NUMBER 13-11-0658-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LUCIUS J. BROWN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 284th District Court of Montgomery County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Longoria Memorandum Opinion by Chief Justice Valdez1
1 The Honorable Rose Vela, former Justice of this Court, did not participate in deciding the case because her term of office expired on December 31, 2012. In accordance with the appellate rules, she was replaced on panel by Justice Nora L. Longoria. See TEX. R. APP. P. 41.1(a). By four issues, appellant, Lucius J. Brown, appeals his conviction for driving
while intoxicated with two or more prior convictions for driving while intoxicated, a third-
degree felony offense, enhanced by two prior felony convictions, with a finding that
appellant did then and there use or exhibit a deadly weapon. See TEX. PENAL CODE
ANN. §§ 12.42(d), 49.04(a), 49.09(b)(2) (West 2011 & Supp. 2011). We affirm as
modified.
I. BACKGROUND2
During a jury trial, the testimony established that appellant drove his car halfway
up a guardrail at a busy intersection in eastern Montgomery County during the time of
day when school was letting out. When a Texas Department of Public Safety (“DPS”)
trooper arrived at the scene, she found appellant disoriented and confused. Emergency
medical personnel examined appellant, found him to have low blood sugar, and drew
blood for further testing. Appellant’s blood was found to contain high amounts of
carisoprodol (a muscle relaxer), meprobomate (a seizure medication), and hydrocodone
(a narcotic). Dr. Sarah Kerrigan, head of the Sam Houston State University Regional
Crime Laboratory, testified that these drugs, in the combination and amounts found in
appellant’s blood, could cause a person to be intoxicated.
At trial, appellant argued that his erratic driving and behavior were due to his pre-
existing medical conditions, including diabetes and epilepsy. To rebut this defense, the
State called Sparks Veasey III, M.D. to testify as a medical expert. According to
Veasey’s testimony, diabetes and low blood sugar could not explain appellant’s
behavior as documented in a video captured by the DPS trooper at the scene of the
2 This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
2 accident. Moreover, according to Veasey’s testimony, appellant’s behavior was not
consistent with a manifestation of epilepsy or an epileptic seizure. In Veasey’s medical
opinion, appellant’s behavior and the impairment of his physical and mental faculties
were caused by the drugs that were found in his system, not his pre-existing medical
conditions.
The jury found appellant guilty, and the trial court assessed a 25-year prison
sentence. This appeal ensued.
II. EVIDENTIARY RULING
In his first issue, appellant argues that the trial court erred in allowing Veasey to
testify regarding matters related to neurology and endocrinology—specifically, the
condition of epilepsy, diabetes, and how low blood sugar affects the human body.
A. Applicable Law
The rules of evidence require a trial judge to make three separate inquiries,
which must all be met before admitting expert testimony: (1) the witness qualifies as an
expert by reason of his knowledge, skill, experience, training, or education; (2) the
subject matter of the testimony is an appropriate one for expert testimony; and (3)
admitting the expert testimony will actually assist the fact-finder in deciding the case.
Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). These conditions are
commonly referred to as (1) qualification, (2) reliability, and (3) relevance. Id. Only the
first condition is at issue in this case.
The mere fact that a witness “possesse[s] knowledge and skill not possessed by
people generally . . . does not in and of itself mean that such expertise will assist the
trier of fact regarding the issue before the court.” Id. And because a witness will not
3 always qualify as an expert merely by virtue of a general background, qualification is a
two-step inquiry. Id. A witness must first have a sufficient background in a particular
field, but a trial judge must then determine whether that background “goes to the very
matter on which [the witness] is to give an opinion.” Id. The proponent must “establish
that the expert has knowledge, skill, experience, training, or education regarding the
specific issue before the court which would qualify the expert to give an opinion on that
particular subject.” Id. at 132.
B. Standard of Review
An appellate court reviewing a trial court’s ruling on the admissibility of evidence
must utilize an abuse-of-discretion standard of review. Weatherred v. State, 15 S.W.3d
540, 542 (Tex. Crim. App. 2000); Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App.
1999). In other words, the appellate court must uphold the trial court’s ruling if it was
within the zone of reasonable disagreement. Weatherred, 15 S.W.3d at 542;
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). In addition, the
appellate court must review the trial court’s ruling in light of what was before the trial
court at the time the ruling was made. Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim.
App. 1998); Hardesty v. State, 667 S.W.2d 130, 133 n.6 (Tex. Crim. App. 1984).
“[B]ecause the possible spectrum of education, skill, and training is so wide, a
trial court has great discretion in determining whether a witness possesses sufficient
qualifications to assist the jury as an expert on a specific topic in a particular case.”
Vela, 209 S.W.3d at 136. When a trial judge determines that a witness is or is not
qualified to testify as an expert, “appellate courts rarely disturb the trial court’s
determination.” Id.
4 C. Discussion
At trial, appellant objected that Veasey was not qualified to offer expert opinions
regarding epilepsy, diabetes, and how low blood sugar affects the human body. In a
hearing held outside the presence of the jury, the State established that Veasey is a
medical doctor who specializes in forensic pathology. The State also established that,
by virtue of his education, training, and experience—including an internship in internal
medicine—Veasey is knowledgeable about diabetes, low blood sugar, and diseases
such as epilepsy and has treated patients suffering from those conditions. As a forensic
pathologist, Veasey has acquired expert knowledge regarding diseases such as
diabetes, including “the pathogenesis of the disease, how it occurs, the reflection of the
diseases, [and] how it manifests itself.” Veasey also deals with toxicology issues on a
daily basis.
Based on the foregoing, the trial court overruled appellant’s objection:
I am going to overrule your objection to Dr. Veasey as an expert and I do find that he has the significant expertise necessary. He has stated the basis of his opinions that he’s going to offer in this case. They appear to be reliable based upon valid scientific information in theory.
We have reviewed the record and cannot conclude that the trial court’s ruling fell
outside the zone of reasonable disagreement. See Weatherred, 15 S.W.3d at 542; see
also Howard v. State, Nos. 01-07-00686-CR, 01-07-00687-CR, 01-07-00688-CR, 2008
Tex. App. LEXIS 6431, *55 (Tex. App.—Houston [1st Dist.] Aug. 21, 2008, pet. ref’d)
(mem. op., not designated for publication) (“Based on her education and experience, Dr.
Gollaher was qualified to testify as to what might or might not have contributed to
appellant's behavior at the time of the offenses.”). Accordingly, appellant’s first issue is
overruled.
5 III. SUFFICIENCY OF THE EVIDENCE
In his second issue, appellant argues that the evidence was not sufficient to
support a deadly weapon finding.
A. Standard of Review
Under the Jackson standard, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
App. 2010) (plurality op.) (characterizing the Jackson standard as: “Considering all of
the evidence in the light most favorable to the verdict, was a jury rationally justified in
finding guilt beyond a reasonable doubt”). The fact-finder is the exclusive judge of the
credibility of witnesses and of the weight to be given to their testimony. Anderson v.
State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (citing
Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)). Reconciliation of
conflicts in the evidence is within the fact-finder’s exclusive province. Id. (citing Wyatt v.
State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies
in the testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406
(Tex. Crim. App. 2000)).
In reviewing the sufficiency of the evidence, we look at events occurring before,
during, and after the commission of the offense, and we may rely on actions of the
appellant that show an understanding and common design to do the prohibited act. See
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not point
6 directly and independently to the appellant’s guilt, so long as the cumulative effect of all
the incriminating facts is sufficient to support the conviction. Id.
We measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 307
(Tex. App.—Corpus Christi 2004, pet. ref'd) (citing Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997)). “Such a charge [is] one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State’s theories of liability, and adequately describes
the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).
B. Applicable Law
Texas law authorizes a deadly weapon finding in felony DWI cases. Sierra v.
State, 280 S.W.3d 250, 254 (Tex. Crim. App. 2009). A two-part inquiry is used to
determine whether the evidence is sufficient to support a finding that a motor vehicle
was used as a deadly weapon. Id. at 255. First, we evaluate the manner in which the
defendant used the motor vehicle during the felony. Id. Second, we consider whether,
during the felony, the motor vehicle was capable of causing death or serious bodily
injury. Id.
When considering the first prong of the Sierra test, courts evaluate whether the
“defendant’s driving was reckless or dangerous.” Id. The inquiry involves several non-
exclusive factors, including intoxication, speeding, disregard of traffic signs or signals,
and failure to control the vehicle. Id. at 255–56.
7 When considering the second prong of the Sierra test, courts must determine
whether the motor vehicle was capable of causing death or serious bodily injury. Id. at
255. There must be evidence that others were actually endangered. Foley v. State,
327 S.W.3d 907, 916 (Tex. App.—Corpus Christi 2010, pet. ref’d). A hypothetical
potential for danger is not sufficient. Id. Therefore, we must “examine the record for
evidence that there were other motorists present at the same time and place as the
reckless driving occurred.” Id. (internal quotations omitted).
C. Discussion
With respect to the first prong of the Sierra test, the evidence at trial established
that appellant was intoxicated. The evidence also established that appellant failed to
control his vehicle insofar as he drove the vehicle halfway up a guardrail before coming
to a stop. We have previously held that evidence of this specific nature is sufficient to
support a finding of reckless or dangerous driving. Id. (holding that evidence of
intoxication and collision into a traffic barrier was sufficient to establish the first prong of
the Sierra test).
With respect to the second prong of the Sierra test, the evidence at trial
established that the scene of the accident was “a very busy intersection, really backed
up, lots of cars, lots of traffic.” Thus, there was evidence that other motorists were
present at the same time and place. See id. Nevertheless, the State concedes that
“there is a paucity of testimony regarding the actual danger from [appellant’s] driving.”
The State failed to prove that others were actually endangered. See id. Thus, the
evidence is insufficient to establish the second prong of the Sierra test. The proper
8 remedy is to delete the deadly weapon finding. See Williams v. State, 970 S.W.2d 566,
566 (Tex. Crim. App. 1998).
Appellant’s second issue is sustained.
IV. IMPROPER ARGUMENT
In his third issue, appellant complains of improper jury argument by the State
during its closing argument.
Jury argument is permissible if it constitutes a summation of the evidence, a
reasonable deduction from the evidence, an answer to argument of opposing counsel,
or a plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App.
2008). To complain of improper jury argument, a defendant must generally object to the
argument and pursue his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d
73, 89 (Tex. Crim. App. 1996); Nadal v. State, 348 S.W.3d 304, 319 (Tex. App.—
Houston [14th Dist.] 2011, pet. ref’d). If the trial court sustains the objection, the
defendant must also request an instruction to disregard and move for a mistrial. Cook
v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993); Campos v. State, 946 S.W.2d
414, 417 (Tex. App.—Houston [14th Dist.] 1997, no pet.).
B. Discussion
Appellant complains that the State misstated its burden during closing argument.
In relevant part, the prosecutor told the jury:
We heard evidence that this defendant got in his vehicle, left his house and attempted to drive to the store. At that point, he’s guilty of driving while intoxicated. Hypothetically, if he has a seizure at some point while he’s driving, guess what? He’s still guilty of driving while intoxicated . . . [the medical condition] doesn’t erase the fact that maybe something caused him to crash or whatever it might be. You don’t just get to stop
9 and look there. He was intoxicated on the Hydrocodone and Soma when he left his house. The only way that you can find him not guilty in this case is if you believe there was no way those drugs were having any effect on his ability to drive. And if you believe that, there’s no way that you can say that those drugs at those levels were having an effect on his mental and physical faculties.
At this point, counsel for appellant objected that the prosecutor had mischaracterized
the State’s burden, ostensibly because the prosecutor used the term “any effect,” rather
than the effect of not having normal use of his physical and mental faculties. After the
trial court overruled the objection, the prosecutor continued: “If you don’t believe that
those drugs were having an effect on his mental and physical faculties and ability to
drive a vehicle, then find him not guilt[y].”
Assuming without deciding that the State’s argument was improper, the trial
court’s error in overruling appellant’s objection is reversible only if it affected appellant’s
substantial rights. See TEX. R. APP. P. 44.2(b). In the context of improper jury
argument, this determination is made by “balancing the following three factors: (1)
severity of the misconduct (prejudicial effect), (2) curative measures, (3) the certainty of
conviction absent the misconduct.” Martinez v. State, 17 S.W.3d 677, 692–93 (Tex.
Crim. App. 2000).
Here, the degree of misconduct, if any, is minimal. The State’s argument
appears to have been an effort—albeit perhaps a poorly-executed effort—to emphasize
the overwhelming evidence of appellant’s intoxication by three different drugs found in
his blood at the time of the accident. Although the State may not have used the
appropriate terminology in its argument, the prejudicial effect, if any, is unclear and
speculative. Thus, the first factor carries very little weight in this case.
10 The second factor, curative measures, is also marginal in this case because the
trial court overruled appellant’s objection and did not give a curative instruction.
Nevertheless, we note that, after the objection was overruled, the State did make an
effort to correct what was arguably a misstatement of its burden by telling the jury to find
appellant not guilty if they did not believe the drugs were having “an effect” on him.
The third factor weighs heavily in the State’s favor. The evidence of appellant’s
guilt is substantial. Three different drugs were detected in appellant’s blood at levels
that, according to the expert testimony adduced at trial, would result in intoxication and
possibly death. A police video captured behavior by appellant consistent with signs of
intoxication, including slurred speech, inability to answer questions promptly, stumbling,
and holding onto things. There was expert medical testimony that appellant’s obvious
impairment was due to intoxication, not his pre-existing medical conditions.
Given the minimal degree of misconduct, if any, the State’s attempt to correct its
error, and the overwhelming evidence of appellant’s guilt, we conclude that any error
with respect to the trial court’s ruling was harmless.
Appellant’s third issue is overruled.
V. JURY CHARGE ERROR
In his fourth issue, appellant complains that the jury charge contained a non-
statutory definition of “normal use.”
In reviewing a jury-charge issue, an appellate court’s first duty is to determine
whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex.
Crim. App. 1996). If error is found, the appellate court must analyze that error for harm.
11 Middleton v. State, 125 S.W3d 450, 453-54 (Tex. Crim. App. 2003). If an error was
properly preserved by objection, reversal will be necessary if the error is not harmless.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Conversely, if error
was not preserved at trial by a proper objection, a reversal will be granted only if the
error presents egregious harm, meaning appellant did not receive a fair and impartial
trial. Id. To obtain reversal for jury-charge error, appellant must have suffered actual
harm and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775
(Tex. Crim. App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).
The trial court must provide the jury with “a written charge distinctly setting forth
the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007).
Moreover, the trial court may not express “any opinion as to the weight of the evidence.”
Id.; Walters v. State, 247 S.W.3d 204, 208 (Tex. Crim. App. 2007). Because “[j]uries
are free to consider and evaluate the evidence in whatever way they consider it relevant
to the statutory offenses, special, non-statutory instructions, even when they relate to
statutory offenses or defenses, generally have no place in the jury charge.” Kirsch v.
State, 357 S.W.3d 645, 652 (Tex. Crim. App. 2012) (internal quotations omitted).
Texas Government Code section 311.011 provides that statutorily undefined
words and phrases shall be “construed according to the rules of grammar and common
usage. Words and phrases that have acquired a technical or particular meaning . . .
shall be construed accordingly.” TEX. GOV'T CODE ANN. § 311.011 (West 2005). The
Texas Court of Criminal Appeals has explained that jurors may “freely read [undefined]
statutory language to have any meaning which is acceptable in common parlance.”
12 Kirsch, 357 S.W.3d at 650. Conversely, “terms which have a known and established
legal meaning, or which have acquired a peculiar and appropriate meaning in the law,
as where the words used have a well-known common law meaning, are considered as
having been used in their technical sense.” Id. Although an appellate court may
articulate a definition of a statutorily undefined, common term in assessing the
sufficiency of the evidence on appellate review, a trial court’s inclusion of that definition
in a jury charge may constitute an improper comment on the weight of the evidence. Id.
at 651.
The term “normal use” is included within the statutory definition of “intoxicated,”
an essential element of the offense charged. Baggett v. State, 367 S.W.3d 525, 527
(Tex. App.—Tyler 2012, pet. ref’d). “Normal use” is not defined by statute. Id. Thus,
the State asks this Court to “assume that it was error to include a non-statutory
definition in the jury charge.”
Appellant preserved this issue based on a timely objection that was overruled;
thus, we must determine whether appellant suffered “some harm” as a result of the
error. See Sanchez, 376 S.W.3d at 774. The harm caused by the error must be
considered “in light of the entire jury charge, the state of the evidence, including the
contested issues and the weight of probative evidence, the arguments of counsel and
any other relevant information revealed by the record of the trial as a whole.” Id. at
774–75. Appellant must have suffered actual harm, not merely theoretical harm. Id. at
775.
13 The jury charge defined “normal use” as “the manner in which a normal non-
intoxicated person would be able to use his or her mental or physical faculties.” The
instruction caused no harm to appellant because it was “mild, neutral, and an obvious
common-sense proposition.” Baggett, 367 S.W.3d at 529. Moreover, as noted above,
the jury was presented with overwhelming evidence of appellant’s guilt. See Harris v.
State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989) (“[T]he presence of overwhelming
evidence of guilt plays a determinative role in resolving the issue.”). Thus, the error, if
any, was benign and harmless.
Appellant’s fourth issue is overruled.
VI. CONCLUSION
The judgment of the trial court is modified to delete the deadly weapon finding
and affirmed as modified.
________________________ ROGELIO VALDEZ Chief Justice
Do not publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 31st day of January, 2013.