Gunter, Ronald C. v. State

Affirmed and Memorandum Opinion filed October 18, 2005 Affirmed and Memorandum Opinion filed October 18, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00149-CR ____________ RONALD C. GUNTER, Appellant V. THE STATE OF TEXAS, Appellee ______________________________________________________ On Appeal from the County Court at Law No. 3 and Probate Court Brazoria County, Texas Trial Court Cause No. 128,183 ______________________________________________________ M E M O R A N D U M    O P I N I O N A jury found appellant, Ronald Gunter, guilty of driving a motor vehicle in a public place while intoxicated with alcohol. The trial court assessed punishment at 90 days in jail, probated for one year, and a $1,000 fine. In four points of error, appellant contends the trial court erred by including a Asynergistic effect@ instruction in the jury charge. Specifically, appellant argues: (1) expert testimony was required to include a synergistic effect instruction and the trial court erred by sua sponte qualifying appellant as an expert witness to fulfill the requirement; (2) the synergistic effect instruction misled and confused the jury because it was not a statement of law applicable to the case; (3) the synergistic effect instruction allowed the jury to convict on a theory not pled in the information and therefore lowered the State=s burden because an expert was not called to testify; and (4) the synergistic effect instruction was an improper comment on the weight of the evidence and encouraged the jury to decide the case based on facts not in evidence. We affirm. FACTUAL AND PROCEDURAL BACKGROUND At approximately 3:00 a.m. on May 1, 2003, Officer Andrew Beavers stopped appellant=s car after he witnessed the car swerve and almost drive off of a public road. Officer Beavers smelled a faint odor of alcohol on appellant=s breath and observed appellant leaning on his car to maintain his balance. Appellant performed and failed three field sobriety tests and was subsequently arrested for suspicion of driving while intoxicated. At the Pearland jail, appellant admitted he had consumed one beer, so he was asked to take a Breathalyzer test. Appellant refused to take the test but agreed to perform two of the field sobriety tests he had failed earlier. Appellant failed the tests again and was charged with driving while intoxicated with alcohol. At trial, the jury was shown a videotape containing all five of appellant=s field sobriety tests. Officer Beavers explained the tests and testified appellant failed each one. Officer Beavers testified he believed appellant was intoxicated due to the consumption of alcohol based on appellant=s driving, his demeanor, his statements, the odor of alcohol on his breath, and his failure to pass the field sobriety tests. Officer Beavers testified he is not a medical doctor or a narcotics expert, but said he received training on the synergy between drugs and alcohol and has had field experience with hundreds of individuals suspected of being intoxicated on both drugs and alcohol at the same time. Based on his training and experience, Officer Beavers testified it would take less alcohol for an individual to lose the normal use of their mental or physical faculties if they were already under the influence of some type of drug or narcotic. As a defense witness, appellant testified he consumed no alcohol on the morning of his arrest; instead, appellant testified his doctor prescribed the drug Effexor to treat his anxiety and mild depression. Appellant testified his doctor increased his dosage the day before he was arrested, and claimed he was impaired by the medication, not alcohol. Curiously, during his arrest, appellant did not tell any of the police officers he was taking Effexor or that it was the reason for his impairment. Appellant introduced his prescription records into evidence which showed he was prescribed the drug Effexor. Appellant also introduced the drug=s warning label into evidence. That label contained the following words: ATHIS MEDICINE WILL ADD TO THE EFFECTS of alcohol and other depressants.@ Under Texas law, a person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. ' 49.04(a) (Vernon 2003). The definition of intoxication has a subjective standard, Anot 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@; and an objective standard, Ahaving an alcohol concentration of 0.08 or more.@ Tex. Pen. Code Ann. ' 49.01(2)(A) & (B) (Vernon 2003). Because appellant refused a breath test, the information accused appellant of operating a motor vehicle in a public place while intoxicated Aby not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body.@ In conformity with this allegation, the court=s charge to the jury defined Aintoxication@ as Anot having the normal use of mental or physical faculties by reason of the introduction into the Defendant=s body of alcohol.@ At the State=s request, the trial court instructed the jury as follows: You are further instructed that if a person by the use of medications or drugs renders himself more susceptible to the influence of intoxicating liquor than he otherwise would have been and by reason thereof became intoxicated from the recent use of intoxicating liquor, he would be in the same position as though his intoxication was produced by the use of intoxicating liquor alone. Appellant objected to the inclusion of the synergistic instruction and argued the instruction should not be included without expert testimony concerning the effects of the medication. Appellant also argued the synergistic effect instruction should not be allowed because the State only alleged the introduction of alcohol in its pleadings. Appellant=s objection was overruled. In four points of error, appellant claims the trial court erred by including a synergistic effect instruction in the jury charge. The Synergistic Effect Jury Charge Instruction Standard of Review Review of alleged jury charge error requires an appellate court make a two-fold inquiry: (1) whether error exists in the jury charge, and (2) whether sufficient harm was caused by the error to require reversal. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If error actually exists, we must determine whether the appellant preserved the error by objection. Under Almanza, jury charge error requires reversal when the defendant has properly objected to the charge and we find Asome harm@ to his rights. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). When the defendant fails to object or states he has no objection to the charge, we will not reverse for jury-charge error unless the record shows Aegregious harm@ to the defendant. Id. A. Expert testimony In his first point of error, appellant contends a synergistic effect instruction cannot be included in the jury charge without expert testimony and agues the trial court abused its discretion by sua sponte qualifying him as an expert witness as to the synergistic effect of Effexor and alcohol. Appellant objected to the inclusion of the synergistic effects instruction at the charge conference by arguing it could not be included without expert testimony. In overruling appellant=s objection, the trial court stated appellant Atook the stand with his background in pharmaceutical sales [and] his acknowledgment of the contraindications on the literature and in the PDR that you=re not supposed to take this drug that he was taking with alcohol.@ The decision whether an expert witness is qualified to testify is a matter committed to the trial court=s discretion. DeLarue v. State, 102 S.W.3d 388, 395 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). Texas Rule of Evidence 702 governs the admissibility of expert testimony. See Tex. R. Evid. 702. Rule 702 provides a witness that is qualified as an expert by knowledge, skill, experience, training, or education may testify about that knowledge in the form of an opinion or otherwise if the scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Id. Appellant testified he is a sales representative for a pharmaceutical company and is aware that consumption of alcohol while taking Effexor is contraindicated. While appellant=s job as a pharmaceutical sales representative almost certainly requires some knowledge of the prescription medications he sells, there is nothing in the record establishing appellant was qualified as an expert by his knowledge, skill, experience, training, or education on the synergistic effect of Effexor and alcohol. Under these facts, appellant did not qualify as an expert witness regarding the synergistic effect of Effexor and alcohol, and we hold it was error for the trial court to rule otherwise. However, the trial court=s designation of appellant as an expert witness was harmless because appellant=s testimony was admissible and relevant as non-expert witness testimony regarding the warning provided with the Effexor. The jury was not misled into believing appellant was an expert witness because the jury was not present when the trial court determined appellant was an expert. As far as the jury knew, appellant was not considered an expert; therefore, the jury did not give undue weight and credibility to appellant=s testimony simply because he was designated as an expert. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 553 (Tex. 1995) (stating experts appear more credible than lay witnesses). Because appellant was not qualified as an expert witness concerning the synergistic effect of Effexor and alcohol, we must determine whether the trial court abused its discretion by including a synergistic effect instruction in the jury charge without expert testimony. Appellant argues the synergistic effect instruction only should be included in the jury charge when there is expert testimony. In support of this proposition, appellant relies on cases that do not discuss, review, or even appear to have a synergistic effect jury instruction. Instead, the cases appellant cites involve: (1) whether the trial court erred by allowing opinion testimony regarding whether someone was under the influence of drugs;[1] and (2) whether evidence was sufficient to prove Aintoxication.@[2] In this appeal, appellant does not bring sufficiency points of error, and there is no opinion testimony on the issue of whether appellant was under the influence of drugs. We are keenly aware the vast majority of cases that include a synergistic effect instruction in the jury charge had expert testimony regarding the synergistic effect of alcohol and the specific drug or chemical. See Gray v. State, 152 S.W.3d 125, 126B27 (Tex. Crim. App. 2004) (chemist); Sutton v. State, 899 S.W.2d 682, 684 (Tex. Crim. App. 1995) (plurality opinion) (forensic expert); Heard v. State, 665 S.W.2d 488, 489 (Tex. Crim. App. 1984) (doctor); Kessler v. State, 136 Tex. Crim. 340, 342, 125 S.W.2d 308, 309 (1938) (doctor); but see Williams v. State, No. 03-02-00751-CR, 2004 WL 34840, at *1B3 (Tex. App.CAustin, Jan. 8, 2004, no pet.) (not designated for publication) (affirming the use of a synergistic effect instruction where there was apparently no expert testimony about the drug=s synergism with alcohol). We do not believe the presence of experts in those cases establishes a bright-line rule requiring expert testimony to support the inclusion of a synergistic effect instruction in the jury charge. Moreover, in light of the warning label, any testimony by an expert regarding the synergistic effects of Effexor and alcohol would have constituted needless presentation of cumulative evidence as to the effect consumption of both substances has on an individual. See Tex. R. Evid. 403. We hold there was adequate evidence in this case establishing the synergistic effect between alcohol and the prescription drug Effexor to allow the synergistic effect instruction to be included in the jury charge. Officer Beavers, although not an expert, received training on the synergy between drugs and alcohol and has field experience with hundreds of individuals suspected of being intoxicated on both drugs and alcohol at the same time. Based on his training and experience, Officer Beavers testified without objection it would take less alcohol for an individual to lose the normal use of their mental or physical faculties if they were already under the influence of some type of drug or narcotic. Also included in the evidence is the warning label of the medication appellant claims he took on the evening of his arrest: ATHIS MEDICINE WILL ADD TO THE EFFECTS of alcohol and other depressants.@ Appellant testified he is a pharmaceutical representative and is aware consumption of alcohol while taking Effexor is contraindicated. Combining this evidence with appellant=s testimony that he took Effexor before he was arrested and his pre-trial statement that he consumed one beer before his arrest, the trial court properly submitted the synergistic effect instruction. Therefore, the trial court=s designation of appellant as an expert witness was harmless error because the jury did not give any undeserved weight and credibility to appellant=s testimony and there was sufficient evidence establishing the synergistic effect of Effexor and alcohol to allow the submission of the complained of instruction. Appellant=s first point of error is overruled. B. Statement of law not applicable to this case In his second point of error, appellant argues the trial court erred by including the synergistic effect instruction in the jury charge because the instruction was not a statement of law applicable to the case and misled or confused the jury. Specifically, appellant contends the Aincreased susceptibility to alcohol@ issue was not raised by the evidence since an expert did not testify to the synergistic interaction of combining alcohol with Effexor. The trial court must deliver to the jury a written charge setting forth the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2004). The applicable law in this case is section 49.01(2)(A) of the Texas Penal Code, which provides that a person may become intoxicated by way of: (1) alcohol, (2) a controlled substance, (3) a drug, (4) a dangerous drug, (5) a combination of two or more of those substances, or (6) any other substance into the body. See Tex. Pen. Code Ann. ' 49.01(2)(A) (Vernon 2003). Here, Officer Beavers testified he believed appellant was intoxicated through the consumption of alcohol. In rebuttal, appellant testified prescription medication made him impaired prior to his arrest. Thus, the evidence raised the issue of whether appellant was intoxicated through alcohol alone or alcohol combined with a prescription drug. After appellant presented evidence concerning his use of Effexor and evidence that Effexor adds to the effects of alcohol, the trial court was obligated to instruct the jury on the law as set out in Sutton. See Tex. Code Crim. Proc. Ann. art. 36.14; Sutton, 899 S.W.2d at 685 (holding synergistic effect instruction was warranted as law applicable to case when defendant introduced evidence that intoxication resulted from prescription drugs); Gray v. State, No. 01-02-00602-CR, 2003 WL 21357335, at *1B2 (Tex. App.CHouston [1st Dist.] June 12, 2003, pet. granted) (not designated for publication) (holding synergistic effect instruction was properly given as law applicable to the case), aff=d, 152 S.W.3d 125 (Tex. Crim. App. 2004). Furthermore, as discussed in the first point of error, expert testimony was not required because the drug warning label evidence concerning the synergistic effect was sufficient to support inclusion of the instruction. The synergistic effect instruction was applicable to the case and did not mislead or confuse the jury. We overrule appellant=s second point of error. C. Expansion on the State=s charging instrument In his third point of error, appellant argues the synergistic effect instruction allowed the jury to convict him on a theory not pled in the information, therefore lowering the State=s burden because an expert was not called to testify. This point of error is waived on appeal. Appellant=s brief does not cite authority, provide any argument for this proposition, or even refer to this issue under the heading APoints of Error One & Three.@ See Tex. R. App. P. 38.1(h). Thus, appellant=s third point of error is overruled. D. Comment on the weight of the evidence In his fourth point of error, appellant argues the synergistic effect instruction was in fact an improper comment on the weight of the evidence because the issue of increased susceptibility to alcohol had not been raised by the evidence. Contrary to appellant=s assertion, the synergistic effect instruction was not an improper comment on the weight of the evidence. The trial court was obligated to instruct the jury on the law of synergistic effect once appellant introduced evidence he had taken prescription medication. See Sutton, 899 S.W.2d at 685 (holding because defendant introduced evidence that intoxication resulted from prescription drugs, synergistic effect instruction was warranted as law applicable to case); Gray, 2003 WL 21357335, at *2 (holding synergistic effect instruction was not an improper comment on the weight of the evidence), aff=d, 152 S.W.3d 125 (Tex. Crim. App. 2004). Following Sutton, we conclude the court=s charge did not impermissibly comment on the weight of the evidence. Similarly, we have already held there was sufficient evidence to include the instruction without the requirement of expert witness testimony. Appellant=s fourth point of error is overruled. Conclusion Having overruled all of appellant=s points of error, we affirm the judgement of the trial court. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed October 18, 2005. Panel consists of Justices Yates, Anderson, and Hudson. (Yates, J., concurs in result only.) Do Not Publish C Tex. R. App. P. 47.2(b). [1] See Pointer v. State, 467 S.W.2d 426, 428 (Tex. Crim. App. 1971) (holding officer who observed the defendant was competent to form an opinion as to whether the defendant was under the influence of narcotics because officer had experience dealing with narcotics); Hudson v. State, 453 S.W.2d 147, 148 (Tex. Crim. App. 1970) (holding officer with many years of experience was qualified to testify as to his opinion that defendant was under the influence of drugs when the officer had dealt with many people in the defendant=s condition). [2] See Smithhart v. State, 503 S.W.2d 283, 285 (Tex. Crim. App. 1973). The trial court in Smithhart determined an officer with less than four months of experience was not qualified to give an opinion of whether defendant was under the influence of drugs, or whether taking Valium would influence the defendant=s driving. Id. The Court of Criminal Appeals held the circumstantial evidence was insufficient to prove intoxication while under the influence of drugs when the only evidence to support the conviction was the officer=s testimony that: (1) defendant=s speech was incoherent and his eyes were glassy; (2) the point of impact of the accident was two feet from the center strip of the highway in the inside lane; (3) the defendant had just come from the doctor=s office; (4) the defendant told an officer he was taking Valium and had been drinking vodka that morning; and (5) the defendant possessed an empty prescription bottle. Id. at 285B86. See also Payne v. State, No. 12-02-00312-CR, 2003 WL 22047776, at *8 (Tex. App.CTyler, Aug. 29, 2003, pet. ref=d) (not designated for publication) (holding the evidence was sufficient to prove intoxication by any means when: (1) the defendant admitted drinking one beer; (2) the defendant=s demeanor and performance on the field sobriety tests indicated intoxication; and (3) expert testimony connected the defendant=s symptoms observed by the officers to the drugs she had taken).