Everitt, Michael Paul

• Court: Court of Criminal Appeals of Texas
• Decided: February 6, 2013
• Docket: PD-1693-11
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-1693-11

MICHAEL PAUL EVERITT, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

J OHNSON, J., delivered the opinion of the Court in which K ELLER, P.J., and M EYERS, K EASLER, H ERVEY, C OCHRAN, and A LCALÁ, JJ., joined. P RICE and W OMACK, JJ., concurred.

OPINION

A jury found appellant guilty of driving while intoxicated. At trial, the state sought to

introduce videotape evidence of appellant’s admission that he had ingested hydrocodone earlier that

day, along with expert testimony about the effects of combining hydrocodone and alcohol. Appellant

objected but, after a hearing on the objection, the trial court allowed the state to introduce the

videotape evidence and the expert testimony.

After trial, appellant appealed, arguing inter alia, that “the trial court abused its discretion

by admitting evidence of drug use without a proper foundation showing its relevance.” The court 2

of appeals held that appellant did not properly preserve that issue for appeal and overruled the issue.

Everitt v. State, No. 01-10-00504-CR, 2011 WL 4609708 (Tex.App.–Houston [1st Dist.] Oct. 6,

2011) (mem. op.). Appellant petitioned this Court for review, raising two issues: whether the court

of appeals erred in finding that appellant did not properly preserve error; and whether the trial court

abused its discretion in admitting the expert testimony. We granted review on both issues.

We now hold that the court of appeals erred in finding that appellant did not properly

preserve error and sustain appellant’s first issue. We reverse the court of appeals and remand this

cause to that court for consideration of appellant’s second issue: whether the trial court abused its

discretion in admitting the expert testimony.

Facts

At approximately 2:30 A.M. on January 22, 2010, appellant was pulled over by a Houston

police officer. The officer had observed appellant on his motorcycle weaving in and out of lanes at

speeds up to 90 miles per hour. The officer who pulled appellant over testified at trial that he noticed

several signs that appellant might be intoxicated: the smell of alcohol coming from appellant’s

helmet, appellant’s difficulty maintaining balance and understanding questions, and appellant’s

slurred speech and bloodshot eyes. Appellant refused to perform field sobriety tests. When

questioned by the officer, appellant admitted to having a drink at 5:00 P.M. the day before.

The officer called a more senior police officer to the scene for assistance. The second officer

arrived at the scene at approximately 3:30 A.M. The second officer testified at trial that she smelled

alcohol on appellant’s breath and noticed that he could not stand without swaying. She also noted

that he asked her “inappropriate” questions. She arrested appellant for driving while intoxicated and

brought him to the police station’s “Intox Room.” 3

In the Intox Room, appellant was again asked to take sobriety tests. He agreed to take the

Rhomberg test1 and was videotaped while taking it. Based on swaying during that test, the test

administrator believed that appellant was impaired. Appellant refused to take two other sobriety

tests. When asked whether he had any injuries, appellant responded that he had taken “hydrocodeine

. . . earlier today maybe” for a back injury. Hydrocodeine is a common misnomer for hydrocodone.

Everitt, 2011 WL 4609708 at *4.

Appellant was charged with driving while intoxicated. He plead not guilty. At trial, the state

sought to introduce the video-recorded evidence of appellant admitting to taking hydrocodone, along

with expert testimony concerning the effects of hydrocodone mixed with alcohol. Appellant filed

a motion to suppress the statement on the grounds that “without competent expert testimony, any

statements [appellant] made with respect to his hydrocodeine use are irrelevant.” Appellant argued

before the trial court that, “under DeLaRue [sic] and Layton . . . [appellant’s statement admitting use

of hydrocodone] is both irrelevant and it proves to be a substantial liability.”2

The trial court held a hearing on appellant’s motion to suppress. The court called the hearing

1 In a Rhomberg test, “the subject is asked to close his eyes, tilt his head back, and estimate when 30 seconds have passed.” Everitt, 2011 W L 4609708 at *3.

2 In DeLarue v. State, 102 S.W .3d 388, 401 (Tex. App.–Houston [14th Dist.] 2003, pet. ref’d), the court of appeals held that the trial court erred when it admitted evidence showing the presence of marijuana in the defendant’s system without proof of reliability through a Kelly-Daubert hearing. In Layton v. State, 280 S.W .3d 235, 242 (Tex. Crim. App. 2009), we held that, “without expert testimony to provide the foundation required to admit scientific evidence, the testimony regarding Appellant’s use of prescription medications was not shown to be relevant.” 4

a “[Rule] 702 hearing”3 and instructed the state to “call [its] expert regarding Kelly Daubert.”4 The

state called Officer LaSalle, who testified extensively about his qualifications as a Drug Recognition

Expert (“DRE”), the methods used for evaluating the presence of drugs in a person’s body, and the

impairing effects of hydrocodone mixed with alcohol. The officer also specifically testified that,

based on his viewing of the videotape, he saw “several signs of intoxication that would be consistent

with the use of hydrocodone” and that if appellant had taken hydrocodone at midnight or later, he

still would have been under the influence of the drug when he was driving at 2:30 A.M. During the

hearing, the court expressly acknowledged its role as the “gatekeeper” and questioned the witness

directly.

After the hearing, the court ruled that the state could show the portion of the videotape in

which appellant admitted to using hydrocodone and could also call its DRE to testify before the jury.

Specifically, the court stated,

I’m going to permit the jury to hear about Mr. Everitt’s hydrocodone statement. My theory is this: He discriminates in his own mind between drinking yesterday and taking hydrocodone today. He’s stopped at 2:35 A.M., which is two and a half hours into today. Officer LaSalle said that it is a psycho-physical reactive drug when taken for approximately six to eight hours. We don’t know the dosage. We do know whatever is there could be psycho-physical reactive at the time he stopped that night. I think it’s relevant, probative, and while prejudicial, not unfairly prejudicial.

When appellant asked for the court to clarify whether it would allow the DRE to testify

before the jury, the court replied, “Yeah. If the State wants him to.”

3 Tex. R. Evid. 702 (“Rule 702 ”) provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

4 The trial court was referring to Kelly v. State, 824 S.W .2d 568 (Tex. Crim. App. 1992) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). These cases require the trial court to act as gatekeeper in deciding whether to admit scientific evidence. 5

Appellant renewed his objections when the videotape was shown to the jury. Appellant

based his objection on “the LaRue and Layton issue.” During the DRE’s testimony about the

combined effects of hydrocodone and alcohol, appellant generally objected to the lack of foundation

for the DRE’s testimony. At the end of the DRE’s testimony, appellant reiterated his objection by

stating, “I would like to reurge our Motion to Suppress both on the hydrocodeine issue which

encompasses both the Layton and LaRue as well as the Miranda/38.22 issue.”

I. The Court of Appeals Opinion

On the issues now before this Court, the court of appeals held that appellant “obtained no

ruling on the admissibility of [the expert’s] opinions based on his review of the video recording” and

that, accordingly, appellant failed to preserve error. Everitt, 2011 WL 4609708 at *14. According

to the court of appeals, “the trial court merely ruled that Everitt’s admission of hydrocodone use was

relevant, not unfairly prejudicial, and therefore admissible,” but “[t]he trial court never ruled on the

reliability of [the DRE’s] analysis. . ..” Id. It did not, therefore, reach the issue of abuse of discretion.

II. Analysis

A. Preservation under Rule 33.1

To preserve an issue for appellate review, a complainant must have made a timely and

specific objection, and the trial court must have ruled on the objection either expressly or implicitly.

TEX .R.APP . P. 33.1(a). The objection must be specific enough “to make the trial court aware of the

complaint.” Id. Rejecting hyper-technical requirements for preservation, we have held that “all the

party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he

wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him

at a time when the trial court is in a proper position to do something about it.” Layton v. State, 280 6

S.W.3d 235, 239 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex.

Crim. App. 1992); see also Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007) (“[W]e

will not be hyper-technical in examination of whether error was preserved.”).

In the present case, appellant has satisfied these requirements. He let the trial court know

what he wanted by filing a motion to suppress and following up with objections to admission. He

made it clear why he thought he was entitled to suppression by repeatedly citing DeLarue and

Layton. And he did all of this clearly enough for the trial court to understand the objection at the

appropriate time in the trial, evidenced by the trial court also referring repeatedly to DeLarue and

Layton and holding a Rule 702 hearing to vet the state’s expert.

The court of appeals’s parsing of appellant’s objections is the kind of hyper-technical analysis

that we have repeatedly rejected. It erred by distinguishing between admitting scientific evidence

and admitting expert testimony under Rule 702.

Scientific evidence and expert testimony are typically admitted together. Kelly, 824 S.W.2d

at 572 (“[B]ecause of its nature, scientific evidence will almost always be offered through the

testimony of experts.”). Our holding in Layton makes clear that a defendant’s admission to taking

drugs is relevant to show intoxication only with competent testimony as to the effect of the drug on

the defendant. Layton, 280 S.W.3d at 242 (“Without expert testimony to provide the foundation

required to admit scientific evidence, the testimony regarding Appellant’s use of prescription

medications was not shown to be relevant.”).

Expert testimony about scientific evidence may be admitted at trial only if it is both reliable

and relevant. Kelly, 824 S.W.2d at 572. (“[T]he trial court’s first task is to determine whether the

testimony is sufficiently reliable and relevant to help the jury in reaching accurate results.”); see also 7

Daubert, 509 U.S. at 589 (“[T]he trial judge must ensure that any and all scientific testimony or

evidence admitted is not only relevant, but reliable.”). Reliability refers to the scientific basis for

the expert testimony, while relevance refers to the “fit” of the scientific principles to the evidence

at hand. Jordan v. State, 928 S.W.2d 550, 553-54 (Tex. Crim. App. 1996).

The court of appeals erred in distinguishing between admissibility based on relevance and

admissibility based on reliability. Under Rule 702 and our precedent, both relevance and reliability

of the expert testimony are components of a trial court’s Daubert/Kelly ruling on admissibility. See

TEX . R. EVID . 702; Kelly, 824 S.W.2d at 572; see also Jordan v. State, 928 S.W.2d at 553-54. The

trial court’s suppression hearing referred to DeLarue, a case requiring that evidence be reliable, and

Layton, a case requiring that evidence be relevant. In discussing its ruling, the trial court stated,

“We’re on a real tightrope between the Layton case and the DeLarue case as the 702 gatekeeper

here. The State is a proponent of the evidence concisely prejudicial, unfairly prejudicial, and

probative and relevant are probably the four things to deal with in Mr. Everitt’s case today.”

Appellant’s attorney then added, “I would also like to point out specifically that it must be -

- that any opinions must be reliable under 702 and they have to show by clear and convincing

evidence.”

After more discussion, the trial court ruled that it would permit the jury to hear about

appellant’s hydrocodone statement because, even though the dosage was unknown, the DRE testified

that hydrocodone “is a psycho-physical reactive drug” that is active for approximately six to eight

hours and, in this case, appellant had taken hydrocodone approximately two and a half hours before

he was stopped. The judge concluded that the evidence was relevant and not unfairly prejudicial.

Appellant then sought clarification that the judge was ruling that the officer could testify in 8

front of the jury. The judge responded that the officer could testify about appellant’s statement and

videotape and that the videotape with the appellant's statement would itself be admitted. From the

record of the proceedings at issue, it is clear that the judge was ruling on the reliability and relevance

of the DRE's testimony and the admission of the videotape itself.

III. Conclusion

The judgment of the court of appeals as to preservation of error is reversed. We remand this

cause to that court so that it may consider whether the trial court abused its discretion in admitting

the videotape evidence and the accompanying expert testimony.

Delivered: February 6, 2013 Publish