Bruce Edward Lee v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________
NO. 09-22-00163-CR
________________

BRUCE EDWARD LEE, Appellant

V.

THE STATE OF TEXAS, Appellee
________________________________________________________________________

On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 20-03-03356-CR
________________________________________________________________________

MEMORANDUM OPINION

A jury found Bruce Edward Lee (“Appellant” or “Defendant”) guilty of the

felony offense of driving while intoxicated and made an affirmative finding that he

used his vehicle as a deadly weapon during the commission of the offense. Tex.

Penal Code Ann. § 49.04. During the punishment phase of his trial, Lee pleaded

“true” to two prior convictions, and the trial court assessed punishment at twenty-

five years confinement in the Texas Department of Criminal Justice-Institutional

Division. On appeal, Lee challenges the trial court’s denial of his motion for mistrial,

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arguing the State made an improper argument about the burden of proof during its

closing argument. He also argues the evidence is insufficient to support the jury’s

findings that he was intoxicated and that his motor vehicle was exhibited or used as

a deadly weapon. We affirm.

BACKGROUND

Eric Najera

Eric Najera testified that he had been a trooper with the Texas Department of

Public Safety for five years as of the time of trial. He described his professional and

educational background and stated that he has conducted thirty to thirty-five DWI

investigations in his career. Najera described a DWI as “basically just what it stands

for, driving while intoxicated[,] [s]omebody drives…intoxicated…either…with

alcohol or any other narcotic.” He testified there are “three phases[]” to a DWI

investigation, and he detailed each phase, including what goes into his initial

decision to pull over a suspected DWI driver, what he is trained to observe in a

suspect as possible clues of intoxication, and how to conduct standard field sobriety

tests.

Najera recalled that on March 6, 2020, around one o’clock in the morning, he

observed Lee driving his vehicle the wrong way on a one-way road. A video of

Najera’s dashcam was admitted and played at trial. The video showed that after

Najera passed Lee’s vehicle, Lee made a U-turn in the middle of the highway, in

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front of another oncoming vehicle, before stopping in the roadway. Najera testified

that driving the wrong way is something “[y]ou take into consideration[,]” when

looking for clues of intoxication. According to Najera, he told Lee three times to pull

over, once face to face, and two times over his car’s PA system, and he explained

that in his experience, the inability to follow simple instructions is also a possible

clue of intoxication. Najera described Lee as “disoriented[,]” and testified that he

“detected an odor of alcoholic beverage from [Lee’s] breath when he spoke.” Lee

told Najara that he did not have a driver’s license, only an identification card. Najera

testified that when he searched Lee’s person, he found a bottle cap in his pocket and

questioned Lee if he had been drinking that night. Lee said he had consumed “three

shots of Apple Amsterdam.” When Najera asked Lee if he had smoked anything,

Lee hesitated and said “[n]o at first[,]” but changed his answer to “yes[,]” admitting

to smoking synthetic marijuana around midnight. Lee also provided inconsistent

explanations about where he was going, initially telling Najera that he was leaving

a store, and later saying he was driving to a store. Lee also believed it was five

o’clock in the morning, but according to Najera, the stop occurred “a little bit after

1:00.” Additionally, Lee provided inconsistent statements on his age, first stating he

was thirty-five, and later telling Najera he was thirty-eight. Najera testified that Lee

was “very confused[,]” and said that these discrepancies can be a sign of

intoxication. Before conducting any field sobriety tests, Najera asked Lee if he had

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a head injury or physical impairment. Lee denied having either. Najera then

conducted what was described as “standardized field sobriety tests” on Lee.

First, Najera conducted a Horizontal Gaze Nystagmus (HGN) test on Lee.

Najera explained that he observed four of the six possible clues for intoxication

during the HGN test, which according to the NHTSA is an indication that a suspect’s

blood alcohol concentration level is usually at or above the limit, and supports a

decision to arrest.1 Next, Najera performed a “divided attention test” in which “you

do different things at the same time.” Najera asked Lee if he had any impairments

before conducting this test and Lee told him he “had been shot in the leg” which was

inconsistent with his prior statement denying any impairments, and Najera testified

that he observed nothing in Lee’s movement that would suggest he had an

impairment in his knees or legs. Najera had Lee do a “walk and turn test[,]” during

which Lee repeatedly used his arms for balance despite being told to keep his arms

straight down by his side. He explained that he even allowed Lee to repeat the test

“for the benefit of the doubt.” Najera observed seven out of eight clues during this

test and needed only two clues to make an arrest decision. Najera then had Lee

perform a one leg stand test, noting that Lee almost fell over during the test. Najera

1The National Highway Traffic Safety Administration (“NHTSA”) is an
organization whose mission is to save lives, prevent injuries, and reduce economic
costs due to road traffic crashes, through education, research, safety standards, and
enforcement. NHTSA, https://www.nhtsa.gov (last visited Aug. 2, 2024).
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observed two clues during this test, explaining an arrest decision can be based on

two clues. Finally, Najera asked Lee a “0 to 10 scaled question[.]” “Basically, [I]

asked him how he felt alcohol had affected his driving behavior[,] [z]ero being didn’t

have no effect[,]…10 highly affected.” Lee told Najera that he rated a “four.” Najera

then made the decision to arrest Lee. At trial, he testified he is still confident in his

decision to arrest Lee.

After arresting Lee, Najera read him his statutory warnings, including

explaining to Lee he could either agree or refuse to give Najera a breath specimen

or blood sample. Lee did not consent, and Najera procured a blood search warrant

signed by a judge. Najera took Lee to a hospital, and he had his blood drawn pursuant

to the search warrant. Najera explained that about two hours had passed since the

initial stop and the arrival at the hospital. Lee’s blood was collected and was stored

in an evidence locker that was completely sealed until officers transported it to a

crime lab. Najera identified the collected specimen in court and photos of the exhibit

were admitted without objection.

Najera testified that troopers work “a lot of fatal crashes” and he “personally

[has] worked a couple[].” According to Najera, Lee was driving on the wrong side

of the road, and his vehicle was capable of causing serious bodily injury.

During cross-examination, Najera agreed that he had not met Lee before the

stop in March 2020 and that he was not familiar with how Lee normally speaks or

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walks, nor with his normal sense of direction. Although Najera told Lee at the scene,

“[Y]ou almost hit me[,]” he agreed on cross-exam that he did not have to swerve to

miss Lee, that he had ample time to get to the side of the road, and that Lee was

driving with his lights on, albeit in the wrong direction. Najera stated that the place

where he pulled Lee over and conducted the field sobriety tests was “[n]ot where I

wanted him.” He agreed that the area had “junk and rocks and things in front of the

car[.]” Najera also agreed that he did not ask Lee any follow up questions after Lee

told him he was shot in the leg. Najera testified that Lee did not have a limp, but was

“slow in walking[.]”

Randell Moore

Randell Moore testified that she is an OR nurse at CHI St. Luke’s Hospital in

Lufkin. Prior to her current employment, she worked the night shift as a nurse in

Conroe. She described her educational and professional background, stating that she

has “years of experience” conducting blood draws, including those for law

enforcement. Moore detailed the procedure to conduct a blood draw and confirmed

that Lee’s blood draw was conducted pursuant to her professional standards.

Tifani Parker

Tifani Parker testified she is a Toxicology Section Supervisor for the Texas

Department of Public Safety Crime Lab in Houston. She stated before she was a

supervisor, she was a forensic scientist with the crime lab and that her duties as a

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forensic scientist included “working in the area of blood analysis[,]” including

“generat[ing] reports based on my results, [and] testify[ing] to those results when

necessary.” Parker described her educational and professional background,

including her duties as a supervisor at the crime lab, noting that she oversees quality

control, “to show everything is working properly” at the lab. Parker described how

the “blood kits” are stored at the crime lab, who has access to the vials, and how they

are tracked and tested by the forensic scientists at the laboratory. She identified the

kit collected from Lee and confirmed it was tested at her laboratory. Parker testified

that she had reviewed the results of the tests and was confident in their results. A

copy of the laboratory report was admitted into evidence without objection. She

confirmed the report showed that Lee’s blood sample had a blood alcohol

concentration of “0.107 grams of alcohol per 100 milliliters of blood.” Parker stated

that the blood alcohol concentration was above the legal limit in the State of Texas.

Parker described the effects of alcohol on the human body, describing a decrease in

judgment and an increase in risk taking. “Alcohol is a central nervous system

depressant[,] and [i]t’s going to affect the brain when it enters your body[,]

[including] blurry vision, slurred speech[,] sick[ness][,] [and] loss of balance.” She

noted that it could cause a loss in hand-eye coordination and inability to stay within

the lines of the road.

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During cross-examination, Parker agreed that after alcohol is consumed it

does not have an immediate effect and that it takes time to absorb through the

stomach and into the blood stream. Other factors include the person’s sex and

whether the person has food in their stomach. She noted it will take “some time to

reach your peak absorption.” She also agreed that the further removed a person is

from when they are driving and when the sample is taken, the blood alcohol

concentration will be further removed from what it was when they were driving.

Lee did not testify at trial and the defense did not call any witnesses. After

closing arguments, the jury found Lee guilty of the felony offense of driving while

intoxicated and made an affirmative finding as to a deadly weapon. After electing to

have the court decide punishment, the trial court assessed punishment at twenty-five

years incarceration in the Texas Department of Criminal Justice. Lee timely filed

this appeal.

Issue One: Improper Prosecutor Argument

In his first issue, Lee argues that the trial court erred in denying his motion for

mistrial after the State “shifted the burden of proof to the defense thus depriving

[him] of his constitutional right to be presumed innocent until proven guilty.” Lee

contends that the trial court’s instruction and the State’s subsequent correction was

not sufficient to overcome his presumption of innocence which “is enough alone to

acquit[.]”

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

discretion, viewing the evidence in the light most favorable to the trial court’s ruling,

and considering only those arguments before the court at the time of the ruling. Ocon

v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We must uphold the ruling

if it was within the zone of reasonable disagreement. Id. A mistrial is the appropriate

remedy only when the objected-to events “are so emotionally inflammatory that

curative instructions are not likely to prevent the jury from being unfairly prejudiced

against the defendant.” See Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App.

2004) (citations omitted).

When evaluating whether a trial court abused its discretion by denying a

defendant’s request for a mistrial based on an improper jury argument, appellate

courts balance several factors adopted in Mosley v. State, including (1) the severity

of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s

remarks), (2) the measures adopted to cure the misconduct (the efficacy of any

cautionary instruction by the judge), and (3) the certainty of conviction absent the

misconduct (the strength of the evidence supporting the conviction). Archie v. State,

340 S.W.3d 734, 739 (Tex. Crim. App. 2011) (citing Mosley v. State, 983 S.W.2d

249 (Tex. Crim. App. 1998)). 2

2Appellant does not address the Mosley factors in his brief, whereas the State

addresses the factors without calling them “Mosley factors,” but does cite Archie v.
State, which discusses the Mosley factors.
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Because a mistrial is an extreme remedy, “a mistrial should be granted ‘only

when residual prejudice remains’ after less drastic alternatives are explored.” Ocon,

284 S.W.3d at 884-85 (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim.

App. 2005)). A mistrial is required only where the prejudice is incurable because it

“is of such character as to suggest the impossibility of withdrawing the impression

produced on the mind of the jurors.” Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim.

App. 1999); see also Ocon, 284 S.W.3d at 884.

Lee complains on appeal of the following comment during the State’s closing

argument, after which the trial court denied his motion for mistrial:

[THE STATE]: What I take the most issue with what the Defense had
to say up here is that our case is built on assumptions. It’s not. It’s built
on evidence. And as a general rule, what you can go back there with is
the understanding that the State has brought you evidence in this case.
The Defense hasn’t brought you anything to back up what they’re
saying.

[TRIAL DEFENSE ATTORNEY]: Your Honor, I’m going to object.
Can we approach?

THE COURT: Okay.

(BENCH CONFERENCE OUTSIDE THE HEARING OF THE
JURY)

[TRIAL DEFENSE ATTORNEY]: Your Honor, I don’t like to object
during closing, but the Defense is not obligated to bring the evidence.
It’s a comment on the presumption of innocence.

[THE STATE]: That’s -- that is not burden-shifting to suggest that they
have not brought evidence. The statement of the attorneys do not
constitute evidence and we are free to point out –
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THE COURT: No.

[THE STATE]: -- that they haven’t brought evidence to support some
of their evidence, Your Honor.

THE COURT: Well, I’m going to require that you tell these jurors that
they’re not required to bring evidence either.

[THE STATE]: That’s good.

THE COURT: You’ll say that?

[THE STATE]: Yes.

[TRIAL DEFENSE ATTORNEY]: And, Your Honor, I think for the
record, I’m going to ask for a mistrial based off of that statement from
[the State].

THE COURT: I think it can be corrected with something less drastic
than a mistrial. So, that’s denied.

[TRIAL DEFENSE ATTORNEY]: Yes, ma’am.

(BENCH CONFERENCE CONCLUDED)

[THE STATE]: Now, it is true that they’re not required to bring
evidence. Our Constitution doesn’t require them to do that. But what
your jury charge says is that statements from the attorneys are not
evidence. We told you at the beginning of this trial that it was about the
totality of the circumstances.

As explained below, considering the State’s comments in light of the Mosley

factors, we conclude the trial court did not abuse its discretion by denying Lee’s

motion for mistrial. See Archie, 340 S.W.3d at 739 (citing Mosley, 983 S.W.2d at

249).

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“Our courts have consistently held that the State may argue in its closing

argument that the defendant failed to present evidence in his favor.” Trevino v. State,

474 S.W.3d 737, 749 (Tex. App.—Beaumont 2014, pet. ref’d). 3 Because the

comment was not improper, the trial court would have been within its discretion to

overrule the objection. See id. Instead, the court took steps to cure any alleged

impropriety by instructing the State to tell the jury that the Defendant is not required

to bring evidence, an instruction the State immediately followed. During voir dire,

the trial court and both the State and the defense told the potential jurors that the

State had the burden of proof. During opening arguments, the defense told the jury

3See Bible v. State, 162 S.W.3d 234, 249 (Tex. Crim. App. 2005) (the State

may comment on defendant’s failure to call certain witnesses and such a comment
is not an impermissible attempt to shift burden of proof); Jackson v. State, 17 S.W.3d
664, 674 (Tex. Crim. App. 2000) (prosecutor’s reference during closing argument
to defendant’s failure to produce expert testimony was not improper because the
remark did not fault the defendant for exercising his right not to testify); Patrick v.
State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995) (holding that a prosecutor’s
comment is not improper if it “can reasonably be construed to refer to appellant’s
failure to produce evidence other than his own testimony”); Rodgers v. State, 486
S.W.2d 794, 797 (Tex. Crim. App. 1972) (explaining that a prosecutor may comment
on the accused’s failure to call a witness absent a showing that the witness was
incompetent or that the accused could not, despite his exercise of due diligence,
secure the witness’s attendance at the trial); Baines v. State, 401 S.W.3d 104, 107-
08 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding that a prosecutor’s
comment on the defense’s failure to subpoena two witnesses was not error); Caron
v. State, 162 S.W.3d 614, 618 (Tex. App.—Houston [14th Dist.] 2005, no pet.)
(noting that “[d]uring jury argument, the State may comment on appellant’s failure
to present evidence in his favor”); Lee v. State, 21 S.W.3d 532, 544 (Tex. App.—
Tyler 2000, pet. ref’d) (prosecutor’s comment on the accused’s failure to call the
doctor that the accused told a witness he had taken the victim to see was not improper
jury argument).
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that the State had the burden of proof. The jury charge also included the following

instructions:

All persons are presumed to be innocent, and no person may be
convicted of an offense unless each element of the offense is proved
beyond a reasonable doubt. The fact that a person has been arrested,
confined, indicted, or otherwise charged with an offense does not give
rise to an inference of guilt at his trial. The law does not require a
Defendant to prove his innocence. The presumption of innocence alone
is sufficient to acquit the Defendant unless the jurors are satisfied
beyond a reasonable doubt of the Defendant’s guilt, after careful and
impartial consideration of all evidence in the case.

The prosecution has the burden of proving the Defendant guilty by
proving each and every element of the offense charged beyond a
reasonable doubt, and if it fails to do so, you must acquit the Defendant.
It is not required that the prosecution prove guilt beyond all possible
doubt. It is required that the prosecution’s proof exclude all reasonable
doubt concerning the Defendant’s guilt. In the event you have a
reasonable doubt as to the Defendant’s guilt, after considering these
instructions and all the evidence before you, you will acquit the
Defendant and say by your verdict “Not Guilty.”

On this record, we conclude that the prosecutor’s complained-of remark had

little, if any, prejudicial effect, and that the State’s immediate clarification – in

obedience to the trial court’s instruction – was adequate to cure any harm. Therefore,

we resolve the first and second Mosley factors against the Appellant. See Archie, 340

S.W.3d at 740-41.

Finally, we examine the record to determine the certainty of conviction absent

the alleged misconduct. See id. at 739. The jury heard testimony that Lee was driving

the wrong way down a one-way street. He admitted smoking synthetic marijuana

13
and drinking three alcoholic beverages at least an hour before he was pulled over.

The jury also heard testimony that Lee had difficulty following instructions, smelled

of alcohol, appeared disoriented, and gave conflicting answers to questions such as

his age, why he was out driving, and the time of night. He also failed three field

sobriety tests administered by Najera. Evidence was admitted that showed Lee’s

blood alcohol concentration was .107, over the legal limit in Texas. The jury is the

sole judge of the credibility and weight of the witnesses’ testimony, and the jury

could have believed all, some, or none of the testimony of Najera and the other

witnesses. See Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020).

On this record, we find the evidence to support the conviction to be strong,

and we conclude that the jury likely would have convicted Appellant regardless of

the prosecutor’s allegedly improper argument. See Archie, 340 S.W.3d at 742;

Trevino, 474 S.W.3d at 749. We conclude that the trial court did not abuse its

discretion by denying the motion for mistrial, and we overrule Appellant’s first issue.

See Archie, 340 S.W.3d at 742; Mosley, 983 S.W.2d at 259-60.

Issues Two and Three: Sufficiency of the Evidence

Because Lee presents two issues concerning the sufficiency of the evidence,

we address those issues together. In his second and third issues, Lee challenges the

sufficiency of the evidence to convict him of the offense of driving while intoxicated

and to find that he exhibited or used a deadly weapon, his vehicle.

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We review complaints of legal insufficiency under the standard in Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979). See Fernandez v. State, 479 S.W.3d 835, 837

(Tex. Crim. App. 2016). Under Jackson, we ask “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson,

443 U.S. at 319 (emphasis in original); see Brooks v. State, 323 S.W.3d 893, 912

(Tex. Crim. App. 2010). We defer to the jury’s responsibility to resolve conflicts in

testimony, weigh the evidence, and draw reasonable inferences from the above

evidence. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We

presume the jury resolved any conflicts in testimony in favor of the verdict. See

Brooks, 323 S.W.3d at 899 n.13. We treat direct and circumstantial evidence equally

and “‘consider the combined and cumulative force of the evidence’” viewed in the

light most favorable to the jury’s verdict. See Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). We give deference to the jury’s determinations, including

determinations involving the credibility and demeanor of the witnesses; we may not

substitute our judgment for that of the jury’s. Johnson v. State, 23 S.W.3d 1, 11 (Tex.

Crim. App. 2000); Hardy v. State, 246 S.W.3d 290, 295 (Tex. App.—Houston [14th

Dist. 2008, no pet.).

A person commits the offense of driving while intoxicated when the person is

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

15
§ 49.04(a). A person is intoxicated when he does not have the normal use of his

mental or physical faculties by reason of the introduction of alcohol into the body,

or by having an alcohol concentration of 0.08 or more. Id. § 49.01(2)(A), (B).

Texas law allows juries to infer the defendant was intoxicated from

circumstantial evidence showing “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[.]” Kirsch v. State, 306

S.W.3d 738, 745 (Tex. Crim. App. 2010). For example, evidence showing “[a] lack

of balance and slurred speech can prove intoxication.” Kiffe v. State, 361 S.W.3d

104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Additionally, when

based on the observations of an experienced police officer who has observed the

defendant’s behavior and then describes the behavior to the jury, the officer’s

opinion is evidence that is sufficient to support a jury’s finding of intoxication. See

Annis v. State, 578 S.W.2d 406, 408 (Tex. Crim. App. 1979); Brister v. State, 414

S.W.3d 336, 341 (Tex. App.—Beaumont 2013), aff’d, 449 S.W.3d 490 (Tex. Crim.

App. 2014).

Lee argues that the evidence is insufficient to demonstrate his intoxication at

the time he was driving his vehicle. He complains that the field sobriety tests were

performed in less-than-ideal conditions, he had impairments that the trooper did not

16
understand or take into consideration, and the blood sample was taken hours after he

was pulled over. Viewing all the evidence in the light most favorable to the verdict,

we hold there was sufficient evidence Lee was intoxicated. Najera testified Lee was

driving the wrong way on a one-way road, had inconsistent answers to his questions

such as his age and the time of day, appeared disoriented, was walking slowly, had

breath that smelled of alcohol, demonstrated poor balance, had impaired

coordination, had four clues of intoxication on the nystagmus gaze test, seven clues

on the walk-and-turn test, and two clues on the one-leg stand. Additionally, Lee

admitted to Najera that he smoked synthetic marijuana an hour before the arrest and

drank at least three alcoholic beverages that night.

Further, the jury could draw its own conclusions from observing Lee’s

behavior in the videotape in deciding whether he appeared intoxicated. See generally

Vaughn v. State, 493 S.W.2d 524, 525 (Tex. Crim. App. 1972) (“It is elementary in

Texas that one need not be an expert in order to express an opinion upon whether a

person he observes is intoxicated.”). Finally, the copy of Lee’s laboratory report

showed Lee had a blood alcohol concentration over the allowable limit. A blood

alcohol test result showing that the defendant exceeded the legal limits at the time

of the blood draw, considered with other indicia of intoxication at the time of the

traffic stop, may logically support an inference that the defendant was driving while

intoxicated. See Kirsch, 306 S.W.3d at 745.

17
The evidence of intoxication was neither so obviously weak that the verdict is

clearly wrong and manifestly unjust, nor was the jury’s verdict so contrary to the

evidence that the beyond-a-reasonable-doubt burden of proof could not have been

met. As the sole judge of the weight and credibility of the evidence, the jury bore the

burden of determining what to believe. See Hooper, 214 S.W.3d at 13. In doing so,

the jury could reasonably conclude, based on Najera’s testimony about Lee’s driving

the wrong way, his appearance, his answers to Najera’s questions, and his conduct

during the field sobriety tests, that Lee had actually been driving while intoxicated.

See Murray v. State, 457 S.W.3d 446, 448-49 (Tex. Crim. App. 2015). The jury

could also reasonably conclude that Lee did not have the normal use of his mental

or physical faculties by reason of the introduction of alcohol into his body and that

he had an alcohol concentration of 0.08 or more. See Tex. Penal Code Ann. §

49.01(2)(A), (B). Viewing all the evidence in the light most favorable to the jury’s

verdict, we conclude that a rational jury could find, beyond a reasonable doubt, that

Lee committed the offense of driving while intoxicated. See id. § 49.04(a); see also

Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13. We overrule Lee’s second

issue.

Lee also challenges the sufficiency of the evidence to support the jury’s

finding that Lee used or exhibited a deadly weapon because although he was on the

wrong side of the road, traffic was light, he was not engaging in “reckless driving,”

18
and there was “plenty of time” for Najera to change lanes and pass by without

incident.

A deadly weapon includes anything that in the manner of its use or intended

use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. §

1.07(a)(17)(B). “A motor vehicle may become a deadly weapon if the manner of its

use is capable of causing death or serious bodily injury.” Drichas v. State, 175

S.W.3d 795, 798 (Tex. Crim. App. 2005). When evaluating the deadly weapon issue

in a driving while intoxicated case, we consider (1) the manner in which the

defendant used the motor vehicle during the felony; and (2) whether, during the

felony, the motor vehicle was capable of causing death or serious bodily injury.

Sierra v. State, 280 S.W.3d 250, 255 (Tex. Crim. App. 2009). As to the manner in

which Lee used his vehicle during the commission of the offense, we consider

factors such as (1) intoxication; (2) speeding; (3) disregarding traffic signs and

signals; (4) driving erratically; and (5) failure to control the vehicle. See Foley v.

State, 327 S.W.3d 907, 916 (Tex. App.—Corpus Christi 2010, pet. ref’d); Sierra,

280 S.W.3d at 255-56. The State is not required to show the actor actually intended

death or serious bodily injury, nor that any such harm actually occurred. Moore v.

State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017). Rather, the State can satisfy its

burden by proving the defendant used the vehicle in such a way that the vehicle was

capable of causing a serious bodily injury or death to others. Id.; see also Drichas,

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175 S.W.3d at 799 (“[A] deadly weapon finding is appropriate on a sufficient

showing of actual danger, such as evidence that another motorist was on the highway

at the same time and place as the defendant when the defendant drove in a dangerous

manner.”). However, the danger must be actual, not merely hypothetical. Drichas,

175 S.W.3d at 799.

Citing our opinion in Brister v. State, Lee argues the State failed to prove that

he placed others in actual danger. 414 S.W.3d at 342. In Brister, we reversed the

trial court’s affirmative deadly weapon finding, holding that although Brister’s

vehicle crossed into the opposite lane, the evidence showed there were few or no

cars on the road, and “the State failed to show that Brister’s use of his motor vehicle

placed others in actual danger of death or serious bodily injury.” Id. at 344. Lee

argues that his case is similar to Brister because there were no other cars on the road.

We disagree.

In Brister we reasoned, “Here, we have testimony that Brister’s car crossed

the center line one time and nothing further… In light of Officer Warner’s further

testimony that there were ‘[v]ery few, if any, cars on the roadway[,]’ the only

reasonable inference that can be drawn is that Brister crossed the center line into the

lane of ‘oncoming traffic’ and not into the path of an oncoming car.” Id. (emphasis

added). Unlike the defendant in Brister, Lee was not only driving the wrong way on

a one-way highway, he was also driving into the path of an oncoming car – Najera’s

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-- and Najera testified that Lee’s driving could have caused a fatal crash or serious

bodily injury.

Additionally, dashcam footage admitted at trial shows that after Najera

changed lanes and passed Lee’s oncoming vehicle, another car’s approaching

headlights can be seen while Lee makes a U-turn and stops his vehicle on the dark

highway. In Brister, the possibility of an injury-causing collision was only

hypothetical because there were no other vehicles with which to collide when Brister

briefly crossed the center line. Here, the evidence allowed a reasonable factfinder to

conclude that the manner in which Lee used his vehicle made it capable of causing

a head-on collision with Najera’s patrol car or a potentially injurious collision with

the unidentified vehicle. Although the other drivers’ alertness and evasive action

prevented injuries or death from actually occurring, the danger created by Lee’s use

of his vehicle was real, not hypothetical. See Drichas, 175 S.W.3d at 799 (“While

the court of appeals is correct in noting that the danger posed to motorists must be

actual, and not simply hypothetical, the statute itself does not require pursuing police

officers or other motorists to be in a zone of danger, take evasive action, or require

appellant to intentionally strike another vehicle to justify a deadly weapon finding.”);

see also Moore, 520 S.W.3d at 908; Ybarra v. State, No. 11-16-00219-CR, 2018

Tex. App. LEXIS 6734, at *7-8 (Tex. App.—Eastland Aug. 23, 2018, no pet.) (mem.

op.) (citing to Drichas and Moore and holding that a driver “driving on the wrong

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side of the road evidences actual endangerment in the manner in which the operator

drives an automobile”).

Viewing the evidence in the light most favorable to the verdict, we conclude

a rational jury could find, beyond a reasonable doubt, that the manner in which Lee

used his vehicle when driving while intoxicated was capable of causing death or

serious bodily injury. See Tex. Penal Code Ann. § 1.07(a)(17)(B); see also Sierra,

280 S.W.3d at 255; Hooper, 214 S.W.3d at 13. We overrule Lee’s third issue.

Having overruled all of Appellant’s issues, we affirm the trial court’s

judgment.

AFFIRMED.

KENT CHAMBERS
Justice

Submitted on February 21, 2024
Opinion Delivered August 28, 2024
Do Not Publish

Before Johnson, Wright and Chambers, JJ.

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