TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00363-CR
Jordan Stephens, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY NO. 23CCR03391, THE HONORABLE JOHN MICHAEL MISCHTIAN, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Jordan Stephens guilty of misdemeanor driving while
intoxicated (DWI). See Tex. Penal Code § 49.04(a). The trial court sentenced him to 120 days in
jail and a $1,000 fine, suspended his sentence, and placed him on community supervision for a
period of eighteen months. In a single issue on appeal, Stephens challenges the sufficiency of the
evidence proving that he was intoxicated while driving. Because we conclude that the evidence
was sufficient, we affirm the trial court’s judgment of conviction.
BACKGROUND
At 2:55 a.m. on May 26, 2023, Kimberly Thomas called 911 to report a reckless
driver in front of her on I-35 in Bell County. She followed the driver, later identified as Stephens,
until he was pulled over by police. Belton Police Department Officer Christopher Carter, assisted by Officer Brian Pedraza, administered standardized field sobriety tests (SFSTs) and arrested
Stephens for DWI.
Both officers testified at trial. The State’s exhibits included a recording of
Thomas’s 911 call, Officer Carter’s and Officer Pedraza’s body-cam videos, and Officer Carter’s
dash-cam video. Stephens, who at the time of the offense was an officer with the Jarrell Police
Department, presented testimony from his friend, JPD Officer Micah Underwood. 1
In her 911 call, Thomas described Stephens’s truck and provided its license plate
number. For over ten minutes, she followed him from “a good distance” and narrated his
dangerous driving. He was unable to maintain one lane “at all”; drove in the shoulder and “in the
middle of two lanes”; and was “literally just back and forth,” swerving from the shoulder to the
concrete barricade dividing the northbound and southbound lanes and back. He almost struck the
barricade and later “just about swerved [a semi-truck] off the road.” She explained, “When I say
it’s erratic, I’m not talking like there’s a little, he crossed over a line—like he’s completely moving
out of lanes almost hitting vehicles.”
Thomas’s testimony corroborated her account to the 911 dispatcher. She had
observed Stephens’s reckless driving for a mile or two before calling 911, which she did only after
realizing that he appeared to be more than “just a possible distracted driver.” She did not “report
every single time that he crossed out of the lanes” but related only his “very erratic” maneuvers.
Although she had not mentioned it on the 911 call, he “wasn’t consistently going one speed. He
would go from 75 miles an hour to 40 miles an hour. It was so erratic.” She did not see the truck’s
driver but was confident that police pulled over “the vehicle [she] observed driving erratically.”
1 At the time of trial, Stephens was no longer employed by JPD. The circumstances of his leaving the department are unclear from the record. 2 Officer Carter, who at the time of the offense had been a police officer for a little
over a year and had conducted around thirty SFSTs, testified about his DWI investigation. He had
learned to conduct SFSTs at the academy, from his field training, and by observing other officers.
He was aware that officers are supposed to follow “a certain script” when conducting SFSTs.
Officer Carter pulled Stephens over after “pacing” his truck by following it while
going the speed limit and noticing that Stephens was gaining distance on him. Using the speed at
which the gap between their vehicles remained constant, Officer Carter determined that Stephens
was going ten miles per hour above the speed limit. After Officer Carter activated his overhead
lights, Stephens pulled over quickly and while using his turn signal.
Officer Carter approached the passenger’s side of Stephens’s truck. “[A]t the very
beginning of the traffic stop, [Stephens] mentioned that he was a police officer.” In response to
Officer Carter’s questions, Stephens stated that he was coming from Georgetown and had
something to drink; while he initially said that he had “a couple” of drinks, he later admitted to
having three. Officer Carter smelled the odor of alcohol on Stephens’s breath and noted that he
had “glossy” eyes, by which Carter meant “glassy, watery . . . . Like redness[].” Officer Carter
agreed that glossy eyes could result from tiredness or allergies.
Based on his observations and on the 911 call, Officer Carter decided to administer
SFSTs on the shoulder of I-35. SFSTs may show that a driver is “not in complete control of his
. . . reactions at the time, his balance, his mental faculties are [not] all there anymore.” Although
the shoulder was not “perfectly level,” it was not sloped to such a degree that it could cause
someone undergoing SFSTs to commit an error. Officer Carter testified that it was not a windy
night but that passing vehicles could have caused a distraction or “breezes” and could potentially
have led to mistakes in the tests.
3 Officer Carter conducted three SFSTs: the horizontal-gaze nystagmus test (HGN),
walk-and-turn, and one-leg stand. In conducting the HGN, he had Stephens follow a pen with his
eyes. Officer Carter observed four out of six possible clues of intoxication, including Stephens’s
eyes “jerking” all the way across. Stephens exhibited three of eight possible clues when
performing the walk-and-turn: he failed to step heel-to-toe; stepped off the line; and turned
improperly, causing him to lose his balance. Officer Carter observed three of four clues on
Stephens’s one-leg stand, which he testified was “one of the worst one-leg stands I’ve ever seen.”
Stephens swayed, put his foot down, and hopped so much that Officer Carter feared he would
knock Officer Pedraza—who was standing between Stephens and the road—into oncoming traffic.
Notably, Stephens hopped against the shoulder’s downward gradient.
Officer Carter acknowledged that he deviated from the standard script “slightly”
and made a few mistakes and omissions when instructing Stephens on the SFSTs. However,
Officer Carter testified that the errors did not directly pertain to the observed clues, that the omitted
instructions did not “in any way make it more difficult for [him] to assess intoxication,” that he
“didn’t leave out anything extreme,” and that “the basis of the instructions and how to perform
[the SFSTs] was the same.” He explained that he omitted certain instructions and did not ask
Stephens certain questions to determine his eligibility to take the SFSTs because he was trying to
“get off the road on I-35 with cars passing by” and because, as a police officer, Stephens would
have been familiar with the instructions and could not have suffered from the health conditions for
which the qualifying questions screened.
From having seen “more signs of intoxication” from Stephens’s performance on
the SFSTs, Officer Carter concluded that Stephens’s blood-alcohol content “was probably above
.08” and that “his driving was impaired regardless.” He arrested Stephens for DWI. After initially
4 denying that he had any firearms in his truck, Stephens told Officer Carter that there was a shotgun
in the backseat. Stephens refused to provide a blood sample, and Officer Carter did not ask for a
breath sample because he believed that “blood is more accurate” and “can show other things other
than alcohol.” He testified that he had no reason, however, to suspect that Stephens had consumed
anything other than alcohol. No blood sample was ultimately obtained or tested.
Officer Pedraza, who like Officer Carter had been trained to conduct SFSTs,
testified about his observations during the investigation and about his search of Stephens’s truck.
Officer Pedraza was positioned on the driver’s side of the truck and smelled an alcoholic odor
coming from it. He too listed clues exhibited by Stephens during the SFSTs. Stephens swayed
and moved his head “quite a bit” while doing the HGN. During the walk-and-turn, he stepped off
the line and turned improperly, taking a “wide step” and losing his balance. While standing on
one leg, he “used [his] arms for balance, hopped, swayed, and put his foot down.” He in fact
swayed so much that he almost backed into Officer Pedraza and fell onto the highway.
Officer Pedraza testified that poor performance on SFSTs demonstrates a “lack of
mental and physical faculties” and that Stephens was “unable to control his body himself at that
time.” However, Officer Pedraza also testified that “[i]t could be difficult” to remember the
instructions “[w]hen one is on the side of the road, [it is] three in the morning, and there’s trucks
going by between 60 and probably 80 miles an hour” and that he would have conducted the tests
differently from Officer Carter, who did not fully follow their training and procedure.
During an inventory search of Stephens’s truck, Officer Pedraza found two
Smirnoff Ice bottles and “fresh liquid” on rubber mats on the rear passenger’s side floorboard.
From the bottles’ position, he believed that they “w[ere] probably thrown back there or were back
5 there right before the stop happened.” Although he remembered at least two Smirnoff Ice bottles,
Officer Pedraza testified that he found “several” empty bottles in the truck.
During the defense’s case-in-chief, Officer Underwood testified that although
Stephens had been his training officer and partner and was his friend, Underwood was going to
offer the jury only “unbiased” testimony about the administration of SFSTs and an accurate
account of what he observed on the body- and dash-cam videos. At the time of trial,
Officer Underwood had received specialized training in SFSTs, had conducted around thirty, and
had made ten or fifteen DWI arrests. He testified that failure to conduct SFSTs correctly could
reduce their accuracy.
First, Officer Underwood did not think that Officer Carter paced Stephens or that
there was any way Officer Carter could have determined his speed. Stephens pulled over using
his turn signal, which was inconsistent with his being intoxicated, and his speech was normal and
offered no indication that he had lost his mental faculties.
Second, Officer Underwood testified about Officer Carter’s mistakes when
conducting the SFSTs. Prior to the HGN, Officer Carter failed to check Stephens’s eyes for equal
tracking and did not ask whether he wears contacts or has a medical condition. With respect to
the walk-and-turn, Officer Carter neglected to ask whether Stephens was over sixty-five years old
or was overweight, demonstrated only three steps but did not tell Stephens he would need to take
nine, placed his feet incorrectly and failed to count his steps during the demonstration, and did not
instruct Stephens to wait to begin the test until he was told. When instructing Stephens for the
one-leg stand, Officer Carter failed to tell him to keep his foot parallel to the ground, a “relatively
minor” but required instruction, and to keep his legs straight; Officer Underwood noticed that
Stephens bent his legs during the test, which may have “caused some balance issues for him.”
6 Because Officer Carter incorrectly administered the tests, Officer Underwood could not
definitively say whether Stephens was intoxicated.
On cross-examination, Officer Underwood agreed that Stephens knew how to
conduct SFSTs and had trained others how to do so. Similarly, Stephens had both administered
SFSTs and made DWI arrests, although Officer Underwood did not know when Stephens last did
either. Officer Underwood also agreed that he did not know Stephens to have a condition that
would disqualify him from being eligible for the HGN, that Stephens could not have been a police
officer if he had such a condition, that it was obvious that he was under sixty-five and not obese,
and that he did not appear to have mobility issues. Officer Underwood further agreed that
Stephens’s hopping during the one-leg stand was not “exactly indicative of the SFSTs being
improperly administered.” Officer Underwood recognized that Stephens had exhibited various
clues during the SFSTs; acknowledged that Officers Carter and Pedraza were in a “better position
to tell this jury what they saw and heard and smelled and observed”; and when told of
Officer Carter’s and Officer Pedraza’s observations, testified, “If I had personally observed all
those things and he had all the observable clues during the HGN, that many observable clues in
the walk-and-turn and the one-leg stand, I would have placed him under arrest.” While
Officer Underwood agreed that Stephens could have “cleared all this up” by providing a blood
sample, he testified that that the refusal to provide a sample is not evidence of intoxication because
every person has the right to refuse so as not to self-incriminate.
After hearing the evidence, the jury found Stephens guilty of DWI. This
appeal followed.
7 DISCUSSION
I. Sufficiency of the Evidence
Stephens contends that the “evidence produced during [his] trial was legally
insufficient to show that he was intoxicated at the time he was driving his vehicle.” He emphasizes
evidence that he was not intoxicated, including Officer Carter’s testimony that tiredness or
allergies could cause glossy eyes and Stephens’s using his turn signal when promptly pulling over.
He asserts that because Officer Carter admitted to making mistakes when administering the SFSTs,
“a rational finder of fact could not rely on any of the evidence derived from the administration of
the SFSTs.” And he argues that there was no evidence of a temporal link between his driving and
any intoxication.
Due process requires that the State prove, beyond a reasonable doubt, every element
of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Lang v. State, 561 S.W.3d 174,
179 (Tex. Crim. App. 2018). When reviewing the sufficiency of the evidence to support a
conviction, we consider all the evidence in the light most favorable to the verdict to determine
whether, based on that evidence and reasonable inferences therefrom, any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. Jackson,
443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We measure the
sufficiency of the evidence against the hypothetically correct jury charge. Garcia v. State,
667 S.W.3d 756, 762 (Tex. Crim. App. 2023).
In conducting our review, we evaluate all the evidence in the record, whether direct
or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense.
Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013, no pet.); see Jenkins v. State,
493 S.W.3d 583, 599 (Tex. Crim. App. 2016). “Circumstantial evidence is as probative as direct
8 evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient
to establish guilt.” Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). We presume
that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable
inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318; Laster v. State,
275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Our concern is whether the factfinder reached a
rational decision. Arroyo v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018); see Morgan
v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (observing that reviewing court’s role on
appeal “‘is restricted to guarding against the rare occurrence when a fact finder does not act
rationally’” (quoting Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010))).
The trier of fact is the sole judge of the weight and credibility of the evidence.
Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); see Tex. Code Crim. Proc. art. 36.13
(explaining that “the jury is the exclusive judge of the facts”). Thus, when performing an
evidentiary-sufficiency review, we may not re-evaluate the weight and credibility of the evidence
and substitute our judgment for that of the factfinder. Arroyo, 559 S.W.3d at 487. When the record
supports conflicting reasonable inferences, we presume that the factfinder resolved the conflicts in
favor of the verdict, and we defer to that resolution. Zuniga, 551 S.W.3d at 733; see Musacchio
v. United States, 577 U.S. 237, 243 (2016) (reaffirming that appellate sufficiency review “does not
intrude on the jury’s role ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts’” (quoting Jackson, 443 U.S. at 319)). We
must “‘determine whether the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to the verdict.’”
Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). The factfinder may rely on common sense and
9 apply observation and experience gained in ordinary affairs when drawing inferences from the
evidence. Acosta, 429 S.W.3d at 625.
Because Stephens limits his sufficiency challenge to the evidence of intoxication,
we will confine our analysis to that element of the offense. A person commits the offense of DWI
if he is “intoxicated while operating a motor vehicle in a public place.” Tex. Penal Code § 49.04(a).
Intoxicated means
(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 of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
Id. § 49.01(2). “The first definition is the ‘impairment’ theory, while the second is the ‘per se’
theory.” Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010). Only the impairment
theory is applicable in this case.
Evidence of intoxication includes any signs that a person’s physical or mental
abilities are diminished; impaired driving behavior such as driving erratically or not following the
rules of the road; post-driving behavior such as stumbling, swaying, slurring or mumbling words,
and an inability to perform field sobriety tests or follow directions; physical signs of intoxication
such as bloodshot eyes or an odor of alcohol; any admissions by the defendant regarding the
substances that he has consumed; and a refusal to submit to breath or blood testing, which can
indicate a consciousness of guilt. See id. at 745; Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim.
App. 2008); Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985); see also Finley
v. State, 809 S.W.2d 909, 913 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (“Texas courts
consistently uphold DWI convictions based upon the opinion testimony of police officers who
10 observed the defendant’s unsatisfactory performance in field sobriety tests.”). Evidence of a police
officer’s observations of a defendant’s behavior and demeanor, together with the officer’s opinion
that the defendant was intoxicated, is sufficient to uphold a conviction for DWI. See Annis v. State,
578 S.W.2d 406, 407 (Tex. Crim. App. 1979); Zill v. State, 355 S.W.3d 778, 785–86 (Tex. App.—
Houston [1st Dist.] 2011, no pet.).
The record in this case is replete with evidence that Stephens was intoxicated while
driving on I-35. For over ten minutes, Thomas—who provided her name and phone number to the
911 dispatcher—relayed Stephens’s highly dangerous and reckless driving. See Derichsweiler
v. State, 348 S.W.3d 906, 914–15 (Tex. Crim. App. 2011) (“[I]nformation provided to police from
a citizen-informant who identifies himself and may be held to account for the accuracy and veracity
of his report may be regarded as reliable.”). Moreover, she corroborated the contents of her
911 call in her testimony at trial. Stephens was unable to maintain a lane, swerved from one side
of the highway to the other, nearly collided with a semi-truck and with a permanent concrete
barricade, drove on the shoulder, and varied his truck’s speed from ten miles per hour over the
speed limit to twenty-five miles per hour under it. Officer Carter likewise paced Stephens’s truck
and determined that Stephens was speeding. See Zill, 355 S.W.3d at 786 (“Additionally,
‘[s]peeding can indicate impaired mental judgment and, therefore, is a factor to be considered.’”
(quoting Texas Dep’t of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 880 (Tex. App.—Fort Worth
2009, no pet.))). Officers Carter and Pedraza smelled alcohol from Stephens’s breath and truck,
and Stephens’s eyes were glossy, glassy, and red. Officer Pedraza found “fresh liquid” and
several empty bottles, including two bottles of Smirnoff Ice, in the truck. See Priego v. State,
457 S.W.3d 565, 570 (Tex. App.—Texarkana 2015, pet. ref’d) (upholding conviction in part
because evidence showed that there was partially consumed bottle of alcohol inside car and that
11 defendant smelled like alcohol). And Stephens himself admitted to having had two or three drinks.
Stephens’s witness, Officer Underwood, testified that Officers Carter and Pedraza were in a better
position than he was to observe Stephens’s state. Their observations alone, when coupled with
their conclusions that Stephens was intoxicated or was unable to “control his body,” were sufficient
evidence that he was intoxicated. See Annis, 578 S.W.2d at 407; Zill, 355 S.W.3d at 785–86.
Additionally, Stephens performed poorly on the SFSTs. See Finley, 809 S.W.2d at
913. During the HGN, he swayed and turned his head, and his eyes jerked when following
Officer Carter’s pen. Stephens failed to step heel-to-toe during the walk-and-turn. He also stepped
off the line, turned improperly, and lost his balance. While standing on one leg, he used his arms
for balance, swayed, put his foot down, and nearly hopped—against the shoulder’s downward
slope—into traffic; it was one of the worst one-leg stands that Officer Carter had ever seen.
Although Officer Carter made mistakes in administering the SFSTs, he testified
that his deviations were “slight” and did not affect his determination that Stephens was intoxicated.
There was no evidence that Stephens had any medical condition that would have affected his
ability to complete the tests, and even Officer Underwood conceded that Stephens’s hopping
during the one-leg stand did not result from Officer Carter’s instructions or demonstration.
Officer Underwood also conceded that Stephens lost his balance, was not fully heel-to-toe, and
made a “wide step to the right” during the walk-and-turn and that he lost his balance multiple
times, leaned over, and hopped during the one-leg stand. Notably, the mistakes identified by
Officer Underwood were not directly related to the clues observed by Officers Carter and Pedraza.
What is more, Stephens was not only familiar with the instructions for SFSTs; he had taught others
how to conduct them and had made DWI arrests. A rational juror could have inferred that he
12 should have been aware of how to perform the SFSTs regardless of any error made by
Officer Carter.
Lastly, at the time of his arrest, Stephens was initially unable to remember whether
he had a firearm in his truck. And contrary to Officer Underwood’s testimony, the jury was free
to consider Stephens’s refusal to provide a blood sample as evidence of his guilt. See Tex. Transp.
Code § 724.061 (providing that person’s refusal to submit breath or blood specimen, “whether the
refusal was express or the result of an intentional failure to give the specimen, may be introduced
into evidence at the person’s trial”); Bartlett, 270 S.W.3d at 153 (stating that refusal to provide
specimen “tends to show a consciousness of guilt”); see also South Dakota v. Neville, 459 U.S. 553,
564 (1983) (holding that “a refusal to take a blood-alcohol test, after a police officer has lawfully
requested it, is not an act coerced by the officer, and thus is not protected by the privilege against
self-incrimination”).
The DWI investigation in this case took place immediately after Thomas’s 911 call
and after Stephens was driving on I-35. From the evidence detailed above, a rational juror could
have found beyond a reasonable doubt that at the time Stephens was operating his vehicle, he
lacked “the normal use of mental or physical faculties by reason of the introduction of alcohol.”
See Tex. Penal Code § 49.01(2). We therefore overrule Stephens’s sole issue on appeal.
CONCLUSION
Having overruled Stephens’s only issue, we affirm the trial court’s judgment
of conviction.
13 __________________________________________ Maggie Ellis, Justice
Before Chief Justice Byrne, Justices Kelly and Ellis
Affirmed
Filed: April 10, 2026
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