnessed 

accident at 9:39 p.m. R.R. Vol. 6, p. 104. It is particularly unlikely that a 

person witnessing an auto accident would wait until such a late hour of the 

night to call authorities, or that a law enforcement agency would delay 

response until such an hour. 

Thus the affidavit, analyzed in a realistic manner and in light of 

common knowledge and experience, sets out sufficient facts and 

circumstances on its face from which the magistrate could have reasonably 

inferred that Appellant was operating the vehicle just prior to the 

complainant’s report and Boucher’s response to the scene of the incident. 

Furthermore, since Boucher responded to the report at 9:39 p.m., observed 

signs of intoxication in Appellant, and submitted the affidavit to the 

magistrate at 10:30 p.m. on the same date, the magistrate had a substantial 

basis to determine that evidence of intoxication would still be present in 

Appellant’s blood when the warrant was issued. Id.

For the foregoing reasons, deferring to all reasonable inferences that 

the magistrate could have made in finding probable cause to issue the 
- 17 -

warrant, the trial court did not abuse its discretion by overruling Appellant’s

objection and admitting evidence of blood test results. 

II. If the trial court did err in admitting the evidence of blood 

results, any such error was harmless in light of the 

overwhelming evidence of Appellant’s intoxication.

A. Standard of Review

The harm analysis for the erroneous admission of evidence obtained in 

violation of the Fourth Amendment is Texas Rule of Appellate Procedure 

44.2(a)’s constitutional standard. Hernandez v. State, 60 S.W.3d 106, 108 

(Tex. Crim. App. 2001); Tex. R. App. P. 44.2(a). Rule 44.2(a) requires the 

reversal of a judgment of conviction unless it can be determined beyond a 

reasonable doubt that the error did not contribute to the conviction. Tex. R. 

App. P. 44.2(a). In applying the harmless error test, a reviewing court’s 

primary question is whether there is a reasonable possibility that the error 

might have contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 

259 (Tex. Crim. App. 1998). In answering that question, the reviewing court 

should evaluate the entire record in a neutral, impartial, and even-handed 

manner and calculate as much as possible the probable impact of the 

erroneously admitted evidence on the jury in light of the existence of other 
- 18 -

evidence. Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989);

Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000).

B. Argument

If this Court were to find that Appellant’s objection should have been 

sustained and the evidence of Appellant’s blood test results should have been

suppressed, any error resulting from the admission of the evidence was 

harmless. Even disregarding the blood test results, the evidence of 

Appellant’s intoxication was overwhelming. Officer Boucher testified that 

he had special training relating to detecting signs of intoxication and that, 

based on his training and experience, he was “100 percent sure that 

[Appellant] was intoxicated” due to having lost the use of his mental or 

physical faculties. R.R. Vol. 3, p. 48, 64, 99. See Annis v. State, 578 S.W.2d 

406, 407 (Tex. Crim. App. 1979) (reasoning that an officer’s testimony that a 

person was intoxicated provided sufficient evidence to establish the element 

of intoxication). 

In addition to Boucher’s testimony establishing Appellant’s 

intoxication, the jury also viewed a video recording of Boucher’s interaction 

with Appellant. R.R. Vol. 3, p. 66-68. The video clearly shows all the 

visible signs of intoxication described by Boucher. See R.R. Vol. 6, State’s 

Exhibit 7. 
- 19 -

Upon making contact with appellant, Boucher “noticed immediately 

that [Appellant] was unstable on his feet. He was staggering.” R.R. Vol. 3, 

p. 54-55. Boucher detected the odor of an alcoholic beverage, saying “the 

alcohol odor was so strong that I was able to detect it from a pretty good 

distance away.” Id. at 55. When Boucher asked Appellant to step away 

from the vehicle, Appellant “ran into the side mirror of his vehicle” and 

appeared not to realize that he had done so. Id. at 55-56. Appellant had 

“slurred, lethargic speech.” Id. at 99. Boucher further testified that 

Appellant was “unable to maintain his balance. He was falling over.” Id. 

See Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985)

(providing a nonexclusive list of signs recognized as evidence of 

intoxication, including slurred speech, odor of alcohol on the person, 

unsteady balance, and a staggering gait). Appellant also admitted to Boucher

that he had “a couple” beers, and later admitted to having “three” beers. 

R.R. Vol. 3, p. 56; See R.R. Vol. 6, State’s Exhibit 7. After placing 

Appellant under arrest, Boucher found an 18-ounce can of Bud Ice beer in 

the white truck Appellant had been operating. R.R. Vol. 3, p. 65. 

Approximately a third of the beer was left in the container. Id. When asked 

where he lived, Appellant transposed two of the numbers in his street 

address. Id. 
- 20 -

Appellant’s actions and demeanor also demonstrated a consciousness 

of guilt. During his contact with Boucher, Appellant persistently apologized 

to Boucher and begged to be permitted to go home. R.R. Vol. 6, State’s 

Exhibit 7; R.R. Vol. 3, p. 100. See Hyde v. State, 846 S.W.2d 503, 505 (Tex. 

App.—Corpus Christi 1993, pet. ref’d) (holding that “any conduct on the 

part of a person accused of a crime subsequent to its commission, which 

indicates a ‘consciousness of guilt,’ may be received as a circumstance 

tending to prove that he committed the act with which he is charged.”).

Boucher also gave extensive testimony about Appellant’s poor 

performance on several field sobriety tests. R.R. Vol. 3, p.56-64, 81-90. 

While attempting to perform the horizontal gaze nystagmus (HGN) test, 

Appellant was unable to maintain his balance and had to be asked to get back 

into position numerous times. Id. at 59. Appellant was also unable to follow 

the stimulus with his eyes numerous times. Id. at 81. Boucher testified that 

he looks for six clues with the HGN test to determine whether a person is 

intoxicated, and that he observed all six clues in Appellant. Id. at 59-60. 

Boucher next attempted to perform the walk and turn test. Id. at 60-63. He 

testified that while he was explaining the instructions Appellant was “unable 

to maintain his balance again, falling over, unable to keep his right foot in 

front of his left foot with his hands down to his side.” Id. at 61. Boucher 
- 21 -

testified that out of a possible eight clues he looks for a minimum of four 

clues to determine whether a person is intoxicated. Id. at 62. In Appellant 

he observed “six or seven” clues. Id. See Zill v. State, 355 S.W.3d 778, 786 

(Tex. App.—Houston [1st Dist.] 2011, no pet.) (“A defendant’s poor 

performance on the standardized field sobriety tests is further evidence of 

intoxication”). 

After several failed attempts to perform the walk and turn test, 

Appellant turned to Boucher and said, “Hell, why don’t you just arrest me?” 

R.R. Vol. 3, p. 56; R.R. Vol. 6, State’s Exhibit 7. Boucher then testified that 

he did not attempt to perform the “one leg stand” test, saying that “[d]ue to 

[Appellant’s] high level of intoxication I felt for his safety that he did not 

need to proceed with that due to him not being able to maintain his balance 

and continuing to fall over.” R.R. Vol. 3, p. 63. Boucher also testified that it 

is very difficult to perform field sobriety tests on a person who is extremely 

intoxicated because they are “not able to follow your instructions. They’re 

not able to maintain their balance or stand up on their own without falling 

over, so you have to continuously repeat things one after another.” Id. at 

100. This is precisely what the jury saw on the video of Boucher’s 

interaction with Appellant. See R.R. Vol. 6, State’s Exhibit 7.
- 22 -

The jury also heard evidence that Appellant refused to voluntarily 

provide Boucher with a sample of his blood, choosing instead to accept the 

legal consequences that accompany a refusal. R.R. Vol. 3, p. 71; R.R. Vol. 

6, State’s Exhibit 8. A person’s refusal to submit a blood sample to a 

requesting officer can be used as evidence against him at trial. See Tex. 

Transp. Code Ann. § 724.061; Ashford v. State, 658 S.W.2d 216 (Tex. App. 

Texarkana 1983). Appellant even admitted to being intoxicated. When 

Boucher asked Appellant “Have you ever been this intoxicated before?” 

Appellant answered, “No I haven’t.” R.R. Vol. 6, State’s Exhibit 7.

Finally, the State admitted evidence at trial that Appellant had made 

several phone calls from jail prior to trial, and played recorded audio of two 

of those calls for the jury. R.R. Vol 4, p. 12-21. See R.R. Vol. 6, State’s 

Exhibits 13 & 14. Both calls feature the Appellant having a conversation 

with a woman named Shirley Brown. R.R. Vol. 4, p. 15-16. On one of the 

calls, the following exchange takes place:

Appellant: And, uh, you know, he pulled in, I had the door 

open, was getting out of the pickup when he pulled in. I had 

my legs out, because I couldn’t get the gate open, and I said the 

hell with it I’ll just park it here and leave it here and get you to 

come get it, or you know... 
- 23 -

Brown: Yeah.

Appellant: I was just going to walk down and grab the remote 

and bring the truck and park it behind the garage, or in front of 

the garage, but... 

Brown: Why did you get started on the liquor? 

Appellant: It was cheap. It was cheap.

Brown: Yeah, but you know it makes you crazy.

Appellant: I wasn’t crazy that night. I wasn’t even arguing 

with you that night.

Brown: You were crazy.

R.R. Vol. 6, State’s Exhibit 13. This conversation clearly references the 

events on the night of Appellant’s arrest for this charge. Brown’s question 

about Appellant’s drinking and her statements that liquor makes him “crazy” 

and that he was “crazy” on the night in question are significant additional 

evidence of Appellant’s intoxication. 

In light of the overwhelming evidence detailed above, even 

disregarding the blood test results the jury would have found that appellant 

was intoxicated beyond a reasonable doubt by not having the normal use of 

his mental or physical faculties by reason of the introduction of alcohol into 

his body. 
- 24 -

Furthermore, the blood draw evidence was not unduly emphasized by 

the State at trial. On the contrary, the State stressed in closing argument that 

it was not necessary for the jury to consider the blood evidence to find 

Appellant guilty, saying:

Some of you may be thinking, man, this seems like a pretty 

easy case, right? [ . . . ] Why are we doing all this stuff with 

scientist [sic] and blood? I mean, we could have really just 

played that video, let you see with your own eyes the defendant 

clearly intoxicated . . . and sat down and let you have the case.

R.R. Vol. 4, p. 33. The State then emphasized the evidence showing that 

Appellant was intoxicated by having lost the normal use of his mental or 

physical faculties, saying:

Y’all saw that with your own eyes. You saw him get out of 

that truck. You saw him staggering around. You saw him 

bumping into the mirror. You saw him unable to even stand in 

one place when the officer was giving him the instructions on 

how to perform the test. You heard that he had failed those 

field sobriety test [sic]. So we can check off the box that he 

was intoxicated.

Id. at 36. 
- 25 -

Additionally, in his closing argument, Appellant’s trial counsel 

seemed to acknowledge the overwhelming evidence of Appellant’s

intoxication, even in the absence of the blood evidence. He urged the jurors

to discount the blood evidence and then said, 

Now, the State is going to say, well, if you don’t believe that, 

you’ve got the video. All right. Well, we can see intoxication. 

He was intoxicated, but the point I’m getting at with all this is 

the State has to prove and make sure all protocols are followed. 

[ . . . ] What if the issue is about blood? You don’t have the 

video [ . . . ] [a]nd then you get a not guilty on an intoxication 

assault because they didn’t follow the protocols.” 

Id. at 42 (emphasis added). In response to defense counsel’s argument, the 

State again argued that the critical evidence was on the video, saying, “We 

all saw it. We all know it. The defense just said it, that man was intoxicated. 

Clearly.” Id. at 47. 

The jury was properly instructed that the State could prove Appellant 

was intoxicated by not having the normal use of his mental or physical 

faculties by reason of the introduction of alcohol, or by having an alcohol 

concentration of 0.08 or more. Id. at 26; C.R. 28. When the jury is 

authorized to convict on any one of several theories or methods of 
- 26 -

commission of the same offense and returns a general verdict of guilt, it does 

not matter that the evidence is insufficient to sustain one or more of the 

theories, so long as the evidence is sufficient to sustain conviction under at 

least one theory. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 

2003) (citing Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex. Crim. App. 

1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731 (1993)).

Reviewing the entire record in a neutral manner, the other evidence of 

Appellant’s intoxication was so overwhelming that there is no reasonable 

possibility that any error by the trial court in admitting the blood test results 

might have contributed to Appellant’s conviction. The trial court’s denial of 

Appellant’s motion to suppress was harmless in light of the overwhelming

evidence of Appellant’s intoxication. Appellant’s first point of error should 

be overruled.
- 27 -

SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 2

The evidence that Appellant operated a vehicle in a public place was 

legally sufficient to support his conviction for driving while intoxicated. 

The jury heard testimony from two eyewitnesses that, taken together, 

supports the rational inference that Appellant had been operating the vehicle 

in question. The State also admitted evidence of jail phone calls containing 

admissions from Appellant that he had been operating a vehicle at the time 

of his arrest. From this evidence, a rational trier of fact could have 

concluded beyond a reasonable doubt that the State proved that Appellant 

had operated a vehicle. 
- 28 -

ARGUMENT ON REPLY TO ISSUE NO. 2

I. The evidence of the driving while intoxicated element of 

“operation” was sufficient to support a finding of guilt by 

the jury. 

A. Standard of Review

In determining the legal sufficiency of the evidence to support a 

conviction, an appellate court must consider all of the record evidence in the 

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

evidence and reasonable inferences therefrom, any rational trier of fact could 

have found the defendant guilty of all the elements of the offense beyond a 

reasonable doubt. Villareal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 

2009) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 

61 L.Ed.2d 560 (1979)). This standard accounts for the factfinder's duty "to 

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

reasonable inferences from basic facts to ultimate facts." Clayton v. State, 

235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 

319). When the record supports conflicting inferences, the appellate court 

should presume that the factfinder resolved the conflicts in favor of the 

prosecution and defer to that determination. Clayton, 235 S.W.3d at 778

(citing Jackson, 443 U.S. at 326). Direct and circumstantial evidence are 
- 29 -

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 establish guilt." Clayton, 235 S.W.3d at 778 (quoting Hooper v. 

State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)).

B. Argument

A person commits driving while intoxicated if the person is 

intoxicated while operating motor vehicle in a public place. Tex. Penal Code 

Ann. § 49.04(a). The Penal Code does not define the term “operate.” 

Denton v. State, 911 S.W.2d 388, 389 (Tex. Crim. App. 1995). The Court of 

Criminal Appeals has held that a person operates a vehicle when the totality 

of the circumstances demonstrates “that the defendant took action to affect 

the functioning of his vehicle in a manner that would enable the vehicle’s 

use.” Id. at 390. 

In the case at bar, the State presented ample evidence to show that 

Appellant operated a vehicle. Socorro McCrum testified that on the evening 

of May 9, 2013 she saw a white pickup truck drive in from a public street 

and pull up to the “code box” controlling the gate at the entrance to the 

Ridgemont Village community, where she was a resident. R.R. Vol. 3, p. 31-

39, 44. The truck’s headlights were on. Id. at 38. The truck stayed next to 

the code box for “a minute or so” until another vehicle pulled in behind the 
- 30 -

truck and waited for the gate to open. Id. McCrum heard a female voice 

from the second car yell out the gate code, and then heard the gate open. Id. 

at 40. The second vehicle then “went in reverse a little bit so that she could 

go around the truck” and entered the property through the gate. Id. The 

white truck’s lights went off and the truck started moving in reverse. Id. 

McCrum then testified that she saw the truck’s red brake lights illuminate 

and “it kind of went back with an impact and hit the fence.” Id. McCrum 

went into her apartment to call the police. Id. Officer Boucher arrived four 

or five minutes later. Id. at 49-50. McCrum went back outside when the 

police arrived and saw them take a man out of the same truck she had earlier 

seen pulling in and attempting to open the gate. Id. at 41-42. McCrum also 

testified that from the moment she first saw the white truck until the police 

arrived she never saw anyone else walking around the area, and never saw 

anyone get into or out of the truck. Id. at 41. 

Officer Boucher was dispatched to the Ridgemont Village community 

after receiving a report from dispatch that a white pickup truck had been 

parked at the gate code box and then moved backward into a fence. Id. at 49. 

When he arrived he saw a white pickup truck backed into a parking space, up 

against a white stone fence column. Id. at 49-50, 52. It was the only vehicle 

in sight matching the description given to Boucher. Id. at 51. The truck’s 
- 31 -

doors were closed and its brake lights were illuminated. Id. Boucher parked 

his patrol unit and saw Appellant open the door and exit the driver’s side of 

the truck. Id. at 54-55. 

During Boucher’s interaction with him, Appellant claimed ownership 

of the white truck and was found to be in possession of the keys to the truck. 

Id. at 69; R.R. Vol. 6, State’s Exhibit 7. Appellant asserted that he had not 

been in his truck, that Boucher had never seen him in his truck and had never 

seen him driving, but never claimed that anyone else had been driving his 

truck. R.R. Vol. 3, p. 68-69. Appellant’s claim that he had not been in the 

truck were inconsistent with Boucher’s own observation. Id. 

Officer Boucher directly observed the operation of the white truck’s 

brake lights immediately before Appellant emerged from the driver’s seat 

and was found to be intoxicated. Even if the operation of the truck’s brakes

did not itself constitute operation of the vehicle, the combined testimony of 

McCrum and Boucher and the reasonable inferences therefrom could have 

led a rational trier of fact to conclude that Appellant had been operating the 

vehicle when it entered from the street, pulled up to the gate code box, 

turned off its headlights, and moved backward into the fence. Appellant 

emerged from the driver’s side of the same truck McCrum had seen pulling 

up to the gate code box and rolling backward into the fence. No one else 
- 32 -

was seen entering or exiting the truck and Appellant did not claim that 

anyone else had been operating the vehicle prior to Boucher’s arrival. Also, 

it is particularly reasonable to infer Appellant’s operation of the white truck 

during this time since he was found to be highly intoxicated and McCrum’s 

observation of the truck’s movement is entirely consistent with its operation 

by a highly intoxicated person.

Additionally, the jury heard evidence of Appellant’s operation of the 

vehicle from Appellant himself in the form of recorded jail phone calls. The 

state admitted recordings of two of Appellant’s jail phone calls into evidence 

and played both for the jury. R.R. Vol. 4, p. 12-21. On the first, Appellant 

can be heard telling Shirley Brown that “I couldn’t get the gate open, and I 

said the hell with it, I’ll just park it here and leave it here and get you to 

come get it.” R.R. Vol. 6, State’s Exhibit 13. On the second phone call, 

Appellant can be heard saying “I went out to get the truck to bring it in and I 

couldn’t get the gate open...I got pissed off, I backed it up, parked it.” R.R. 

Vol. 6, State’s Exhibit 14.

The context of these statements makes it evident that Appellant is 

describing his operation of the white truck on the evening of May 9, 2013, 

when he was arrested for driving while intoxicated. Having heard these 

Statements from Appellant, a rational trier of fact could certainly have 
- 33 -

concluded beyond a reasonable doubt that Appellant had been operating the 

white truck on the night in question. And since McCrum and Boucher both 

testified that the area where they saw the white truck was a place where the 

public or a substantial group of the public has access, the evidence at trial 

was legally sufficient to show that Appellant operated the vehicle in a public 

place. R.R. Vol. 3, p. 36, 52-53. See Tex. Penal Code Sec. 1.07(a)(40). As 

such, the evidence was sufficient to sustain a conviction in this case and 

Appellant’s second point of error should be overruled.
- 34 -

SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 3

The trial court properly admitted recordings of jail phone calls over 

Appellant’s Rule 403 objection, since the probative value of the evidence 

was not substantially outweighed by the danger of unfair prejudice. In 

making its ruling, the trial court applied the appropriate balancing test under 

Rule 403.
- 35 -

ARGUMENT ON REPLY TO ISSUE NO. 3

I. The trial court properly overruled Appellant’s objection 

under Rule 403, since the probative value of the evidence 

was not substantially outweighed by its prejudicial effect. 

A trial court is assumed to have applied the necessary 

balancing test in overruling a Rule 403 objection, and the 

balancing test need not be performed on the record.

A. Standard of Review

A trial judge has broad discretion in admitting or excluding evidence. 

Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999). A trial judge, 

however, may exercise her discretion in excluding evidence only when its 

probative value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, misleading the jury, by considerations of 

undue delay, or needless presentation of cumulative evidence. Tex. Evid. R.

403; see also Gilbert v. State, 808 S.W.2d 467, 471-72 (Tex. Crim. App. 

1991). In reviewing the trial court's balancing test determination, a 

reviewing court is to reverse the trial court's judgment "rarely and only after 

a clear abuse of discretion." Montgomery v. State, 810 S.W.2d 372, 389

(Tex. Crim. App. 1991). 
- 36 -

Rule 403 does not require that the balancing test be performed on the 

record. Hitt v. State, 53 S.W.3d 697, 706 (Tex.App.—Austin 2001) (citing 

Yates v. State, 941 S.W.2d 357, 367 (Tex.App.—Waco 1997, pet. ref’d). In 

overruling a Rule 403 objection the trial court is assumed to have applied a 

Rule 403 balancing test and determined the evidence was admissible. Id.; 

Poole v. State, 974 S.W.2d 892 (Tex.App.—Austin 1992). The reviewing 

court, however, cannot simply conclude "the trial judge did in fact conduct 

the required balancing and did not rule arbitrarily or capriciously." Yates, 

941 S.W.2d at 392. The trial court's ruling must be measured against the 

relevant criteria by which a Rule 403 decision is made. Id. In other words, 

the reviewing court must look at the proponent's need for the evidence in 

addition to determining the relevance of the evidence. Id. at 392-93.

B. Argument

Appellant is wrong to assert that the trial court in the instant case did 

not conduct a balancing test under Rule 403 as it was required to do, and is 

therefore also incorrect to contend that the trial court admitted the evidence 

without any guiding rules or principles and abused its discretion. 

Appellant’s trial counsel objected outside the presence of the jury to the 

introduction of the aforementioned recordings of jail calls under Rule 403, 

arguing that the recordings were cumulative with respect to the issue of 
- 37 -

Appellant’s operation of the vehicle and prejudicial since they showed that 

Appellant was in custody when the calls were recorded. R.R. Vol. 4, p. 5. 

The State argued that the recordings were not cumulative, but were uniquely 

probative of Appellant’s operation of the vehicle in question. Id. at 5-6. The 

trial court overruled Appellant’s objection, saying:

Because the Court thinks it is an issue that’s been made as to 

whether he was driving the vehicle, the court is going to 

overrule your objection and I find that it’s not cumulative for 

that reason because that has become an issue as to whether he 

was the driver in this matter, so your objection is overruled.

Id. at 6-7. 

In overruling Appellant’s objection, the trial court implicitly held that 

the probative value of the recorded jail calls with respect to the issue of 

Appellant’s operation of the vehicle in question was not substantially 

outweighed by any danger of unfair prejudice relating to the Appellant’s 

presence in custody at the time they were made. The contents of the jail 

calls, as detailed above in the State’s reply to Appellant’s first and second 

points of error, were highly and uniquely probative of the fact that Appellant 

was operating the white truck on the evening of his arrest. The other 

evidence that Appellant was operating the vehicle, while substantial, was 
- 38 -

largely circumstantial, requiring the jury to draw inferences from the 

combined testimony of McCrum and Boucher. The jail phone calls, 

however, contained admissions by Appellant that he had been operating the 

white truck. And the asserted prejudicial effect, i.e., that the introduction of 

jail calls shows the jury that Appellant was in custody, is not sufficient to 

substantially outweigh the recordings’ probative value. The jury had already 

been presented with evidence showing that Appellant was taken into custody 

on the night of the offense.

The trial court did not abuse its discretion in overruling Appellant’s 

objection under Rule 403, since the probative value of the evidence was not 

substantially outweighed by any danger of unfair prejudice resulting from its 

admission. The trial court is presumed to have applied the required 

balancing test, and Rule 403 does not require that the balancing test be 

performed on the record. See Yates, 941 S.W.2d at 367. Appellant’s third 

point of error should be overruled. 
- 39 -

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, the State prays the

Court deny Appellant’s appeal and affirm the judgment of the trial court.

Respectfully submitted,

OFFICE OF THE DISTRICT ATTORNEY

33rd and 424th JUDICIAL DISTRICTS

Wiley B. McAfee, District Attorney

P.O. Box 725

Llano, Texas 78643

Telephone: (325) 247-5755

Telecopier: (325) 247-5274

 /s/ R. Blake Ewing

By: _______________________________

R. Blake Ewing

Assistant District Attorney

State Bar No. 24076376

ATTORNEY FOR APPELLEE

CERTIFICATE OF COMPLIANCE

This is to certify that the pertinent portion of this brief contains 7,480

words printed in Times New Roman 14-point font, according to the 

Microsoft WordTM 2013 word count tool.

/s/ R. Blake Ewing

_______________________________

R. Blake Ewing
- 40 -

CERTIFICATE OF SERVICE

This is to certify that a true copy of the above and foregoing 

instrument, together with this proof of service hereof, has been forwarded on 

the 27th day of July, 2015, to Mr. Tracy D. Cluck, Attorney for Appellant, by 

email at tracy@tracyclucklawyer.com

/s/ R. Blake Ewing

_____________________________

R. Blake Ewing

Assistant District Attorney