Opinion
No. 06-05-00153-CR
Submitted: June 5, 2006.
Decided: June 22, 2006. DO NOT PUBLISH.
On Appeal from the 6th Judicial District Court, Lamar County, Texas, Trial Court No. 20492.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
A jury found Jason Matthew Eaton guilty of felony driving while intoxicated (DWI). See Tex. Pen. Code Ann. § 49.04 (Vernon 2003), § 49.09 (Vernon Supp. 2005). The trial court assessed punishment at ten years' imprisonment. Eaton now appeals contending the trial court erred "by including a synergistic alcohol effect jury instruction when there was no evidence sufficient to raise it." For the reasons set forth below, we affirm. "When jury charge error is claimed, we are to determine first whether there was error. If we find error and if . . . the error was preserved by objection, we then determine whether `some harm' resulted from the error." McNatt v. State, 152 S.W.3d 645, 654 (Tex.App.-Texarkana 2004) (mem. op.) (not designated for publication), rev'd on other grounds, 188 S.W.3d 198 (Tex.Crim.App. 2006) (citing Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App. 1998); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App. 1994)). In its proposed jury charge, the trial court included the following:
You are instructed that if a person by the use of medications renders himself more susceptible to the influence of alcohol then [sic] he otherwise would have been and by reason thereof became intoxicated from recent use of alcohol; he would be in the same position as though his intoxication was produced by the use of alcohol alone.Eaton, through trial counsel, objected to this instruction, stating, "Only objection I have, Judge, is paragraph three or section three, about the synergistic effect of alcohol in the case. There's no evidence that he was on any type of medication at the time the alleged event occurred." The trial court overruled this objection and included the instruction in its final charge to the jury. During the State's case-in-chief, Trooper Ricardo Landeros testified that, at the time of Eaton's arrest, Eaton admitted "that he was taking an antibiotic, and [that] he shouldn't be mixing alcohol with antibiotic medication." Pamela Ray Eaton, a licensed vocational nurse and the appellant's wife, was asked, "Was Mr. Eaton on any type of medication at that time?" She answered, "Yes, he was," and described the medications as prescription strength Benadryl, Ultram (a nonnarcotic pain medication), and Keflex (an antibiotic) to treat several spider bites Eaton had recently received. She agreed that pain medicine should not be mixed with alcohol. This testimony, argues the State, is some evidence Eaton was on medication when Trooper Landeros made the traffic stop and, therefore, supports the trial court's decision to include the jury instruction now at issue. We agree. 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. Evidence at trial showed Gray had also been taking antidepressants at the time of his arrest. Id. The trial court gave a synergistic charge quite similar to the one now at issue. Id. at 127. The Texas Court of Criminal Appeals found no error. Id. at 133-34. The charge in Eaton's case authorized the jury to convict only if it found the use of any drugs made Eaton more susceptible to the effects of any alcohol he had ingested. Thus, the trial court's charge did not permit the jury to convict Eaton on a theory unalleged in the charging instrument. Cf. id. at 133. Accordingly, because the trial court's charge correctly applied the applicable law to the facts adduced during trial, we find no error in the charge. We affirm the trial court's judgment.