Barron v. State

Full title: JERI LEIGH BARRON, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jun 2, 2010

No. 05-09-00589-CR (Tex. App. Jun. 2, 2010)

Opinion

No. 05-09-00589-CR

Opinion Filed June 2, 2010. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-85394-08.

Before Justices O'NEILL, LANG, and MYERS.

OPINION

Opinion By Justice MYERS.

Jeri Leigh Barron appeals her conviction for driving while intoxicated¹ and sentence of ninety days in jail, probated for one year, and a $1,000 fine. In six issues, appellant challenges a portion of the jury charge, several of the trial court's evidentiary rulings, its ruling on a motion in limine, and the court's denial of a motion for mistrial. We reverse and remand.

1 See Tex. Penal Code Ann. § 49.04 (Vernon 2003).

Background and Procedural History

At approximately 11:35 p.m. on July 9, 2008, Officer Eric Estes of the Texas Department of Public Safety was "[w]orking traffic enforcement" on the George Bush Turnpike when he noticed a black Nissan passenger vehicle traveling at 76 miles per hour, more than fifteen miles per hour over the 60 mile per hour speed limit.² When Estes got behind the vehicle and turned on his emergency lights, he noticed that the vehicle moved over the white lines in its lane "a couple of times." After the vehicle pulled over, Estes walked up to the passenger's side and shined his flashlight into the window, but the driver, who was identified in court as appellant, did not respond, so he walked around to the front of the vehicle and shined his flashlight into the front window. When appellant still did not respond, he walked back to the passenger side of the vehicle and tapped on the window. At that point, appellant "became responsive" and rolled down the window. Estes could smell the odor of alcohol on appellant's breath, and her speech was slurred. Appellant initially told Estes that she was coming from work, but then said that she had just left Sherlock's Bar and Grill in Addison, Texas. Appellant indicated that she visited Sherlock's for happy hour, and that she had been there until 10:45 p.m. Appellant stated that she had consumed only one glass of wine that night, but eventually told Estes that she had been to two bars that evening and had consumed a glass of wine at each one. Appellant also told Estes that she had been speeding because she thought he was "trying to go around her." After performing several field sobriety tests, Estes concluded that appellant showed two of four clues on both the walk-and-turn and the one-leg-stand tests, with two clues being the decision point for intoxication. When Estes asked appellant to recite the letters of the alphabet from G to Z, she hesitated for several seconds and then predicted she would not be able to do so correctly because she "disassociates" or "translates" letters and numbers. When appellant recited the alphabet, she incorrectly ended with the letters "WXTUZ." Appellant declined to take a portable breath test or provide a sample of her blood. After arresting appellant for driving while intoxicated, Estes searched appellant's purse and found a "blister pack" of pills. The pills were arranged in a package of eight, with four pills missing. Estes did not preserve these pills as evidence or record them on the inventory slip. Estes testified that appellant told him they were Bonine tablets for seasickness. At trial, the court overruled defense counsel's hearsay objection when Estes remembered reading the word "hydrocodone" on the back of the pill package. Estes testified that another officer who arrived at the scene shortly after him, Dean North, read the name on the back of the pill package as "hydrocodeine." Estes also testified that hydrocodone is a depressant and can cause horizontal and vertical gaze nystagmus. He said that he thought appellant was intoxicated "due to alcohol or combination of drug and alcohol into the system." The videotape of the stop shows Estes and North studying the back of the pill package with the aid of a flashlight and reading what sounds like — the audio portion of the video is unclear — either the word "hydrocodone" or "hydrocodeine" on the back the package. Appellant can be heard in background claiming the pills were "sea sick pills for the ocean" that she had purchased over the counter. She referred to them as "bonane" and "bonine," and stated that she had been to Florida two weeks before. According to a package of Bonine pills that was introduced into evidence by the defense, the back of the pill package includes the words "meclizine hydrochloride." Estes testified that this sample Bonine pill package did not resemble the pill package he found in appellant's purse. Detective Brian Pfahning of the Plano Police Department, a "drug recognition expert,"³ testified as to the properties of hydrocodone and its general effects on a person, and its effects when combined with alcohol. Pfahning testified that both vertical and horizontal gaze nystagmus can be caused by alcohol or by the ingestion of drugs such as PCP or ketamine. He also testified that there is a "cumulative effect of the alcohol plus the hydrocodone" that increases the "chance[s] of being intoxicated." Pfahning acknowledged that he never saw the pills in question and did not know whether appellant actually used hydrocodone, and that he had never seen hydrocodone packaged in a "blister pack." Appellant testified that she had been to two bars on the night in question, but that she had consumed only one glass of wine at each one. She denied that she was intoxicated. Appellant also contended that, two weeks before the night in question, she had purchased and used Bonine pills during a "fishing excursion" in Florida, and that these were the pills found by the officers. She denied that she had any hydrocodone or hydrocodeine in her purse, and insisted she had never used hydrocodone or hydrocodeine. Appellant was charged with operating a motor vehicle without having the normal use of her 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." The jury charge defined "intoxicated" to mean "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a drug, a dangerous drug, or a combination of two or more of those substances into the body." The charge included a so-called "synergistic effect" instruction, which reads as follows:

You are further instructed that if a person by the use of medications or drugs renders herself more susceptible to the influence of intoxicating alcohol than she otherwise would be and by reason thereof became intoxicated from the recent use of intoxicating alcohol, she is in the same position as though her intoxication was produced by the intoxicating alcohol alone.

The application paragraph allowed the jury to convict appellant if it found she was intoxicated "by reason of the introduction of alcohol, a drug, a dangerous drug, or a combination of two or more of those substances." Appellant objected to the synergistic effect instruction because there was no evidence "she took any pills that night," that is, no evidence that she "took any hydrocodone or had any in her system." The trial court overruled the objection.⁴

Discussion

Jury Charge Error In his fifth issue, appellant argues that the trial court erred by overruling defense counsel's objection to the "synergistic effect" instruction in the jury charge. Standard of Review In considering issues of jury charge error, we first determine whether error exists. See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If there is error and the defendant objected, we will reverse if the defendant suffered some harm. Id. If there is error but the defendant did not object, reversal is not required unless the error was fundamental, that is, so egregious that the defendant was denied a fair and impartial trial. Id.; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). Analysis The Texas Court of Criminal Appeals has expressly authorized jury instructions on the synergistic effect of drugs and alcohol in DWI cases where there is some evidence presented at trial that the accused's loss of the normal use of his or her mental and/or physical faculties due to alcohol consumption was enhanced or worsened because the accused had also consumed drugs. Gray v. State, 152 S.W.3d 125, 127-34 (Tex. Crim. App. 2004). In Gray, the defendant had been charged with DWI by reason of the introduction of alcohol into his system. Id. at 126. The evidence at trial showed that Gray had also been taking anti-depressants at the time of his arrest and that those medications made the defendant more susceptible to the influence of alcohol. Id. The trial court gave a synergistic charge similar to the one given in this case. Id. at 127. The court of criminal appeals found no error. Id. at 133-34. The court noted that the synergistic charge did not expand on the allegations in the charging instrument, still required intoxication due to alcohol, and permitted the jury to convict defendant if drug use made him more susceptible to alcohol. Id. But the issue we must decide here is whether the "synergistic effect" instruction was raised by the evidence, not whether such a charge permitted conviction on a theory not alleged in the charging instrument. See id. Our review of the record shows there is no evidence that appellant ingested hydrocodone, hydrocodeine, or any other prescription medication on the day in question. Estes testified that he believed appellant was intoxicated "due to alcohol or combination of drug and alcohol into the system," but appellant insisted she had never used hydrocodone or hydrocodeine, and there is no evidence to the contrary. This is quite different from the situation in Gray, where the evidence showed the defendant had been prescribed four anti-depressant medications and was on two or three different medications at the time of the accident. See id. at 126. Based on our review of the record, we therefore conclude the "synergistic effect" instruction was not raised by the evidence, and that the trial erred by so instructing the jury. Harm Analysis Having found error in the trial court's inclusion of the synergistic effect instruction, we must now determine whether that error requires reversal. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Almanza, 686 S.W.2d at 171. Because appellant timely objected to the instruction, reversal is required if the error is "calculated to injure the rights of defendant," meaning there must be some harm. Tex. Code Crim. Proc. Ann. art. 36.19; Trevino v. State, 100 S.W.3d 232, 242 (Tex. Crim. App. 2003); Almanza, 686 S.W.2d at 171. The degree of harm must be considered in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. See Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000). In analyzing harm under Almanza, neither the State nor the defense has a burden to show harm. Warner v. State, 245 S.W.3d 458, 464 (Tex. Crim. App. 2008). Appellant's argument concerning harm relies primarily on Ferguson v. State, 2 S.W.3d 718 (Tex. App.-Austin 1999, no pet.). In that case, a prosecution for driving while intoxicated, the court defined "intoxicated" as "not having the normal use of one's physical or mental faculties by reason of the introduction of alcohol, a controlled substance, a drug, a substance or its vapors that contain a volatile chemical, an abusable glue, or an aerosol paint, or a combination of two or more of these substances into the body." See id . at 720. There was, however, no evidence that the defendant was intoxicated as a result of inhaling a volatile chemical, an abusable glue, or an aerosol paint. The prosecutor aggravated the error by telling the jury during his closing argument that "you can be intoxicated because of alcohol; you can be intoxicated because of drugs; be intoxicated because of paint; you can be intoxicated just by combining everything." See id . at 721. The court concluded that the jury instruction, which conformed to the information, erroneously authorized the defendant's conviction on a theory that was not supported by the evidence and was, under the circumstances, calculated to injure the defendant's rights. See id . at 723; see also Almanza, 686 S.W.2d at 171. We reach a similar conclusion in the present case . The State's theory, as alleged in the information, was that appellant "did not have the normal use of her 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." The State pursued this theory through Estes' testimony and the testimony of Pfahning, the drug recognition expert that testified regarding intoxication by drugs and the synergistic effect of drugs and alcohol. Furthermore, in its closing argument the State argued that, in proving the required element of intoxication, "The alcohol, whether it was drugs, doesn't matter, just so all of you agree it was one of them, we can still prove it through intoxication." There is, however, no evidence in this record that appellant ingested any intoxicating substances other than alcohol. Accordingly, we conclude that the record as a whole shows the trial