Opinion filed April 29, 2016




                                      In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-14-00147-CR
                                    __________

                      BURT LEE BURNETT, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                     On Appeal from the County Court at Law
                               Taylor County, Texas
                           Trial Court Cause No. 1-662-13


                                   OPINION
       The jury convicted Appellant of driving while intoxicated and of unlawfully
carrying a weapon. See TEX. PENAL CODE ANN. §§ 46.02(a), 49.04 (West Supp.
2015). The trial court assessed Appellant’s punishment at 120 days in county jail
for each conviction. The court suspended each sentence and placed Appellant on
community supervision for a term of eighteen months. The court also assessed a
fine in the amount of $2,000. We reverse and remand.1
        Appellant presents two issues for our review. In his first issue, Appellant
argues that the trial court erred when it admitted evidence regarding Appellant’s
possession of painkillers. Appellant asserts in his second issue that the trial court
erred when it instructed the jury that it could convict Appellant for driving while
intoxicated if it found that Appellant was intoxicated by reason of the introduction
of drugs into his system. Both of these arguments center on Appellant’s contention
that there was no evidence that the painkillers contributed to Appellant’s
intoxication.
        The facts of this case are quite simple. Appellant rear-ended a vehicle, and
the accident rendered Appellant’s vehicle inoperable.                                Abilene Police
Officer Clinton Lance Coapland arrived on the scene to investigate the accident.
After noticing that Appellant had slurred speech and after smelling alcohol on
Appellant’s breath, Officer Coapland began a DWI investigation in which he
administered field sobriety tests. Based on the results of the field sobriety tests,
Officer Coapland believed that Appellant was intoxicated.                          Officer Coapland
arrested Appellant and searched his person. He found twenty white pills and one
blue pill in Appellant’s jacket pocket. Officer William Jacob Allred assisted in the
accident investigation, and he found pills and a pill bottle in Appellant’s vehicle.
The officers did not take the pill bottle into evidence.



        1
         On appeal, Appellant prays that we reverse his convictions for driving while intoxicated and for
unlawfully carrying a weapon. Although Appellant does not raise a specific issue as to his conviction for
unlawfully carrying a weapon, the State charged Appellant with committing that offense by carrying a
handgun while he was engaged in the criminal activity of driving while intoxicated. The jury was instructed
to proceed to determine whether Appellant was guilty of unlawfully carrying a weapon if it first found that
Appellant was guilty of driving while intoxicated. This case has but one judgment for both counts and
convictions.

                                                    2
      The State charged Appellant with driving and operating a motor vehicle in a
public place “while intoxicated by not having the normal use of his mental and
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, and any
other substance into his body.” Appellant objected prior to trial to the officers
testifying as to what type of pills were found in Appellant’s pocket and car because
the officers were not experts in drug recognition. The trial court agreed that the
officers should not speculate as to what type of pills were found. The court sustained
Appellant’s objection and granted a motion in limine as to that issue.
      The parties continued to discuss the issue before the trial began. During the
discussion, the State informed the trial court that the video of the incident depicted
Appellant and the officers discussing the pills. The trial court asked to see the
exchange between Appellant and the officers.              The video showed that
Officer Coapland found the pills in Appellant’s jacket and handed them to
Officer Allred, who examined them. Officer Allred said that they looked like
hydrocodone and asked Appellant whether he had a prescription for them. Appellant
responded, “Yes.” After the court reviewed the relevant portions of the video, the
State offered the evidence of the pills as same transaction contextual evidence.
Appellant’s trial counsel agreed that the State did not have to present its case in a
vacuum; however, under the facts of this case, trial counsel argued that admitting
evidence of possession of the pills would be substantially more prejudicial than
probative where the State had no evidence to show that the pills were actually in
Appellant’s system. The trial court ruled that the evidence was admissible as same
transaction contextual evidence. In light of the trial court’s ruling, Appellant’s
counsel also objected under TEX. R. EVID. 403, 702, and 703. He further objected
that the admission of the evidence would violate Appellant’s right to due process,


                                          3
right to a fair trial, right to due course of law, and right of confrontation. The trial
court overruled these additional objections.
      In Appellant’s first issue, he asserts that the trial court erred when it admitted
evidence that he possessed the pills. The State argues that Appellant waived this
complaint because he opened the door to the admissibility of the evidence when, in
his opening statement, defense counsel told the jury about the officers finding the
pills. Appellant responds that the trial court ruled on the admissibility of the
evidence in a pretrial hearing and that he was permitted to refer to the evidence “in
an effort to meet, rebut, destroy, deny or explain the improperly admitted evidence.”
See Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993) (op. on reh’g). The
State contends that, even though it is true that the trial court had ruled on the
admissibility of the evidence, it later limited the amount of the evidence the State
was allowed to present. We do not see in the record where the trial court limited the
admissibility of evidence about the pills. The prosecutor asked if she could make
sure that the police officer did not identify the pills as hydrocodone, but the trial
court never changed its final pretrial ruling in which it overruled all of Appellant’s
objections to the admissibility of the pills in general and to the identification of the
pills in the video. Regardless of whether Officer Coapland was allowed to identify
the pills, the trial court allowed the jury to watch the video in which Officer Allred
identified the pills. Therefore, because the admissibility of the evidence had already
been decided by the trial court, we cannot say that Appellant, during opening
statements, opened the door to the admissibility of evidence regarding the pills.
      As Appellant explains in his brief, “error is not waived when the evidence is
brought in later in an effort to meet, rebut, destroy, deny or explain the improperly
admitted evidence.” Id. Here, defense counsel was explaining that Appellant had a
prescription for the pills due to a back injury and that Appellant had the pills in his
pocket because the pill bottle stuck out of his pocket and was uncomfortable.
                                           4
Defense counsel also told the jury that it would hear how Officer Coapland was
unsure whether Appellant had been drinking but that Officer Coapland believed that
Appellant may have been intoxicated by the pills. Defense counsel did not discuss
the pills in front of the jury until after the trial court had already ruled that the
evidence was admissible. If defense counsel had simply told the jury that the officers
found hydrocodone in Appellant’s pocket without explaining to the jury why
Appellant had it in his pocket, waiver might apply. However, under the facts of this
case, we cannot say that Appellant waived error. While defense counsel’s emphasis
on the pills throughout the trial may be relevant to a harm analysis, it does not show
that Appellant has waived his complaint for our review.
      During the discussions about the admissibility of evidence regarding the pills,
the trial court explained that it was concerned that the evidence was not relevant to
the charged offense of intoxication without some evidence that the drugs were in
Appellant’s system. We note that the type of intoxicant is not an element of driving
while intoxicated but that, instead, it is an evidentiary matter. See Gray v. State, 152
S.W.3d 125, 132 (Tex. Crim. App. 2004) (holding that the substance that causes
intoxication is not an element of the offense of DWI; “[i]nstead, it is an evidentiary
matter”). We also note that when the State seeks to prove intoxication by the
introduction of drugs or a controlled substance, its evidence must be supported by
expert testimony that is relevant and reliable. See Kaleta v. State, No. 11-02-00142-
CR, 2003 WL 1571583, at *3–4 (Tex. App.—Eastland Mar. 27, 2003, pet. ref’d)
(not designated for publication) (relying on and quoting Smithhart v. State, 503
S.W.2d 283, 286 (Tex. Crim. App. 1973), for the proposition that expert testimony
is required to show intoxication by drugs or a controlled substance; “[u]nlike
alcoholic intoxication, which is ‘of such common occurrence’ that its recognition
requires no expertise . . . , this court is unable to say that such is the case with being
under the influence of drugs”); see also Kelly v. State, 824 S.W.2d 568, 572 (Tex.
                                            5
Crim. App. 1992) (expert testimony must be relevant and reliable to be admissible).
Ultimately, the trial court determined that evidence related to possession of the pills
was admissible as same transaction contextual evidence, a type of background
evidence that can be admitted under certain circumstances. See Rogers, 853 S.W.2d
at 33 (“same transaction contextual evidence” is one of two types of background
evidence). Because the trial court admitted the evidence as same transaction
contextual evidence, we will first determine whether admission under such
reasoning was in error.
      We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1991) (op. on reh’g). We will reverse a trial court’s ruling only if it is outside the
“zone of reasonable disagreement.” Id. When determining the admissibility of
background evidence, we use a two-part test. Rogers, 853 S.W.2d at 32. First, we
must look to whether the evidence is relevant under Rule 401. Id. If the evidence is
relevant, we next look to whether the evidence is admissible under an exception to
Rule 404(b). Id.
      Rule 401 provides that evidence is relevant if it “has any tendency to make a
fact more or less probable than it would be without the evidence” and if “the fact is
of consequence in determining the action.” TEX. R. EVID. 401. We do not see how
evidence of prescription pills at the scene of the offense has any tendency to make
the existence of Appellant’s intoxication more or less probable when there is no
evidence to show that Appellant took any of the pills, that the pills were of a type
that would have had an intoxicating effect on Appellant (or even what the side effects
of the pills were in general), or that he was intoxicated as a result of taking the pills.
See, e.g., Everitt v. State, 407 S.W.3d 259, 263 (Tex. Crim. App. 2013) (citing
Layton v. State, 280 S.W.3d 235, 242 (Tex. Crim. App. 2009)) (“Our holding in
Layton makes clear that a defendant’s admission to taking drugs is relevant to show
                                            6
intoxication only with competent testimony as to the effect of the drug on the
defendant.”). The prescription bottle itself was not collected for evidence, nor was
it admitted into evidence at trial.2 Although defense counsel told the jury that it
could assume that Appellant was taking the medicine according to his prescription,
the jury had no evidence before it to show when or how often Appellant was
supposed to take the medicine or to show that he actually did take it and that it
contributed to his intoxication. Officer Coapland told the jury that, when he found
the twenty white pills and one blue pill wrapped up in a “make-shift baggie” in
Appellant’s jacket pocket, he thought, “[W]ow, this could have been what he’s more
intoxicated on.” The prosecutor asked, “And is that what you’re referring to? Is that
-- maybe it wasn’t only --”; Officer Coapland responded, “Right.” However, defense
counsel objected to this testimony on the grounds that it was conjecture and
speculation. The State agreed, and the trial court instructed the prosecutor to restate
her question. Although there was no request for the jury to disregard this testimony,
the speculative testimony was unreliable and irrelevant. See Acevedo v. State, 255
S.W.3d 162, 169 (Tex. App.—San Antonio 2008, pet. ref’d) (concluding that
expert’s testimony was “merely speculative and, thus unreliable and irrelevant”).
Furthermore, Officer Coapland later clarified that, based on the tests that he
performed and based on the fact that he was not certified to detect drug impairment,
there was no evidence that Appellant was intoxicated on anything but alcohol.
        Even if we assumed that the evidence related to the pills was relevant, it was
not admissible as an exception to Rule 404(b) under the facts of this case.
Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular


        2
         Defense counsel attempted to discuss the information contained on the prescription bottle with
Officer Allred; however, the State objected to its admission on hearsay grounds, and the trial court sustained
the objection.

                                                      7
occasion the person acted in accordance with the character.”          TEX. R. EVID.
404(b)(1). The rule further provides that evidence may be admissible for other
purposes, “such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”         Id. 404(b)(2).
Extraneous offense evidence may be admissible for purposes other than those
expressly listed, such as when the evidence is found to be same transaction
contextual evidence. Rogers, 853 S.W.2d at 33; Montgomery, 810 S.W.2d at 388.
Same transaction contextual evidence is evidence of other offenses connected with
the primary offense. Rogers, 853 S.W.2d at 33 (citing Mayes v. State, 816 S.W.2d
79, 86–87 (Tex. Crim. App. 1991)). Such evidence is admissible as an exception
under Rule 404(b) where the evidence is necessary to the jury’s understanding of the
instant offense. Id. The jury is entitled to know what happened immediately before
and after the commission of the charged offense so that it may realistically evaluate
the evidence. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). As
both parties have instructed, offenses do not occur in a vacuum. See id. “[E]vidence
of extraneous offenses that are indivisibly connected to the charged offense and
necessary to the State’s case in proving the charged offense may be admissible as
relevant evidence to explain the context of the offense for which the defendant is on
trial.” Lockhart v. State, 847 S.W.2d 568, 571 (Tex. Crim. App. 1992).
      First, we are not convinced that Appellant’s possession of the pills is evidence
of another offense in this case. The Texas Health and Safety Code provides that a
person commits an offense if the person possesses hydrocodone without obtaining
the drug from a pharmacist by a prescription. See TEX. HEALTH & SAFETY CODE
ANN. §§ 481.102(3)(A), 481.115(a), 481.117(a) (West 2010), § 481.104(a)(4) (West
Supp. 2015). Here, the trial court allowed the pills to be identified as hydrocodone
because Officer Allred said they looked like hydrocodone and asked Appellant
whether he had a prescription for them. Appellant responded, “Yes.” At oral
                                          8
argument, the State represented that it was illegal to carry prescribed medications
outside of its original container as it was delivered by the pharmacist. We have not
been able to locate such a law. Based on the representations in the trial court and on
the representations during oral argument, it appears that everyone agreed that
Appellant had a prescription for the hydrocodone but that the pills were not in the
prescription bottle at the time of his arrest. We note that the officers also found a
blue pill. We have assumed that the white pills were hydrocodone; however, the
evidence does not confirm that. And the evidence sheds no light on the identity of
the blue pill. Without further knowledge of the identity of the pills it is impossible
to know whether Appellant was committing an offense.
      Second, even if Appellant’s possession of the pills was unlawful and
constituted a separate offense, this is not a case in which the evidence related to the
pills is necessary to the jury’s understanding of the instant offense. This was not a
crime spree in which multiple offenses occurred in a short amount of time or in
which one offense occurred to further another offense, such as committing theft in
order to purchase and possess more drugs. This was a simple case in which the jury
was required to determine whether Appellant was driving while intoxicated. We
cannot say that evidence of the pills was so intertwined with the charged offense that
it was necessary to explain the context of the DWI. Under the facts of this case,
evidence related to the pills could only be necessary to the jury’s understanding of
the instant offense if there was evidence that Appellant’s intoxication was caused
from ingesting the pills. As we have discussed, there is no such evidence. Therefore,
the trial court abused its discretion when it admitted the pills and evidence related to
the pills as same transaction contextual evidence.
      The State argues that, even if the evidence was not admissible under the
reasoning used by the trial court, the evidence was admissible “because it was
indicative of the definition of intoxication.” The State asserts that it is not required
                                           9
to prove the intoxicant that caused Appellant’s intoxication. See Gray, 152 S.W.3d
at 132 (holding that the substance that causes intoxication is not an element of the
offense of DWI). As we have stated, we agree that the State is not required to allege
and prove a particular intoxicant. But, the fact that the specific intoxicant is not an
element of the offense does not give the State free reign to introduce possible
intoxicants found at the scene in order to show intoxication when the State does not
link the possible intoxicant to the defendant’s intoxicated state by competent expert
testimony. Compare Delane v. State, 369 S.W.3d 412, 422, 424 (Tex. App.—
Houston [1st Dist.] 2012, pet. ref’d) (holding admission of officer’s testimony
regarding medications and their effects on defendant was reversible error when
officer admitted that he was not a drug recognition expert and the evidence showed
that he did have the requisite knowledge, training, or experience to testify about the
medications), with Everitt v. State, No. 01-10-00504-CR, 2014 WL 586100, at *6
(Tex. App.—Houston [1st Dist.] Feb. 13, 2014, no pet.) (mem. op. on remand, not
designated for publication) (“Officer LaSalle’s testimony that Everitt showed signs
of impairment consistent with the use of hydrocodone supplied a logical connection
between Everitt’s admitted use of hydrocodone and his driving. As such, this
testimony was relevant.”), and Armstrong v. State, No. 05-10-01214-CR, 2012 WL
864778, at *2 (Tex. App.—Dallas Mar. 15, 2012, no pet.) (not designated for
publication) (trial court did not abuse its discretion when it admitted opinion
testimony of officer regarding whether ingestion of Xanax caused intoxication where
State established that officer was a qualified drug recognition expert). We recognize
that intoxication by alcohol “is ‘of such common occurrence’ that its recognition
requires no expertise.” Smithhart, 503 S.W.2d at 286 (quoting Inness v. State, 293
S.W. 821, 822 (Tex. Crim App. 1926)). However, when the State offers evidence
of a substance that could cause a person to become intoxicated, it must do so with
more than mere speculation. As we have stated, merely speculative testimony is
                                          10
unreliable and irrelevant. Acevedo, 255 S.W.3d at 169 (concluding that expert’s
testimony regarding the hypothetical effects of methamphetamine was merely
speculative because he did not know any of the particular facts of the case, such as
how much, or precisely what, the defendant ingested and when he ingested it).
      Furthermore, even if the fact that pills were found in Appellant’s pocket was
relevant to show intoxication, we are not convinced that the State properly identified
the pills prior to admission. Initially, the trial court sustained defense counsel’s
objection that the officers could not testify as to what type of pills were found in
Appellant’s pocket and car because the officers were not experts in drug recognition.
Defense counsel’s objections were based on Rules 702 and 703 of the Texas Rules
of Evidence, which govern the admissibility of expert testimony. After further
discussion, the trial court determined that the pills were admissible because
Appellant, himself, acknowledged that he had a prescription for the pills after
Officer Allred said that they looked like hydrocodone. It is clear from the evidence
that there were at least two types of pills found at the scene; white pills and a blue
pill. As we have explained, we have assumed that “hydrocodone” was used in
reference to the white pills; however, there is no evidence that establishes which pills
were hydrocodone, whether all the white pills were hydrocodone, or whether the
blue pill was hydrocodone or some other type of drug. The State did not show that
the officers were qualified to identify the pills, nor did the State present any evidence
as to the chemical makeup of the pills. Therefore, the evidence related to the pills
was also inadmissible because the State failed to properly identify the types of pills
that Appellant possessed. See Stewart v. State, 718 S.W.2d 286, 289 (Tex. Crim.
App. 1986) (the identity of a controlled substance is generally determined by
chemical analysis).
      Having determined that the trial court erred, we must now determine whether
the error is reversible under TEX. R. APP. P. 44.2(b), which applies to
                                           11
nonconstitutional errors. Pursuant to Rule 44.2(b), an error is not reversible error
unless it affects a substantial right of the defendant. A substantial right is affected
when the error has a substantial and injurious effect or influence in determining the
jury’s verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001); King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). An accused’s substantial rights
are not affected by the erroneous admission of evidence if the court, after examining
the record as a whole, has fair assurance that the error did not influence the jury or
had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
1998). One of the things that we consider, in examining the record as a whole, is the
jury charge instruction given by the trial court. See Motilla v. State, 78 S.W.3d 352,
355 (Tex. Crim. App. 2002) (listing jury instructions as one area of the record that
the appellate court should consider when conducting a harm analysis). Because
Appellant’s second issue alleges that the trial court erred when it included the full
definition of “intoxication” in the jury charge, we will first address whether such an
instruction was error.
      Appellant argues in his second issue that the trial court erred when it instructed
the jury that it could convict Appellant for driving while intoxicated if it found that
Appellant was intoxicated by reason of the introduction of drugs into his system.
Appellant contends that, because there was no evidence that Appellant’s intoxication
was caused by anything other than alcohol, the trial court should have limited the
definition of intoxication in the jury charge. The State responds that the jury charge
tracked the language of the indictment and the statutory definition of “intoxicated”;
therefore, the trial court did not err when it included the full definition of
“intoxicated” in the charge.
      The State is correct in that the jury charge tracked the language of the
indictment and of the statutory definition of “intoxicated.” The charge instructed
the jury that “intoxicated” meant “the person does not have the normal use of his or
                                          12
her mental or physical faculties because of taking into his or her body alcohol, drugs,
a controlled substance, or a combination of those, or any other substance.” The
application paragraph instructed the jury that it should find Appellant guilty if it
found that he was driving in a public space “while intoxicated by not having the
normal use of his 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 his body.”
       Appellant’s trial counsel objected to the inclusion of the full definition of
intoxication in the jury charge and argued that the definition should have been
limited to alcohol consumption. Counsel requested that the definition in the charge
not include the language: “drugs, a controlled substance, or a combination of those
or any other substance.” Counsel also requested that the language, “a controlled
substance, a drug, a dangerous drug, or a combination of two or more of those
substances, or any other substance into his body” be removed from the application
paragraph. The trial court overruled Appellant’s objections.
       The trial court is responsible for instructing the jury on the law applicable to
the case. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). “It is not enough
for the charge to merely incorporate the allegation in the charging instrument.
Instead, it must also apply the law to the facts adduced at trial.” Gray, 152 S.W.3d
at 127. “Jury charges which fail to apply the law to the facts adduced at trial are
erroneous.” Id. at 128. The Court of Criminal Appeals has suggested that it could
be error to include the full definition of intoxication if there is no evidence to show
intoxication by means other than alcohol. See Ouellette v. State, 353 S.W.3d 868,
870 (Tex. Crim. App. 2011) (“[W]hen only a portion of the statutory definition is
relevant to the elements of the offense, giving the whole statutory definition may be
error.”).


                                          13
      The court in Ouellette did not have to reach this question, however, because
the officer testified that Soma, one of the types of prescription pills the officer found
in the defendant’s car, was a central nervous system depressant that was capable of
causing the horizontal-gaze nystagmus that he observed during the field sobriety
tests. Id. at 869–70. The court explained that the officer’s testimony provided
evidence from which a rational juror could have found that the defendant consumed
the drug and that the drug caused the defendant’s intoxication. Id. at 870. The
arresting officer also testified that the defendant’s breath smelled of alcohol and that
she told him that she had drunk a glass of wine earlier in the evening. Id. at 869.
The court concluded that the jury charge, which included the full definition of
intoxication, reflected the law as it applied to the evidence produced at trial. Id. at
869–70.
      As we have discussed, in the case before us, there is no competent testimony
upon which a rational juror could have found that Appellant consumed hydrocodone
and that such consumption contributed to his intoxication. See Hooper v. State, 214
S.W.3d 9, 15–16 (Tex. Crim. App. 2007) (“juries are not permitted to come to
conclusions based on mere speculation or factually unsupported inferences or
presumptions”; “[a] conclusion reached by speculation . . . is not sufficiently based
on facts or evidence to support a finding beyond a reasonable doubt”). Because only
a portion of the statutory definition is relevant to the facts of this case, we hold that
the trial court erred when it included the whole definition of intoxication in both the
definition section and application paragraph of the jury charge.
      Having found that the trial court erred, we must now determine whether the
error was harmful. A properly preserved error in the jury charge requires reversal if
the error was calculated to injure the rights of the defendant, meaning that reversal
is required if the accused suffered some harm from the error. CRIM. PROC. art. 36.19
(West 2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The
                                           14
actual degree of harm caused by the error must be determined in light of the entire
jury charge; the state of the evidence, including the contested issues and the weight
of the probative evidence; the argument of counsel; and any other relevant
information revealed by the record. Almanza, 686 S.W.2d at 171. We note that the
standard for reviewing jury charge error is different than the standard for reviewing
nonconstitutional errors, such as admissibility errors, under Rule 44.2(b). Pursuant
to Rule 44.2(b), an error is not reversible error unless it has a substantial and
injurious effect or influence in determining the jury’s verdict. Johnson, 43 S.W.3d
at 4; King, 953 S.W.2d at 271. We will first address whether Appellant suffered
some harm under Almanza.
      The parties in this case did not discuss the pills during voir dire. As we have
highlighted, defense counsel brought up the issue of the pills during opening
statements and explained to the jury that Appellant had a prescription for the pills.
The State did not mention the pills during its opening statement; however, the State
did play the entire video for the jury, which showed that Officer Coapland found the
pills and which showed the discussions between the officers and Appellant about the
pills. The State also introduced the actual pills into evidence.
      When Officer Coapland testified before the jury, he explained that he was
trained “just to identify nystagmuses if they are caused by alcohol.” The prosecutor
asked, “And what did you believe that intoxication was due to?” Officer Coapland
responded, “I knew that he didn’t have his mental and physical faculties. And the
way we’re trained is off of an alcoholic beverage.” However, Officer Coapland also
told the jury that, when he found the twenty white pills and one blue pill wrapped up
in a “make-shift baggie” in Appellant’s jacket pocket, he thought, “[W]ow, this
could have been what he’s more intoxicated on.”           During cross-examination,
Officer Coapland agreed that he had not received any advanced training on drug
recognition and that he was not qualified to recognize impairment due to anything
                                          15
other than alcohol. He also agreed that he was not qualified to examine a pill and
identify its type. Officer Coapland further agreed that, based on the tests that he
performed and based on the fact that he was not certified to detect drug impairment,
there was no evidence that Appellant was intoxicated on anything but alcohol.
Officer Coapland did not mention in his report that Appellant had a prescription for
the pills, nor did he take pictures of the pill bottle that was found by Officer Allred.
      Officer Allred briefly testified about the pills. He initially told the jury that
there was not a bottle of pills in the car, only that there were loose white pills in a
satchel. Officer Allred subsequently testified that he did see a prescription bottle in
the car but it was not in the satchel. Officer Allred did not take the pill bottle into
evidence.
      In addition to the several discussions regarding the pills during the officers’
testimony, defense counsel also elicited testimony from Officer Coapland about all
of the things that Appellant did during the investigation that showed behavior that
was consistent with being sober. Officer Coapland agreed that Appellant only
slurred twice and that usually people who are intoxicated slur during the entire
conversation. He also agreed that Appellant was able to get out of the car, hand over
his driver’s license, walk across the street, and provide personal information without
any problems. Officer Coapland further testified that Appellant did not have blood
shot or watery eyes, he had not soiled his clothes, and he did not use abusive
language.
      The State briefly discussed the pills in its closing argument. The prosecutor
said, “[Y]ou can’t consider that there wasn’t a pill bottle taken into evidence. You
can consider, (indicating), somewhere, there are pills in evidence.” She continued,
“You heard the officer. He found a pill bottle. It might have been . . . for
hydrocodone. He has no idea how many pills were in there, what the dosage was.
Those are things we don’t know and you can’t consider it.” The prosecutor reminded
                                           16
the jury of the officer’s testimony regarding his administration of the field sobriety
tests and regarding his belief that Appellant was intoxicated based on Appellant’s
performance of the tests. Specifically, she told the jury, “You heard him say, ‘After
I found the pills, I didn’t know what it was from.’ He believed him to be intoxicated.
He had lost the normal use of mental or physical faculties.” The prosecutor also told
the jury the definition of intoxication as it was defined in the charge.
      Defense counsel discussed the pills during its closing argument as well.
Counsel highlighted that Appellant had a prescription for the pills and specifically
said, “You could assume that he was taking his medication as prescribed. But that
did not cause him to be intoxicated. There is nothing that prevents one from taking
that kind of a medication and driving.”            Counsel reminded the jury that
Officer Coapland had testified that there was no evidence that the intoxication was
due to anything other than alcohol and that, even if Appellant had taken the pills and
was under the influence of those pills, the clues that he observed did not show that
Appellant was under the influence of the pills. Counsel emphasized that “it’s clear
that he was not under the influence of alcohol or hydrocodone to the degree that he
would have lost his normal mental or physical faculties.”
      Our review of the record shows that both defense counsel and the State
emphasized the possession of the pills in this case. Evidence related to the pills was
intertwined throughout the trial, and the State implied in its closing argument that
Appellant could have been intoxicated due to the pills. Although we recognize that
defense counsel made it very clear to the jury that there was no evidence of
intoxication based on the pills, the jury still had evidence related to the pills before
it. Because the pills became an integral part of this case and because the jury was
permitted to find Appellant guilty of intoxication based on the introduction of pills
into his system, we find that the jury charge error in this case caused the accused to
suffer some harm. Having found that Appellant suffered some harm under Almanza,
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it is not necessary for us to address whether the improper admission of the pills was
harmful error under Rule 44.2(b). See TEX. R. APP. P. 47.1.
      We reverse the judgment of the trial court and remand this cause to the trial
court for further proceedings not inconsistent with this opinion.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


April 29, 2016
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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