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March 19, 2026 Get Citation Alerts Download PDF Add Note

Ernest Villa Marquez v. the State of Texas

Texas Court of Appeals, 11th District (Eastland)

• Citations: None known
• Docket Number: 11-24-00285-CR
• Nature of Suit: Driving While Intoxicated

• Disposition: Affirmed

• Opinion

• Authorities (29)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Disposition

Affirmed

Lead Opinion

Opinion filed March 19, 2026

In The

Eleventh Court of Appeals

No. 11-24-00285-CR

ERNEST VILLA MARQUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-22-0917-CR

MEMORANDUM OPINION
A jury convicted Appellant, Ernest Villa Marquez, of the third-degree
felony offense of driving while intoxicated (DWI). See TEX. PENAL CODE ANN.
§§ 49.04(a), 49.09(b)(2) (West Supp. 2025). Enhanced by a habitual felony offender
finding, the jury assessed Appellant’s punishment at imprisonment in the
Institutional Division of the Texas Department of Criminal Justice for thirty-seven
years, and the trial court sentenced him accordingly. See id. § 12.42(d).
In a single issue, Appellant challenges the sufficiency of the evidence to
support his conviction. We affirm.
I. Factual and Procedural History
On the evening of April 20, 2022, Jose Garcia was at home changing one of
the tires to his pickup when he noticed a black pickup speed by. After changing the
tire, Garcia followed the speeding pickup to a nearby convenience store. Once he
arrived there, Garcia confronted the driver of the pickup; Garcia identified the driver
as Appellant. Based on his encounter with Appellant, Garcia believed that Appellant
was intoxicated because he smelled the odor of alcohol on Appellant’s person and
Appellant swayed as he walked. Appellant eventually threatened Garcia with a
crowbar, so Garcia left the convenience store and drove home.
Shortly thereafter, Appellant returned to Garcia’s neighborhood and began
driving recklessly in front of Garcia’s home. After Appellant pointed a gun at him
and drove away, Garcia called 9-1-1 and provided a description of the events that
had transpired, Appellant, and the pickup that Appellant was driving. According to
Garcia, Appellant was the sole occupant of this pickup.
Detective Alejandro Reyes with the Odessa Police Department (OPD) was on
patrol that evening and was dispatched to Garcia’s residence. Another officer
arrived on scene and made contact with Garcia. Detective Reyes then patrolled the
area searching for Appellant. After obtaining Appellant’s address, which was
located approximately three blocks from Garcia’s home, Detective Reyes drove
there and noticed a black Chevrolet pickup, that matched Garcia’s description of it,
parked on the street nearby.

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Detective Reyes drove by the parked pickup and observed a Hispanic male—
Appellant—sitting in the driver’s seat. At the time, the pickup’s engine was running.
According to Detective Reyes, Appellant was the only person in the parked pickup,
and he was “slouched almost to the point” of laying down in the driver’s seat as if
he was attempting to hide. After he passed it, Detective Reyes began turning his
patrol unit around so that he could park behind the parked pickup and contact the
driver. As he was doing so, Detective Reyes saw the occupant of the parked
pickup—Appellant—exit and walk at a swift pace toward a nearby home.
Detective Reyes activated his patrol unit’s overhead lights and siren to
indicate to Appellant that he was initiating a traffic stop; however, Appellant
continued walking away. Detective Reyes then exited his patrol unit, drew his
firearm, and instructed Appellant to stop and show his hands. Appellant ignored
Detective Reyes’s commands, continued walking away from him at a swift pace,
and maneuvered behind a pickup that was parked in the home’s driveway. Detective
Reyes lost sight of Appellant for a short time but he and another OPD officer later
found Appellant hiding underneath the pickup that was parked in the driveway.
Detective Reyes and other OPD officers detained Appellant and noticed that (1) a
strong odor of alcohol was emanating from Appellant’s breath and person, (2) his
eyes were “glassy” and bloodshot, (3) his balance was unsteady, and (4) his speech
was slurred. The officers also noted that Appellant had difficulty following
instructions during their administration of field sobriety tests, the results of which
showed numerous positive indicators of intoxication.
While Appellant was detained, OPD Officer Calvin Tayler searched
Appellant’s pickup and removed a rifle, two paintball guns, and two open containers
of beer that were located in the vehicle; the rifle was by the passenger seat, the
paintball guns were on the passenger side floorboard next to an open container of

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beer, and the other open container of beer was in the center of the floorboard in the
back of the pickup. During the search, Officer Tayler noticed a “very, very
overwhelming distinct odor of alcoholic beverage emitting from inside” Appellant’s
pickup. Like the other officers, Officer Tayler smelled a strong odor of alcohol on
Appellant’s person, and he noticed that Appellant had slurred speech, bloodshot
eyes, could not maintain his balance, and had difficulty walking and following
instructions. Based on their investigation, the officers on site determined that
Appellant was intoxicated and he was arrested for DWI.
II. Sufficiency of the Evidence
In his sole issue, Appellant argues that the evidence is legally insufficient to
support his conviction for DWI because the State failed to prove that he drove his
pickup while intoxicated. Specifically, Appellant contends that the evidence cannot
support his conviction because (1) no law enforcement officer observed him drive
his pickup that evening, and (2) Garcia’s testimony is not credible.
A. Standard of Review
We review a challenge to the sufficiency of the evidence, regardless of
whether it is framed as a legal or factual sufficiency challenge, under the standard of
review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–
89 (Tex. App.—Eastland 2010, pet. ref’d).
Under the Jackson standard, we review the evidence in the light most
favorable to the verdict to determine whether, based on the evidence and reasonable
inferences therefrom, a rational juror could have found that the State proved the
essential elements of the charged offense beyond a reasonable doubt. Baltimore v.
State, 689 S.W.3d 331, 341 (Tex. Crim. App. 2024) (citing Jackson, 443 U.S. at
319); Garcia v. State, 667 S.W.3d 756, 761 (Tex. Crim. App. 2023). “This familiar

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standard gives full play to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” Edward v. State, 635 S.W.3d 649, 655 (Tex.
Crim. App. 2021) (quoting Jackson, 443 U.S. at 319). Therefore, if the record
supports conflicting inferences, we must “presume that the factfinder resolved the
conflicts in favor of the prosecution” and we defer to the factfinder’s factual
determinations. Garcia, 667 S.W.3d at 762 (quoting Wise v. State, 364 S.W.3d 900,
903 (Tex. Crim. App. 2012)). In this regard, we may not substitute our judgment
for that of the factfinder by reevaluating the weight and credibility of the evidence
presented. Id. (citing Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010));
Brooks, 323 S.W.3d at 899; Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App.
1999); see TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007).
The Jackson standard requires that we consider all the evidence admitted at
trial, including evidence that may have been improperly admitted, and that we treat
direct and circumstantial evidence equally. Winfrey v. State, 393 S.W.3d 763, 767
(Tex. Crim. App. 2013); Brooks, 323 S.W.3d at 899; Starks v. State, 684 S.W.3d
868, 873 (Tex. App.—Eastland 2024, no pet.). As such, it is not necessary that the
evidence directly prove the defendant’s guilt. Rather, circumstantial evidence is as
probative as direct evidence in establishing a defendant’s guilt and can alone be
sufficient to establish the defendant’s guilt. Carrizales v. State, 414 S.W.3d 737,
742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007)); Lee v. State, 676 S.W.3d 912, 915 (Tex. App.—Eastland 2023, no pet.).
Each fact need not point directly and independently to a defendant’s guilt if
the cumulative force of all incriminating circumstances is sufficient to support the
conviction. Hooper, 214 S.W.3d at 13. Because evidence must be considered
cumulatively, we may not use a “divide and conquer” approach for evaluating the

5
sufficiency of the evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.
2015). Therefore, in evaluating the evidence, we must consider the cumulative force
of all the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017);
Isassi, 330 S.W.3d at 638.
Finally, we measure the sufficiency of the evidence by comparing the
evidence produced at trial against the essential elements of the charged offense as
defined by the hypothetically correct charge for the case. Turley v. State, 691 S.W.3d
612, 617 (Tex. Crim. App. 2024); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997). The hypothetically correct charge “accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried.” Turley, 691
S.W.3d at 617 (citing Alfaro-Jimenez v. State, 577 S.W.3d 240, 244 (Tex. Crim.
App. 2019)). “The law authorized by the indictment consists of the statutory
elements of the offense as modified by the indictment allegations.” Baltimore, 689
S.W.3d at 341.
B. Applicable Law
Appellant was indicted for felony driving while intoxicated. See PENAL
§§ 49.04(a), 49.09(b)(2). To support a conviction for this offense, the State was
required to prove that Appellant was “intoxicated while operating a motor vehicle
in a public place.” See id. § 49.04(a) (emphasis added); State v. Espinosa, 666
S.W.3d 659, 667 (Tex. Crim. App. 2023). As relevant here, the term “intoxicated”
means a person has lost the normal use of his mental or physical faculties by reason
of the introduction of alcohol. PENAL § 49.01(2)(A) (West 2011).
Although the terms “operate” or “operating” are not defined in the Penal
Code, the Court of Criminal Appeals has held that to determine if a person has

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operated a motor vehicle “the totality of the circumstances must demonstrate that the
defendant took action to affect the functioning of his vehicle in a manner that would
enable the vehicle’s use.” Maciel v. State, 631 S.W.3d 720, 724 (Tex. Crim. App.
2021) (citing Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995)); see
also Espinosa, 666 S.W.3d at 667. The court has further defined the term “to
operate” as “to exert personal effort to cause the vehicle to function.” Maciel, 631
S.W.3d at 724 (quoting Kirsch v. State, 357 S.W.3d 645, 652 (Tex. Crim. App.
2012)).
In DWI cases, the term “operating” a motor vehicle has been interpreted
broadly. Priego v. State, 457 S.W.3d 565, 569 (Tex. App.—Texarkana 2015, pet.
ref’d) (quoting Smith v. State, 401 S.W.3d 915, 919 (Tex. App.—Texarkana 2013,
pet. ref’d)). “[W]hile driving does involve operation, operation does not necessarily
involve driving.” Denton, 911 S.W.2d at 389; Priego, 457 S.W.3d at 569. Indeed,
as this court and others have held, the operation of a motor vehicle can nonetheless
be established without eyewitness testimony that the defendant was in fact driving
the vehicle while in a state of intoxication. White v. State, 412 S.W.3d 125, 128–29
(Tex. App.—Eastland 2013, no pet.); see Kinnett v. State, 623 S.W.3d 876, 898 (Tex.
App.—Houston [1st Dist.] 2020, pet. ref’d) (DWI convictions upheld in situations
where the vehicle’s engine was running but, when engaged by law enforcement, the
defendant was neither in nor driving the vehicle); see also Villareal v. State, No. 11-
23-00218-CR, 2025 WL 994023, at *3–5 (Tex. App.—Eastland Apr. 3, 2025, no
pet.) (mem. op., not designated for publication); Gameros v. State, No. 11-19-00395-
CR, 2021 WL 4998897, at *6 (Tex. App.—Eastland Oct. 28, 2021, no pet.) (mem.
op., not designated for publication) (collecting cases).

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C. Analysis
Despite Appellant’s contentions, we conclude that the State presented
sufficient evidence that Appellant operated his pickup while intoxicated as charged
in the indictment. Garcia, whose testimony Appellant asserts is lacking in
credibility, observed Appellant driving his pickup in a reckless manner several times
before he called 9-1-1 and reported Appellant’s conduct. Upon locating Appellant’s
pickup and identifying it and him, Detective Reyes saw Appellant sitting in the
driver’s seat of the pickup while the engine was running. Although Appellant
ignored Detective Reyes’s commands to stop walking away after he exited his
pickup, and then eluded him, albeit temporarily, Detective Reyes was certain that
the person he saw in the parked pickup with the engine running, and which he and
other OPD officers later found underneath a different pickup that was parked in a
driveway, were the same—Appellant. Further, Garcia and Detective Reyes, both of
whom identified Appellant, testified that Appellant was the sole occupant of the
pickup when he was observed either driving it or sitting in it. This evidence, without
more, is sufficient to show that Appellant “operated” his pickup within the meaning
of Section 49.04(a) and controlling precedent. See PENAL § 49.04(a); Maciel, 631
S.W.3d at 724; Kinnett, 623 S.W.3d at 898; Priego, 457 S.W.3d at 569; White, 412
S.W.3d at 128; Villareal, 2025 WL 994023, at *3–5; Gameros, 2021 WL 4998897,
at *6.
As for Appellant’s state of intoxication while operating the pickup, the
evidence is more than sufficient to support this element of the charged offense. The
officers who confronted Appellant that evening testified that (1) a strong odor of
alcohol emanated from Appellant’s breath and person, (2) his eyes were “glassy”
and red, (3) his balance was unsteady, (4) his speech was slurred, and (5) he could
not follow the officers’ instructions while field sobriety tests were administered.

8
Here, the officers’ observations and determinations are probative and provide a
sufficient basis to establish Appellant’s intoxication. See Emerson v. State, 880
S.W.2d 759, 763 (Tex. Crim. App. 1994); Annis v. State, 578 S.W.2d 406, 407 (Tex.
Crim. App. [Panel Op.] 1979); Daniel v. State, 547 S.W.3d 230, 243–44 (Tex.
App.—Eastland 2017, no pet.); Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d); Henderson v. State, 29 S.W.3d 616, 622 (Tex.
App.—Houston [1st Dist.] 2000, pet. ref’d). Moreover, the results of the field
sobriety tests that were administrated to Appellant clearly show that he was
intoxicated. See Kirsch, 306 S.W.3d at 745 (Characteristics such as stumbling,
swaying or a staggering gait, unsteady balance, slurred speech, mumbling words,
bloodshot or glassy eyes, and the odor of alcohol are the “usual indicia of
intoxication.”); Cotton v. State, 686 S.W.2d 140, 142–43 & 142 n.3 (Tex. Crim. App.
1985) (same); see also Nelson v. State, 504 S.W.3d 410, 413 (Tex. App.—Eastland
2016, pet. ref’d) (concluding that the evidence was sufficient to show that the
defendant was intoxicated where officers observed his eyes were glassy and his
speech was slurred, and the defendant did not successfully complete the field
sobriety tests).
We recognize that in this case, as in all cases, the jury may believe or reject
all, some, or none of any witness’s testimony. State v. Ross, 32 S.W.3d 853, 855
(Tex. Crim. App. 2000); Adleman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App.
1992); Reyes v. State, 465 S.W.3d 801, 805 (Tex. App.—Eastland 2015, pet. ref’d)
(citing Sharpe v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)); see Winfrey,
393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. As such, the jury is tasked with
weighing and resolving any conflicts in the evidence. See Jackson, 443 U.S. at 326;
Brooks, 323 S.W.3d at 899.

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Having reviewed the evidence in the light most favorable to the jury’s verdict,
we conclude that the record before us contains sufficient evidence from which a
rational trier of fact could have logically inferred and found beyond a reasonable
doubt that Appellant operated a motor vehicle while intoxicated as charged in the
indictment.
Accordingly, we overrule Appellant’s sole issue.
III. This Court’s Ruling
We affirm the judgment of the trial court.

W. STACY TROTTER
JUSTICE

March 19, 2026
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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