Background

• Brister was convicted of driving while intoxicated (DWI) based on events around October 17, 2008; he admitted two prior DWI offenses and two prior felonies for punishment.
• At punishment, the jury sentenced Brister to 40 years; the trial court pronounced a 40-year term.
• The state moved to prove intoxication while operating a vehicle in a public place; the defense challenged the deadly-weapon finding.
• Officer Warner observed Brister cross into oncoming traffic, noted signs of intoxication, and Brister was arrested after resisting.
• During stop and later custody, witnesses testified Brister had bloodshot eyes, strong odor of alcohol, slurred speech, unsteady balance, belligerence, and did not cooperate with sobriety testing.
• Evidence included five beers found in Brister’s vehicle; Brister’s employer testified he had abstained from drinking for eight months prior.

Issues

Key Cases Cited

• Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (sufficiency standard; rational finder could find elements beyond reasonable doubt)
• Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010) (jury credibility and weight of testimony verdict deference)
• Annis v. State, 578 S.W.2d 406 (Tex.Crim.App.1979) (officer's opinion evidence supports intoxication when based on observations)
• Cates v. State, 102 S.W.3d 735 (Tex.Crim.App.2003) (deadly-weapon finding requires actual danger to others, not hypothetical)
• Drichas v. State, 175 S.W.3d 795 (Tex.Crim.App.2005) (deadly-weapon capability depends on actual danger at time of offense)
• Foley v. State, 327 S.W.3d 907 (Tex.App.-Corpus Christi 2010) (no deadly-weapon finding where no persons or vehicles endangered)
• Williams v. State, 235 S.W.3d 742 (Tex.Crim.App.2007) (fact-finder's weight and credibility preserved on review)
• Pointe v. State, 371 S.W.3d 527 (Tex.App.-Beaumont 2012) (cannot infer deadly weapon use from mere potential danger)