Barron, Jeri Leigh

353 S.W.3d 879, 2011 Tex. Crim. App. LEXIS 1512, 2011 WL 5375115
Court of Criminal Appeals of Texas·Decided November 9, 2011·No. PD-1770-10·Published·Cited by 47 cases

Opinions

WOMACK, J.,

delivered the opinion of the Court,

in which PRICE, JOHNSON, HERVEY, COCHRAN, and ALCALA, JJ., joined.

The appellant was convicted of misdemeanor driving while intoxicated, and she appealed. The Fifth Court of Appeals found error in the trial court’s “synergistic effect” instruction to the jury.1 We granted the State’s petition for discretionary review on the issue of the Court of Appeals’s harm analysis.

Although we do not agree with the way in which the Court of Appeals analyzed the harm caused by the erroneous charge, we agree with its judgment reversing the trial court.

I. Evidence of Intoxication

State Trooper Eric Estes and Officer Brian Pfahning were the only witnesses testifying for the State. Estes testified that he decided to stop the appellant after he clocked her vehicle going 76 in a 60 miles-per-hour zone. When he got behind the appellant’s vehicle, he saw it cross over the white lines a couple of times. After he stopped the vehicle, he approached from the passenger side and shined his flashlight into the passenger window. The appellant did not see him, so he walked to the front of the vehicle and shined his flashlight into the front window. The appellant still did not see him, so he walked back and tapped on the passenger window, at which point she rolled down the window.

When the appellant got out of her vehicle, Estes smelled an odor of alcohol. The appellant first told him that she was com[881]*881ing from work, and then told him that she was coming from happy hour at a bar and grill. Her reaction times were normal. She first said she had drunk one glass of wine that night, but later she said she had drunk two glasses of wine.2 On a scale of intoxication from one to ten, the appellant stated that she was “maybe a two.” She said she was speeding because she thought Estes was trying to go around her.

Estes administered several field sobriety tests to the appellant. She exhibited clues on the horizontal gaze nystagmus, walk- and-turn, and one-leg-stand tests. This indicated to Estes “a level of intoxication.” When instructed to recite the alphabet beginning from “G,” the appellant recited some letters incorrectly when she reached “W.” When the appellant refused a portable breath test, Estes arrested her.

Estes searched the appellant’s vehicle after her arrest. Inside the appellant’s purse he found a blister pack of eight pills. According to Estes, the pack was labeled simply “hydrocodone” on the back. The jury saw a video recording which shows Estes, another officer, and a tow-truck driver all struggling to read the writing on the package, and concluding that the writing said “hydrocodone” or “hydrocodeine.”

Estes testified that four pills were missing from the pack. He could not produce the pills at the trial because he left them either in the appellant’s vehicle or in her purse. He said he did not take pictures of the pills because he did not want to charge the appellant with another offense. The appellant told him that the pills were Bo-nine pills for motion sickness. (Her theory was that Estes misread the packaging. She introduced in evidence a blister pack of eight Bonine pills with the ingredient “meclizine hydrochloride” written on the back.)

Office Brian Pfahning testified as a drug-recognition expert. He testified about the intoxicating effects of hydroco-done and the intoxicating effects of mixing alcohol with hydrocodone. According to Pfahning, mixing alcohol and hydrocodone produces a “cumulative effect,” as opposed to an “additive effect” or an “antagonistic effect”: “What you have is a one plus one equals a re-enforced [sic] one, meaning that it’s a cumulative effect. It’s not one plus one equals two. It’s that the alcohol combined with the medication can enhance the effect of both of [sic ] the drug and the alcohol to kind of give you a stronger effect.”

II. The Jury Charge

The jury instructions included most of the statutory definition of intoxication by loss of faculties (omitting the phrase “or any other substance”).3 There also was what is sometimes called a “synergistic effect” instruction:

The term “intoxicated” means 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.
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.

[882]*882The appellant timely objected to the submission of the “synergistic effect” instruction, but she did not object to the definition of intoxication. The trial court overruled the objection.

The State conceded in argument that the failure to preserve the pills weakened its case, but maintained that the jury could still find intoxication through either drugs or alcohol:

We have to prove intoxication. And what does that mean? It means you were affected by whatever you took. You know what? I don’t know what she took. I am so mad at that officer for not preserving those pills. I’ll just tell you, we are not happy about that. Did not do a good job with that part of the case. We let him know that. He still has a field investigation and you still have evidence of intoxication before you. 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.

The appellant argued that there was no evidence that the appellant had consumed hydrocodone or any other type of medication.

III. On Appeal

The Court of Appeals held that the “synergistic effect” instruction was error because it was not raised by the evidence. It was not raised by the evidence because “there is no evidence that appellant ingested hydrocodone, hydrocodeine, or any other prescription medication on the day in question.”4

The Court took care to distinguish this error from the question of whether the instruction permitted conviction on a theory not alleged in the information. The Court noted our holding in Gray v. State5 that a “synergistic effect” instruction did not expand on allegations of intoxication due to alcohol. The Court then stated, “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.” 6

Having decided that the instruction was not raised by the evidence, the Court conducted a harm analysis. The Court first discussed the finding of harm in Ferguson v. State,7 in which the Third Court of Appeals found harm when jury instructions “erroneously authorized the defendant’s conviction on a theory that was not supported by the evidence.”8 In this case, the Court reached “a similar conclusion”9:

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Barron, Jeri Leigh, 353 S.W.3d 879, 2011 Tex. Crim. App. LEXIS 1512, 2011 WL 5375115 (Tex. 2011).

353 S.W.3d 879 (Barron, Jeri Leigh) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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