Randle Jack Goodrum Jr. v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-24-00495-CR
___________________________

RANDLE JACK GOODRUM JR., Appellant

V.

THE STATE OF TEXAS

On Appeal from the 271st District Court
Wise County, Texas
Trial Court No. CR24090

Before Sudderth, C.J.; Kerr and Walker, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION

Appellant Randle Jack Goodrum Jr. appeals his conviction for driving while

intoxicated (DWI) with two or more prior convictions. Raising four points,

Goodrum argues (1) that the evidence is insufficient to show that he was intoxicated

as defined in the Penal Code; (2) that he was “stripped . . . of his right[s] to [the]

presumption of innocence and a fair . . . trial” by a police officer’s testimony that the

presiding trial judge was the same judge who had signed the warrant for his blood

draw because this testimony was tantamount to the trial judge’s making an improper

comment on the weight of the evidence; (3) that the State’s expert witness’s testimony

regarding the number of drinks that Goodrum would have had to consume for his

blood–alcohol concentration to reach the level reflected in the toxicology report was

“inadmissible, not reliable, and was more prejudicial than probative”; and (4) that the

trial court erred by ordering him to “contribute to the cost of the legal services and

related expenses” incurred in connection with his appeal because the record contains

no evidence showing that he has the financial resources to do so. Overruling

Goodrum’s first three points, we affirm the trial court’s judgment of conviction.

Sustaining his fourth point, we modify the trial court’s Amended Order Appointing

Counsel for Appeal to delete the portion requiring Goodrum to contribute to the

payment of his appointed appellate counsel’s fees and expenses, and we affirm the

order as modified.

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I. BACKGROUND

After the Bridgeport Police Department received a nonemergency call about a

reckless driver in a silver Nissan Armada heading northbound on Chico Highway,

Sergeant Cody Barlow was dispatched to the area. He observed the Armada traveling

over the posted speed limit and initiated a traffic stop.

During the stop, Sergeant Barlow noticed that the driver—later identified as

Goodrum—had “bloodshot, glassy, watery eyes.” He also “detect[ed] the strong odor

of alcohol coming from the vehicle” and “observed two beer cans sitting in the

[vehicle’s] center console.” When Sergeant Barlow asked Goodrum if he had had

anything to drink, he responded with a non sequitur: “I’m good, sir.” And when

asked where he was going, Goodrum stated that he was on his way “[t]o visit his ex

and his four[-]year-old son” even though it was approximately 2:46 a.m.

Because he suspected that Goodrum might be intoxicated, Sergeant Barlow

asked him to step out of his vehicle for standard field-sobriety testing. Sergeant

Barlow noted in his report that Goodrum’s balance was “swayed” as he exited his

vehicle and began walking toward Sergeant Barlow’s patrol unit. Sergeant Barlow

conducted the horizontal-gaze-nystagmus test and observed all six possible clues of

intoxication. He also attempted to conduct the walk-and-turn test, but he was unable

to do so because Goodrum “was extremely uncooperative.” Ultimately, Sergeant

Barlow placed Goodrum under arrest for DWI.

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After the arrest, Sergeant Barlow obtained a warrant authorizing a blood draw.

Goodrum was transported to a health center where a blood sample was taken.

Forensic analysis of the blood sample revealed that Goodrum’s blood–alcohol

concentration level was 0.161 plus or minus 0.009 grams of alcohol per 100 milliliters

of blood, which exceeded the legal limit of 0.08. See Tex. Penal Code § 49.01(2)(B).

A grand jury indicted Goodrum for DWI with two or more prior convictions, a

third-degree felony.1 See id. §§ 49.04, 49.09(b)(2). Goodrum pleaded not guilty, and

after considering all the evidence, a jury found him guilty. Following a bench trial on

punishment, Goodrum was sentenced to ten years in prison.2 This appeal followed.

II. DISCUSSION

A. Sufficiency of the Evidence

In his first point, Goodrum contends that the State’s evidence of intoxication is

insufficient. We disagree.

1. 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

1
The indictment included a deadly-weapon allegation, but the State waived this
allegation before trial.
2
Prior to trial, the State filed a notice informing Goodrum that it intended to
enhance the punishment range of his charged DWI offense from that of a third-
degree felony to that of a second-degree felony based on a prior felony conviction.
See Tex. Penal Code § 12.42(a). Goodrum pleaded “true” to the enhancement
paragraph at the start of the trial’s punishment phase.

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the challenged essential element 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); Stephenson v. State, 673 S.W.3d 370, 384 (Tex. App.—Fort

Worth 2023, pet. ref’d). This standard gives full play to the factfinder’s responsibility

to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

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. 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.

To determine whether the State has met its burden to prove a defendant’s guilt

beyond a reasonable doubt, we compare the crime’s elements as defined by a

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hypothetically correct jury charge to the evidence adduced at trial. Hammack v. State,

622 S.W.3d 910, 914 (Tex. Crim. App. 2021); see also Febus v. State, 542 S.W.3d 568,

572 (Tex. Crim. App. 2018) (“The essential elements of an offense are determined by

state law.”). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or restrict the

State’s theories of liability, and adequately describes the particular offense for which

the defendant was tried. Hammack, 622 S.W.3d at 914. The law as authorized by the

indictment means the statutory elements of the offense as modified by the charging

instrument’s allegations. Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021);

see Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the State pleads

a specific element of a penal offense that has statutory alternatives for that element,

the sufficiency of the evidence will be measured by the element that was actually

pleaded, and not any alternative statutory elements.”).

2. Applicable Law

A person commits a misdemeanor DWI offense if he is “intoxicated while

operating a motor vehicle in a public place.” Tex. Penal Code § 49.04(a). DWI is

elevated to a third-degree felony if the person has two prior DWI convictions. Id.

§ 49.09(b)(2).

The Penal Code defines “intoxicated” as either (1) “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

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substances, or any other substance into the body” or (2) “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,” and these theories are

not mutually exclusive. Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010).

Evidence that a person is intoxicated because the person did not have “normal use of

mental or physical faculties by reason of the introduction of alcohol” may be

established through a lay witness’s testimony. See Annis v. State, 578 S.W.2d 406, 407

(Tex. Crim. App. [Panel Op.] 1979) (holding that law enforcement officer’s testimony

about his observations of defendant’s driving, physical appearance, post-driving

behavior, and his conclusion of intoxication was sufficient); Zill v. State, 355 S.W.3d

778, 785–86 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (stating that “[t]he

testimony of a police officer regarding the defendant’s behavior and the officer’s

opinion that the defendant is intoxicated provides sufficient support to uphold a jury

verdict”).

Evidence that supports an inference of intoxication includes a defendant’s

inability to perform field-sobriety tests or to follow directions, slurred speech,

unsteady balance, and the odor of alcohol on the defendant’s breath. See Kirsch, 306

S.W.3d at 746; Zill, 355 S.W.3d at 785–86. Because it reflects a consciousness of guilt,

a defendant’s refusal to perform a field-sobriety test can also be considered evidence

of intoxication. See Johnson v. State, 09-15-00056-CR, 2017 WL 218269, at *2 (Tex.

App.—Beaumont Jan. 18, 2017, no pet.) (mem. op., not designated for publication)

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(citing Maxwell v. State, 253 S.W.3d 309, 314 (Tex. App.—Fort Worth 2008, pet.

ref’d)); Hall v. State, No. 14-10-00267-CR, 2011 WL 2150195, at *3 (Tex. App.—

Houston [14th Dist.] June 2, 2011, no pet.) (mem. op., not designated for publication)

(citing Bartlett v. State, 270 S.W.3d 147, 153 n.20 (Tex. Crim. App. 2008)).

For the evidence to be sufficient to support a DWI conviction, a “temporal

link” must exist between the defendant’s intoxication and his driving. Kuciemba v.

State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). “This temporal link may be

established by circumstantial evidence.” Kinnett v. State, 623 S.W.3d 876, 897–98 (Tex.

App.—Houston [1st Dist.] 2020, pet. ref’d) (citing Kuciemba, 310 S.W.3d at 462).

3. Analysis

Here, the State presented ample evidence of Goodrum’s intoxication. Sergeant

Barlow testified that when he pulled Goodrum over, he had “bloodshot, glassy,

watery eyes,” his vehicle smelled of alcohol, and there were two beer cans in his

vehicle’s center console. He also testified that Goodrum failed the horizontal-gaze-

nystagmus test and refused to participate in additional field-sobriety tests, and he

noted in his report that Goodrum’s balance was swayed. Additionally, the State

offered evidence showing that Goodrum’s blood–alcohol concentration level was well

above the legal limit.

Despite this substantial evidence, Goodrum argues that no rational factfinder

could have found that he was intoxicated because (1) he did not appear to be swaying

on Sergeant Barlow’s body-camera footage while undergoing the horizontal-gaze-

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nystagmus test and arguing about taking other field-sobriety tests and (2) the State

failed to offer evidence of a retrograde extrapolation concerning the blood-test

results. But because Goodrum’s contention that he was not swaying on the body-

camera footage—even if true—goes only to the weight and credibility of Sergeant

Barlow’s testimony that Goodrum’s balance was swayed, it is not germane to our

evidentiary-sufficiency analysis. See Diaz v. State, No. 2-08-261-CR, 2010 WL 395187,

at *2 (Tex. App.—Fort Worth Feb. 4, 2010, pet. ref’d) (mem. op., not designated for

publication) (per curiam) (first citing Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim.

App. 2008); and then citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App.

1999)); see also Queeman, 520 S.W.3d at 622. The jury watched the body-camera

footage and nevertheless found that Goodrum was intoxicated, and we may not

reweigh the evidence as part of our evidentiary-sufficiency review. See Queeman, 520

S.W.3d at 622; see also Russell v. State, 290 S.W.3d 387, 397 (Tex. App.—Beaumont

2009, no pet.) (holding that a jury could draw its own conclusions from observing the

defendant’s behavior in the video of the traffic stop and decide whether he appeared

intoxicated). As for the lack of retrograde-extrapolation evidence—which is used to

estimate what a defendant’s blood–alcohol concentration was at a previous point in

time before the blood draw, see Kinnett, 623 S.W.3d at 888—the Texas Court of

Criminal Appeals has recognized that blood–alcohol test results “are often highly

probative to prove both per se and impairment intoxication” even in the absence of

such evidence, Kirsch, 306 S.W.3d at 745; accord Kinnett, 623 S.W.3d at 900.

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Accordingly, given the other evidence of Goodrum’s intoxication, we cannot

conclude that the lack of retrograde-extrapolation evidence would preclude a rational

factfinder from determining that he committed the charged DWI offense. See Kirsch,

306 S.W.3d at 745.

Because the evidence—when viewed in the light most favorable to the

verdict—is sufficient to show that Goodrum was intoxicated, we overrule his first

point. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622;

Diaz, 2010 WL 395187, at *3.

B. Comment on the Weight of the Evidence

In his second point, Goodrum contends that Sergeant Barlow’s testimony that

the judge overseeing his trial was the same judge who signed the warrant for the blood

draw was tantamount to the trial court’s making an improper comment on the weight

of the evidence and therefore “stripped [him] of his right[s] to [the] presumption of

innocence [and] to a fair trial.” But Goodrum failed to preserve this complaint for

our review.

To preserve a complaint for appellate review, a party must have presented to

the trial court a timely request, objection, or motion sufficiently stating the specific

grounds, if not apparent from the context, for the desired ruling. Tex. R. App. P.

33.1(a)(1); Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). Further,

the party must obtain an express or implicit adverse trial-court ruling or object to the

trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State, 595 S.W.3d 216,

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223 (Tex. Crim. App. 2020). A party’s failure to timely object generally forfeits all

error unless the statement is so prejudicial that no instruction could have cured the

harm. Davis v. State, 177 S.W.3d 355, 363 (Tex. App.—Houston [1st Dist.] 2005, no

pet.).

“The contemporaneous[-]objection requirement encompasses improper

comments by the trial court on the weight of the evidence.” Peavey v. State,

248 S.W.3d 455, 470 (Tex. App.—Austin 2008, pet. ref’d) (citing Mestiza v. State, 923

S.W.2d 720, 724, 726 (Tex. App.—Corpus Christi 1996, no pet.)). Therefore, if a

party fails to object to the trial court’s improper comment on the weight of the

evidence, the error is not preserved for appeal. See id.; see also Jeffress v. State, No. 02-

10-00492-CR, 2012 WL 503567, at *4 (Tex. App.—Fort Worth Feb. 16, 2012, no

pet.) (mem. op., not designated for publication) (per curiam) (holding that appellant

had failed to preserve complaint that trial court had improperly commented on the

weight of the evidence by instructing her trial counsel to apologize to the prosecutor

in front of the jury because she had not objected to the trial court’s instruction); Tatum

v. State, No. 12-01-00137-CR, 2002 WL 657133, at *2 (Tex. App.—Tyler Apr. 12,

2002, pet. ref’d) (not designated for publication) (holding that appellant had failed to

preserve complaint that trial court had improperly commented on the weight of the

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evidence by questioning certain testimony’s relevance because he had not timely

objected on this basis).3

Here, Goodrum concedes that he did not object to the testimony giving rise to

his improper-comment-on-the-weight-of-the-evidence complaint.4 Accordingly, this

complaint is not preserved for our review. See Jeffress, 2012 WL 503567, at *4; Peavey,

248 S.W.3d at 470; Tatum, 2002 WL 657133, at *2.

We overrule Goodrum’s second point.

Goodrum argues that Sergeant Barlow’s complained-of testimony constituted
3

fundamental error and therefore required no objection. Given the authorities cited
above, we reject that argument.
4
Goodrum alternatively argues that his trial counsel was ineffective for failing
to object to the complained-of testimony. To establish ineffective assistance of
counsel, an appellant must show by a preponderance of the evidence that his
counsel’s representation was deficient and that the deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State,
415 S.W.3d 289, 307 (Tex. Crim. App. 2013). An ineffective-assistance claim must be
“firmly founded in the record,” and “the record must affirmatively demonstrate” the
meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). Here, the record is silent as to Goodrum’s counsel’s reasons for not objecting.
Because Goodrum’s trial counsel may have had a strategic reason for deciding not to
object—such as to avoid drawing additional attention to the complained-of
testimony—we cannot conclude that his counsel’s performance was deficient. See
Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) (“When . . . direct evidence
is not available, we will assume that counsel had a strategy if any reasonably sound
strategic motivation can be imagined.”); Ingham v. State, 679 S.W.2d 503, 509 (Tex.
Crim. App. 1984) (reasoning that an isolated failure to object to improper evidence
does not constitute ineffective assistance); Bryant v. State, 282 S.W.3d 156, 169 (Tex.
App.—Texarkana 2009, pet. ref’d) (explaining that trial counsel “might have
reasonably chosen to not object so as not to bring any additional attention to [the]
damaging testimony”).

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C. Evidentiary Complaint

In his third point, Goodrum contends that the trial court abused its discretion

by allowing the State’s expert witness to testify regarding the number of drinks that

Goodrum would have had to consume for his blood–alcohol concentration to reach

the level reflected in the toxicology report. According to Goodrum, this expert

testimony was irrelevant, unreliable for purposes of Rule 702, and inadmissible under

Rule 403 because its probative value was substantially outweighed by the danger of

unfair prejudice. See Tex. R. Evid. 401, 403, 702, 705(c). But Goodrum failed to

preserve this evidentiary complaint for our review.

To preserve an evidentiary complaint for appellate review, a party must make a

“timely request, objection, or motion” to the trial court that “state[s] the grounds for

the ruling that the complaining party sought from the trial court with sufficient

specificity to make the trial court aware of the complaint, unless the specific grounds

were apparent from the context.” Tex. R. App. P. 33.1(a); see Reyna v. State, 168

S.W.3d 173, 177 (Tex. Crim. App. 2005) (quoting Rule 33.1(a) and describing it as “a

prerequisite to presenting a complaint for appellate review”). If the party’s appellate

rationale for the exclusion of evidence differs from the one it presented to the trial

court such that “the trial judge ‘never had the opportunity to rule upon’ th[e appellate]

rationale,” then the complaint has not been preserved for review. Reyna, 168 S.W.3d

at 179 (quoting Clark v. State, 881 S.W.2d 682, 694 (Tex. Crim. App. 1994)); see Pena v.

State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (“Whether a party’s particular

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complaint is preserved depends on whether the complaint on appeal comports with

the complaint made at trial.”).

Here, Goodrum’s only objection to the complained-of expert testimony was

that it called for “speculation.” This objection was insufficient to preserve

Goodrum’s appellate arguments that the testimony was irrelevant, unreliable, and

more prejudicial than probative. See Reyna, 168 S.W.3d at 179; see also Sartin v. State,

680 S.W.3d 663, 673 (Tex. App.—Beaumont 2023, no pet.) (holding that appellant’s

speculation objection did not preserve her Rule 403 complaint for review); Dominguez

v. State, 474 S.W.3d 688, 700 (Tex. App.—Eastland 2013, no pet.) (holding that

appellant’s Rule 702 challenge to expert testimony was not preserved by an objection

to testimony as “speculative”); Texas Mut. Ins. Co. v. Durst, No. 04-07-00862-CV,

2009 WL 490056, at *2 (Tex. App.—San Antonio Feb. 25, 2009, no pet.) (mem. op.)

(holding that appellate issue challenging admission of evidence based on a lack of

relevance had not been preserved because appellant had objected only on speculation

and lack-of-personal-knowledge grounds). Accordingly, nothing is preserved for our

review.

We overrule Goodrum’s third point.

D. Contribution to Cost of Appointed Appellate Counsel

In his fourth point, Goodrum contends that the trial court erred by ordering

that he must “contribute to the cost of the legal services and related expenses”

incurred by his court-appointed appellate counsel. We agree.

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If a trial court determines that a defendant has the financial resources to

offset—in whole or in part—the cost of the legal services provided to him, the court

shall order him to pay for those services to the extent that he is able. See Tex. Code

Crim. Proc. art. 26.05(g); Sauceda v. State, 309 S.W.3d 767, 770 (Tex. App.—Amarillo

2010, no pet.). Before a trial court may order a defendant to contribute to the cost of

the legal services provided by his court-appointed counsel, it must first find that the

defendant has the ability to pay based on supporting evidence. See Armstrong v. State,

340 S.W.3d 759, 765–66 (Tex. Crim. App. 2011) (holding that a “defendant’s financial

resources and ability to pay are explicit critical elements in the trial court’s

determination of the propriety of ordering reimbursement of costs and fees”); Scott v.

State, No. 02-19-00283-CR, 2019 WL 6767813, at *2 (Tex. App.—Fort Worth Dec.

12, 2019, no pet.) (mem. op., not designated for publication) (“The record must

reflect some factual basis to support the trial court’s determination regarding the

defendant’s ability to pay.” (citing Wolfe v. State, 377 S.W.3d 141, 144 (Tex. App.—

Amarillo 2012, no pet.))).

In the present case, Goodrum did not request the appointment of trial counsel

and instead retained his own attorney. Following Goodrum’s conviction, the trial

court signed an order appointing his non-court-appointed trial attorney as his

appellate counsel. The order stated that Goodrum “[was] to contribute to the cost of

the legal services and related expenses” pertaining to his appeal.

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After Goodrum’s attorney filed a motion to withdraw “[d]ue to an

[i]rreconcilable [c]onflict,” we abated the appeal and remanded the case to the trial

court so that it could determine, among other things, whether Goodrum was indigent

and whether new appellate counsel should be appointed to represent him. Following

a hearing, the trial court found that Goodrum was indigent and appointed new

appellate counsel. But like the first order appointing appellate counsel, the order

appointing replacement counsel provided that Goodrum “[was] to contribute to the

cost of the legal services and related expenses” pertaining to his appeal.

As previously noted, a trial court can order a defendant to contribute to the

costs of the legal services provided by his court-appointed attorney only if it finds that

he is capable of doing so based on supporting evidence. See Armstrong, 340 S.W.3d at

765–66; Scott, 2019 WL 6767813, at *2; Wolfe, 377 S.W.3d at 144. Here, the trial court

found the exact opposite—that Goodrum was indigent. See, e.g., Trammell v. State,

287 S.W.3d 336, 343 (Tex. App.—Fort Worth 2009, no pet.) (noting that an “indigent

defendant” is “one that is not financially able to employ counsel”). Accordingly, we

conclude that the trial court erred by ordering Goodrum to contribute to the costs of

the legal services provided by his appellate counsel.

We thus sustain Goodrum’s fourth point and modify the trial court’s Amended

Order Appointing Counsel for Appeal to delete the portion requiring Goodrum to

contribute to the payment of his appointed appellate counsel’s fees and expenses, and

affirm the order as modified. See Scott, 2019 WL 6767813, at *2 (“When insufficient

16
evidence supports a trial court’s ordering of reimbursement of attorney’s fees, the

appropriate appellate remedy is to modify the trial court’s order to delete the

reimbursement of attorney’s fees.”).

III. CONCLUSION

Having overruled Goodrum’s first three points, we affirm the trial court’s

judgment of conviction. Having sustained Goodrum’s fourth point, we modify the

trial court’s Amended Order Appointing Counsel for Appeal to delete the portion

requiring Goodrum to contribute to the payment of his appointed appellate counsel’s

fees and expenses, and we affirm the order as modified.

/s/ Bonnie Sudderth

Bonnie Sudderth
Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: June 4, 2026

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