Jonathan Gill v. the State of Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00136-CR
___________________________
JONATHAN GILL, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 3
Denton County, Texas
Trial Court No. CR-2021-00148-C
Before Kerr, Birdwell, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Appellant Jonathan Gill appeals his conviction for driving while intoxicated
because it is not supported by legally sufficient evidence. For the reasons set forth
below, we affirm.
Background
On January 5, 2020, at approximately 1:34 a.m., Officer Brooke Taylor pulled
Gill over for failure to dim his bright lights as he drove toward her. Upon initiating
the traffic stop, Officer Taylor noticed that Gill smelled of alcohol, had red and glossy
eyes, and slurred his speech. Gill admitted to consuming four beers and an additional
shot while at Walter’s Tavern, a local bar not far from where Officer Taylor pulled
him over. Based upon her observations and Gill’s admission that he had been
drinking, Officer Taylor began an investigation for driving while intoxicated and
administered three standardized field sobriety tests, including the horizontal gaze
nystagmus test, the “walk-and-turn” test, and the “one-legged stand” test. Gill failed
all three tests. As a result, Officer Taylor, finding that Gill had lost the normal use of
his mental and physical faculties due to the introduction of alcohol, placed him under
arrest.
Upon initiating the arrest, Officer Taylor read Gill the statutory warning. She
then requested and received Gill’s consent to draw his blood for alcohol testing. The
lab test of Gill’s blood sample revealed a blood alcohol concentration of 0.193.
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The State presented three witnesses at trial: Officer Taylor, Officer Bradford
Nelson, who had served as the backup officer during Officer Taylor’s investigation,
and Tempest Brooks, the chemist who tested Gill’s blood sample. Officer Taylor
testified regarding the basis for her determination that Gill was intoxicated, including
his failure of all three standard field sobriety tests she administered. Officer Nelson
testified that he, like Officer Taylor, noticed several signs that Gill was intoxicated,
including lack of balance and inability to focus. Brooks confirmed that she had tested
Gill’s blood sample using headspace gas chromatography and found a blood alcohol
concentration of 0.193.
After the State rested, Gill presented four witnesses of his own: Andrew
Walter, a bartender at Walter’s Tavern, Michelle Dando and her mother Linda
Schoch, who spent time with Gill at the tavern on the night of his arrest, and, finally,
Gill himself. Walter testified that he did not notice any signs that Gill was intoxicated
but that he did not watch him all night long. Dando and Schoch both testified to
seeing Gill at Walter’s Tavern. Each stated that she did not witness Gill drink an
alcoholic beverage during the time they were with him, which was roughly between
8:45 p.m. and 10:30 p.m. Neither observed any sign that Gill was intoxicated. Lastly,
Gill testified that he arrived at the tavern around 4:15 p.m. and only consumed three
drinks that evening, despite having told Officer Taylor that he had consumed four
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beers and a shot.1 Gill attributed his abnormal behavior to having the flu. He stated
his belief that he was not intoxicated on the night in question and that the blood test
results were inaccurate.
At the conclusion of evidence, the jury found Gill guilty of driving while
intoxicated with a blood alcohol concentration of 0.15 or higher. The trial court
sentenced Gill to 365 days in jail, probated for 12 months, and a $500 fine. Gill now
appeals.
Discussion
In his sole issue, Gill argues that the evidence presented at trial was insufficient
to support his conviction for driving while intoxicated. Specifically, Gill asserts that he
effectively “negated” all of the State’s inculpatory evidence and that no rational
factfinder would find him guilty based upon the evidence presented at trial.
I. Standard of Review
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
1
Gill explained that the “shot” he mentioned to Officer Taylor had been an
allergy shot, not a shot of alcohol.
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inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).
The factfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App.
2021). We may not re-evaluate the evidence’s weight and credibility and substitute our
judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine
whether the necessary inferences are reasonable based on the evidence’s cumulative
force when viewed in the light most favorable to the verdict. Braughton v. State, 569
S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 (Tex.
Crim. App. 2017) (“The court conducting a sufficiency review must not engage in a
‘divide and conquer’ strategy but must consider the cumulative force of all the
evidence.”). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at
608.
II. Evaluating the Sufficiency of the Evidence in This Case
In this case, the jury convicted Gill of the Class A misdemeanor offense of
driving while intoxicated with an alcohol concentration of 0.15 or more. 2 In order to
support this verdict, the jury had to find the following elements beyond a reasonable
Ordinarily, driving while intoxicated is a Class B misdemeanor. However, the
2
Texas Penal Code provides that the offense shall be upgraded to a Class A
misdemeanor if the defendant is shown to have had an alcohol concentration of 0.15
or higher. Tex. Penal Code Ann. § 49.04(b), (d).
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doubt: that on January 5, 2020, Gill (1) operated a motor vehicle; (2) in a public place;
(3) while intoxicated;3 (4) with an alcohol concentration level of 0.15 or more as
determined by a blood, breath, or urine test. Id. § 49.04(a), (d). In his testimony, Gill
admitted that he was driving a vehicle on a public roadway and, therefore, only
contests the sufficiency of the intoxication and blood alcohol concentration elements.
At trial, the State presented a great deal of evidence demonstrating that Gill was
intoxicated. Officer Taylor testified at length regarding the signs of intoxication that
she observed after initiating the traffic stop, including Gill’s heavily slurred speech,
glossy and red eyes, and the strong odor of alcohol on his breath. She also testified
that Gill admitted to her that he had consumed alcohol. Officer Taylor described in
detail how Gill failed all three field sobriety tests that she administered and how he
had great difficulty understanding the simple instructions for the “walk-and-turn” test.
Based on these observations and tests, Officer Taylor confidently testified that she
determined “[w]ithout a doubt in [her] mind” that Gill was intoxicated at the time she
pulled him over. Officer Taylor’s assessment was corroborated by Officer Nelson, the
3
The Texas Penal Code defines “intoxicated” as
(A) not having the normal use of mental or physical faculties by
reason of the introduction of alcohol, a controlled substance, a
drug, a dangerous drug, a combination of two or more substances,
or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
Tex. Penal Code Ann. § 49.01(2).
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backup officer during Gill’s arrest, who testified that he also observed signs that Gill
was intoxicated, including a lack of balance and an inability to focus.
In addition to the testimony of the police officers, the State introduced
evidence from Brooks, a forensic analyst for the Texas Department of Public Safety,
who analyzed Gill’s blood sample. Brooks testified regarding her education, training in
toxicology, her lab’s accreditation, the methodology of testing blood samples, and
how she tested Gill’s blood specimen to determine its blood alcohol concentration,
including the protocols she followed both prior to and during testing of the sample to
ensure the accuracy of the results. Brooks recognized her signature on the vial of
Gill’s blood, which confirmed that she tested the blood in that vial. Based on the
results of her analysis of Gill’s sample, Brooks concluded with 99.7% certainty that
Gill had a blood alcohol concentration of between 0.184 and 0.202, the average of
which is 0.193.
Viewed in the light most favorable to the verdict, the evidence is sufficient to
support Gill’s conviction. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520
S.W.3d at 622. While Gill presented evidence conflicting with the police officers’
determination that he was intoxicated, this is not sufficient to satisfy his burden on
appeal. The jury, as the trier of fact, heard the testimony of both the State’s and Gill’s
witnesses and weighed their credibility. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.
Crim. App. 1999). The jury was free to accept or reject any or all evidence on either
side. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Though Gill
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presented evidence purporting to contradict that presented by the State, the jury’s
determination that Gill was intoxicated was not irrational. See McFadden v. State, 541
S.W.3d 277, 284 (Tex. App.—Texarkana 2018, pet. ref’d) (“A jury’s ultimate
conclusion must be rational in light of all the evidence.”). While the bartender Walter
testified that he did not notice any “red flags” of intoxication from Gill on the night
in question, he also admitted that he was not watching Gill all night long. Though
Dando and Schoch likewise testified that they did not observe any signs that Gill was
intoxicated while they were with him that night, Gill was already at the bar before they
arrived and remained there after they left; thus, they cannot account for Gill’s alcohol
intake or level of intoxication for the entire night. Gill’s own testimony that he had
only three drinks that evening conflicts with his previous statements to Officer Taylor
that he had consumed four beers and a shot.4 Although Gill attributed his abnormal
behavior and appearance that night to the flu, the jury, as the finder of fact, was free
to reject that explanation. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App.
2008). Thus, even setting aside the blood test results, which, as discussed below,
Gill’s evidence failed to controvert in any meaningful way, Gill did not “negate” all of
the State’s inculpatory evidence, and, based on the evidence presented, a reasonable
factfinder could have found that he was intoxicated. See Jackson, 443 U.S. at 320, 99 S.
Ct. at 2789.
4
As noted above, Gill explained at trial that the “shot” he mentioned to Officer
Taylor was actually an allergy shot, not a shot of alcohol.
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Significantly, Gill presented no evidence challenging or questioning the
methodology Brooks utilized or the procedures she followed to test Gill’s blood
sample. 5 Rather, the only evidence contradicting Brooks’ determination that Gill had a
blood alcohol concentration of 0.193 was Gill’s naked, unsubstantiated assertion that
he did not believe that the test results were accurate. Gill presented no evidence that
would call the accuracy of the test results into question and, therefore, raised no
meaningful challenge to them. These test results, taken together with the police
officers’ testimony, are sufficient to support the jury’s verdict.
Because a rational factfinder, having considered the evidence presented at trial,
could have found beyond a reasonable doubt that Gill was intoxicated with a blood
alcohol concentration of 0.15 or higher, we overrule Gill’s sole issue. See Jackson, 443
U.S. at 320, 99 S. Ct. at 2789.
Conclusion
Having overruled Gill’s sole issue, we affirm the trial court’s judgment.
At trial, Gill stipulated that the blood specimen was drawn by a qualified
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technician pursuant to standard medical procedures, in a clean and sanitary place, with
the chain of custody intact. Thus, Gill also did not dispute that the blood sample was
his and was taken properly.
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/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 18, 2022
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