Opinion issued July 9, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00247-CR ——————————— TERRI COX FERGUSON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1330035
MEMORANDUM OPINION
In a single point of error, appellant Terri Cox Ferguson challenges the
sufficiency of the evidence to support her conviction for the offense of felony
murder. We affirm. BACKGROUND
On September 29, 2011, Gabriela Rodriguez was standing in the emergency
lane of Beltway 8 putting gasoline in her vehicle when appellant swerved her
vehicle onto the shoulder, striking and killing Rodriguez. Appellant was charged
with felony murder predicated on causing Rodriguez’s death while committing the
offense of driving while intoxicated as a third offender.
At trial, the State argued that appellant was intoxicated as the result of
mixing consumption of numerous prescription medications and marihuana.
Appellant argued that she was not intoxicated and that instead she had suffered a
seizure that rendered her actions involuntary. The jury found appellant guilty of
felony murder, and the trial court sentenced her to fifteen years’ confinement.
INTOXICATION
The jury was properly charged with the Penal Code definition of
“Intoxication”:
(2) “Intoxicated” means: (A) 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, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.
TEX. PENAL CODE ANN. § 49.01 (West 2011). Under this section, “intoxication
may be proven in either of two ways: (1) loss of normal use of mental or physical
2 faculties or (2) alcohol concentration in the blood, breath, or urine of 0.08 or
more.” Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010). “The first
definition is the “impairment” theory, while the second is the “per se” theory.” Id.
The identity of the particular substance causing the intoxication is not an
element of the offense. Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App.
2004). And an intoxication finding may be supported entirely by circumstantial
evidence. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010).
STANDARD OF REVIEW
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). The jurors are the exclusive judges of the facts and the weight to be
given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App.
2008). A jury, as the sole judge of credibility, may accept one version of the facts
and reject another, and it may reject any part of a witness’s testimony. See Sharp v.
State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson v. State,
3 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (stating jury
can choose to disbelieve witness even when witness’s testimony is uncontradicted).
We afford almost complete deference to the jury’s credibility
determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
We resolve any inconsistencies in the evidence in favor of the verdict. Curry v.
State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination.”). Circumstantial evidence
is as probative as direct evidence in establishing guilt, and circumstantial evidence
alone can be sufficient to establish guilt. Sorrells v. State, 343 S.W.3d 152, 155
(Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at 778). “Each fact need not
point directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
ANALYSIS
A. Trial Testimony about Appellant’s Actions on September 29, 2011
Several witnesses testified to their observations of appellant’s driving and
behavior around the time appellant struck Rodriguez with her vehicle. Charlie
Holly testified to first spotting appellant’s vehicle about 5:00 p.m. on September
4 29, 2011 while driving on Interstate 45 on his way home from work. He was in the
far right-hand lane preparing to take the exit to Beltway 8 when he “looked up to
the ramp going up onto the beltway and observed a lot of cars were backing up.”
This was because appellant’s black SUV was driving slowly, causing a back-up
behind it. Holly testified that appellant was driving so slowly that he assumed that
she was having vehicle trouble.
As he merged onto Beltway 8, Holly also spotted a white SUV on the right-
hand shoulder of the freeway. Rodriguez was putting gas in that white SUV.
Holly testified to seeing appellant’s SUV move into the emergency lane behind
Rodriguez’s stopped vehicle, and he assumed that appellant was stopping to assist
Rodriguez. Instead, appellant began swerving back into the main lanes of Beltway
8, striking Rodriguez’s body and throwing her into the air. Holly testified that
appellant continued driving another 40 or 50 yards, and then moved over onto the
shoulder and stopped. Holly stopped and called 911.
Gretchen Janecek also testified to driving behind appellant as she exited
Interstate 45 and merged onto Interstate 10. Janecek saw appellant’s vehicle
repeatedly swerve between lanes such that Janecek was concerned it would collide
with another car. Janecek saw appellant strike Rodriguez.
Essence Bukem also testified to driving behind appellant and purposely
staying back “a little bit” because appellant’s vehicle was fishtailing. Bukem saw
5 appellant swerve onto the shoulder lane, strike Rodriguez, and then speed up.
Bukem starting honking at appellant to get her attention while she called 911.
Buken continued to follow appellant for about 10 or 15 minutes while Buken’s
passenger stayed on the phone to keep a police dispatcher apprised of appellant’s
location.
Deputy M. White with the Harris County Constable’s office was dispatched.
White spotted appellant driving as he got onto Beltway 8 about 17 miles from the
accident scene. She was “swerving, unable to maintain her lane.” She did not
immediately pull over when White activated his lights and sirens. She eventually
pulled over, striking a barrier as she did so.
White testified that appellant had little reaction to anything he said. She did
not respond when he asked her to put her vehicle in park, turn the vehicle off, and
step out of the vehicle. Thus, White reached in, put appellant’s vehicle into park,
turned off the ignition, and helped appellant out of the vehicle. He described her as
“very incoherent” and “just in a daze.” Appellant also had a lot of saliva collected
at the sides of her mouth. From his interactions with her, White surmised from his
knowledge and experience that appellant was under the influence of something.
From his experience, he did not see any signs of a medical problem or condition.
6 Pursuant to instructions from his Sergeant, White called a wrecker to take
appellant’s vehicle back to the accident scene. White also drove appellant there
and then turned appellant over to Deputy Stanley.
Officer Robert Francis was dispatched to the scene to investigate. He
testified that he first encountered appellant about 1 or 1 1/2 hours after the accident
when she was brought back to the scene. Francis described appellant as appearing
confused, exhibiting slurred speech, and unsteady on her feet. He opined that she
appeared “as an intoxicated person would appear.” Francis performed field
sobriety tests, although he did not detect the odor of alcohol on her breath.
Francis first planned to perform a Horizontal Gaze Nystagmus Test (HGN),
which is designed to detect nystagmus (i.e., involuntary jerking of the eyeballs).
He noticed her pupils were different sizes, however, and inquired whether she had
a recent head injury. Appellant responded that her dog had recently knocked her
down. He continued with the test even though he knew that the unequal pupil size
and possible head injury would invalidate any HGN results. He did not detect any
nystagmus. Francis testified that result did not surprise him, because not all
intoxicating substances cause nystagmus.
Francis next planned to complete a Walk-and-Turn Test on appellant.
Appellant, however, claimed that she had an injured knee from either falling down
stairs or her dog knocking her down that prevented her from completing that test.
7 Francis next attempted to administer the One-Leg-Stand Test. When
appellant again claimed injury, Francis asked if she could lift her injured leg and
stand on her good leg. Appellant responded that she did not think she could do
that.
Francis then administered the Rhomberg Balance Test, which required
appellant to tilt her head back slightly, close her eyes, and approximate the passage
of 30 seconds. She exhibited eyelid tremors (which are an indication of
consumption of drugs), swaying (which indicates impairment), and an inability to
accurately estimate the passage of time (which can indicate a subject is under the
influence).
Next Francis asked appellant to recite the alphabet from A to Z. She had a
difficult time, stumbled around, and was unable to finish. Her speech was also
noticeably slurred.
Finally, Francis administered the Dexterity Test, which requires “touching
your thumb to your fingers and counting in sequence forwards and then
backwards.” Appellant was able to complete that task, and in fact started
performing that test before Francis gave her the instructions.
Francis then asked appellant several questions that he believed she
understood. He asked her what she was doing, and she said she was taking food to
a friend in the area of Monroe Road off of Interstate 45. She told him that she
8 believed that the accident happened on Interstate 45 (rather than Beltway 8, where
it actually occurred). She also told Francis that earlier that same day she had
forgotten to open her garage door and struck the door while backing out. Finally,
she told Francis that she had a 500-acre ranch and the damage on the front of her
vehicle resulted from her hitting a tree on that ranch. Francis opined that there was
no damage to the vehicle consistent with a tree strike.
Deputy James Stanley with the Harris County Constable’s Office testified
that he was dispatched to the scene of the hit-and-run. After appellant was brought
back to the scene, Stanley was instructed to give her statutory warnings and take
her to the hospital for a blood draw. He did so, and then returned with her to scene
so that Francis could conduct the field sobriety testing described in Francis’s
testimony. After Francis obtained consent from appellant for a blood draw,
Stanley took her back to the hospital for a second blood draw.
Deputy James Meaux, an accident reconstructionist with the Harris County
Sheriff’s Office, testified that he reconstructed the accident by using the
responding officers’ offense reports, the officers’ photographs from the scene, the
Medical Examiner’s report, the autopsy report, the autopsy photographs, and data
from appellant’s airbag control module. He concluded that appellant failed to
control her speed around Rodriguez and that she failed to maintain a single lane of
traffic by veering into the emergency shoulder lane.
9 B. Intoxicating Substances
The jury also heard testimony about appellant’s possession and ingestion of
various medications. Dr. Stephen Sapsowitz testified that appellant was his patient
and that he had seen her a total of five times beginning on June 7, 2011. In August
2011, at her second visit, she had recently fallen. She had an injured ankle and
knee, and complained about lower back pain. Appellant reported at that visit that
the anti-inflammatories she was taking for these injuries were not sufficiently
helping with pain, and she requested, and received, a prescription for Soma (i.e.
Carisoprodol).
Appellant also had an appointment with Sapsowitz on September 29, 2001,
the day of the accident. He treated her on that day for a cold, and at that visit she
asked for additional Soma. At that visit, he prescribed for her (1) antibiotics, (2)
60 pills of Soma, and (3) cough syrup with codeine.
Sapsowitz testified that appellant did not report taking any illegal drugs,
including marihuana. Appellant did not disclose to Sapsowitz that she was taking
quazepam or temazepam. Sapsowitz explained at trial that these other medications
are benzodiazepines, which would not mix well with Soma—it would have an
additive effect. He testified that he would not have prescribed Soma if he had been
told that she was taking benzodiazepines. He also testified that knowledge of
marihuana use would not have prevented him from prescribing Soma.
10 Sapsowitz noted Soma carries manufacturer’s warning because it “can have
the same effects as alcohol.” It can make a patient drowsy and “[y]ou can get
impaired with your ability to do things and . . . have similar effects to believed to
be drunk.”
Dr. James Wright, appellant’s treating psychiatrist, testified that he treated
appellant for Bipolar II Disorder, anxiety, and insomnia from 2007 through 2013.
In 2011, Wright was prescribing appellant four medications: Seroquel XR (mood
stabilizer), Lexapro (antidepressant), Clonazepam (antianxiety), and Ambien CR
(sedative). Appellant had been warned that she should not drive if these
medications had a sedation effect. Appellant had disclosed to Wright’s office in
2007 that she had a history of abusing Soma, and that concerned him because it
would not mix well with the medications he prescribed to her.
In February 2011, appellant disclosed to Wright’s office that she was again
using Soma. In March 2001, she said that she was no longer using Soma. In June
2011, she told Wright’s office that she had been off of Soma for about one month.
In August 2011, she reaffirmed to Wright’s office that she had been off of Soma
since May.
On September 29, 2011—the day of appellant’s appointment with Sapsowitz
—appellant filled her newly acquired Soma prescription at 3:45 p.m., two hours
before she struck and killed Rodriguez. The instructions on the Soma prescription
11 bottle stated that appellant should take one pill, four times a day as needed. The
Soma prescription bottle recovered from appellant’s car after the accident
contained only 50 of the 60 prescribed pills. When Officer Francis asked her about
medications after the accident, appellant stated that she “took a pill that starts with
C that morning for her knee and then two more pills that start with C immediately
before she left her home.” Marihuana was also found in appellant’s purse.
The two blood draws taken in the hours after the accident reflected, in
appellant’s system, Carisoprodol (Soma), Delta-9-tetrahydrocannabinol,
Meprobamate, Norcarboxytetrahydrocanabinol, 7-aminoclonazepam, Clonazepam,
and Temazepam. Appellant’s toxicology expert, Dr. Laura Plunkett, testified that
the active and inactive components of marihuana in appellant’s blood sample
“shows that it had been smoked very recently.” Plunkett also testified that there is
no safe level of marihuana for operating a motor vehicle, and that combining
marihuana with certain prescription drugs can lead to tragic consequences. She
further opined that the levels of each substance in appellant’s blood draws were
“low” and that the levels in appellant’s blood were not consistent with having
taken 10 Soma pills.
While evidence about the substances in appellant’s system were admitted in
evidence and the levels of each, the trial court did not allow either the State’s or
12 appellant’s witnesses to opine about whether particular levels would indicate
intoxication.
Appellant returned to Sapsowitz about a week after the accident requesting
more Soma because her medication had been taken with her vehicle by the police.
Sapsowitz then only gave her a prescription for ten pills because at that point (i.e.,
six weeks after the injury for which he was prescribing Soma), she should be
treated as a chronic pain, rather than acute pain, patient. He performed a urine
drug screen and asked her to come back for a full physical and psychological test.
He also had her sign a controlled-substances contract in which she agreed to only
utilize one doctor and one pharmacy.
When Sapsowitz received appellant’s drug test results from her October
2011 screen, he discovered her urine contained two different benzodiazepines,
marihuana and Carisoprodol (Soma). He had his nurse call appellant to come in to
discuss the results, but she never returned to his office.
At a November 16, 2011 appointment at Wright’s office, appellant told
Wright’s nurse practitioner that she had hurt her back and been prescribed Soma by
a different doctor. She also told Wright’s office about striking and killing
Rodriguez with her vehicle on September 29. Appellant said that she did not
remember the crash at all, and that she was participating in a 12-step program and
would never take Soma again.
13 C. Appellant’s Seizure theory
Appellant’s theory at trial was that she may have suffered a seizure, and that
the symptoms of that seizure would be consistent with those of intoxication.
Wright had no record of appellant suffering any seizure disorder except his
nurse practitioner’s note on July 1, 2013 stating that appellant said “she determined
that she had been having seizures as far back as her accident [and] that her, as the
medical record reads, new attorney had been able to obtain proof of her seizure
provided by a bystander and that she also said to my nurse practitioner that she had
recently been sent to an emergency room for a seizure.”
Dr. Irwin Novak, a neurologist, testified for the defense. Novak explained
the definition and indicators of a seizure. He testified that patients with complex
partial seizures are unaware of their surroundings, are disoriented, and that seizures
can be “associated with slurred speech, shaking and salivation or foaming at the
mouth.” They may also experience a faulty memory. It is rare for a person with a
seizure to be able to drive a motor vehicle, and it would make them drive
erratically. He opined that a parson in a state of a seizure is not capable of a
voluntary conscious act, so they cannot keep a proper lookout, control their speed,
or maintain a single lane of traffic. Studies reflect that sometimes a patient does
not know they have seizures until they are involved in a traffic accident.
14 Novak further testified that unequal sized pupils would make him concerned
about a potential underlying medical condition. Possible conditions include
seizures, aneurysms, tumors, or eye disease.
Novak testified to having significant experience giving HGN tests, and
expressed the opinion that when a patient is taking certain medications in high
levels, “you see nystagmus in every single patient.”
Novak examined appellant on September 13, 2013 and ordered several tests,
including a EKG, electrocardiogram, EEG, electroencephalogram, MRI, x-ray and
urinalysis. The EEG test requires electrodes and a monitor be worn for 72 hours.
The recording are “reviewed and then a diagnostic impression is made by an
epilepsy specialist.”
Novak also reviewed emergency room medical records from September 25,
2013, when appellant was brought in by EMS while wearing her 72-hour EEG
monitor. Novak testified that the emergency-room physician’s “impression was
seizure and she was discharged in stable condition.”
Novak testified that the reports generated from appellant’s 72-hour EEG
monitors reflected “interictal activity consistent with a seizure, but no actual
seizures that were ongoing at the time of the 72-hour monitors.” He explained that
interictal activity is not seen in healthy patients. He opined that the “it is probable”
that the reports from the EEG are “consistent with seizure activity.”
15 Novak also reviewed appellant’s medical records from when she was again
admitted to the hospital on January 21, 2014. Novak testified that she presented
with “altered mental status, probable seizure, possible pseudoseizure.” She was
“intubated after sedation and admitted on a respirator.” Novak testified that the
EEG readings at that point were abnormal and could be suggestive of a seizure.
On cross-examination, Novak acknowledged that appellant’s treating physicians
indicated that appellant’s EEG results were unremarkable. Appellant’s treating
physician’s records also indicate that appellant reported taking Xanax and Atavan,
which could cause pseudoseizures. Finally, Novak acknowledged that an
abnormal EEG reading could be caused by any number of things other than a
seizure, including sleep disorders, migraines, head injury, or substance abuse.
D. Parties’ Arguments
On appeal, appellant argues that the evidence was insufficient for a rational
trier of fact to have found beyond a reasonable doubt that appellant did not have
normal use of her mental faculties by reasons of the introduction of drugs.
Appellant acknowledges that proving the identity of a particular intoxicating
substance is not an element the State must prove. She contends nonetheless that
the State did not introduce evidence that she did not have the normal use of her
mental of physical faculties “by reason of the introduction” of drugs. She argues
that cases finding sufficient evidence are distinguishable, in part because—in this
16 case—there was no expert testimony to the effect that she was intoxicated from the
introduction of drugs.
The State responds that the jury had ample evidence from which it could
have rationally found beyond a reasonable doubt that appellant was intoxicated.
We agree with the State and hold that a rational factfinder could have found
appellant was intoxicated while rejecting her alternative seizure theory. Crouse v.
State, 441 S.W.3d 508, 511–12 (Tex. App.—Dallas 2014, no pet.) (holding that,
although appellant presented possible seizures an alternative explanation for his
condition, it was the trial court’s function in its role as fact finder to resolve any
conflicts in the evidence, and the judge was free to accept or reject any and all of
the evidence presented by either side and conclude that appellant did not have
normal use of his mental or physical faculties from the introduction of a drug).
“Circumstantial evidence may prove that a person has lost the normal use of his
mental or physical faculties by reason of introduction of a controlled substance or
drug into his body.” Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st
Dist.] 2011, pet. ref’d). The jury’s finding here is supported by the evidence about
appellant’s erratic driving, her failure to respond when pulled over by police, her
poor performance on field sobriety testing, the presence of various drugs in her
blood, her failure to disclose to Dr. Sapsowitz what other medications she was
17 taking that were prescribed by other doctors, and the lack of any medical
documentation to support the possibility of seizures until after the accident.
We overrule appellant’s sole issue.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).