Tyler

By CASEY KNAUPP
Staff Writer

A 30-year-old Canton man was convicted Wednesday of felony driving while intoxicated after he caused a collision in Smith County.

Justin Don Cox, 30, Canton, was found guilty for the Feb. 8 incident after a Smith County jury in 114th District Judge Cynthia Stevens Kent's court deliberated for 30 minutes. The jury also found that Cox used a deadly weapon -- his van -- in the offense.

The DWI charge was enhanced to a third-degree felony because he has two prior intoxicated assault convictions for causing a collision in Dallas County nearly 10 years ago. He faces anywhere from two to 10 years in prison when Judge Kent sentences him Sept. 18.

Cory Weatherford, 25, Josh Heddin, 23, and Kobey Kimbrell, 19, testified they were driving toward Tyler on Texas Highway 64 West in a GMC pickup when Cox's white van entered their lane. Weatherford swerved to miss the van but the mirrors of the two vehicles collided. When the van didn't stop, the men turned around and chased him into Van Zandt County and forced him to stop. Weatherford said Cox's neck was bleeding from the broken glass and his eyes were bloodshot. Cox admitted the wreck was his fault, said he would pay for the damage and asked him not to call police, he said. After Weatherford called 911, he said he saw Cox throw a bottle of liquor out of his van.

Texas Department of Public Safety Trooper Tracey Tullis testified that before 911 was called about the collision, another person reported a white van driving recklessly.

Jurors were shown a video of Cox performing field sobriety tests. Trooper Tullis said he wasn't able to follow her instructions on any of the tests so she arrested him for DWI. She said she found a bottle of whiskey, which had about one-third of it missing, in a nearby ditch. She said he didn't take a Breathalyzer test but there was no question he was intoxicated.

The defendant, a self-employed tree cutter, testified that on Feb. 8, his pet raccoon died and his grandfather died. He said he bought a bottle of whiskey to drink at home but before driving there he "took a couple of swigs," choked on it and spilled some on his shirt, he said.

At the time of the accident, he was talking on the phone when he fumbled with it and his mirror hit Weatherford's mirror. He said he was also distraught, not used to driving his new van, it was windy and he was tired. He said when he saw the pickup turn around he pulled over. He said the men did not have to chase him down and they did not flash their lights at him, as they claimed.

Cox said he didn't feel he was intoxicated. "I think I was just fine," he said. He said he threw the bottle of whiskey out because he didn't want it in his van; not because he didn't want Trooper Tullis to find it. "The reason I threw that bottle out is because I was not drinking and driving but of course, that's how it appears," he said. "If she (Tullis) would have asked me, I would have 'fessed' up and told her."

Cox said he didn't take the Breathalyzer test because he didn't trust it, although he said the one he took in his 1999 case was accurate. He said he pleaded guilty to his intoxicated assault convictions because he was guilty but he pleaded not guilty to the DWI charge.

Assistant Smith County District Attorney Jason Parrish said Weatherford, Heddin and Kimbrell did a noble thing, chasing Cox after they were almost killed and "probably saved somebody's life."

Parrish said if a person drinks from a jug of whiskey, which has one-third of the alcohol missing, and drives a vehicle, that van is capable of causing death or serious bodily injury on the road. "He is a loose cannon going down the highway in that van," he said.

When Cox admitted to throwing the whiskey out, he admitted to another felony, he said.

Parrish said Cox did a terrible job on the field sobriety tests.

"The evidence shows he's loaded � to a level where he almost kills three people," Parrish said. "I'm going to ask you not to give him the keys back."

He asked the jury to find Cox guilty and hold him responsible for his actions.

Defense attorney John Eastland said the testimonies of the three men in the pickup were inconsistent with each other. Eastland said there was no doubt the two mirrors touched but sober people have wrecks and get distracted. He said with another few degrees, the wreck would have been very serious or would not have happened at all. He said they would never know how much of the whiskey the defendant actually drank.

On the video, Cox was argumentative and talkative; the jurors could find him guilty of being a jerk, he said. "But can you find him guilty of intoxication? I submit that you cannot "

Cox repeatedly apologized to the trooper and said it was his fault but never said he had too much to drink, he said. Eastland said the state wanted to repeatedly beat his client over the head with his past convictions but those debts have been paid.

He asked the jurors to use their common sense, look at everything, and find Cox not guilty.

Parrish said Cox claimed he hit the other car because of his cell phone. He said cell phones don't cause people to fail field sobriety tests or to refuse Breathalyzer tests. He said the only evidence the jury heard that Cox was not intoxicated was Cox's testimony.

In 1999, Cox pleaded guilty to two counts of intoxicated assault, admitting to driving while intoxicated and causing serious bodily injury to two people in Dallas County. He was placed on probation but that probation was revoked and he was sentenced to two years in prison.