                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-17-00106-CR


JOHN ANTHONY MILLER                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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      FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 1428624

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                         MEMORANDUM OPINION 1

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      A jury convicted appellant John Anthony Miller of driving while intoxicated,

misdemeanor repetition. See Tex. Penal Code Ann. § 49.09(a) (West Supp.

2017). The trial court sentenced him to 365 days in the county jail, probated for

15 months. See id. § 12.21(2) (West 2011). Miller contends, in his first point, that

the evidence was insufficient to support his conviction and, in his second point,


      1
       See Tex. R. App. P. 47.4.
that the State’s expert witness’s testimony was insufficient to support his

conviction. We construe these as two sufficiency complaints, with the latter

focusing on one particular aspect of the State’s case. We affirm.

                                Standard of Review

      In our due-process evidentiary-sufficiency review, we view all the evidence

in the light most favorable to the verdict to determine whether any rational

factfinder could have found the offense’s essential elements beyond a

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

2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). This

standard gives full play to the factfinder’s responsibility to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic

to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Jenkins,

493 S.W.3d at 599.

      The factfinder alone judges the evidence’s weight and credibility. See Tex.

Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State, 483 S.W.3d 29,

33 (Tex. Crim. App. 2016). Thus, when performing an evidentiary-sufficiency

review, we may not re-evaluate the evidence’s weight and credibility and

substitute our judgment for the factfinder’s. See Montgomery v. State,

369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the

necessary inferences are reasonable based on the evidence’s cumulative force

when viewed in the light most favorable to the verdict. Murray v. State,

457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015). We


                                          2
must presume that the factfinder resolved any conflicting inferences in the

verdict’s favor and must defer to that resolution. Id. at 448–49; see Blea,

483 S.W.3d at 33.

                                  The Dispute

      “Intoxicated” means “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 . . . .” Tex. Penal Code Ann. § 49.01(2)(A) (West

2011). The State alleged and the jury found that Miller drove a vehicle while

intoxicated. The State presented evidence that (1) Miller had a large amount of

marijuana in his system and (2) marijuana could intoxicate a person—that is,

cause a person to not have use of his normal mental or physical faculties. In

contrast, Miller maintained that the evidence showed that (1) his conduct was

attributable to a manic episode and a physical impairment and (2) the State’s

expert witness, a toxicologist, affirmatively denied knowing whether the

marijuana in Miller’s system intoxicated him.

                                  The Evidence

                                  Officer Gasca

      Officer Eduardo Gasca was a patrol officer for the Fort Worth Police

Department. On June 14, 2015, he was working the night shift, from 8:00 p.m. to

6:00 a.m. Around 5:00 a.m. he saw a pickup truck speed past him; he followed it

and determined that it was still speeding even as it was approaching a red light.


                                        3
       There were three lanes—a left-turn lane, a straight lane, and a right-turn

lane—and the pickup was in the left-turn lane. Thinking that the pickup’s speed

meant it was going to run the red light, Officer Gasca became concerned. He

then saw the brake lights illuminate and, without stopping, the pickup turned to

the right from the left-turn lane.

       Following the pickup to the right, Officer Gasca saw it swerve just as he

was turning on his patrol car’s overhead lights. Officer Gasca testified that

normally when he activated his lights, drivers would slow down and pull over or

put on their car’s hazard lights until they reached a safe parking lot. Instead, the

pickup stopped immediately in an almost perpendicular fashion. 2 Officer Gasca’s

dashboard camera showed that the pickup swerved in an arc from the right lane

nearest the curb into the adjacent left lane and stopped obliquely—so that it was

pointing back toward the far right lane—just beyond the crosswalk in the

intersection itself.

       When Officer Gasca walked up to the car, the driver, whom he identified at

trial as Miller, rolled down his window, thereby releasing a “pretty strong”

marijuana odor. Miller had bloodshot, watery eyes and slurred speech and

looked intoxicated to Officer Gasca, so Officer Gasca asked him if he had been

drinking; Miller denied consuming any alcohol. The odor, however, prompted


       2
         The second officer to arrive at the scene described the pickup as being in
the middle of the roadway instead of on the right-hand edge where a normal
traffic stop would take place.


                                         4
Officer Gasca next to ask Miller if he had smoked any marijuana, and Miller

responded that he had, about an hour earlier.

      At that point, Officer Gasca asked Miller to step out of the vehicle. Because

of all the circumstances, Officer Gasca testified that he thought that Miller was

most likely driving while intoxicated, so Officer Gasca wanted to confirm his

suspicion with a standardized field sobriety test. For Officer Gasca’s own safety,

he waited for another officer to assist him. Officer Michael Sullivan responded,

and it was he who conducted the actual field sobriety test while Officer Gasca

observed.

      Based on his watching Miller perform the walk-and-turn and one-leg-stand

tests, Officer Gasca thought that Miller was intoxicated or, put another way, that

Miller had “lost his normal use of his faculties.” The two officers placed Miller

under arrest and transported him to the jail, where Miller consented to a blood

test. Officers Sullivan and Gasca then took Miller to John Peter Smith Hospital for

that purpose.

                                Miller’s Bloodwork

      Charlotte Towler worked at John Peter Smith Hospital in Fort Worth as a

registered nurse. On June 14, 2015, she drew Miller’s blood at 6:33 a.m.

      Connie Lewis worked in the toxicology department of the Tarrant County

Medical Examiner’s Office. She tested Miller’s blood for THC, the psychoactive

ingredient in marijuana, and the results showed 33 nanograms per milliliter, an




                                        5
amount she described as uncommon; two to ten nanograms were what she

usually found.

                                   Dash-cam Video

      The jury watched the video from Officer Gasca’s dash camera, which was

triggered to start recording when he turned on his overhead lights. The video

included Miller’s field sobriety test.

                                    Officer Sullivan

      Officer Sullivan testified that when he arrived, he could smell a “[v]ery

strong” marijuana odor from about ten to fifteen feet away. In speaking with

Miller, Officer Sullivan found his responses to be “slow, sluggish.” Once out of the

pickup, Miller continually leaned on it for support, so Officer Sullivan instructed

him to move away, after which Officer Sullivan noticed that Miller swayed, his

balance was unsteady, and he had trouble walking.

      Wanting to rule out other possible reasons for Miller’s behavior, Officer

Sullivan testified that he asked Miller if he was currently taking any medications

or if he was currently suffering from any disabilities or medical problems, and

Miller responded that he had broken his leg several years earlier. But when

Officer Sullivan asked Miller if he was capable of walking a straight line or

standing on one leg, Miller did not deny being capable and did not alert Officer

Sullivan to any other medical conditions.




                                           6
         Officer Sullivan asked Miller to perform the standardized field sobriety

tests, including the horizontal gaze nystagmus test (“HGN”). 3 “Horizontal gaze

nystagmus,” Officer Sullivan explained, “is caused by alcohol as well as other

central      nervous   system   depressants     and   PCP.”    But   Officer     Sullivan

acknowledged that THC did not cause HGN. 4 Officer Sullivan saw zero of the six

possible “clues” for HGN, consistent with someone who had only smoked

marijuana and had not drunk alcohol.

         During the walk-and-turn test, Miller failed to maintain his balance, used

his arms to try to maintain his balance, stepped off the line by about a foot, made

an improper turn, and failed to touch his heel to his toe during the steps. Officer

Sullivan testified that these were all “clues” suggesting intoxication. The “decision

point” in the walk-and-turn test that indicates possible intoxication is when the

individual exhibits two out of the eight clues. Miller exhibited five of them.

         During the one-leg-stand test, which has four “clues,” Miller exhibited all of

them: he swayed while balancing, he put his foot down, he used his arms for

balance, and he hopped. According to the National Highway Traffic Safety

Administration guidelines, “the decision point” for the one-leg stand was also two

clues.



         3
       HGN is the involuntary jerking or twitching motion that eyes make when
looking sideways; this phenomenon is more pronounced in someone impaired by
alcohol and certain drugs.
         4
          The toxicologist who testified also stated that THC did not cause HGN.

                                            7
      Officer Sullivan testified that “based on the totality of everything that [he]

saw, heard, smelled, and observed,” he believed Miller was intoxicated based on

“[t]he loss of mental or physical faculties due to the introduction of a substance.”

Officer Sullivan testified that he had received training about people who were

manic depressive, but he did not remember hearing anything about its affecting

their balance or causing them to exhibit signs normally associated with

intoxication. Officer Sullivan denied seeing any signs of mental illness in Miller

that night.

                                   Dr. Johnson

      Dr. Robert Johnson was the chief toxicologist at the Tarrant County

Medical Examiner’s Office. He holds a bachelor’s degree in biochemistry and a

master’s and a Ph.D. in chemistry. He has written 60 publications on toxicology,

but only one was specifically on marijuana, and it did not deal specifically with

driving an automobile but instead with pilots who had crashed while having THC

in their bloodstreams. In addition to being board certified by the American Board

of Forensic Toxicology, Dr. Johnson belongs to the Society of Forensic

Toxicologists,   the   American   Academy     of   Forensic   Sciences,     and   the

Southwestern Association of Toxicologists. And Dr. Johnson testified that in

addition to having read dozens of articles, he has taken courses on how drugs

affect the human body and on how those effects relate to everyday activities like

driving. Dr. Johnson has testified as a toxicology expert over 100 times.




                                         8
      Dr. Johnson testified that marijuana’s or THC’s common side effects are

drowsiness, dizziness, and confusion, along with red, watery eyes and hunger.

As a consequence, not being able to maintain one’s balance as instructed by a

police officer could be consistent with being intoxicated by THC. 5

      Dr. Johnson explained that each person’s body could adapt to a drug’s

physical effects and quickly develop a tolerance—the degree of which can differ

from person to person—for the particular drug. The longer someone uses any

drug, the more the person’s body adapts, so that the drug’s physical effects

become less apparent. He agreed generally that someone who had used

marijuana for a long time would have to take a very large amount before being

impaired.

      In situations such as driving, in which a person’s attention was divided, Dr.

Johnson testified that THC could impair that person’s coping ability. If someone

was experiencing THC’s side effects, it would slow down the person’s reaction

time and make “stoned driving just as risky as drunk driving.”

      Dr. Johnson testified that 33 nanograms of THC per milliliter was a high

amount and that his laboratory typically saw between three and five nanograms

per milliliter in DWI cases. He stated that Texas had no law specifying how many




      5
        Dr. Johnson did agree that having one leg shorter than the other might
impact a person’s ability to perform the walk-and-turn test (but not the one-leg
stand).


                                         9
nanograms presumptively constituted intoxication and that whether a person was

intoxicated had to be determined by observing.

      Acknowledging that he could not tell the jury that Miller’s THC level

intoxicated Miller, and conceding that the lab report did not prove intoxication, Dr.

Johnson agreed that he could tell the jury only about marijuana’s general effects

on average people and how marijuana affected driving generally.

      To determine whether Miller was intoxicated, Dr. Johnson told the jury that

it needed to rely on three informational pieces, of which the lab report was just

one. The other two were Miller’s conduct both before and after the police pulled

him over. As Dr. Johnson readily conceded, “The laboratory report on [its] own

doesn’t prove anybody is intoxicated.”

                                  Donna Howard

      Donna Howard was Miller’s sister and testified on his behalf. She testified

that Miller was diagnosed with bipolar disorder and that when he was manic, he

talked very fast and became “kind of detached from reality” and did not “make

sense.” She said that in such a state Miller became very reckless, drove fast, and

would drive “in and out of cars.” She did not know if it affected his balance, but

she added, “He just is kind of all over the place,” and “[h]e . . . moves constantly

and that sort of thing,” stumbling over his words and losing his train of thought.

Miller’s behavior would become “very irrational.”




                                         10
      Howard said that Miller had been smoking marijuana since he was 14. 6

She described her brother as “kind of goofy” when smoking marijuana. “Mostly

just his eyes would be kind of glassy,” she added, and “[h]e may be a little more

relaxed.”

      She also said that Miller had broken a leg when he was in high school and

that the doctors set the leg improperly so that one leg was perhaps a half-inch

shorter than the other—something that affected Miller’s balance if he was not

wearing corrective inserts in his shoes. (In the video, Miller was barefoot.) She

said, “I’ve seen him stumble, you know, probably lots of times. But he just doesn’t

have good balance.”

                                Ken Ankenbauer

      The next witness was Ken Ankenbauer, a good friend of Miller’s.

Ankenbauer testified that when manic, Miller would talk fast, spend a lot of

money, dream up all kinds of business adventures, not sleep at night, and say

things that “normal” people would find “just crazy talk.” Ankenbauer further

explained that when Miller was manic, his eyes would glass over and his driving

would be more radical and careless. It was possible, Ankenbauer agreed, to be

manic, intoxicated, and driving at the same time. Ankenbauer testified that he

could not tell the difference between when Miller was in a manic state and when

Miller was intoxicated.

      6
      The indictment shows that Miller was born in September 1958 and was
56 years old in June 2015.


                                        11
                                   Richard Howard

      Miller’s last witness was Richard Howard, his brother-in-law. In the last

couple of years, Howard had noticed a change in Miller: he had begun having

grandiose ideas that “probably weren’t really rooted in reality.” Miller had no

balance problems, to Howard’s knowledge.

                                     Discussion

      In his first point, Miller contends that “[t]he evidence was legally insufficient

to support a conviction for the offense alleged in the information for driving while

intoxicated because there is no evidence that appellant Miller was intoxicated.”

Based on his briefing, his first point is clearly a sufficiency challenge.

      In his second point, Miller contends that “[t]he State’s expert witness

admitted that he was not competent to testify as to the effects of marijuana in this

case to render appellant Miller intoxicated.” Miller does not argue that the trial

court improperly admitted Dr. Johnson’s testimony; rather, Miller seems to argue

that because Dr. Johnson himself conceded that he could not say that Miller was

intoxicated, there was a fatal evidentiary gap in the State’s case. We construe

this as a sufficiency attack on the offense’s intoxication element.

      Because both his first and second points attack evidentiary sufficiency, we

address them together.

      Miller relies primarily on Smithhart v. State, 503 S.W.2d 283 (Tex. Crim.

App. 1973). There, the State alleged that the defendant was intoxicated by drugs

while driving, and the evidence showed that the defendant had drunk vodka and


                                          12
taken seven valiums that day. Id. at 285. In the absence of expert testimony that

the valium would have rendered the defendant intoxicated—either by itself or

when mixed with vodka—the court held that the State had not proved that the

defendant had been intoxicated by drugs while driving. Id. at 286.

      But Miller’s reliance on Smithhart is misplaced. The Smithhart court noted

that intoxication by alcohol was such a common occurrence that recognizing it

required no expertise, but when the accused was allegedly intoxicated by some

other drug, the same was not true. See id. Dr. Johnson’s testimony avoided the

Smithhart problem by confirming that marijuana could in fact render a person

intoxicated.

      Miller also relies on Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001).

At trial, Miller tried to exclude Dr. Johnson’s testimony based on Mata, a case in

which an expert testified on retrograde extrapolation to determine that the

defendant’s blood-alcohol content (BAC) at the time of his arrest exceeded the

legal limit. Id. at 905. But when reviewing the literature on retrograde

extrapolation, the court of criminal appeals determined that the expert did not

have the information he needed to arrive at something resembling a reliable

conclusion. Id. at 917. The majority thus held that the trial court abused its




                                       13
discretion by admitting portions of the expert’s testimony and remanded the case

for a harm analysis. 7 Id.

      Mata does not help Miller. As noted, the expert in that case testified that,

based on his retrograde extrapolations, the defendant’s BAC exceeded the legal

limits, effectively telling the jury that the defendant was guilty. Dr. Johnson did no

such thing here. Rather, Dr. Johnson did just the opposite: he candidly informed

the jury that his testimony, standing alone, would not be enough to convict Miller.

      Miller complains that by noting that he had 33 THC nanograms per milliliter

in his blood, whereas the average amount in the lab’s marijuana DWI cases was

only three to five THC nanograms per milliliter, Dr. Johnson encouraged the jury

to convict Miller because his amount exceeded the average. We disagree. Dr.

Johnson explicitly declined to say that Miller was intoxicated, because Dr.

Johnson did not know his tolerance level. If Dr. Johnson had concluded Miller

was intoxicated without knowing Miller’s tolerance level, he arguably would have

committed the same error as the Mata expert. In contrast, though, Dr. Johnson

made clear that he was not there to testify that Miller was intoxicated by

marijuana but only to testify that marijuana could render a person intoxicated—

precisely the information that was missing in Smithhart, and information the jury

needed here to link Miller’s conduct to the marijuana in his system.


      7
       After a second remand, the San Antonio Court of Appeals concluded that
the error was harmful. Mata v. State, 143 S.W.3d 331 (Tex. App.—San Antonio
2004, no pet.).


                                         14
      The two scenarios presented to the jury were that Miller’s conduct was

attributable either to marijuana intoxication or to a manic episode coupled with a

physical impairment. The evidence showed that Miller had elevated marijuana

amounts in his system and that marijuana could cause intoxication. From Miller’s

erratic driving before he was pulled over and from his poor performance during

the field sobriety tests after he was pulled over, the jury could have concluded

that Miller’s body, despite its having been exposed to marijuana for perhaps

decades, would still feel the intoxicating effects of 33 THC nanograms per

milliliter. Moreover, Officer Sullivan described Miller as “sluggish,” behavior that

was consistent with marijuana intoxication but inconsistent with the frenzied or

frantic behavior that Miller’s witnesses observed during his manic episodes.

Finally, although Miller apparently had one leg that was shorter than the other,

the jury—whose job it was to judge the evidence’s weight—was free to attribute

Miller’s conduct to marijuana intoxication and not to any physical impairment.

Viewing the evidence in the light most favorable to the verdict, we hold that a

rational factfinder could have found that Miller was driving while intoxicated by

marijuana. See Jenkins, 493 S.W.3d at 599.

      We overrule Miller’s evidentiary sufficiency challenges.

                                   Conclusion

      We affirm the trial court’s judgment.




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                                      /s/ Elizabeth Kerr
                                      ELIZABETH KERR
                                      JUSTICE

PANEL: WALKER, MEIER, and KERR, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 12, 2018




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