Arthur Dell Duvall v. State

• Court: Court of Appeals of Texas
• Decided: February 25, 2004
• Docket: 06-03-00096-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00096-CR

ARTHUR DELL DUVALL, Appellant

 

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Court at Law

Hunt County, Texas

Trial Court No. CR0100796

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Arthur Dell Duvall appeals his conviction for driving while intoxicated. A jury found Duvall guilty, and the trial court sentenced him to sixty days in the Hunt County Jail. Duvall's sole issue on appeal is whether the State's closing argument implying Duvall was an alcoholic is reversible error. We affirm the judgment of the trial court.

            On February 2, 2001, at approximately 10:30 p.m., Duvall, a sixty-nine-year-old man, was traveling east on Interstate 30 in Hunt County. When Duvall swerved to miss a slow-moving vehicle, moving approximately thirty miles per hour or less, he lost control of his vehicle. His vehicle, a minivan, rolled and came to a stop upside down, with Duvall hanging from the seat belts. Two witnesses, Dane Cofer and John Watson, stopped and cut Duvall free from the seat belt. Both Cofer and Watson had been able to avoid the slow-moving vehicle immediately before Duvall. When Trooper Chris Earnest, an officer with the Texas Department of Public Safety, arrived at the scene, he noticed an odor of alcohol on Duvall's breath. Duvall informed Earnest he had drunk "about three beers" at the VFW that night. Earnest performed the horizontal gaze nystagmus test on Duvall and testified he observed all six clues of intoxication. Earnest arrested Duvall for driving while intoxicated. At the jail, Duvall refused to submit a specimen of his breath into the intoxilyzer.

            The closing argument of the State implied Duvall was an alcoholic. Duvall argues that this improper argument resulted in harm which could not be cured by the limiting instruction. Duvall argues the trial court should have granted him a mistrial.

            The offending portion of the closing argument is as follows:

[Prosecutor]: . . . . Now, remember in voir dire we talked about you've got alcoholics and not all people exhibit all of the signs of intoxication. The defendant wants you to say, well, he didn't have this and he didn't have this and he didn't have this. Everyone is different. Everyone is different. He still exhibited all of these signs. We've talked about how there are people out there who are alcoholics - -

[Defense Counsel]: Objection, Your Honor. There was no evidence in this trial that the defendant was an alcoholic at any time. She's trying to make him out to be an alcoholic and that was never introduced in evidence, even referenced slightly. We object to the reference of my client being termed an alcoholic.

[Prosecutor]: May I respond?

THE COURT: Yes, ma'am.

[Prosecutor]: Your Honor, the defendant has clearly stated that there aren't particular signs here, and I think a reasonable inference from the evidence is that, if there aren't any signs, then it could be possibly that he is an alcoholic.

THE COURT: Well, there has been no evidence, and as the jury was instructed in the instructions and what the law is, they can only take what was said on the witness stand, with your depositions, into consideration, into evidence in this matter. They can infer whatever they want to, but there has been no testimony that he's an alcoholic.

[Prosecutor]: Your Honor, for argument, I believe proper argument is reasonable inference from the evidence.

                        [Defense Counsel]: That's exactly what my objection was.

                        [Prosecutor]: I'll go on. I'm wasting time.

[Defense Counsel]: We would ask that the jury be made to disregard those comments.

THE COURT: Again, the jury is to take the evidence that was presented to them and not anything that wasn't evidence. I think that instruction is sufficient.

[Defense Counsel]: Defendant moves for a mistrial at this point based on prosecutorial misconduct.

                        THE COURT: Overruled. Denied.

            Texas law requires that permissible jury argument fall within one or more of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Wilson v. State, 7 S.W.3d 136, 147 (Tex. Crim. App. 1999); Lagrone v. State, 942 S.W.2d 602, 619 (Tex. Crim. App. 1997). The trial court abuses its discretion if it permits argument outside these four areas. See Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995).

            The State argues Duvall was not explicitly called an alcoholic. While this is true, the statement implies the defendant was an alcoholic. The State was offering this argument to refute Duvall's argument that he was not behaving like a typical person who was under the influence of alcohol. The State was arguing that, if Duvall was an alcoholic, he may not exhibit all the symptoms of intoxication. Because not all the symptoms were present, the State's closing argument implies Duvall is an alcoholic. Further, the State argued to the court that such statement was a reasonable inference from the evidence because "it could be possibly that he is an alcoholic." This argument was made to the court in the presence of the jury. Our conclusion is that the State did characterize the defendant as an alcoholic.

            Duvall argues that the reference to Duvall as an alcoholic was an impermissible jury argument. Duvall cites Jordan v. State, 646 S.W.2d 946, 948 (Tex. Crim. App. 1983), and Monkhouse v. State, 861 S.W.2d 473, 478 (Tex. App.—Texarkana 1993, no pet.), in support of this contention. In Jordan, the Texas Court of Criminal Appeals held it was error for the State to suggest the defendant had needle marks on his arms when there was no evidence to support such a statement. Jordan, 646 S.W.2d at 948. In Monkhouse, this Court held the State's argument the defendant may still be a drug dealer was improper because it implied the existence of extraneous offenses outside the record. Monkhouse, 861 S.W.2d at 478. In rare circumstances, certain characterizations of a defendant may not be error if supported by the evidence, but characterizations not supported by the evidence are clearly error. There was no evidence Duvall was an alcoholic, nor is such a conclusion a reasonable deduction from the evidence.

             The State argues that the argument was in response to Duvall's argument he did not display evidence of intoxication. In his closing argument, Duvall's attorney stated that:

[H]e was walking around okay. No one said he wasn't walking around okay. Ladies and Gentleman, you don't have the things that they really classically like to throw at you on a case of intoxication. No bloodshot eyes, no slurred speech. One person said perhaps. No stumbling, no staggering, no fumbling for records, no inability to provide information, no incoherence, no problems walking, a slight sway during the HGN, no strong odor of alcoholic beverage.

The State asserts that its alcoholic argument falls within the permissible area of jury argument as a proper response to the defense argument. The State also argues that it was trying to ask the jury members to recall that during voir dire several jury members stated that alcoholics they knew in their personal lives did not always exhibit signs of intoxication after consuming alcoholic beverages.

            The suggestion Duvall might be an alcoholic has a much greater implication than to merely explain why all the typical manifestations of intoxication were not seen. The word "alcoholic" has many undesirable connotations. While the State could have argued in general terms that not all people exhibit the same symptoms of intoxication, the State chose to imply to the jury the defendant was an alcoholic. As this Court noted in Monkhouse, "it is error for the State to make statements during jury argument that would lead the jury to speculate on extraneous offenses or other matters that are not in evidence." Monkhouse, 861 S.W.2d at 478. Because the State implied Duvall was an alcoholic, the jury may have assumed the State had additional evidence of alcoholism not presented at trial. Our justice system cannot condone an argument that would lead a jury to assume facts which are not in evidence.

            The argument that not all persons exhibit the same symptoms of intoxication can be made without requiring an assumption that Duvall is an alcoholic. The State's response to the defense argument "does not exceed the scope of the invitation." Andujo v. State, 755 S.W.2d 138, 144 (Tex. Crim. App. 1988); Villarreal v. State, 79 S.W.3d 806, 813 (Tex. App.—Corpus Christi 2002, pet. ref'd). The State could have argued that not all people display the same symptoms of intoxication. It is common knowledge that the effects of alcohol cause different symptoms of intoxication in different people. Since the argument could have been made without the harmful characterization of Duvall, the argument exceeded the permissible scope of a response to the defense argument. Therefore, the implication Duvall was an alcoholic was improper jury argument.

            Having found that the State committed improper jury argument, we must now determine if the trial court committed reversible error. Duvall argues that the implication is so prejudicial it cannot be cured. We do not believe that the trial court committed reversible error.

            Generally,  in  order  to  preserve  a  complaint  for  appellate  review,  the  record  must show (1) that the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of the complaint, and (2) that the trial court ruled adversely. Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999). If the objection is sustained, counsel must then ask for an instruction to disregard the evidence. Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985); Schumacher v. State, 72 S.W.3d 43, 47 (Tex. App.—Texarkana 2001, pet. ref'd). If the instruction is given, counsel must then move for a mistrial. Schumacher, 72 S.W.3d at 47 (citing Nethery, 692 S.W.2d at 701)). If counsel does not pursue the objection to an adverse ruling, error is not preserved. Tex. R. App. P. 33.1; Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). Duvall's counsel objected to the argument, and his motion for a mistrial was denied. Since Duvall's attorney pursued the objection until he received an adverse ruling, the error was preserved.

            In the alternative, the State argues that, if the argument was improper, the harm was cured by the court's instruction to the jury. Most comments that fall outside the areas of permissible argument will be considered error of the nonconstitutional variety. Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim. App. 2000). Since the State's comments do not raise any unique concerns requiring constitutional issues, we will apply the standard of review for nonconstitutional errors. Rule 44.2(b) provides that a nonconstitutional error "that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b). After the new harmless error rule was adopted, the Texas Court of Criminal Appeals adopted the federal harmless error test for improper jury arguments. Under this test, courts should examine three factors: "(1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction)." Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim. App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); see Charles F. Baird, Standards of Appellate Review in Criminal Cases, 42 S. Tex. L. Rev. 707, 753 (2001).

            The first factor requires consideration of the magnitude of the prejudicial effect of the State's argument. The State did not explicitly say that Duvall was an alcoholic or that as an alcoholic he would again drive while intoxicated. The State did not emphasize or repeat the erroneous comments and the comments, formed a rather small portion of the State's entire closing argument. Thus, the degree of misconduct was relatively minor and therefore favors a finding of harmless error.

            Under the second factor, we must consider the measures adopted to cure the improper argument. In many instances, an instruction to the jury to disregard improper argument is sufficient to cure the error. See Dinkins, 894 S.W.2d at 357; see also Moore v. State, 999 S.W.2d 385, 405–06 (Tex. Crim. App. 1999). The trial court agreed there was no evidence Duvall was an alcoholic and instructed the jury to "take the evidence that was presented to them and not anything that wasn't evidence." While this curative instruction could have been more explicit in instructing the jury to disregard the argument, it instructed the jury no evidence was present that Duvall was an alcoholic and that the jury was to base its decision on the evidence presented. Thus, the measures adopted to cure the improper argument favor a finding of harmless error.

            As to the third factor, while there is ample evidence supporting the verdict, there is some evidence on which a rational jury could have concluded the State failed to meet its burden.

            The State did present persuasive evidence Duvall had been driving while intoxicated. Duvall admitted drinking. He informed Earnest he had drunk "about three beers" that night. Earnest said he smelled a "deep chest odor of alcohol" from Duvall, contrasting that to an odor from an open container of an alcoholic beverage. He further found unopened containers of alcohol in Duvall's vehicle. While Heather Woodruff, an employee of America Medical Response, treated Duvall for his injuries, she noticed an odor of alcohol. Cofer testified Duvall had slurred speech and "was not exactly steady on his feet." Cofer also stated there was a "general mall [sic] odor about the situation that tended to make me think that alcohol was involved." Earnest testified he observed all six clues of intoxication when he performed the HGN test. Further, Duvall refused to submit a specimen of his breath into the intoxilyzer or to perform either the walk-and-turn or the one-legged stand sobriety tests. Thus, the State presented considerable evidence Duvall was driving while intoxicated.

            Duvall's conviction was not absolutely certain. Neither Cofer nor Watson noticed an odor of alcohol on the defendant. Cofer testified Duvall had slurred speech and "was not exactly steady on his feet," but does not remember smelling any alcohol when he talked with Duvall. Watson testified he did not smell any alcohol, but admitted his primary concern was the welfare of Duvall. Although Woodruff and Earnest did notice an odor of alcohol, the fact the other witnesses did not detect such odor could create doubt as to how strong the odor was. Duvall did fail the HGN test according to Earnest. However, evidence indicates the test was not performed "exactly" as the officer was trained. Duvall was a sixty-nine-year-old man who had just been in a severe car accident. We cannot conclude Duvall's conviction was certain. While there is significant evidence indicating Duvall was intoxicated, a conviction was not a foregone conclusion. The third factor does not clearly weigh for or against a finding of harmless error.

            After carefully balancing the foregoing factors, we conclude the error to be harmless in this case. We affirm the judgment of the trial court.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          February 19, 2004

Date Decided:             February 25, 2004

Do Not Publish

In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-10-00002-CR

                                                ______________________________

                                    WILLIAM LEE SMARR, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                                                                                  

                                       On Appeal from the 115th Judicial District Court

                                                            Upshur County, Texas

                                                            Trial Court No. 15,237

                                                                                                   

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            No doubt, William Lee Smarr had ingested a mix of legal prescription medications^[1] before he attempted to drive his three children home after a day-long fishing trip, ultimately resulting in a jury deciding that Smarr was guilty of DWI, with child passengers, and assessing a sentence of fifteen months’ confinement.  The trial court sentenced Smarr consistent with the jury’s assessment.  The questions before us on Smarr’s appeal concern the sufficiency of the evidence to prove that Smarr drove without his normal mental or physical faculties because he had ingested medications.  Because we determine that the evidence was legally and factually sufficient, we affirm the judgment of the trial court.

            As the Smarr vehicle approached Smarr’s house, its erratic movements suggested Smarr’s distress.  First, the vehicle stopped in the middle of the road with its motor running.  Then, with Smarr apparently unconscious or semiconscious, the vehicle began moving forward.  When Smarr did not respond to his children’s calls, and the vehicle passed Smarr’s driveway, one quick-thinking son got down on the floorboard and held Smarr’s foot on the brake pedal while the other quick-thinking son steered the vehicle off the road. 

            By the time the police arrived, Candace Smarr, the children’s mother and Smarr’s ex-wife, had taken the children to their residence located “right back up the road” and had returned to the scene.  Ms. Smarr told the police that Smarr had taken too much medication.  Smarr was transported to a local hospital in an ambulance and was diagnosed as suffering from an overdose of prescription medication.  Approximately nine days later, Smarr was diagnosed as suffering from mild hypoglycemia (low blood sugar).

            On appeal, Smarr argues the evidence is legally and factually insufficient to support the jury’s verdict.  The State was required to prove that Smarr did not have “normal use of mental or physical faculties by reason of the introduction of . . . a drug . . . into the body.”  See Tex. Penal Code Ann. §§ 49.01, 49.04 (Vernon 2003), § 49.045 (Vernon Supp. 2009).  Smarr’s argument is limited to whether he was intoxicated by reason of the introduction of a drug.  Smarr points out that the police and medical personnel at the hospital never bothered to look for any cause of Smarr’s impairment other than the one suggested by Smarr’s recently divorced wife—an overdose of medication.  According to Smarr, his conviction is the result of this myopia.  Smarr posits that the evidence establishes reasonable doubt that his condition was caused by the introduction of a drug into his body, rather than the result of hypoglycemia compounded by dehydration.

            In conducting a legal sufficiency review, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).  We must give deference to “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). 

            In conducting a factual sufficiency review, we consider the evidence in a neutral light.  Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim. App. 2006).  We may find evidence factually insufficient in two ways:  (1) the evidence supporting the conviction is “too weak” to support the fact-finder’s verdict, or (2) considering conflicting evidence, the fact-finder’s verdict is against the great weight and preponderance of the evidence.  Laster, 275 S.W.3d at 518.  Both legal and factual sufficiency are measured by the elements of the offense as defined by a hypothetically correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008).

            David Cruze, a deputy with the Upshur County Sheriff’s Office, testified that, at the scene, Smarr had “difficulty maintaining his balance”:

As I asked him to walk back to my car, he was stumbling, he had to grab onto the side of the truck to keep his - - to keep his balance, and as we got to the back of the truck, past the back of his vehicle, I was walking to his right, he just fell to the left and started stumbling real hard to the [l]eft and I had to actually grab him by his arm to keep him from falling down, which he would have.

Smarr informed Cruze he had not had anything to drink, but had taken his medication.  Cruze did not smell any odor of alcohol on Smarr and did not find any alcohol in the vehicle. 

            Wes Whalen, a paramedic for the East Texas Medical Center, testified that, at the scene, Smarr’s speech was slurred and he appeared to be intoxicated.  Whalen testified that Smarr told him he had ingested a morphine tablet and that Smarr’s vehicle contained prescription bottles of Alprazolam (Xanax), Soma, and Norco.  Smarr had been prescribed a sustained-release form of morphine referred to in the record as MS-Contin.  Whalen testified he performed a test for blood sugar, referred to as a D-stick, at the scene, but did not know the results.  Whalen testified that a saline solution was administered to Smarr intravenously. 

            At the hospital, Smarr was examined by Dr. Brian Kempton, an emergency physician.  When Kempton first examined Smarr, Smarr had slurred speech, responded slowly to questions, and appeared lethargic.  Kempton testified that Smarr seemed not to understand he was lethargic and concluded Smarr’s “insight into what was going on seemed impaired.”  The hospital took a sample of Smarr’s blood approximately thirty-three minutes after Kempton’s first visit.  Kempton testified that Smarr’s blood did not contain detectable levels of alcohol.  Smarr’s blood tested positive for opiates and benzodiazepine, but the quantity of those substances was not determined.  Smarr denied taking an overdose of his medication.  Two of Smarr’s prescribed drugs, MS-Contin, which is a sustained-release form of morphine, and Norco, which is a form of hydrocodone, would “show up positive as opiates” in a blood test.  The Xanax prescribed to Smarr is a benzodiazepine.  When asked if a person could be intoxicated on a mixture of “Soma, Norco, Xanax, morphine, even if they were within therapeutic levels,”  Dr. Kempton responded,  “I’d say there’s a significant interaction among those that would -- I think anybody who took that would be intoxicated.”  When asked if anything in his report would lead him to believe Smarr was in hypoglycemic shock, Kempton responded, “Nothing here . . . Normal people don’t get hypoglycemic.  I mean, that just is vanishingly rare.”  Kempton testified his notes do not indicate a result for the D-stick test for Smarr’s blood-sugar level, but also testified EMS personnel normally check a patient’s blood-sugar level.  Kempton diagnosed Smarr as suffering from a drug overdose and testified it was “pretty obvious that [Smarr] was heavily intoxicated on multiple substances.”  Kempton testified that he treated Smarr for only forty minutes and that his interaction with Smarr was pretty limited. 

            Just minutes after the blood sample was drawn, there was a shift change at the hospital.  Dr. David Buller, a physician who has a family practice and also works as an ER physician at the hospital, came on duty.  By a coincidence, Buller was Smarr’s family physician.  At the hospital, Buller diagnosed Smarr as suffering from a drug overdose.  Buller did not order any additional testing at the hospital, and Smarr was discharged from the hospital approximately forty-four minutes after Buller came on duty.  Buller, though, was surprised at Smarr’s quick recovery and testified he “would not expect a drug overdose to cure that rapidly.”^[2]  Buller testified Smarr had been a patient of his for more than five years and was taking the medications before becoming his patient.  Buller testified that, if the medications had been taken as prescribed, Smarr would have been safe to drive a motor vehicle.  Approximately nine days after Smarr’s hospital visit, Buller conducted a glucose tolerance test on Smarr and diagnosed Smarr with mild hypoglycemia.^[3]  The results of the glucose tolerance test caused Buller to revise his diagnosis and to conclude that Smarr’s condition was the result of multiple factors including hypoglycemia, dehydration,^[4] and the medications.  Buller testified, “[T]here are -- I believe are multiple factors involved, hypoglycemia could be a possibility, drinking Monster drinks which he admitted to could be a contributing factor in addition to taking his regular dose of medication.”  Buller admitted that Smarr’s blood test at the hospital indicated a glucose level of 97, a normal level.  Buller testified that Smarr’s body could have corrected the blood-sugar level in the hour between the arrest and the blood test through “a process of glucogensis” where “the body would recognize the sugar is low” and “would take protein and fat and convert it back into sugar, raise the blood sugar back up to a level that the body likes.”^[5]  The State cross-examined Buller:

Q.        . . . in an hour and 41 minutes you’re telling me it’s normal for you to raise your glucose level that high?

A.        That’s not what I said.

Q.        It’s not normal, is it?

Q.        Okay.  Is that normal?

A.        Unlikely.

Q.        Unlikely.

A.        Uh-huh, to go that big a distance.  That’s why my opinion is more than one thing involved.

When asked, “Can you say with any medical probability that he was in the condition he was due to a drug overdose on that day,” Buller responded, “I cannot.” 

            The State limits its appellate argument to whether the evidence is sufficient to show that Smarr took an overdose of his prescription medication.  The State, though, was not required to prove Smarr took an overdose.  The fact that a defendant was entitled to use prescribed medication is not a defense to DWI.  See Tex. Penal Code Ann. § 49.10 (Vernon Supp. 2009).  “[A] person may drive after taking a prescription medication so long as that person has not lost the normal use of his mental or physical faculties by reason of introduction of the prescription drug into his body.”  Paschall v. State, 285 S.W.3d 166, 178 (Tex. App.—Fort Worth 2009, pet. ref’d).  Thus, our review is not concerned with whether the evidence supports a conclusion that Smarr took more medication than prescribed.  The question, rather, is whether the evidence supports a conclusion that Smarr’s impaired condition resulted from ingesting prescription drugs, regardless of the amount.^[6]

            A rational person could have concluded that, beyond a reasonable doubt, Smarr was guilty.  The jury could have chosen to believe Kempton’s diagnosis over the diagnosis of Buller.  Kempton testified the prescription drugs could have caused Smarr to be intoxicated even if taken at therapeutic levels and, in his opinion, Smarr’s condition was the result of Smarr’s prescription drugs.  The jury could have rejected Buller’s testimony.  The evidence is legally sufficient.

            The next question is whether the evidence is factually sufficient to support the jury’s verdict.  Buller testified Smarr’s hypoglycemia and dehydration may have contributed to Smarr’s condition.  We note that “a defendant cannot be found to be intoxicated if he lacks the normal use of mental or physical faculties for a different reason, such as disability, illness, fatigue, stress, or clumsiness.”  Hernandez v. State, 107 S.W.3d 41, 51 (Tex. App.—San Antonio 2003, pet. ref’d); see Drapkin v. State, 781 S.W.2d 710, 711 (Tex. App.—Texarkana 1989, pet. ref’d) (“Fatigue is not an affirmative defense.  It is an alternative cause.”); Massie v. State, 744 S.W.2d 314, 316 (Tex. App.—Dallas 1988, pet. ref’d); cf. Atkins v. State, 990 S.W.2d 763, 767 (Tex. App.—Austin 1999, pet. ref’d) (error to give instruction on synergistic effect of fatigue and alcohol).

            In a factual sufficiency review, however, we may find the evidence insufficient only when necessary to prevent manifest injustice.  Laster, 275 S.W.3d at 518.  Although we give less deference to the verdict in a factual sufficiency review, we will not override the verdict simply because we disagree with it.  Id.  Buller testified merely that Smarr’s hypoglycemia was a factor in causing the condition.  According to Buller, the condition was caused by multiple factors, including hypoglycemia, dehydration, and the prescribed medications, acting together.  Thus, Buller’s testimony does not establish that hypoglycemia and dehydration caused Smarr’s impairment by themselves, or conversely that the drugs did not cause it.  Even according to Buller, the prescribed medication still played a role in Smarr’s condition.  The overwhelming great weight and preponderance of the evidence does not dictate a finding against Smarr’s drug ingestion causing his impairment.  Nor is the evidence of medication-caused impairment so weak that the State failed to establish Smarr’s guilt beyond a reasonable doubt.  Our skepticism about the jury’s conclusion is not sufficient to reach the high level required to reverse a jury’s verdict.  The evidence is factually sufficient.

            For the reasons stated, we affirm the trial court’s judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          September 7, 2010

Date Decided:             September 10, 2010

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^[1]The medications had been prescribed to treat Smarr’s pain caused by “a herniated disc in his neck and low back,” as well as a crush injury to his foot. 

^[2]Kempton agreed MS-Contin would “wear off slowly.” 

^[3]The State argues that glucose tolerance test performed by Buller “showed Smarr’s glucose levels to be within the normal range” and, therefore, “does not even contradict the jury’s verdict.”  The State’s argument suggests that Buller’s diagnosis is incorrect and, therefore, does not contradict the jury’s verdict.  We have no doubt that the diagnosis of hypoglycemia is more complicated than merely comparing the test results to the ranges preprinted on the test result form.  Buller admitted the glucose levels were within the ranges which might be considered normal, but testified the variances in the blood-sugar levels led him to conclude Smarr was hypoglycemic.  We are not medical doctors, and it is not our role to determine whether Buller’s diagnosis was correct.  The State did not present any expert testimony that Buller’s analysis of the glucose tolerance test was incorrect.

^[4]Buller testified that Smarr reported fishing all day without eating, but while drinking Monster drinks on “a pretty warm day.”  Buller opined that, therefore, Smarr was probably “a little dehydrated as well.” 

^[5]Kempton testified that a person who was suffering from hypoglycemic shock would recover only if “we intervened some way,” such as giving him “glucose or even an IV of glucose.”  Kempton testified that the chart did not indicate any fluids were administered to Smarr.  However, as noted above, Whalen testified that a saline solution was administered intravenously.

^[6]We are not suggesting the amount of drugs in Smarr’s body is not relevant to the inquiry of whether Smarr’s condition was caused by the prescription drugs.  Buller testified a quantitative test could have been conducted.  A quantitative analysis would have greatly strengthened the State’s case.  However, the State did not perform any tests to determine the quantity of the prescribed medication in Smarr’s blood.  While such a quantitative analysis would have strengthened the State’s case, such an analysis is not required.