                                                                                   ACCEPTED
                                                                               06-15-00126-CR
                                                                    SIXTH COURT OF APPEALS
                                                                          TEXARKANA, TEXAS
                                                                         11/17/2015 4:10:41 PM
                                                                              DEBBIE AUTREY
                                                                                        CLERK

                            IN THE
                      COURT OF APPEALS
                           FOR THE                            FILED IN
                                                       6th COURT OF APPEALS
                   SIXTH DISTRICT OF TEXAS               TEXARKANA, TEXAS
                    AT TEXARKANA, TEXAS                11/17/2015 4:10:41 PM
                                                            DEBBIE AUTREY
                                                                Clerk

MARTHA ARACELY RICHTER,            §
                                   §
     APPELLANT                     §
                                   §
V.                                 §                 NO. 06-15-00126-CR
                                   §
THE STATE OF TEXAS,                §
                                   §
     APPELLEE                      §

                         On appeal from the
           County Court at Law No. 2 of Ellis County, Texas
              Honorable A. Gene Calvert, Jr., Presiding
                Trial Court Cause No. 1411631-CR

                 BRIEF OF THE STATE OF TEXAS


                PATRICK M. WILSON
                COUNTY AND DISTRICT ATTORNEY
                STATE BAR NO. 90001783

                RYAN D. MARTIN
                ASSISTANT COUNTY AND DISTRICT ATTORNEY
                STATE BAR NO. 24086522

                109 S. JACKSON
                WAXAHACHIE, TEXAS 75165
                PHONE: 972-825-5035
                FAX: 972-825-5047

             ATTORNEYS FOR THE STATE OF TEXAS
      ORAL ARGUMENT ONLY IF REQUESTED BY APPELLANT
                     IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Texas Rule of Appellate Procedure 38.1(a), a complete list of the

names of all interested parties is provided below so the members of this Honorable

Court may at once determine whether they are disqualified to serve or should recuse

themselves from participating in the decision of the case.

      Counsel for the State:

             Patrick M. Wilson--County and District Attorney of Ellis County
             Ellis County Courts Building
             109 S. Jackson
             Waxahachie, Texas 75165

             Ryan D. Martin--Assistant County and District Attorney on appeal

             Ryan Martin, Lindy Beaty--Assistant County and District Attorneys
             at trial

      Appellant or criminal defendant:

             Martha Aracely Richter

      Counsel for appellant:

             Julissa Martinez--counsel on appeal and at trial

      Trial judge:

             Hon. A. Gene Calvert, Jr.--Judge of the County Court at Law No. 2




                                         ii
                           TABLE OF CONTENTS
                                                                             Page

STATEMENT REGARDING ORAL ARGUMENT                                               i


IDENTIFICATION OF THE PARTIES                                                  ii


INDEX OF AUTHORITIES                                                           iv


STATEMENT OF THE CASE                                                          1


STATEMENT OF FACTS                                                             1


SUMMARY OF THE ARGUMENT                                                       10


STATE'S REPLY TO ISSUE THREE                                                  11
    The evidence is legally sufficient to support a conviction for DWI.

STATE'S REPLY TO ISSUE ONE                                                    13
    The trial court did not abuse its discretion when it allowed testimony
    from Trooper Craig Henry as an expert witness, or any error was
    harmless.

STATE’S REPLY TO ISSUE TWO                                                    18
    The Trial Court did not err in admitting certain statements, or any
    error was harmless.

CONCLUSION AND PRAYER                                                         25

CERTIFICATE OF COMPLIANCE                                                     25

CERTIFICATE OF SERVICE                                                        26


                                       iii
                            INDEX OF AUTHORITIES

CASES                                                                       Page

U.S.
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979)                       11

Texas
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)                         11

Cardenas v. State, 30 S.W. 3d 384 (Tex. Crim. App. 2000)                       13

Davis v. State, 313 S.W. 3d 317 (Tex. Crim App. 2010)                          15

DeLeon v. State, 937 S.W.2d 129 (Tex. App.–Waco 1996, pet. ref’d)              11

Fowler v. State, 958 S.W.2d 853 (Tex. App.–Waco 1997),
     aff’d, 991 S.W.2d 258 (Tex. Crim. App. 1999)                          15, 19

Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998)                    16, 20

Kelly v. State, 824 S.w.2d 568 (Tex. Crim. App. 1992)                  14, 15, 17

King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)                15, 16, 19, 20

Moreno v. State, 858 S.W.2d 453, (Tex. Crim. App.),
     cert. denied, 510 U.S. 966 (1993)                                         19

Murphy v. State, 4 S.W.3d 926 (Tex. App.–Waco 1999, pet. ref’d)                11

Penry v. State, 903 S.W. 2d 715 (Tex. Crim. App. 1995)                         15

Rodgers v. State, 205 S.W. 3d 525 (Tex. Crim. App. 2006)                   15, 17

Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990)                         19

Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992)                          19



                                             iv
STATUTES

Tex. Penal Code § 49.01 (West 2011).           12

Tex. Penal Code § 49.04 (West Supp. 2014)      12

RULES

Tex. R. Evid. 401                           14, 15

Tex. R. Evid. 702                           14, 15

Tex. R. Evid 801                            19, 22

Tex. R. Evid 802                               19

Tex. R. Evid 803                               23




                                       v
TO THE HONORABLE COURT OF APPEALS:


                         STATEMENT OF THE CASE

      Appellant, Martha Aracely Richter, was charged by information with the

offense of Driving While Intoxicated, a Class B Misdemeanor, to which Appellant

pleaded not guilty. (RR II at 7-8). Appellant waived her right to a jury trial, and a

trial was held before the Honorable Judge A. Gene Calvert, Jr. (RR II at 7-8).

Following the trial, the court found appellant guilty of the offense charged in the

information and assessed punishment at 180 days in jail, suspended for two years of

probation, and a $300 dollar fine. (RR III at 118, 132-136).

                            STATEMENT OF FACTS

      The State challenges all statements made by appellant regarding the facts and

record of the case and submits the following account of the facts.

State’s Evidence

      Around 4:07 in the morning on February 14, 2014, Sergeant Gilbert Ruiz with

the Palmer Police Department responded to a 911 call about a wreck on I-45. (RR II

at 15-16). Ruiz noticed a car between the guardrail and the protective cable that was

facing the opposite way of traffic. (RR II at 16). Ruiz made contact with Martha

Aracely Richter, appellant, who was sitting in the driver’s seat of the wrecked

vehicle. (RR II at 18). Appellant was very disoriented, and she had slurred speech


                                          1
and glassy eyes. (RR II at 19). Ruiz did not smell any alcohol at this point and began

to suspect appellant might be on some type of drug. (RR II at 19). Appellant

continued to tell Ruiz that she was in Wylie, Texas, and had no idea she was actually

in Palmer. (See State’s Ex. No. 7). Appellant was checked out by the medical staff

on scene and cleared before any type of tests were performed. (RR II at 20).

      While being checked out by the medical staff, appellant complained that she

was very depressed; but she never complained about any type of head injury or her

head hurting. (RR II at 21). Appellant said she had some prescription medication in

her purse, and Ruiz found Codeine, Celexa, and Lioresal in appellant’s purse. (RR

II at 22). Appellant admitted to Ruiz and the medical staff that she had taken “some

pills,” but they never got a straight forward answer about how many pills were taken,

or when they were taken. (RR II at 24). When Ruiz began to conduct the Horizontal

Gaze Nystagmus (HGN) portion of the Standardized Field Sobriety Tests (SFST),

appellant’s eyes would cross and then close, as if she were falling asleep. (RR II at

26). Appellant displayed six clues on the HGN test. (RR II at 69). On the second

test, the walk and turn, appellant performed “horrible.” (RR II at 28). Appellant was

not able to walk a straight line, and the only portion of the test appellant did not fail

was that she did not start too soon. (RR II at 28-29). During the one leg stand test,

appellant swayed, used arms for balance, and put her foot down before the tests were

stopped for her safety. (RR II at 29).

                                            2
      Based on appellant’s performance on the SFST, as well as her admission to

taking some prescription pills, Ruiz believed that appellant had lost the normal use

of her mental and physical faculties due to the introduction of drugs into her system.

(RR II at 30). Ruiz did not arrest the appellant that night, but rather let her choose

whether to go to jail or go to the hospital to get help. (RR II at 31). Appellant chose

to get medical attention and eventually left with the ambulance that night. (RR II at

31). Ruiz stated he knew he could get a search warrant for appellant’s medical

records at a later time. (RR II at 31).

      When Ruiz showed up on scene, appellant was on the phone with Emigdio

Castillo, and Ruiz actually spoke with Castillo on the phone. (RR II at 33). Castillo

wanted to know where appellant was. (RR II at 33). Castillo stated that they had a

fight earlier in the night, that appellant had called the police out to get him arrested

for assault, and that after appellant had left, she was going to take all of her pills. (RR

II at 33). Castillo eventually showed up on scene, wanted to check on appellant, and

spoke with Ruiz about what occurred that night. (RR II at 34). Appellant was taken

to the hospital where a drug screen was performed on appellant’s urine. (RR II at 34;

See State’s Ex. No. 8). The urinalysis performed by the hospital showed that

appellant tested positive for opiates. (State’s Ex. No. 8).

      Emigdio Castillo was in a relationship with appellant for about four years

before the car accident on February 14, 2014. (RR II at 83). Appellant lived with

                                             3
Castillo in Wylie, Texas. (RR II at 84). Castillo and appellant broke up in February

of 2014. (RR II at 85). On February 13, 2014, the police were called out to

Castillo’s and appellant’s house because an argument had ensued, and appellant had

grabbed onto Castillo’s truck as he tried to leave and she fell to the ground. (RR II

at 87). Castillo and appellant argued and screamed at each other during the night of

February 13, 2014, and into the morning of February 14, 2014. (RR II at 88-89). At

trial, Castillo did not recall driving to the accident scene in Palmer, nor did he recall

any of the statements he made to Ruiz the morning of February 14, 2014. (RR II at

89). Castillo testified that he did not remember much of what occurred during this

incident. (RR II at 89-92). When Castillo did show up on scene on the morning of

February 14, 2014, he told Ruiz that appellant called him and told him she took all

of her pills. (RR II at 89-92; State’s Ex. No. 7). Castillo told Ruiz that appellant gets

like this when she takes too many pills. (State’s Ex. No. 7).

      Trooper Craig Henry is a certified Drug Recognition Expert (DRE) and

conducted a DRE reconstruction on this case. (RR II at 115). Henry was never on

the scene of the accident, and any testimony he gave in this case was in regards to his

review of the reports, medical records, and DVDs. (RR II at 118, 134). Henry

testified about his training and experience to obtain a DRE certification, as well as his

expertise in the field of drugged driving. (RR II at 98-108). Henry was admitted as

an expert witness in the field of drugged driving over the objection of appellant’s trial

                                            4
counsel. (RR II at 115).

      Henry stated that, based on his experience as a DRE, he was able to do an

evaluation of an entire case and come to a conclusion about a person’s mental and

physical state. (RR II at 107). Henry testified that because HGN was present and the

officer did not smell alcohol, appellant could have been intoxicated on one of three

different categories of drugs. (RR II at 119). Henry also testified that based on

appellant’s performance on the walk and turn and the one leg stand, and with the

HGN present, Henry suspected that appellant was intoxicated on a Central Nervous

System (CNS) depressant, an inhalant, or a dissociate anesthetic. (RR II at 121).

Henry testified that the hospital also checked appellant’s pulse, blood pressure, and

body temperature, which are clinical tests that cannot be faked by tolerance. (RR II

at 122). CNS depressants slow the body down, so a person being affected would have

a lower pulse and lower blood pressure. (RR II at 123). Henry testified that

appellant’s pulse was sixty-seven beats per minute which falls below the DRE

average range recognized. (RR II at 125). Henry testified that based on all of the

factors, including a lower blood pressure and body temperature, he had reviewed so

far, he suspected appellant might be on CNS depressants. (RR II at 126). Henry also

testified that he believed appellant could be on narcotic analgesics as well, because

the symptoms mirror CNS depressants, but without HGN being present. (RR II at

129). Henry stated that both the Clonazepam and Tramadol found on appellant are

                                          5
CNS depressants according to his DRE training; while the Tylenol with codeine was

considered a narcotic analgesic. (RR II at 132-133). Henry testified that the Tylenol

with codeine would be one of the main contributing factors to appellant wrecking her

vehicle and for the positive opiate test from the hospital record, and that appellant

was intoxicated while she operated her motor vehicle that night. (RR II at 133-135).

Defense Evidence

      Curt Richter, ex-husband of appellant, testified that he was married to appellant

for almost eight years and that he is familiar with her back pain resulting from being

hit by a drunk driver. (RR III at 10-11). Richter testified that he spoke to appellant

around one o’clock in the morning on February 14, 2014, and that appellant sounded

normal, not impaired, and that he informed appellant she was more than welcome to

come stay with him in San Antonio. (RR III at 11-16). Richter found out about the

car accident around nine in the morning on February 14, 2014, and he said that

appellant had to cancel an interview because her faculties were not quite there. (RR

III at 16). Richter stated that appellant receives pain killers, which he believed to be

Tylenol 3, for her injuries and that she would take that medication before she went

to bed. (RR III at 18). Richter also said that appellant was given anxiety medication

because of problems she was having. (RR III at 19). Richter said that appellant

always slept after taking the medication and that he believed it would not be good

idea for appellant to drive after taking the medication. (RR III at 19). Richter also

                                           6
admitted that he was not aware of the “whole situation” in that he was not aware

appellant called Castillo and said she was taking a whole bottle of pills. (RR III at

22). Richter testified that he believed it would be out of character for appellant to

take medication and then drive a car. (RR III at 23).

      Thomas Gordon, a nurse at the Ennis Regional Hospital, testified that he

provided care for appellant on the morning of February 14, 2014. (RR III at 24).

Gordon stated “that’s such a low blood pressure” when asked about appellant’s vital

signs but also said they all appeared to be normal. (RR III at 27). Gordon stated that

the only positive result from the urinalysis was an opiate and that Tramadol is an

opioid. (RR III at 29). Gordon also said that the test just shows positive or not; it

does not show any type of amounts. (RR III at 30). Upon cross examination,

Gordon described how combining medications has a greater effect upon a person.

(RR III at 32). Gordon did not recall appellant ever complaining of a head injury, but

she did complain of a neck injury. (RR III at 32-33).

      Dwain Fuller is the technical director of the toxicology lab in the Veteran

Affairs hospital in Dallas. (RR III at 34). Fuller stated that amino acid tests, such as

the urinalysis used in this case, are used for screening purposes for medical

diagnostic, and they should not be used for forensic purposes unless they are

confirmed. (RR III at 41). Fuller believes that these types of tests sometimes create

false positives and they should be confirmed before being used for any legal purpose.

                                           7
(RR III at 42). According to Fuller, the urinalysis in this case only showed a positive

for opiates and not any positive result for any of the depressants that were tested.

(RR III at 43). Fuller concluded that, based upon the medical records, there is no

evidence that would show appellant was intoxicated. (RR III at 45). Fuller conceded

that his basis for his conclusion was that the medical records do not reflect that

appellant had constricted pupils, slurred speech, or any problems talking. (RR III at

47). Fuller admitted that he did not review any video of the appellant that morning,

that he only glanced over the police report, and that his opinion was based solely on

the medical reports in this case. (RR III at 48).

      Martha Aracely Richter, appellant, testified in her own behalf that she had been

living with Castillo for six months before the time of the accident. (RR III at 58).

Appellant called the police after a fight with Castillo around seven p.m. on the night

of February 13, 2014. (RR III at 60). Appellant packed clothes and medication and

decided to leave that night because she could not tolerate the fighting anymore. (RR

III at 61). Appellant had arthritis which makes it painful to move her hands and is

just very painful for her. (RR III at 63). Appellant was trying to drive by the airport

to see Castillo, but her phone had died, so she dropped by a gas station to charge her

phone. (RR III at 64). Appellant got into a car wreck while trying to listen to her




                                           8
GPS1 and arguing with Castillo at the same time. (RR III at 67). Appellant stated that

she cannot perform the balance test because of her arthritis. (RR III at 68). Appellant

did not believe she was under the influence of her medication that morning, and she

does not abuse her prescriptions. (RR III at 69-70).

       Appellant was taking Tramadol and Clonazepam in 2014, although she would

not take the Clonazepam every day. (RR III at 72). Appellant said that she took her

Tylenol 3 the day before the accident. (RR III at 73). She testified that she took it in

the morning, but that she does not usually take it in the morning. (RR III at 73).

When asked about why she told the paramedics that she took both Tramadol and

Clonazepam, appellant would only state that maybe she had taken the Clonazepam

the morning on the day before. (RR III at 76). Appellant stated that she does not like

to take the Tylenol 3 and that she only takes it when she has a lot of pain. (RR III at

78). Appellant did not believe the medication she was on had any impact on her

driving that morning. (RR III at 84). Appellant also testified that she never called

Castillo and told him she took all of her pills. (RR III at 88).

       After the conclusion of the evidence, appellant was found guilty of Driving

While Intoxicated, sentenced to 180 days in jail, suspended for two years of

probation, and a $300 fine. (RR III at 117;132-141).


       1
         GPS likely refers to Global Positioning System, which people often use to assist them
with directions.

                                                9
                        SUMMARY OF THE ARGUMENT

      The evidence is legally sufficient to support the trial court’s verdict finding

appellant guilty of Driving While Intoxicated. The trial court was free to believe the

testimony of the arresting officer. In addition, there was other evidence admitted that

corroborated his testimony and that showed that appellant was intoxicated.

      The trial court did not abuse its discretion in allowing the admission of Trooper

Henry’s testimony, or any error was harmless. The trial court properly admitted the

testimony of Henry after determining that he had a sufficient background in this

particular field and that his testimony would help the trier of fact to understand the

evidence or to determine a fact in issue. In addition, any error in the admission was

harmless in light of the other evidence of guilt that was admitted at trial, and the trial

court’s statement that the testimony was not considered.

      The trial court did not abuse its discretion by overruling appellant’s hearsay

objection. The statements in question were not admitted to prove the truth of the

matter asserted, and they clearly fell within an exception to the hearsay rule. In

addition, any error in the admission was harmless in light of the other evidence of

guilt that was admitted at trial.




                                            10
                       STATE'S REPLY TO ISSUE THREE

           The evidence is sufficient to support a conviction for DWI.

      In her third issue, appellant asserts that the evidence is legally insufficient to

support appellant’s conviction for Driving While Intoxicated.

Standard of Review

      In reviewing a challenge to the legal sufficiency of the evidence, this Court

must view the evidence in the light most favorable to the verdict and determine

whether any rational trier of fact could have found the elements of the offense beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789

(1979).    This standard for legal sufficiency is the “only standard that a reviewing

court should apply in determining whether the evidence is sufficient to support each

element of a criminal offense that the State is required to prove beyond a reasonable

doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).

      The trier of fact is the sole judge of the weight and credibility of the witnesses

and may believe all, none, or part of the testimony of any witness. DeLeon v. State,

937 S.W.2d 129, 131 (Tex. App.–Waco 1996, pet. ref’d). If inferences raised by the

evidence are in conflict, the reviewing court must presume the trier of fact resolved

the conflict in favor of the prosecution and must defer to that resolution. Murphy v.

State, 4 S.W.3d 926, 928 (Tex. App.–Waco 1999, pet. ref’d) (citing Turro v. State,

867 S.W.2d 43, 47 (Tex. Crim. App. 1993)).

                                             11
Argument and Authorities

      “A person commits an offense if the person is intoxicated while operating a

motor vehicle in a public place.” Tex. Pen. Code Ann. § 49.04(a) (West Supp. 2014).

“Intoxicated means (a) not having the normal use of mental and physical faculties by

reason of the introduction of alcohol, a controlled substance, a drug, a dangerous

drug, or any substance into the body.” Tex. Pen. Code Ann. § 49.01(2) (West 2011).

      Appellant argues that there was no evidence submitted showing that appellant

was intoxicated while operating a motor vehicle. (Appellant’s brief at 26). Appellant

argues that the evidence submitted is insufficient to prove that appellant was

intoxicated on drugs while she was operating the car. (Appellant’s brief at 26-30).

      The trial court was free to believe the testimony offered by Ruiz and Henry, and

there was other evidence that tended to show appellant was intoxicated while

operating a motor vehicle. For example, appellant admitted to taking prescription

drugs prior to operating her car that day. (See State’s Ex. No. 7, RR II at 36).

Appellant tested positive for the presence of opiates in a UA test. (See State’s Ex.

No. 8, RR II at 71). Appellant had wrecked her car and was very unsteady on her

feet. (RR II at 20). Appellant had Codeine, Celexa, and Lioresal pills in her purse.

(RR II at 22). Appellant failed the Standardized Field Sobriety tests. (RR II at 26-

29). Based on all of the evidence submitted in this case, the trial court believed that

the drugs had an impact on appellant that night, that the appellant was operating a

                                          12
motor vehicle under the influence of drugs, and that appellant’s intoxication did

contribute to causing the accident. (RR III at 117-118).

        Appellant also argues that because Fuller testified in his opinion that appellant

was not intoxicated based on his review of the medical records, there is not sufficient

evidence to find appellant guilty of the offense of DWI. (Appellant’s Brief at 29).

A “legal sufficiency of the evidence review does not involve any weighing of

favorable and non-favorable evidence.” Cardenas v. State, 30 S.W. 3d 384, 389

(Tex. Crim. App. 2000). Fuller testified that he did not review the video in this case

and that his opinion was based solely on the medical records and paramedic reports.

(RR III at 47-48). Unlike Fuller, the trial court relied on all of the evidence. As the

trial court stated in its finding, there was a lot of admitted evidence the trial court

relied upon to find the appellant guilty, including appellant’s behavior during the

patrol video and appellant’s admission to taking prescription pills. (RR III at 117-

118).

        The trial court did not act irrationally in finding appellant guilty of driving

while intoxicated. The evidence is legally sufficient to support the trial court’s

verdict, and appellant’s issue three should be overruled.

                         STATE'S REPLY TO ISSUE ONE

        The trial court did not abuse its discretion when it allowed testimony
        from Trooper Craig Henry as an expert, or any error was harmless.


                                            13
      Appellant’s first contention is that Trooper Craig Henry’s testimony was

improperly admitted and that he should not have been admitted as an expert.

Standard of Review

      Admission of expert testimony is governed by Texas Rules of Evidence 702.

Tex. R. Evid. 702. When addressing the admissibility of expert testimony, the trial

court’s “first task is to determine whether the testimony is sufficiently reliable and

relevant to help the jury in reaching accurate results.” Kelly v. State, 824 S.W. 2d

568, 572 (Tex. Crim. App. 1992). Naturally, testimony which is unreliable or

irrelevant would not assist a jury in understanding the evidence or determining a fact

in issues, as is required by Rule 702.

      Texas Rule of Evidence 401 defines relevant evidence as evidence which has

“any tendency to make the existence of any fact 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. This broad definition lends itself to a liberal policy

of admission of evidence for the fact finder’s consideration.

      When the evidence at issue is expert testimony, the trial court must also

determine whether the evidence meets the Rule 702 standard, and provides that “[i]f

scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a face in issue, a witness qualified as an

expert by knowledge, skill experience, training, or education may testify thereto in

                                           14
the form of an opinion.” Tex. R. Evid. 702. Before admitting expert testimony, “the

trial court must be satisfied that three conditions are met: (1) the witness qualifies as

an expert by his knowledge, skill, experience, training, or education; (2) the subject

matter of the testimony is an appropriate one for expert testimony; and (3) admitting

the expert testimony will actually assist the factfinder in deciding the case.” Rodgers

v. State, 205 S.W. 3d 525, 527-28 (Tex. Crim. App. 2006). The special knowledge

that qualifies a witness to testify as an expert may be derived from specialized

education, practical experience, a study of technical works, or a varying combination

of these things. Penry v. State, 903 S.W. 2d 715, 762 (Tex. Crim. App. 1995). An

expert “must possess some additional knowledge or expertise beyond that possessed

by the average person, but the gap need not necessarily be monumental.” See Davis

v. State, 313 S.W. 3d 317, 350 (Tex. Crim App. 2010) (citing Rodgers, 205 S.W. 3d

at 527-28).

      If a trial judge finds the proposed expert testimony meets both the Rule 401 and

Rule 702 requirements, then the judge must perform a Rule 403 analysis to determine

whether the evidence should be admitted or not. Kelly, 824 S.W.2d at 573.

      “A substantial right is affected when the error had a substantial and injurious

effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266,

271 (Tex. Crim. App. 1997). The error must be viewed, not in isolation, but in

relation to the entire proceedings. Fowler v. State, 958 S.W.2d 853, 865 (Tex.

                                           15
App.–Waco 1997), aff’d, 991 S.W.2d 258 (Tex. Crim. App. 1999). “A criminal

conviction should not be overturned for non-constitutional error if the appellate 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); Tex. R. App. P. 44.2(b). The potential harm of the

complained of evidence can be “defused” by other properly admitted evidence. King,

953 S.W.2d at 273.

Argument and Authorities

      In appellant’s case, the State called Trooper Craig Henry to testify as a Drug

Recognition Expert (DRE) in regards to drugged driving. (RR II at 98). Henry went

through what is required to become a DRE and specifically testified to how he

became a certified DRE. (RR II at 98-108). The State tendered Henry as a certified

expert in the field of DRE, specifically drugged driving. (RR II at 108). Appellant’s

counsel took Henry on voir dire, and asked him extensively about his training and

experience as an officer, and then objected to Henry being qualified as an expert in

this case. (RR II at 111). Appellant’s counsel’s objection in part was that Henry did

not have enough training and experience in the field of drugged driving, that Henry

did not actually stop the appellant in this case nor perform any tests on her, that Henry

was not a DRE at the time the appellant was stopped, and that Henry did not complete

the full 12 step process for a DRE exam; but that objection was overruled by the trial

                                           16
court. (RR II at 115).

      The trial court has the sole discretion in this case to determine the weight and

credibility given to witnesses. The trial court heard about Henry’s training he

received as part of the DRE program and also heard Henry’s testimony about his

ability to review a case from a DRE evaluation perspective. (RR II at 98-108).

Henry’s testimony was properly admitted because it met the requirements under

Texas Law set forth in Kelly. Henry’s testimony was reliable in that he was a

certified DRE and has extensive experience in the field of drugged driving and how

drugs affect the body; and his testimony was relevant in that his opinion went straight

to an issue of consequence, whether appellant was intoxicated. Further, Henry’s

testimony would assist the trier of fact in that he had extensive knowledge of how

drugs affect the body, specifically while a person is operating a motor vehicle.

Henry’s testimony about his training and experience as a certified DRE showed that

Henry possessed specialized knowledge beyond that of an average person as required

by Rodgers.

      Appellant contends that the error in admitting Henry’s testimony is one that

affects the appellant’s substantial rights in that it had a substantial and injurious effect

in determining the verdict. If this Court finds error in the trial court admitting

Henry’s testimony as an expert, any error that is found is harmless. There is nothing

in the record that demonstrates the trial court substantially relied upon Henry’s

                                             17
testimony to reach the verdict in this case. In fact, the record reflects that the trial

court actually discredited Henry’s testimony based on the drug screen. This is

evidenced by the fact that the trial court stated “discounting the DRE expert because

of his unreliable foundation for some of his conclusions, and then it being

contradicted on the lab report, can’t rely in total for all of his opinions,” during the

trial court’s explanation of a guilty finding. (RR II at 117). The trial court stated the

basis for how the trial court was finding the appellant guilty, and it was based in part

on other properly admitted evidence such as the patrol video from the officer, the lab

tests showing positive for opiates, appellant’s performance on the Standardized Field

Sobriety Tests, appellant’s admissions to taking prescription drugs, and appellant’s

overall conduct on the morning in question. (RR II at 117-120).

      Appellant’s issue one should be overruled because appellant has not shown that

the trial court abused its discretion in admitting Henry’s testimony as an expert in the

field of drugged driving, and further, any error in admitting Henry’s testimony was

harmless in that it had no substantial effect on the trial court’s verdict.

                           STATE'S REPLY TO ISSUE TWO

      The Trial Court did not err in admitting certain statements, or any
      error was harmless.

      Appellant’s second contention is that the trial court improperly admitted

hearsay statements during Ruiz’s testimony, and during the playing of State’s


                                           18
Exhibit 7.

Standard of Review

      An appellate court reviews a trial court’s admission or exclusion of evidence

under the abuse of discretion standard. Moreno v. State, 858 S.W.2d 453, 463 (Tex.

Crim. App.), cert. denied, 510 U.S. 966, 114 S. Ct. 445 (1993). The trial court is

given wide latitude in its decision to admit or to exclude evidence, and its ruling must

lie outside the zone of “reasonable disagreement” to be disturbed on appeal. Theus

v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). An appellate court must

affirm the trial court’s decision to admit evidence if the trial court’s ruling is correct

under any theory of law, even if the trial court gives the wrong reason for the ruling.

See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

      Hearsay is “a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Tex. R. Evid. 801(d). Hearsay is generally inadmissable unless it falls into one of the

many exceptions to the hearsay rule. Tex. R. Evid. 802.

      “A substantial right is affected when the error had a substantial and injurious

effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266,

271 (Tex. Crim. App. 1997). The error must be viewed, not in isolation, but in

relation to the entire proceedings. Fowler v. State, 958 S.W.2d 853, 865 (Tex.

App.–Waco 1997), aff’d, 991 S.W.2d 258 (Tex. Crim. App. 1999). “A criminal

                                            19
conviction should not be overturned for non-constitutional error if the appellate 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); Tex. R. App. P. 44.2(b). The potential harm of the

complained of evidence can be “defused” by other properly admitted evidence. King,

953 S.W.2d at 273.

Argument and Authorities

      Appellant argues that the trial court erred by admitting hearsay statements over

appellant counsel’s objections. The first instance that appellant argues is that the trial

court erred when it admitted Ruiz’s testimony about what Castillo had said on the

morning in question. (Appellant’s Brief at 22). However, as the record reflects in

this case, the trial court actually sustained appellant’s counsel’s objection to Ruiz’s

testifying to exactly what Castillo had said. (RR II at 34).

             [State]: And why were you speaking with him?

             A: He came to the scene and wanted to check on her and he had told me

             - he stated again - -

             [Defense]: Objection to hearsay.

             The Witness: That she had taken a lot of medications.

             The Court: I’m going to sustain that objection.

(RR II at 34).

                                            20
      As clearly evidenced by the record, the trial court did not admit that specific

statement into evidence during the trial. Further, the appellant has not made any

showing that this specific “hearsay statement,” to which the trial court actually

sustained an objection, had any bearing or impact on the trial court’s decision in this

case. (RR II at 34; RR III at 117-120). Appellant’s contention that the trial court

admitted this hearsay statement into evidence is not correct in that the trial court

actually sustained an objection to the hearsay statement in question.

      The second hearsay statement that appellant complains of occurred during the

playing of State’s Exhibit Number 7, in which Ruiz told the paramedics “I just talked

to the husband/boyfriend, uh, she’s taken a lot of pills.” (RR II at 35; States Ex. No.

7). Appellant’s trial counsel did not object to this specific statement during the

playing of the video, but rather objected to the entirety of State’s Exhibit Number 7

on the basis of hearsay. (RR II at 36). In order for this statement to be hearsay, it

would require that the statement was offered in evidence to prove the truth of the

matter asserted. There is nothing in the record that indicates this statement made by

Ruiz during the playing of State’s Exhibit Number 7 was offered to prove the truth

of the matter asserted. Any statements made by Ruiz both during the playing of

State’s Exhibit Number 7 and during his testimony that related statements made by

Castillo were elicited to give the trial court a complete picture about why and how

Ruiz conducted his investigation that day. (RR II at 32). These statements were not

                                          21
elicited to prove the truth of the matter asserted, and the state makes this exact point

during the trial by stating “Mr. Castillo’s actually here to testify in his own words as

to whether those statements are true or not.” (RR II at 32) If the Court does find that

this statement is in fact hearsay, then it clearly falls within an exception to the hearsay

rule.

        The appellant argues that double hearsay exists in this case in that, the

statement the appellant made to Castillo was hearsay, and the statement made by

Castillo to Ruiz based on appellant’s statement is double hearsay. However,

according to the rules of evidence, any statement that appellant made in this case to

anyone, including Castillo and Ruiz, is not hearsay pursuant to Texas Rules of

Evidence. “A statement that meets the following conditions is not hearsay (2) the

statement is offered against an opposing party and (A) was made by the party in an

individual or representative capacity.” Tex. R. Evid. 801(e)(2)(A). The initial

statement made by the appellant in this case is not hearsay under Texas law in that the

statement was offered against her as an opposing party and it was a statement she

made in an individual capacity.

        Appellant then argues that any statement that Castillo made to Ruiz is hearsay

and is not admissible in court. However, the Texas Rules of Evidence allows

exceptions to the hearsay rule for the purpose of medical treatment.



                                            22
                   “Statement Made for Medical Diagnosis or Treatment. A
             statement that (A) is made for-and is reasonably pertinent to-
             medical diagnosis or treatment; and (B) describes medical history;
             past or present symptoms or sensations; their inception; or their
             general cause” is an exception to the rule against hearsay.

Tex. R. Evid. 803(4).

      These statements made by Castillo to Ruiz while appellant was on the scene

were clearly made for the purpose of medical diagnosis or treatment. This is

evidenced further by the fact that Ruiz relayed this information to the paramedics

while they were conducting the medical diagnosis on appellant. (State’s Ex. No. 7).

It is reasonable to think that Castillo was worried about appellant in this case and that

he wanted both the officer and medical personnel to know that the appellant “had

taken a lot of pills” to help them in their medical treatment of appellant. (State’s Ex.

No. 7).

      Appellant contends that the error in admitting any hearsay statements is one

that affects the appellant’s substantial rights in that it had a substantial and injurious

effect in determining the verdict. Tex. R. App. P. 44.2(b). If this Court finds error

in the trial court admitting the statements in question, any error that is found is

harmless. The trial court actually stated the basis for how the trial court was finding

appellant guilty, and it was based in part on other properly admitted evidence such

as how appellant acted on the patrol video, the lab tests showing appellant was

positive for opiates, appellant’s performance on the Standardized Field Sobriety

                                            23
Tests, appellant’s admissions to taking prescription drugs, prescription drugs being

found in appellant’s purse, and appellant’s overall conduct on the morning in

question. (RR II at 117-120).

      Appellant’s issue two should be overruled because appellant has not shown that

the trial court abused its discretion in admitting any of the statements in questions,

and further, any error in admitting these statements was harmless in that it had no

effect on the trial court’s verdict.




                                          24
                         CONCLUSION AND PRAYER

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.
                                 Patrick M. Wilson
                                 County and District Attorney
                                 Ellis County, Texas

                          By:      /s/ Ryan Martin
                                 Ryan D. Martin
                                 Assistant County and District Attorney
                                 State Bar No. 24086522
                                 Ellis County Courts Building
                                 109 S. Jackson
                                 Waxahachie, Texas 75165
                                 Phone: 972-825-5035
                                 Fax: 972-825-5047
                                 Email: ryan.martin@co.ellis.tx.us



                      CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that the total

number of words in the document, excluding those contents set out in the rule, is

5,952 words, as computed by the program used to prepare the document, Wordperfect

X6.
                                  /s/ Ryan Martin
                                 Ryan D. Martin
                                 Assistant County and District Attorney
                                 Ellis County, Texas




                                          25
                         CERTIFICATE OF SERVICE

     I certify that a true and correct copy of the foregoing Brief of the State of Texas

was served by e-service to jm@martinezjustice4all.com or by U.S. Mail to: Ms.

Julissa Martinez, Attorney for Appellant, 107 Kaufman St., Waxahachie, Texas,

75165, on November 17, 2015.



                                 /s/ Ryan Martin
                                Ryan D. Martin
                                Assistant County and District Attorney
                                Ellis County, Texas




                                          26
