Opinion issued February 13, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-10-00504-CR ——————————— MICHAEL PAUL EVERITT, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Harris County Criminal Court at Law No. 4 Harris County, Texas Trial Court Case No. 1655755
MEMORANDUM OPINION ON REMAND
A jury convicted appellant Michael Paul Everitt of driving while intoxicated.
See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2013). The trial court assessed
punishment of 180 days in county jail, suspension of Everitt’s driver’s license for one year, and a fine in the amount of $2,000. The court suspended the jail sentence
and placed Everitt on community supervision for two years.
Everitt brought three issues on appeal. In his third issue, he argued that the
admission of evidence that he had taken a narcotic pain reliever, hydrocodone, was
error because there was no expert testimony that his use of the medication was
relevant to the question of intoxication. We affirmed the trial court’s judgment,
holding in part that Everitt’s challenge to the admission of expert testimony was
not preserved for appeal. The Court of Criminal Appeals held that the objection
was preserved and remanded for consideration of the merits of Everitt’s third issue:
whether the trial court abused its discretion by admitting into evidence a
videorecording in which Everitt admitted having used hydrocodone on the night he
was arrested. Everitt v. State, 407 S.W.3d 259 (Tex. Crim. App. 2013).
We affirm.
Background
Houston Police Department Officer A. Richberg was driving his patrol car
around 2:30 a.m. when he saw appellant Michael Paul Everitt riding a motorcycle,
speeding, and changing lanes without signaling. When Officer Richberg stopped
Everitt, he observed signs of intoxication. The smell of alcohol emanated from
Everitt’s helmet, he had difficulty maintaining his balance, and he repeatedly failed
to engage the motorcycle’s kickstand. In addition, Everitt had difficulty
2 understanding questions, he slurred his words, and he had bloodshot eyes. During
approximately 25 minutes of questioning Everitt admitted to having drunk alcohol
around 5:00 p.m. the prior day. He declined to perform any field sobriety tests.
HPD Officer B. Taylor also responded to the traffic stop. She smelled
alcohol on Everitt’s breath, and she noticed that his eyes were glassy, he could not
stand without swaying, and his speech was slurred. She also said that Everitt was
talkative and asked her personal questions. She arrested him for driving while
intoxicated and placed him into the back of her patrol car, where the smell of
alcohol became “almost overwhelming.”
At approximately 3:45 a.m., Officer Taylor brought Everitt to the “Intox
Room” at the police station, where an HPD sobriety test administrator asked him to
perform sobriety tests. A videorecording was made showing Everitt performing the
Rhomberg test, in which he was asked to close his eyes, tilt his head back, and
estimate when 30 seconds had passed. Everitt had an abnormal side-to-side sway,
and he failed to accurately estimate 30 seconds’ time. Instead, after 55 seconds he
told the officers that 60 seconds had passed, although he acknowledged that the
instruction had been to estimate only 30 seconds. Based upon his performance on
the test, the administrator determined that he was impaired. Everitt refused to
cooperate with any other field sobriety tests, and when Officer Taylor and the test
administrator asked whether he had any injuries, he said that he had taken
3 “hydrocodeine . . . earlier today maybe” due to a back injury. The officer then
promptly informed Everitt of his Miranda rights.
At trial, the State sought to introduce into evidence the videorecording of
Everitt’s admission that he had used hydrocodone. Everitt moved to suppress his
statement arguing that, under DeLarue v. State, 102 S.W.3d 388 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d), and Layton v. State, 280 S.W.3d 235 (Tex.
Crim. App. 2009), his statement regarding hydrocodone use was irrelevant unless
accompanied by competent expert testimony. 1
The trial court held an evidentiary hearing on the motion to suppress. Officer
F. LaSalle, a Drug Recognition Expert, testified about his qualifications, the
impairing effects of hydrocodone mixed with alcohol, and methods he uses to
determine whether a person is impaired due to the use of alcohol, drugs, or both.
He also testified that the effects of a drug like hydrocodone last from six to eight
hours.
1 In DeLarue v. State, 102 S.W.3d 388 (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. 102 S.W.3d at 401.
In Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009), the Court 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.” 280 S.W.3d at 242.
4 The court overruled the motion to suppress and stated that the jury would be
permitted to hear Everitt’s statement about using hydrocodone. The court
explained:
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.
The court also ruled that Officer LaSalle could testify as an expert witness.
At trial, Officer LaSalle watched the videorecording and testified that he saw
“several signs of intoxication that would be consistent with the use of
hydrocodone.” He further testified that if Everitt had taken hydrocodone at
midnight or later, he would still have been under the influence of the drug when he
was driving at 2:30 a.m. Officer LaSalle specifically identified Everitt’s slowness
in responding to directions, abnormal sway during the Rhomberg test, and
difficulty estimating time as signs of impairment. He explained that difficulty
estimating time may impair a person’s driving ability by causing him to misjudge
the amount of time he has to make a decision.
The jury instruction defined intoxication as “not having the normal use of
mental or physical faculties by reason of the introduction of alcohol, a controlled
substance, a drug, a dangerous drug, or a combination of two or more of those 5 substances into the body.” The jury convicted Everitt of driving while intoxicated,
the court assessed punishment, and Everitt appealed.
Analysis
In his third issue, Everitt contends that the trial court abused its discretion by
admitting his statement that he used hydrocodone. He argues that the expert
testimony offered to explain how his use of hydrocodone was relevant to the
question of his intoxication was unreliable because it did not rest on reliable
information or properly apply a valid technique. Therefore, to resolve this issue
pertaining to the admissibility of the evidence of his use of hydrocodone, we must
consider both the relevance of Everitt’s statement and the admissibility of the
expert testimony.
We review a trial court’s ruling on the admission of evidence, including
expert testimony, for an abuse of discretion. Layton v. State, 280 S.W.3d 235, 240
(Tex. Crim. App. 2009); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.
App. 2000). As with other types of evidentiary rulings, we will uphold the trial
court’s decision unless it lies outside the zone of reasonable disagreement. Layton,
280 S.W.3d at 240 (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.
App. 1990)).
Generally, all relevant testimony is admissible. TEX. R. EVID. 402. “Relevant
evidence means evidence having any tendency to make the existence of any fact
6 that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” TEX. R. EVID. 401. When
determining if proffered evidence is relevant, the court must consider whether
there is a logical connection between the evidence and the proposition sought to be
proved. Layton, 280 S.W.3d at 240.
Everitt relies on Layton for the proposition that a connection between drug
use and intoxication is not automatically presumed when a defendant is charged
with driving while intoxicated. In Layton, the defendant was stopped for a traffic
violation, and he told the officer that he had taken Xanax and Valium. Id. at 237.
The statement was recorded by the officer’s dashboard-mounted video camera and
played before the jury at trial. Id. at 237–38. Layton was charged with driving
while intoxicated, and the jury was instructed that intoxicated meant “not having
the normal use of mental or physical faculties by reason of the introduction of
alcohol into the body.” Id. at 241. Because the charge was limited to intoxication
by use of alcohol, some expert testimony was needed to establish a connection
between the defendant’s use of controlled substances and the impact of such use on
his later intoxication. See id. at 242. The Court of Criminal Appeals noted that “to
be relevant in this specific case, the evidence needed to influence the jury’s
determination of whether Appellant was intoxicated by alcohol, not another
substance combined with alcohol.” Id. at 241. That is, the evidence of drug use
7 would not have been relevant to Layton’s case without additional evidence
showing the synergistic effect of the drugs on his intoxication by alcohol,
considering the time when the drugs and alcohol were used. Id.
Everitt was charged with driving while intoxicated, but unlike Layton the
charge was not limited to intoxication by consumption of alcohol. The jury was
instructed that intoxicated meant “not having the normal use of mental or physical
faculties by reason of the introduction of alcohol, a controlled substance, a drug, a
dangerous drug, or a combination of two or more of those substances into the
body.” In this case the evidence that Everitt used hydrocodone tends to make it
more probable that he was intoxicated by reason of introduction of alcohol or drugs
or both. See TEX. R. EVID. 401.
In addition, the State offered expert testimony to establish the intoxicating
effects of the use of hydrocodone. Rule of Evidence 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.” TEX. R. EVID. 702. Expert opinion testimony must be
reliable, relevant, and helpful to the jury. Kelly v. State, 824 S.W.2d 568, 572 (Tex.
Crim. App. 1992). The qualification of an expert witness is a two-step inquiry. “A
witness must first have a sufficient background in a particular field, and a trial
8 judge must then determine whether that background goes to the matter on which
the witness is to give an opinion.” Davis v. State, 329 S.W.3d 798, 813 (Tex. Crim.
App. 2010). The reliability of scientific evidence depends on whether the evidence
has a basis in sound scientific methodology. Layton, 280 S.W.3d at 241. To show
reliability, the following three criteria must be satisfied: (1) the underlying theory
is valid; (2) the technique applying said theory is valid; and (3) the technique was
properly applied on the occasion in question. Kelly, 824 S.W.2d at 573.
Officer LaSalle’s qualifications are not in dispute. He testified that he had
been a certified peace officer for 16 years, he had specialized training in the area of
DWI, he is certified as an intoxilyzer operator, Drug Recognition Expert, and DRE
instructor, and he had attended courses pertaining to prescription drug abuse and
drug identification and screening. He testified that he had training and experience
that permitted him to relate how the human body is impaired by alcohol and
hydrocodone. He also testified that he had been previously “recognized as an
expert in ability to determine whether or not a person’s impaired on medications or
drugs and their effects on operating a motor vehicle.”
Officer LaSalle addressed the reliability of the methods used by drug-
recognition experts. He testified that “the ability to determine impairment as a
result of the presence of [hydrocodone and alcohol] is valid” as a scientific theory,
and he described the scientific studies that formed the basis for the evaluation. He
9 described the evaluation conducted by drug-recognition experts to determine
“which one or more than one of the seven drug categories would be in their
system.” He testified that a battery of field sobriety tests would permit him to
distinguish which substances caused a given subject’s impairment. He discussed
methods used by drug recognition experts to determine impairment as a result of
the presence of hydrocodone or alcohol, which included field sobriety tests,
especially indication of inability to divide attention between tasks; direct
observations of the suspected impaired person, such as constricted pupil size; and
clinical observations, such as blood pressure. During the Kelly hearing, LaSalle
admitted that he had never seen Everitt before. However, he said that he could
identify and describe “any possible general indicators of any one of those drugs in
a person’s system by looking at the video.” Finally he explained the combined
effect of hydrocodone and alcohol and that each has some characteristic
impairments not shared by the other substance.
Officer LaSalle and the jury watched the police station videorecording.
Officer LaSalle heard Everitt’s recorded statement that he had used
“hydrocodeine,” which he explained is a common misnomer for hydrocodone,
which is a narcotic pain medication. LaSalle also testified that he saw “several
signs of intoxication that would be consistent with the use of hydrocodone on the
video.” He explained his observations, saying:
10 The subject had a low mumbled voice. It seemed to be a little raspy in his speech. He was slow to respond to directions of the person who was administering the test. When they asked him to put his feet together and hands at his side, it took him several seconds before he started to move and to do whatever it was he was asked to do. Then one field sobriety test that he actually performed, there were several signs on it that showed possible impairment for this type of substance.
Officer LaSalle opined that Everitt “obviously showed several mental and physical
impairment signs as a result of the ingestion of a drug like hydrocodone.”
The court ruled that Officer LaSalle’s testimony was admissible. The record
includes evidence that Officer LaSalle was qualified by education and experience,
that his analysis was based on a valid scientific method, and that his method of
applying his expertise to offer an opinion in this case was also valid. In addition,
his expert testimony was relevant to a fact question at trial, namely whether Everitt
was intoxicated by hydrocodone or a combination of alcohol and hydrocodone
while operating a motor vehicle. See TEX. PENAL CODE ANN. §§ 49.01(2), 49.04.
Specifically, LaSalle’s testimony that he could detect the symptoms of
hydrocodone and saw those symptoms exhibited in the video made it more likely
that Everitt had been intoxicated while driving. In short, his testimony was
relevant, reliable, and helpful to the jury. See Kelly, 824 S.W.2d at 572.
On appeal, Everitt argues that LaSalle’s opinion was not reliable because he
lacked sufficient information to do a proper drug recognition evaluation and that
his testimony did not amount to a proper drug recognition evaluation. In fact, the
11 record shows that Everitt’s attorney thoroughly cross-examined LaSalle on this
topic and these alleged infirmities in his testimony. We do not disagree with
Everitt’s characterization of the evidence in this regard.
However, as we have explained, in determining whether proffered evidence
is relevant, a trial court must consider the purpose for which it is offered and
whether there is a logical connection between the evidence and the proposition
sought to be proved. Layton, 280 S.W.3d at 240. Officer LaSalle’s testimony was
not offered to prove that Everitt had used hydrocodone or to identify “which one or
more than one of the seven drug categories” was in Everitt’s system at the time of
his arrest. Such testimony was not necessary because Everitt’s statement itself was
some evidence that he had used hydrocodone near the time of his arrest.
However, there were fact questions as to when he used the hydrocodone and
whether he was still subject to the drug’s effects at the time of his arrest. Officer
LaSalle’s testimony was offered to show the kind of impairment that can result
from hydrocodone use and that an indication of impairment from hydrocodone was
evident in the videorecording taken shortly after Everitt’s arrest. The proposition
that the State was attempting to prove through this witness was that Everitt was
driving while intoxicated as a result, at least in part, of the use of hydrocodone.
Officer LaSalle’s testimony that Everitt showed signs of impairment consistent
with the use of hydrocodone supplied a logical connection between Everitt’s
12 admitted use of hydrocodone and his driving. As such, this testimony was relevant.
See TEX. R. EVID. 401.
Because the challenged evidence was relevant and reliable, we hold that the
court did not abuse its discretion in admitting the videorecording of Everitt’s
statement and LaSalle’s expert testimony.
Moreover, even if the trial court had abused its discretion by admitting the
expert testimony, Everett cannot show that he was harmed. A violation of
evidentiary rules that results in the erroneous admission of evidence is non-
constitutional error. See TEX. R. APP. P. 44.2(b); see also Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998). The appropriate harm analysis is
therefore the one set out in Rule 44.2(b) of the Texas Rules of Appellate
Procedure, which dictates that a non-constitutional error “that does not affect
substantial rights must be disregarded.” Taylor v. State, 268 S.W.3d 571, 592 (Tex.
Crim. App. 2008) (quoting TEX. R. APP. P. 44.2(b)). A substantial right is affected
when an error has a substantial and injurious effect or influence in determining a
jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
Therefore, a criminal conviction should not be overturned for non-constitutional
error if the appellate court, upon examining the record as a whole, has fair
assurance that the error did not influence the jury, or had but slight effect. Cobb v.
State, 85 S.W.3d 258, 272 (Tex. Crim. App. 2002).
13 In assessing the likelihood that the jury’s decision was adversely affected by
the error, we consider everything in the record, including any testimony or physical
evidence admitted for the jury’s consideration, the character of the alleged error,
and how it might be considered in connection with other evidence in the case.
Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also
consider any jury instruction given by the trial court, the State’s theory and any
defensive theories, closing arguments, and voir dire, if material to the claim. Id. at
355–56.
At trial, the jury instruction defined intoxication as “not having the normal
use of mental or physical faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug, or a combination of two or more of
those substances into the body.” Throughout the course of the trial there was
overwhelming evidence of intoxication, even ignoring the evidence relating to
Everitt’s use of hydrocodone.
Officer Richberg testified that Everitt was driving dangerously, including
speeding and switching lanes without a signal. Additionally, he testified that
Everitt had trouble keeping his balance when he stopped his motorcycle including
multiple attempts to put his kickstand down. Furthermore, Richberg stated, “When
I walked up to him, I was able to smell a strong odor of alcohol coming from his
14 body. Then when I actually spoke to the defendant, I smelled alcohol coming from
his helmet from the mouthpiece by his helmet.”
Officer Taylor testified that Everitt “had an inability to stand on his own
without swaying.” She noticed “a strong odor of alcoholic beverages coming from
his breath,” and testified that his “speech was slurred.” Additionally, she stated: “I
noticed that his eyes were glassy. He was very talkative. Like I said, he was asking
me personal questions.”
The testimony from Officers Richberg and Taylor, coupled with Everitt’s
admission to drinking alcohol earlier in the evening, independently support the
conviction of intoxication. Furthermore, the State’s closing argument did not place
great emphasis on the hydrocodone evidence, focusing its argument on the totality
of the circumstances suggesting intoxication.
Having held that the admission of the videorecording was not error and
having concluded that, in any event, any error was harmless, we overrule Everitt’s
third issue.
15 Conclusion
We affirm the judgment of the trial court.
Michael Massengale Justice
Panel consists of Chief Justice Radack, and Justices Sharp and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).