Gray, III Thomas Kerr v. State

• Court: Court of Appeals of Texas
• Decided: June 12, 2003
• Docket: 01-02-00602-CR
• Status: Published

Opinion

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00602-CR

THOMAS KERR GRAY, III, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Court at Law No. 1

Harris County, Texas

Trial Court Cause No. 1086665

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MEMORANDUM OPINION

          A jury found appellant, Thomas Kerr Gray, III, guilty of the misdemeanor offense of driving while intoxicated (DWI), and the trial court assessed punishment at 180 days in jail, probated for one year, and a fine of $300. In four issues, appellant contends that the trial court erred by including a jury instruction on the synergistic interaction of alcohol with prescription drugs. We affirm.

Background

          On June 9, 2001, Department of Public Safety Officer Claude Davis arrested appellant for driving erratically and exhibiting signs of intoxication. Davis testified at trial that appellant smelled of alcohol and had symptoms of alcohol intoxication. Appellant’s father testified that appellant had taken four prescription medications, Respiratol, Zoloft, Klonopin, and Depical, which caused appellant to experience disorientation. In rebuttal, the State’s chemist testified to the intoxicating effect of the medications combined with alcohol.

          The information charged appellant with operating a motor vehicle in a public place while intoxicated, namely, “not having the normal use of his mental and physical faculties by the reason of the introduction of alcohol into his body.” In its charge to the jury, the trial court included the following instruction regarding the synergistic interaction of alcohol with prescription drugs:

          You are further instructed that if a Defendant indulges in the use of a drug, to wit, Respiratol, Zoloft, Klonopin and/or Depical, to such an extent that he thereby makes himself more susceptible to the influence of alcohol than he otherwise would have been, and by reason thereof becomes 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.

Furthermore, the following application paragraph was included in the charge:

          Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, THOMAS KERR GRAY, II (sic), on or about the 9th day of June, 2001, did then and there unlawfully while intoxicated, namely, not having the normal use of his mental or physical faculties by the reason of the introduction of alcohol into his body, and while so intoxicated, by reason of the introduction of alcohol into his body, either alone or in combination with Respiratol, Zoloft, Klonopin and/or Depical, drive or operate a motor vehicle in a public place, you will find the defendant “Guilty” as charged in the Information.

          Appellant objected to the charge, contending that it authorized conviction on an alternative theory not alleged in the indictment—intoxication by a combination of prescription drugs and alcohol. The trial court overruled the objection, and the jury subsequently found appellant guilty “as charged in the information.”

Issue One: Statement of Law Applicable to the Case

          In his first issue, appellant contends that the trial court erred by including the synergistic-effect instruction because the instruction was not a statement of law applicable to the case. The trial court must deliver to the jury a written charge setting forth the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2003). The applicable law in this case is section 49.01(2)(A) of the Penal Code, which provides that a person may become intoxicated by way of (1) alcohol, (2) a controlled substance, (3) a drug, (4) a dangerous drug, (5) a combination of two or more of those substances, or (6) any other substance. See Tex. Penal Code Ann. § 49.01(2)(A) (Vernon 2003).

          Here, the State presented Davis’s testimony to establish that appellant was intoxicated through the consumption of alcohol. In rebuttal, appellant introduced testimony that he had taken prescription drugs prior to his arrest which resulted in his intoxication. Thus, the evidence raised the issue whether appellant was intoxicated through alcohol alone or alcohol combined with certain prescription drugs. In light of this evidence, the trial court properly charged the jury that appellant could be found guilty if appellant was intoxicated by alcohol alone or “in combination with Respiratol, Zoloft, Klonopin, and/or Depical.” See Tex. Code Crim. Proc. art. 36.14; Sutton v. State, 899 S.W.2d 682, 685 (Tex. Crim. App. 1995) (plurality opinion) (because defendant introduced evidence that intoxication resulted from prescription drugs, synergistic-effect instruction was warranted as law applicable to case). Accordingly, we hold that the synergistic-effect instruction was properly given here as law applicable to the case.

          We overrule issue one.

Issue Two: Comment on the Weight of the Evidence

          In his second issue, appellant contends that, by including the synergistic-effect instruction, the trial court issued an improper comment on the weight of the evidence. Appellant argues that the trial court singled out evidence for special attention when it included the names of the prescription drugs in the charge. The charge in this case, however, is nearly identical to the charge endorsed in Sutton. 899 S.W.2d at 685. Both charges name the prescription drugs that the defendant alleged caused his intoxication. These charges do not constitute improper comments on the weight of the evidence, but instead allow for conviction if the jury finds that the defendant was intoxicated because of alcohol consumption, either alone or in combination with the specific prescription drugs that were identified by the defendant at trial. See id. We hold that, under these circumstances, the trial court’s inclusion of the synergistic-effect instruction was not an improper comment on the weight of the evidence.

          We overrule issue two.

Issue Three: Misleading or Confusing the Jury

          In his third issue, appellant contends that the synergistic-effect instruction misled or confused the jury. Appellant argues that the instruction did not explain the meaning of the phrase “in the same position.” Appellant further argues that, because the jury sent a note to the trial court seeking an additional explanation regarding the synergistic-effect instruction, the jury evidenced its own confusion regarding the instruction.

          We disagree. Again, the synergistic-effect instruction in this case is virtually identical to the instruction in Sutton. 899 S.W.2d at 685. Both instructions use the “in the same position” language. The instruction is clear that the jury, in order to find appellant guilty, must find that appellant’s intoxication resulted from alcohol, either alone or in combination with prescription drugs that made him more susceptible to alcohol. We therefore hold that the synergistic-effect instruction was not so misleading or confusing so as to “preclude the jury from determining the defendant’s guilt in light of the evidence and the law.” See Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996).

          We overrule issue three.

Issue Four: Alternative Theory of Guilt Not Alleged in the Information         In his fourth issue, appellant contends that the trial court erred because the synergistic-effect instruction submitted an alternative theory of guilt in the charge that was not alleged in the information. Appellant argues that the instruction authorized the jury to convict him if it found either that he was intoxicated by alcohol alone, as alleged in the information, or because he consumed alcohol in combination with Respiratol, Zoloft, Klonopin, or Depical, an allegation not contained in the information.

          In support of his argument that the instruction submitted an alternative theory of guilt not found in the information, appellant relies on Rodriguez v. State, 18 S.W.3d 228, 229 (Tex. Crim. App. 2000). However, this case is distinguishable from Rodriguez, in which no “susceptibility theory” was put forward, and the jury charge authorized conviction even if the defendant was intoxicated solely from prescription drugs without any alcohol consumption, which was the opposite of what the indictment alleged. Id.

          The instruction here did not expand on the allegations in the information. See Sutton, 899 S.W.2d at 685. In accordance with Sutton, the charge authorized conviction only if the jury found that appellant was intoxicated with alcohol, either alone or in combination with drugs that made him more susceptible to the alcohol. See id. To return a guilty verdict, the jury was still required to find, beyond a reasonable doubt, that appellant was intoxicated by reason of the introduction of alcohol into his body. See id. The jury did so, finding appellant guilty “as charged in the information.” Accordingly, we conclude that the synergistic-effect instruction did not present an alternative theory of guilt not alleged in the information.

          We overrule issue four.

Conclusion

          We affirm the judgment of the trial court.

     Elsa Alcala

     Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.

Do not publish. Tex. R. App. P. 47.4.