      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-07-00341-CR



                                   Tina E. Hargrove, Appellant

                                                   v.

                                    The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
        NO. 06-813-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING



                             MEMORANDUM OPINION


                On June 15, 2006, a grand jury returned an indictment charging appellant

Tina E. Hargrove with intoxication assault, a third-degree felony. See Tex. Penal Code Ann. § 49.07

(West Supp. 2007). The indictment included a deadly-weapon allegation. On May 16, 2006, a jury

found Hargrove guilty of intoxication assault and found the deadly-weapon allegation to be true. The

jury assessed Hargrove’s punishment at five years’ and six months’ confinement and a $5,000 fine.

On appeal, Hargrove argues (1) that the trial court erred in submitting a charge which permitted the

jury to convict her of intoxication assault by reason of intoxication by ingestion of a “drug” or

“dangerous drug” and (2) that the trial court erred in failing to grant her motion for mistrial after the

State asked an improper question on cross-examination. Because we have determined that the trial

court did not err in submitting the jury charge or in denying the motion for mistrial, we will affirm

the judgment of the trial court.
                                          BACKGROUND

               The accident giving rise to Hargrove’s prosecution occurred in Williamson County,

shortly after midnight on November 6, 2005. The victim, Phyllis Henkelman, was driving home

from her daughter’s wedding reception. She was following her husband, Alan Henkelman, north on

Parmer Lane near the intersection of Parmer and Brushy Creek Boulevard. Susan Brown, a friend

of the Henkelmans, was following behind Phyllis Henkelman’s vehicle. At the same time, Hargrove

was driving south in the northbound lanes of Parmer Lane, a four-lane divided highway separated

by a grassy median. Alan Henkelman testified that Hargrove passed his vehicle “close to [his] door,

almost like passing on a two-lane country road but closer.” He then looked in his rearview mirror

and saw his wife’s headlights go out as Hargrove’s vehicle struck Phyllis Henkelman’s vehicle head-

on. Susan Brown’s vehicle was also damaged by the resulting debris.

               Emergency personnel transported both Hargrove and Phyllis Henkelman to

Brackenridge Hospital by star-flight, where Henkelman was diagnosed with fractures to her femur,

pelvis, elbow, and toe. As a result of her injuries, Henkelman walked with a limp at the time of trial

and suffers from protracted loss of the full range of motion in her elbow. Henkelman’s treating

physician at Brackenridge, Dr. David Laverty, testified that her femur fracture carried a long-term

risk of blood clots and possible death.

               Dr. Laverty, who also served as Hargrove’s treating physician at Brackenridge,

formed the opinion that Hargrove was intoxicated, testifying that he based this opinion on the odor

of alcoholic beverages emanating from her and her inability to clearly understand and answer his

questions.



                                                  2
               Department of Public Safety Trooper Rebecca Gentry observed and interacted with

Hargrove at the collision scene but did not perform any standard field sobriety tests because

Hargrove was injured. After interacting with Hargrove again at Brackenridge Hospital, Gentry

formed the opinion that Hargrove was intoxicated and put her under arrest for intoxication assault.

Gentry testified that she formed the opinion that Hargrove was intoxicated based on her observations

of the accident scene, the odor of alcoholic beverages coming from Hargrove’s breath, and

Hargrove’s admission to Gentry that she had consumed alcoholic beverages prior to the accident.

Gentry’s observations of the accident scene included the fact that Hargrove had been traveling on

the wrong side of the road, the lack of skid marks or other signs of braking, and the fact that

Hargrove had already narrowly missed Alan Henkelman’s vehicle before colliding with Phyllis

Henkelman’s vehicle.

               Hospital personnel drew a routine sample of Hargrove’s blood shortly after her arrival

at 1:55 a.m., which showed a blood-alcohol concentration of 0.277, over three times the legal limit

of 0.08. A second blood sample, drawn at approximately 2:30 a.m., was negative for the presence

of opiates, barbiturates, cannabinoids, amphetamines, cocaine, benzodiazepines, and phencyclidine.

               After the routine sample of Hargrove’s blood was taken, Gentry requested a blood

sample for law-enforcement purposes. This sample was taken at 3:20 a.m. and showed a blood-

alcohol concentration of 0.21. James Burris, a forensic scientist with the Department of Public

Safety, testified that an average alcoholic drink converts to a blood-alcohol concentration of

approximately 0.02 and that the average rate of elimination of alcohol in the blood is 0.015 per hour.




                                                  3
               On direct examination, Hargrove testified that she remembered drinking beer on the

evening prior to the accident but could not remember the amount. On cross-examination, she

testified, “I believe I had a few beers.” When further questioned about the number of beers she had

consumed, Hargrove answered, “I would say maybe three.”1

               The jury found Hargrove guilty of intoxication assault and further found the deadly

weapon allegation to be true. This appeal followed. Hargrove’s issues on appeal are (1) that the trial

court erred in submitting a jury charge that permitted a conviction by reason of intoxication through

ingestion of a “drug” or “dangerous drug,” and (2) that the trial court erred in denying her request

for a mistrial following an improper question by the State.


                                   STANDARD OF REVIEW

               In reviewing a jury charge, we must first determine whether error exists.

Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If error is found, it must then be

analyzed for harm. Id. If the error was properly preserved, a reversal is required if “some harm” is

shown. Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). If the error was not properly

preserved, reversal is only required in the event of egregious harm. Id. Egregious harm exists if “a

reviewing court finds that the case for conviction or punishment was actually made clearly and

significantly more persuasive by the error.”          Saunders v. State, 817 S.W.2d 688, 692

(Tex. Crim. App. 1991).




       1
          Hargrove testified that she had been under a great deal of stress because her mother had
been ill and was removed from life support on November 4, 2005. The accident occurred shortly
after midnight on November 6, 2005.

                                                  4
               We review a trial court’s denial of a motion for mistrial for an abuse of discretion.

Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). Mistrial is only appropriate for “a

narrow class of highly prejudicial and incurable errors.” Wood v. State, 18 S.W.3d 642, 648

(Tex. Crim. App. 2000). The asking of an improper question will seldom call for a mistrial because

in most cases, any harm can be cured by an instruction to disregard. Id.


                                          DISCUSSION

Jury Charge

               Hargrove argues that the jury charge should not have included language allowing the

jury to convict her of intoxication assault by reason of intoxication through ingestion of a “drug” or

“dangerous drug” because there was no evidence that would allow the jury to believe she had

ingested any drug or dangerous drug at the time of the accident.

               The charge submitted to the jury defined “intoxicated” as:


       (1)     not having the normal use of mental or physical faculties by reason of the
               introduction of alcohol, a drug, a dangerous drug, a combination of two or
               more of those substances, or any other substance into the body; or

       (2)     having an alcohol concentration of 0.08 or more.


               In the application paragraph, the charge stated that Hargrove should be found guilty

if she caused serious bodily injury while operating a motor vehicle in a public place while

intoxicated, namely “not having the normal use of mental or physical faculties by reason of the

introduction of alcohol, a drug, a dangerous drug, a combination of two or more of those substances,




                                                  5
or any other substances into the body or having an alcohol concentration of 0.08 or more.” The jury

charge also included the legal definitions of “drug” and “dangerous drug.”

               At trial, Hargrove objected to including the definitions of “controlled substance” and

“drug.” The State consented to the deletion of any references to controlled substances, stating that

there was no evidence of use of a controlled substance. The State maintained that Hargrove’s

medical records, showing that she had been prescribed certain substances prior to the accident, were

sufficient to warrant the references to drugs and dangerous drugs in the jury charge. Hargrove did

not specifically object to the inclusion of the legal definition of “dangerous drug” or to any use of

“drug” in the application paragraph of the charge.

               Hargrove’s medical records, which were admitted into evidence, reflected that

Hargrove had been prescribed both Vicodin and prednisone, and that her prescription for prednisone

called for daily doses. While prednisone, a prescription drug, falls under the legal definition of a

“dangerous drug,” Vicodin does not. Hydrocodone, the generic name for Vicodin, is classified as

a controlled substance. See Tex. Health & Safety Code Ann. § 481.104(a)(4) (West 2003). The

legal definition of a “dangerous drug” is:


       a device or a drug that is unsafe for self-medication and that is not included in
       Schedules I through V or Penalty Groups 1 through 4 of Chapter 481
       (Texas Controlled Substances Act). The term includes a device or a drug that bears
       or is required to bear the legend:

       (A) “Caution: federal law prohibits dispensing without prescription” or “Rx only”
       or another legend that complies with federal law; or

       (B) “Caution: federal law restricts this drug to use by or on the order of a licensed
       veterinarian.”



                                                 6
Id. § 483.001(2). Because hydrocodone is included in penalty group III of the Texas Controlled

Substances Act, it is excluded from the definition of a “dangerous drug.” See id. § 481.104(a)(4).

Therefore, while Hargrove’s Vicodin prescription may suggest ingestion of a “drug,”2 only the

prednisone prescription suggests ingestion of a “dangerous drug.” However, there was no testimony

that Hargrove had taken either substance on the day of the accident.3

               Regardless of whether the evidence is sufficient to show that Hargrove had taken any

“drug” or “dangerous drug” prior to the accident, we note that the jury charge tracks the language

of the indictment and the statutory definition of intoxication. See Tex. Penal Code Ann. § 49.01

(West 2003).     Use of a statutory definition in a jury charge is generally not error.            See

Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (holding that jury charge tracking



       2
          The definition of “drug” in the jury charge tracks the definition found in the Texas
Controlled Substances Act, where “drug” is defined as “a substance, other than a device or a
component, part, or accessory of a device, that is:

       (A)     recognized as a drug in the official United States Pharmacopoeia, official
               Homeopathic Pharmacopoeia of the United States, official National Formulary, or
               a supplement to either pharmacopoeia or the formulary;
       (B)     intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease
               in man or animals;
       (C)     intended to affect the structure or function of the body of man or animals but is not
               food; or
       (D)     intended for use as a component of a substance described by Paragraph (A), (B), or
               (C).

Tex. Health & Safety Code Ann. § 481.002(16) (West Supp. 2007).
       3
         Hargrove asserts that her hospital blood sample affirmatively shows that she had no “drug”
or “dangerous drug” in her bloodstream at the time of the accident. However, Hargrove’s blood
sample was only tested for the presence of opiates, barbiturates, cannabinoids, amphetamines,
cocaine, benzodiazepines, and phencyclidine. There was no testimony or other evidence reflecting
that Hargrove’s blood test definitively ruled out the presence of Vicodin or prednisone in her system.

                                                  7
language of particular statute is proper charge on statutory issue because “[f]ollowing the law as it

is set out by the Texas Legislature will not be deemed error on the part of the trial judge.”). This

Court has rejected a similar challenge to a jury charge that included a definition of intoxication that

“track[ed] the allegations contained in the information and roughly conform[ed] with the statutory

definition.” See Erickson v. State, 13 S.W.3d 850, 851 (Tex. App.—Austin 2000, pet ref’d). In

Erickson, there was no evidence that the appellant had consumed any intoxicant other than alcohol,

but a jury charge was upheld that instructed the jury that a person is intoxicated within the meaning

of the law “when such person does not have the normal use of his physical or mental faculties by

reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more

of these substances into the body.” Id. This Court held that where it is clear that the State urged the

jury to convict on the basis of a finding that the appellant was intoxicated by the use of alcohol alone,

a jury charge tracking the statutory definition of “intoxication” does not constitute reversible error.

Id. at 852.

                In the present case, the testimony, evidence, and arguments of counsel revolved

around the theory that Hargrove was intoxicated due to the consumption of alcohol. The State

introduced blood tests into evidence establishing that Hargrove had a blood-alcohol concentration

of 0.277 approximately two hours after the accident and 0.21 approximately three and a half hours

after the accident. In closing argument, the State emphasized the blood-test results, stating, “[W]e

have not one, but two levels clearly above .08 . . . so really to start with the end in mind, we have the

best evidence twice, and everything else is helpful.” The only evidence suggesting intoxication by

any means other than the consumption of alcohol was the portion of Hargrove’s medical records



                                                   8
showing medications she had been prescribed prior to the accident. No testimony was elicited

regarding these prescriptions. As in Erickson, the State clearly urged the jury to convict Hargrove

on the basis of a finding that she was intoxicated by the use of alcohol alone.

                Because the jury charge was not improper in tracking the statutory definition of

“intoxication,” we hold that the trial court did not err in allowing references to a “drug” or

“dangerous drug” to appear in the charge. Hargrove’s first issue is overruled.


Motion for Mistrial

                Hargrove argues that the trial court should have granted her motion for mistrial when

the State asked her a question on cross-examination introducing the idea that she had consumed

twelve beers on the night of the accident.

                The motion for mistrial was based on the following exchange during the State’s cross-

examination of Hargrove:


       Q:              Now, you’ve heard the medical evidence both from the hospital and
                       the DPS that your levels were roughly three times the legal limit.
                       You can’t contest those at all, can you?

       A:              No, I can’t.

       Q:              And you realize that based on Mr. Burris’s testimony that to be at that
                       level that you had more than a 12-pack. Is that fair?

       Counsel:        Your Honor, I need to object to the question. I’m not sure that that’s
                       what Mr. Burris’s testimony was. I think that’s assuming facts not in
                       evidence.

       Q:              He testified—

       Court:          Objection is overruled.

                                                  9
        Q:              So more than a 12-pack to get you up into this .2-something range?

        A:              I wouldn’t know that.

        Q:              Okay. Well, if he testified—he’s—I mean, he’s the expert in that.
                        Can you disagree with his conclusion at all that if it’s .02 per drink
                        that to get to a .24—

        A:              I’m not a doctor—

        Counsel:        Again, I need to renew my objection, Judge. There was no testimony
                        regarding—

        Court:          All right.


                 At this point in the proceedings, the trial court conducted a bench conference

regarding the objection. When the bench conference concluded, the trial court instructed the jury,

“I’m going to sustain an objection to the last question. Please disregard it, and you’ll recall the

testimony from Mr. Burris.” Hargrove immediately requested a mistrial, which was denied.

                 Burris testified regarding the effects of alcoholic beverages on blood-alcohol

concentration, stating, “Well, roughly an average drink would be about a .02 . . . . And that’s a very

rough estimate.” When asked how many drinks would be required to cause a blood-alcohol

concentration of .21, the level found in Hargrove’s 3:20 a.m. blood test, Burris stated that “it would

really have to depend on a lot of factors,” including the individual’s weight. Burris also testified that

a small person, weighing 110 or 115 pounds, could not get to a blood-alcohol concentration of .21

by consuming only two average-sized drinks.4




        4
            The record reflects that Hargrove weighed approximately 115 pounds.

                                                   10
                In deciding to sustain the objection, the trial court noted that Burris’s testimony

regarding the .02 blood-alcohol concentration per drink applied only to an average-sized person,

stating, “I’m not comfortable with you saying a .02 in a person when she’s this size.”

                Hargrove argues that the error arising from the State’s improper question was

impossible to cure by an instruction to disregard because before the instruction was given, the State

was able to ask the improper question twice, as well as explain how the expert testimony could lead

to the assumption that Hargrove had consumed twelve beers prior to the accident.

                The asking of an improper question, by itself, will seldom call for a mistrial because

in most cases, any harm from such a question may be cured by an instruction to disregard the

question. Moore v. State, 882 S.W.2d 844, 847 (Tex. Crim. App. 1994). An instruction to disregard

is sufficient to cure the error or render it harmless, “except in extreme cases where it appears that the

question or evidence is clearly calculated to inflame the minds of the jury and is of such a character

as to suggest the impossibility of withdrawing the impression produced on their minds.”

White v. State, 444 S.W.2d 921, 922 (Tex. Crim. App. 1969); see also Gonzales v. State, 685 S.W.2d

47, 49 (Tex. Crim. App. 1985) (holding that question introducing evidence of prior criminal charge

without showing of final conviction could be cured by instruction to disregard).

                The fact that the improper question was repeated does not lead to the conclusion that

the jury would find it impossible to disregard. An instruction to disregard can properly cure error

resulting from more than one improper question or remark. See Hendricks v. State, 640 S.W.2d 932,

939 (Tex. Crim. App. 1982) (holding that single instruction to disregard numerous sidebar remarks

by prosecutor removed force of improper statements and enabled appellant to receive fair trial). The



                                                   11
State’s question appears to have been based on calculations using information from Burris’s expert

testimony, rather than an attempt to inflame the minds of the jury. Furthermore, in light of

the evidence of Hargrove’s blood-alcohol level after the accident, we do not find the State’s

isolated series of questions suggesting that Hargrove drank twelve beers prior to the accident to

be of the “narrow class of highly prejudicial and incurable errors” necessary for a mistrial. Wood,

18 S.W.3d at 648.

                Hargrove also argues that the trial court’s instruction to disregard was so vague that

it could have been interpreted by a reasonable juror as an instruction to disregard the objection, rather

than the improper question. However, the jurors heard the instruction after first hearing the trial

court overrule defense counsel’s initial objection, allowing the State to continue. The jury then heard

defense counsel renew his objection on the same grounds, to which the trial court responded, “She’s

already answered the question, but don’t ask any more questions about—on that line,” and

subsequently called a bench conference. After the bench conference, the trial court announced, “I’m

going to sustain an objection to the last question. Please disregard it, and you’ll recall the testimony

from Mr. Burris.” The State then began a completely new line of questioning. In context, the only

reasonable conclusion that a juror could draw is that the trial court considered the question improper,

rather than the objection, and that the instruction to disregard applied specifically to the improper

question. Juries are presumed to have complied with a trial court’s instruction to disregard. See

Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998); Williams v. State, 937 S.W.2d 479,

490 (Tex. Crim. App. 1996) (holding that in absence of evidence that jury was actually confused,

we assume jury would follow court’s instructions as given). As a result, we will assume that the jury



                                                   12
followed the trial court’s instructions to disregard the State’s question after Hargrove’s objection to

such question was sustained.

               Because the trial court did not abuse its discretion in denying Hargrove’s request for

a mistrial, her second issue is overruled.


                                             CONCLUSION

               Because we hold that the trial court did not err in submitting the jury charge or in

overruling Hargrove’s request for a mistrial, we affirm the trial court’s judgment.



                                               __________________________________________

                                               Diane Henson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: April 3, 2008

Do Not Publish




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