Affirmed and Memorandum Opinion filed June 27, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               No. 14-17-00878-CR
                               No. 14-17-00879-CR

                 KRISTI RHODES DE LA GARZA, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                     On Appeal from the County Court No. 2
                            Galveston County, Texas
              Trial Court Cause Nos. MD-0365735 and MD-0365736

                 MEMORANDUM                      OPINION


      In this consolidated appeal of convictions for two offenses that were tried
together, appellant Kristi Rhodes de la Garza asks us to reverse her convictions for
driving while intoxicated and possession of less than twenty-eight grams of
alprazolam, a substance in Penalty Group 3. Because the evidence supports the
jury’s findings that appellant is guilty of both offenses, we affirm the judgments of
conviction.
                                   I. BACKGROUND

      At around 1:30 p.m. on May 25, 2016, Trooper Morgan Pack of the Texas
Department of Public Safety’s Highway Patrol Division received a dispatch that a
citizen had expressed concern about a vehicle. Pack located the vehicle on Interstate
45 and observed the car traveling below the speed limit, swerving both within its
lane and onto the right shoulder, and nearly striking two vehicles. Pack turned on
the patrol car’s emergency lights and followed as the car exited the freeway without
signaling. The car pulled into a parking lot but continued slowly rolling through the
lot until Pack activated his patrol car’s siren.

      When Pack approached the vehicle, he saw that appellant had constricted
pupils. Appellant commented that she shouldn’t have been driving and that she was
just trying to make it home. Pack described her speech as soft and slurred.

      Pack administered several field-sobriety tests, including a horizontal gaze
nystagmus test, a walk-and-turn test, and a one-leg stand. Appellant performed
poorly on all of the tests, giving six out of a possible six “clues” of intoxication on
the nystagmus test, six out of a possible eight clues of intoxication on the walk-and-
turn test, and two out of a possible four clues of intoxication on the one-leg stand.
At some point, appellant stated that she had taken half of a Vicodin tablet that
morning.

      Pack arrested appellant for driving while intoxicated, an offense for which she
has a previous conviction. During an inventory search of appellant’s vehicle, Pack
found hydrocodone (Vicodin) and alprazolam (Xanax) in an Altoids mint tin.
Appellant also had hydrocodone in a properly labeled prescription bottle. Although
there was no labeled prescription bottle of alprazolam, Pack found more alprazolam
in a medication bottle labeled zolpidem tartrate (Ambien). Appellant therefore was


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additionally charged with possession of less than twenty-eight grams of a controlled
substance, namely alprazolam. The two charges were tried together.

      Appellant had consented to a blood draw when she was arrested, and forensic
chemist Daniel Rios, who analyzed appellant’s blood sample, testified that her blood
contained alprazolam at a concentration of .10 mg/l. Rios stated that the therapeutic
range for alprazolam would be .02–.06 mg/l for treatment of general anxiety, and up
to .10 mg/l for treatment of panic attacks.        Appellant’s blood also contained
hydrocodone at a concentration of .02 mg/l, and Rios testified that the therapeutic
range for hydrocodone is about .02 or .04 mg/l. Rios explained that alprazolam is a
central nervous system depressant—a “sedative-type drug”—that can produce
dizziness, sleepiness, disorientation, “clouded thinking,” and increased reaction
time. The narcotic painkiller hydrocodone also is a central nervous depressant. Rios
explained that combining the drugs, particularly if the person taking the drugs
already is tired, will accentuate the effects of both drugs. He stated that even low
concentrations of these drugs could be impairing, so they are labeled with a warning
for the patient not to drive or operate heavy machinery until the patient knows how
the drugs will affect the person’s body. Although Rios stated that the combination
of the two drugs at the concentrations found in appellant’s blood could cause a
person to lose the normal use of the person’s mental and physical faculties, he stated
that different bodies will respond to the drugs differently, so a blood test alone cannot
establish that a person is intoxicated.

      Appellant testified that she was prescribed hydrocodone for pain because she
has no cartilage between two of her vertebras. She stated that she was last prescribed
alprazolam in November of 2015 because she had not gotten over her mother’s death
four years earlier when her husband left her in 2015, and she added “I was just a
mess and I’m a nervous person, anyway.”

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      Appellant testified that at the time of her arrest, she had been staying at the
hospital where her fiancé was in intensive care after being electrocuted. She stated
that on the day of her arrest, she had taken one-half of a hydrocodone pill before
dawn but had last taken alprazolam around 8:00 p.m. on the preceding night. She
said that on her way home from the hospital that day, “I started to see that I was
swerving and I felt that I was a danger to myself and others, so I pulled over not
realizing that [Trooper Pack] was behind me already.” She agreed that it was
common for her to drive below the speed limit and that she is not very coordinated.
Having seen the videotape Pack made while following her, appellant asked if she
thought the way she was driving was safe. She responded, “No, sir. I didn’t realize
it was that bad; but no, sir.” She said she was almost certain that Pack’s emergency
lights had not been on, but if they were on, she didn’t notice because “I was busy
concentrating on my driving because I realized I wasn’t doing a good job.” When
asked if the combination of her lack of sleep and her medication could have affected
the normal use of her mental and physical faculties on the day of her arrest, she said,
“I didn’t realize it had until I had to pull myself over.”

      Appellant also produced records from a pharmacy showing that she had
received forty-five alprazolam pills in October 2015 and another forty-five in
November 2015. She stated that she still had the pills because she had stopped taking
them and the pills did not need to be discarded until November 2016, but when her
fiancé was electrocuted in May 2016, she needed to take them again. When asked
why her alprazolam was not in a prescription bottle, appellant said, “Well, since I
had been at the hospital, I—you know, my two blood pressure medications, my
pain—it would have been like a big bag, and I didn’t want to take it all out any time
that I was going to take something.”



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       The jury convicted appellant of both offenses. For the offense of driving while
intoxicated, the jury assessed as punishment 180 days’ confinement and a fine of
$1,000. For the possession conviction, the jury assessed a suspended sentence of
365 days’ confinement, and community supervision imposed for twenty-four
months. Appellant appeals both convictions.1

                   II. CHALLENGE TO THE INTOXICATION CONVICTION

       In her first issue, appellant challenges the legal and factual sufficiency of the
evidence supporting her conviction for driving while intoxicated. Because the Court
of Criminal Appeals abolished factual-sufficiency review “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,” we review the evidence only for
legal sufficiency. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)
(plurality op.).

       In determining whether the evidence is legally sufficient to support the
conviction, “we consider all the evidence in the light most favorable to the verdict
and determine whether, based on that evidence and reasonable inferences therefrom,
a rational juror could have found the essential elements of the crime beyond a
reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(citing Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)). We presume that the jury resolved conflicting inferences in favor of the
verdict, and we defer to its determination of the evidence’s weight and credibility.
See Brooks, 323 S.W.3d at 899.



       1
        Appellate cause number 14-17-00878-CR is an appeal from the conviction in trial court
cause number MD-0365736 for driving while intoxicated, and appellate cause number 14-17-
00879-CR is an appeal from the possession conviction in trial court cause number MD-365735.

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      A person commits the offense of driving while intoxicated “if the person is
intoxicated while operating a motor vehicle in a public place.” TEX. PENAL CODE
ANN. § 49.04(a). “Intoxicated” is defined to include “not having the normal use of
mental or physical faculties by reason of the introduction of alcohol, a controlled
substance, a drug, a dangerous drug, a combination of two or more of those
substances, or any other substance into the body.” Id. § 49.01(2)(A). Appellant
contends that the evidence is legally insufficient to support her conviction for driving
while intoxicated because (a) “[a]ppellant testified that she was having the normal
use of her mental and physical faculties when she became aware of her fatigue and
left the roadway of her own volition”; and (b) Rios “stated that he could not
definitively say that Alprazolam and Hydrocodone in Appellant’s system could
cause impairment.” The record contradicts both of these statements.

      Appellant did not merely admit that taking these medications could affect her;
she said, “I didn’t realize it had until I had to pull myself over.” By her own
admission, she pulled over because “I started to see that I was swerving and I felt
that I was a danger to myself and others.” Moreover, she admitted that even this was
an underestimation of her impairment, stating that, until she watched the video, “I
didn’t realize it was that bad.”

      As for Rios, he was asked if alprazolam and hydrocodone, in the levels found
in appellant’s blood, could cause someone to lose the normal use of their mental
faculties. He answered, “Yes, it could.” When asked if this combination, at these
concentrations, could cause a person to lose the normal use of their physical
faculties, he again responded, “It could.”

      Because there is legally sufficient evidence that the medication could and did
cause appellant to lose the normal use of her mental and physical faculties, we



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overrule appellant’s first issue and affirm her conviction for driving while
intoxicated.

                   III. CHALLENGE TO THE POSSESSION CONVICTION

      In her second issue, appellant contends that her possession of alprazolam was
not an offense because she possessed the drug pursuant to a “prescription exception,”
and no rational jury could conclude otherwise. Specifically, appellant argues that
no rational jury could conclude she was not an “ultimate user” as defined by the
Texas Controlled Substances Act, because she “testified and provided past
documentation of valid prescriptions.” An “ultimate user” is “a person who has
lawfully obtained and possesses a controlled substance for the person’s own use, for
the use of a member of the person’s household, or for administering to an animal
owned by the person or by a member of the person’s household.” TEX. HEALTH &
SAFETY CODE ANN. § 481.002(48).           A person is in “lawful possession” of a
controlled substance if it was “obtained in accordance with state or federal law.” Id.
§ 481.002(24). Under the Texas Controlled Substances Act,2 alprazolam is a
substance in “Penalty Group 3.”3 A person commits the offense of possession of a
substance in Penalty Group 3 if the person knowingly or intentionally possesses the
substance, “unless the person obtains the substance directly from or under a valid
prescription or order of a practitioner acting in the course of professional practice.”
Id. § 481.117(a).

      Appellant introduced records from a pharmacy showing that she received
forty-five tablets of alprazolam on October 23, 2015, and another forty-five tablets
on November 23, 2015. Appellant was found in possession of more than forty-five


      2
          TEX. HEALTH & SAFETY CODE ANN. §§ 481.001–.354.
      3
          See id. § 481.104(a)(2).

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tablets, so if the drugs were those for which she had pharmacy records, then she
would at one time have had two prescription bottles properly labeled for alprazolam.
But, none of the alprazolam in appellant’s possession were in such a container.

      Appellant testified that if she had kept the alprazolam tablets in their
prescription bottle, “it would have been like a big bag, and I didn’t want to take it all
out any time that I was going to take something.” The physical evidence, however,
was not consistent with this explanation. Appellant’s hydrocodone and alprazolam
tablets were spread among three containers—a hydrocodone prescription bottle, a
zolpidem tartrate bottle, and a mint tin. Thus, appellant was storing the medication
in a way that increased the total number of containers. Moreover, each of appellant’s
prescription bottles contained only one kind of medication. The hydrocodone bottle
contained only hydrocodone, and one of the zolpidem tartrate bottles contained only
zolpidem tartrate, but the second bottle labeled for zolpidem tartrate contained only
alprazolam. Appellant did not explain why she would have transferred a nearly full
bottle of alprazolam into an empty zolpidem tartrate bottle.

      On this record, a rational jury properly could have disbelieved appellant’s
testimony that she obtained the alprazolam in her possession pursuant to a valid
prescription, and instead could have found appellant guilty of the charged offense
beyond a reasonable doubt.

      We overrule appellant’s second issue.

                                  IV. CONCLUSION

      Because the evidence supports appellant’s convictions for driving while
intoxicated and possession of less than twenty-eight grams of a substance in Penalty
Group 3, we affirm the trial court’s judgments of conviction.



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                                       /s/       Tracy Christopher
                                                 Justice

Panel consists of Justices Christopher, Bourliot, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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