Harkins v. State

268 S.W.3d 740, 2008 Tex. App. LEXIS 6637, 2008 WL 4053029
CourtCourt of Appeals of Texas
DecidedAugust 29, 2008
Docket2-06-412-CR
StatusPublished
Cited by35 cases

This text of 268 S.W.3d 740 (Harkins v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harkins v. State, 268 S.W.3d 740, 2008 Tex. App. LEXIS 6637, 2008 WL 4053029 (Tex. Ct. App. 2008).

Opinions

OPINION

BOB McCOY, Justice.

I. Introduction

In four points, Appellant Patricia Louise Harkins appeals her conviction for misdemeanor driving while intoxicated (DWI). We affirm.

II. Factual and Procedural History

On March 25, 2006, a concerned citizen called 911 to report Harkins’s erratic driving. Officer Kenneth Klein responded, administered several field sobriety tests to Harkins, and ultimately arrested her for DWI. On the night of her arrest, two chemical substances — carisoprodol, the generic name for the prescription drug Soma, and meprobamate, a metabolized byproduct of carisoprodol — were found in her blood. The fact issue at trial was whether Harkins was intoxicated by Soma or whether she was impaired by physical ailments including chronic pain, nerve [742]*742damage, and drowsiness caused by sleep apnea.

Following a two-day trial, the jury deliberated for over five hours before finding Harkins guilty of DWI. After hearing argument on punishment, the trial court sentenced Harkins to a $750 fine, court costs, and 150 days in jail probated for two years.1 This appeal followed.

III. Discussion

In her combined first and second points, Harkins broadly complains that the evidence was legally and factually insufficient to support the jury’s verdict. In her argument under these points, and also under her combined third and fourth points, she complains that the trial court failed to charge the jury with the complete, statutory definition of “dangerous drug,” that the State presented no evidence to prove under the complete definition that the substances found in Harkins’s blood on the night of her arrest were dangerous drugs, and that the failure to present the complete definition destroyed her right to present a defense.2 She also complains, in her fourth point and in part of her third point, that the trial court made an improper comment on the weight of the evidence and that this also had the effect of destroying her right to present a defense.

A. Jury Instructions

1. Standard of Review

Appellate review of error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994). Initially, we must determine whether error occurred. If so, we must then evaluate whether sufficient harm resulted from the error to require reversal. Id. at 731-32.

2. “Dangerous Drug” Instruction

The trial court’s charge to the jury must set forth the “law applicable to the case.” Tex.Code CRIM. Proc. Ann. art. 36.14 (Vernon 2007). Thus, the trial court must instruct the jury on each element of the offense charged and each statutory definition that affects the meaning of an element of the offense. McIlroy v. State, 188 S.W.3d 789, 797 (Tex.App.-Fort Worth 2006, no pet.); Murphy v. State, 44 S.W.3d 656, 661 (Tex.App.-Austin 2001, no pet.). If a phrase, term, or word that the jury [743]*743must use to properly resolve the issues is statutorily defined, the trial court must submit the statutory definition to the jury. Arline v. State, 721 S.W.2d 348, 352 n. 4 (Tex.Crim.App.1986); Nguyen v. State, 811 S.W.2d 165, 167 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd).

The health and safety code defines “dangerous drug” as follows:

(2) “Dangerous drug” means a device or a drug that is unsafe for self-medication and that is not included in Schedules I through V or Penalty Groups 1 through 4 of Chapter 481 (Texas Controlled Substances Act). The term includes a device or a drug that bears or is required to bear the legend:
(A) “Caution: federal law prohibits dispensing without a prescription” or “Rx only” or another legend that complies with federal law....

Tex. Health & Safety Code Ann. § 483.001(2) (Vernon Supp.2008). The jury charge, however, omitted the language “and that is not included in Schedules I through V or Penalty Groups 1 through 4 of Chapter 481 (Texas Controlled Substances Act)” and the referenced schedules and penalty groups. Har-kins concedes that she failed to object to this omission.

3. Harm Analysis

Unobjected-to charge error will not result in reversal of a conviction in the absence of egregious harm. Allen v. State, 253 S.W.3d 260, 264 (Tex.Crim.App.2008); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g); see Tex.Code Cmm. PROC. Ann. art. 36.19 (Vernon 2006). Assuming without deciding that it was error for the trial court to define dangerous drug without reference to the schedules and penalty groups, we nevertheless conclude that Harkins was not harmed.

Egregious harm is a difficult standard to prove and must be determined on a case by case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App.2002). In examining the record for egregious harm, we must consider (1) the entire jury charge, (2) the state of the evidence, including the contested issues and the weight of the probative evidence, (3) the final arguments of the parties, and (4) any other relevant information revealed by the record of the trial as a whole. Allen, 253 S.W.3d at 264; Olivas v. State, 202 S.W.3d 137, 144 (Tex.Crim.App.2006). The purpose of this review is to illuminate the actual, not just theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Allen, 253 S.W.3d at 264; Stuhler v. State, 218 S.W.3d 706, 719 (Tex.Crim.App.2007).

We turn first to the evidence. Harkins admitted that she took the medication Soma, and it was undisputed that two chemical substances — carisoprodol, the generic name for Soma, and meprobamate, a metabolized byproduct of carisoprodol— were found in her blood on the night of her arrest. Harkins concedes that carisopro-dol is not included in the schedules or penalty groups in the Texas Controlled Substances Act. See Tex Health & Safety Code Ann. §§ 481.032, 481.102-.105 (Vernon 2003 & Supp.2008). Therefore, if the jury found carisoprodol to fall within the rest of the definition of dangerous drug, the substance was clearly a dangerous drug.3 Thus, with regard to carisoprodol, [744]*744Harkins could not have been harmed by the omission from the definition of dangerous drug.4

In general, the closing arguments focused on the question of whether Har-kins’s medication, as opposed to her medical conditions, caused her erratic driving.

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Bluebook (online)
268 S.W.3d 740, 2008 Tex. App. LEXIS 6637, 2008 WL 4053029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harkins-v-state-texapp-2008.