In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-11-00255-CR ____________________
KEITH RAY MILLER, Appellant
V.
THE STATE OF TEXAS, Appellee _____________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 10-06-06335 CR _____________________________________________________________________
MEMORANDUM OPINION
A jury convicted Keith Ray Miller of driving with a child passenger while
intoxicated and sentenced Miller to two years in state jail. In one appellate issue, Miller
challenges the trial court’s admission of expert testimony into evidence at trial. We
affirm the trial court’s judgment.
A witness is qualified as an expert by knowledge, skill, experience, training, or
education. Tex. R. Evid. 702. The expert must have a sufficient background in a
particular field and that background must go to the matter on which the witness is to offer
an opinion. Davis v. State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010). “The focus is
1 on the fit between the subject matter at issue and the expert’s familiarity with it.” Id.
“Because the spectrum of education, skill, and training is so wide, a trial court has great
discretion in determining whether a witness possesses appropriate qualifications as an
expert on a specific topic in a particular case.” Id.
We review the admission of expert testimony for abuse of discretion. Coble v.
State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010), cert. denied, 131 S.Ct. 3030, 180
L.Ed.2d 846, 79 USLW 3629 (2011). Error may not be predicated upon a ruling which
admits evidence unless a party’s substantial rights are affected. Tex. R. Evid. 103(a); see
Tex. R. App. P. 44.2(b). We will not reverse if, after examining the entire record, we
have fair assurance that the error did not influence the jury or had but slight effect.
Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008).
Miller complains that the trial court allowed the State’s expert witness, Dana Paris,
to testify to topics that Miller contends were beyond Paris’s expertise. Paris, a forensic
scientist for the toxicology section of the Texas Department of Public Safety crime lab,
testified that she has a chemistry degree, has training in toxicology, and is a member of
the Southwestern Association of Toxicologists. Paris tests biological specimen for the
presence of intoxicating substances or other drugs. Paris testified that she tested a sample
of Miller’s blood. According to Paris’s toxicology report, Miller’s blood contained
alprazolam, hydrocodone, carisoprodol, and meprobamate.
2 Paris testified that she has received on-the-job training, reviewed literature, spoken
with colleagues, and attended a course on toxicology and the effects of drugs. The
defense took Paris on voir dire, during which Paris admitted she has no medical training
or medical license, is not a certified toxicologist, and received no academic credentials
from her toxicology course. After hearing Paris testify that she has previously offered
expert testimony regarding the effects of alprazolam, hydrocodone, carisoprodol, and
meprobamate, the trial court overruled the defense’s objection to Paris’s testimony
regarding the affects of these drugs on the human body.
Paris testified that anti-anxiety is the intended effect of alprazolam, a central
nervous system depressant that can cause drowsiness, dizziness, and sedation. She
testified that hydrocodone is both an analgesic and a central nervous system depressant.
Paris testified that the body creates metabolites from things that are consumed and that
meprobamate is a metabolite of carisoprodol. Over the defense’s objection, Paris
testified that, based on her training and experience, she believes this process occurred in
Miller’s case.
Paris also testified that she has reviewed literature, has previously testified to
therapeutic amounts, and that based on her training and experience, she could identify the
milligrams per liter for drugs and explain their therapeutic amounts. Over the defense’s
objection, Paris described “therapeutic level” as the amount prescribed by a physician
and the “concentration in the blood resulting from taking that amount . . . a range.” Paris
3 testified that she is familiar with the ranges of the four drugs found in Miller’s blood.
She identified their therapeutic ranges and testified that the alprazolam in Miller’s blood
fell below the therapeutic range, the hydrocodone was higher than a therapeutic dose, the
carisoprodol was on the high end of the range, and the meprobamate was in the middle of
the range.
Paris also testified, over the defense’s objection, to the additive effects of drugs.
She explained that “additive effect” refers to central nervous system depression drugs
being added together, in this case, four such drugs. She testified that alcohol is also a
central nervous system depressant that would be included. Over the defense’s objection,
Paris testified that a person can be within the therapeutic range and still lose normal use
of his mental or physical faculties. Paris testified that:
A learned tolerance is more that you know how to function while you are impaired when it comes to simple tasks, but that doesn’t really affect your . . . judgment or your ability to multitask. And then there’s a tolerance like a body tolerance where you actually gain more receptors and more liver enzymes and you produce the drug -- like it would take more of the drug to -- to have the same effect or side effect or otherwise.
She testified that driving would be a complex task for someone taking the drugs found in
Miller’s blood and that someone on all four drugs could possibly lose normal use of their
mental and physical faculties.
On appeal, Miller contends that the trial court did not have sufficient information
to declare Paris an expert on drug interactions, metabolites, therapeutic amounts, drug
tolerance, or the effect of drugs on the body. He complains that the trial court allowed
4 Paris to testify to topics in which she lacks expertise, which created the possibility of
influencing the jury with potentially incorrect or incomplete information. According to
Miller, Paris lacked the credentials or knowledge necessary to testify to the topics on
which she opined at trial.
Assuming, without deciding, that the trial court abused its discretion by allowing
Paris’s testimony, we cannot say that Miller’s substantial rights were affected. See Tex.
R. Evid. 103(a); see also Tex. R. App. P. 44.2(b). The jury heard evidence that, while
driving, Miller weaved, struck the guardrail, kept applying the brakes, almost struck
another vehicle, and failed to signal when turning. The jury viewed a police video
recording that showed Miller crossing over into the other lane and failing to use a signal.
The jury also heard evidence that officers had to box in Miller’s vehicle to get Miller to
stop the vehicle. During the stop, an officer noticed that Miller could not stand on his
own, was “wobbly,” smelled of alcohol, had small pupils, had slow speech, and had a
cold can of beer in his vehicle.
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-11-00255-CR ____________________
KEITH RAY MILLER, Appellant
V.
THE STATE OF TEXAS, Appellee _____________________________________________________________________
On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 10-06-06335 CR _____________________________________________________________________
MEMORANDUM OPINION
A jury convicted Keith Ray Miller of driving with a child passenger while
intoxicated and sentenced Miller to two years in state jail. In one appellate issue, Miller
challenges the trial court’s admission of expert testimony into evidence at trial. We
affirm the trial court’s judgment.
A witness is qualified as an expert by knowledge, skill, experience, training, or
education. Tex. R. Evid. 702. The expert must have a sufficient background in a
particular field and that background must go to the matter on which the witness is to offer
an opinion. Davis v. State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010). “The focus is
1 on the fit between the subject matter at issue and the expert’s familiarity with it.” Id.
“Because the spectrum of education, skill, and training is so wide, a trial court has great
discretion in determining whether a witness possesses appropriate qualifications as an
expert on a specific topic in a particular case.” Id.
We review the admission of expert testimony for abuse of discretion. Coble v.
State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010), cert. denied, 131 S.Ct. 3030, 180
L.Ed.2d 846, 79 USLW 3629 (2011). Error may not be predicated upon a ruling which
admits evidence unless a party’s substantial rights are affected. Tex. R. Evid. 103(a); see
Tex. R. App. P. 44.2(b). We will not reverse if, after examining the entire record, we
have fair assurance that the error did not influence the jury or had but slight effect.
Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008).
Miller complains that the trial court allowed the State’s expert witness, Dana Paris,
to testify to topics that Miller contends were beyond Paris’s expertise. Paris, a forensic
scientist for the toxicology section of the Texas Department of Public Safety crime lab,
testified that she has a chemistry degree, has training in toxicology, and is a member of
the Southwestern Association of Toxicologists. Paris tests biological specimen for the
presence of intoxicating substances or other drugs. Paris testified that she tested a sample
of Miller’s blood. According to Paris’s toxicology report, Miller’s blood contained
alprazolam, hydrocodone, carisoprodol, and meprobamate.
2 Paris testified that she has received on-the-job training, reviewed literature, spoken
with colleagues, and attended a course on toxicology and the effects of drugs. The
defense took Paris on voir dire, during which Paris admitted she has no medical training
or medical license, is not a certified toxicologist, and received no academic credentials
from her toxicology course. After hearing Paris testify that she has previously offered
expert testimony regarding the effects of alprazolam, hydrocodone, carisoprodol, and
meprobamate, the trial court overruled the defense’s objection to Paris’s testimony
regarding the affects of these drugs on the human body.
Paris testified that anti-anxiety is the intended effect of alprazolam, a central
nervous system depressant that can cause drowsiness, dizziness, and sedation. She
testified that hydrocodone is both an analgesic and a central nervous system depressant.
Paris testified that the body creates metabolites from things that are consumed and that
meprobamate is a metabolite of carisoprodol. Over the defense’s objection, Paris
testified that, based on her training and experience, she believes this process occurred in
Miller’s case.
Paris also testified that she has reviewed literature, has previously testified to
therapeutic amounts, and that based on her training and experience, she could identify the
milligrams per liter for drugs and explain their therapeutic amounts. Over the defense’s
objection, Paris described “therapeutic level” as the amount prescribed by a physician
and the “concentration in the blood resulting from taking that amount . . . a range.” Paris
3 testified that she is familiar with the ranges of the four drugs found in Miller’s blood.
She identified their therapeutic ranges and testified that the alprazolam in Miller’s blood
fell below the therapeutic range, the hydrocodone was higher than a therapeutic dose, the
carisoprodol was on the high end of the range, and the meprobamate was in the middle of
the range.
Paris also testified, over the defense’s objection, to the additive effects of drugs.
She explained that “additive effect” refers to central nervous system depression drugs
being added together, in this case, four such drugs. She testified that alcohol is also a
central nervous system depressant that would be included. Over the defense’s objection,
Paris testified that a person can be within the therapeutic range and still lose normal use
of his mental or physical faculties. Paris testified that:
A learned tolerance is more that you know how to function while you are impaired when it comes to simple tasks, but that doesn’t really affect your . . . judgment or your ability to multitask. And then there’s a tolerance like a body tolerance where you actually gain more receptors and more liver enzymes and you produce the drug -- like it would take more of the drug to -- to have the same effect or side effect or otherwise.
She testified that driving would be a complex task for someone taking the drugs found in
Miller’s blood and that someone on all four drugs could possibly lose normal use of their
mental and physical faculties.
On appeal, Miller contends that the trial court did not have sufficient information
to declare Paris an expert on drug interactions, metabolites, therapeutic amounts, drug
tolerance, or the effect of drugs on the body. He complains that the trial court allowed
4 Paris to testify to topics in which she lacks expertise, which created the possibility of
influencing the jury with potentially incorrect or incomplete information. According to
Miller, Paris lacked the credentials or knowledge necessary to testify to the topics on
which she opined at trial.
Assuming, without deciding, that the trial court abused its discretion by allowing
Paris’s testimony, we cannot say that Miller’s substantial rights were affected. See Tex.
R. Evid. 103(a); see also Tex. R. App. P. 44.2(b). The jury heard evidence that, while
driving, Miller weaved, struck the guardrail, kept applying the brakes, almost struck
another vehicle, and failed to signal when turning. The jury viewed a police video
recording that showed Miller crossing over into the other lane and failing to use a signal.
The jury also heard evidence that officers had to box in Miller’s vehicle to get Miller to
stop the vehicle. During the stop, an officer noticed that Miller could not stand on his
own, was “wobbly,” smelled of alcohol, had small pupils, had slow speech, and had a
cold can of beer in his vehicle. Miller told the officer that he had purchased two one-pint
cans of beer, had been drinking two hours before the stop, and had taken prescription
medication two hours earlier. The jury heard the officer testify that Miller’s performance
on field sobriety tests, admissions to consuming alcohol and medication, manner of
driving, and appearance led him to conclude that Miller was intoxicated.
During closing arguments, the defense reminded the jury that Paris analyzes
blood, but is not a medical doctor. The defense argued that the State could have called a
5 doctor to testify to whether the medication and alcohol found in Miller’s blood rose to a
toxic level. The defense asked the jury whether it would want a doctor or Paris to testify
to what constitutes a legal dose. The State explained to the jury how the elements of the
offense had been met by the evidence presented and briefly discussed the results of
Miller’s blood test. In its charge, the trial court advised the jury that it is the exclusive
judge of the facts proven, of the credibility of the witnesses, and of the weight to be given
the witnesses’ testimony. The trial court also advised the jury that it could only find
Miller guilty if it so found beyond a reasonable doubt.
Even without Paris’s testimony, the record contains sufficient evidence from
which the jury could find Miller guilty, beyond a reasonable doubt, of driving with a
child passenger while intoxicated. See Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim.
App. 1999) (Given all of the evidence before the jury, it was unlikely that admission of
the complained-of evidence had a substantial effect on the jury’s verdict.). After
examining the record as a whole, we have fair assurance that the error, if any, did not
influence the jury, or had but slight effect. See Taylor, 268 S.W.3d at 592. We overrule
Miller’s sole issue and affirm the trial court’s judgment.
AFFIRMED.
6 ___________________________ STEVE McKEITHEN Chief Justice
Submitted on November 27, 2012 Opinion Delivered December 12, 2012 Do Not Publish
Before McKeithen, C.J., Gaultney and Horton, JJ.