

Opinion issued February 2, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00698-CR
———————————
BRODRICK DECHONE DELANE A/K/A BRODERICK SHUN DELANE A/K/A SHAUN
SCOTT, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 230th Judicial District Court 
Harris County, Texas

Trial Court Case No. 1266063
 

 
O P I N I O N
A jury
found appellant, Brodrick Dechone Delane, also known as Broderick Shun Delane,
also known as Shaun Scott, guilty of the felony offense of driving while
intoxicated.[1]  After appellant pleaded true to two
enhancement allegations that he had twice been previously convicted of felony offenses,
the jury assessed his punishment at confinement for thirty-five years.[2]  In two issues, appellant contends that the evidence
is legally and factually insufficient to support his conviction and the trial
court erred in admitting “unreliable and irrelevant scientific evidence.”  
We reverse and remand.  
Background
          A
Harris County grand jury issued a true bill of indictment, accusing appellant of
driving while intoxicated “by reason of the introduction of a controlled
substance, a drug, a dangerous drug, a combination of two or more of those
substances, or any other substance into the body.”  Prior to trial, appellant filed a “motion in
limine to suppress drug/medication evidence,” seeking to suppress “audio or
visual evidence pertaining directly or indirectly to [his] use of any drug or
medication, on grounds that such evidence is irrelevant and its effect would be
more prejudicial than probative without expert scientific testimony to provide
the proper foundation.”    
During the trial court’s hearing on
his motion to suppress evidence, appellant asserted that the State was required
to present expert testimony about his alleged ingestion of medications and the effects
of the medications on him.  The State
responded that, under the circumstances and given the training, education, and
experience of the police officer who had arrested appellant, the officer was
qualified to testify to his opinion that appellant was impaired by the
medications.  The trial court denied
appellant’s motion.
At trial, Houston Police Department
(“HPD”) Officer L. Morrison testified that on September 21, 2008, while
assigned to protect a “point of distribution” (“POD”) that had been set up to
assist Houstonians in the aftermath of Hurricane Ike, a woman told him about a
man who was driving a car “crazy,” had almost hit her car, and had run “a bunch
of cars off of the road.”  The woman
identified the car, which appellant was driving.   Morrison followed appellant, who was
traveling at ten-miles per hour in a thirty-mile per hour zone, and Morrison saw
appellant travel through a stop sign and a red blinking traffic light without stopping
or yielding to other traffic.  Appellant almost
caused his car to strike another car, which had honked its horn and maneuvered
to avoid appellant’s car.  Appellant
“bounc[ed]” his car “from curb to curb” and drove in a “dangerous” manner.  Morrison activated his emergency lights, and
appellant, in trying to stop his car, “jumped” a curb, drove across some grass,
and almost hit a fence.  After appellant
stepped out of his car, he held onto it for support.  After Morrison approached and identified
himself to appellant, he explained that he had stopped appellant for reckless
driving.  Appellant then “fumbled” as he looked
for his identification, and he also slurred his speech.  However, Morrison did not detect any odor of
alcohol.  
Officer Morrison described
appellant as “slow to react,” and he decided to administer field-sobriety tests
to appellant.  Appellant was not able to
perform the “one-leg-stand” and “walk-and-turn” tests because he could not
stand on his own.  After Morrison asked
appellant if he had any “medical issues,” appellant stated that he was “fine.”  Morrison then administered the horizontal-gaze-nystagmus
(“HGN”) test to appellant, who exhibited the “maximum number of clues” to
indicate intoxication.  Based upon the
results of this test, Morrison “knew that [appellant] was under the influence
of a central nervous system depressant.” 
Morrison also administered to appellant the “vertical nystagmus” test, during
which appellant exhibited “both clues” and “immediate onset,” which
demonstrated “a very high level of intoxicants” in appellant’s system.  Finally, Morrison administered to appellant a
“convergence test,” which showed that appellant tested “positive for that clue
as well.”  Morrison then helped appellant
into Morrison’s patrol car because appellant was not able to walk without
support.  
Appellant told Officer Morrison
that he had taken two different prescription medications.  After Morrison asked appellant why he was
taking medications, appellant was “very difficult to understand,” had “very
slurred speech,” and mumbled.  When Morrison
conducted an inventory of appellant’s car, he found  two prescription medication bottles, one
containing Lisinopril and the other Pyridoxine, which belonged to appellant.  Morrison explained that he was “familiar”
with Lisinopril, a heart medication, because he had a “nursing drug handbook,”
which, he explained, stated that Lisinopril “causes drowsiness and ataxia,” “the
inability to walk.”  
          Officer
Morrison further testified that Lisinopril would not have caused appellant to
exhibit the “indicators” that Morrison had observed when he administered the
HGN test to appellant.  After appellant objected
to this evidence on the ground that it constituted “scientific testimony,” the
trial court overruled the objection.  Morrison
then explained that even though Lisinopril “caused ataxia and drowsiness, it is
not a [central nervous system] depressant to where it will cause overwhelming
signs,” like those appellant exhibited at the scene.  When asked whether he had observed any
warning labels on the Lisinopril prescription bottle,[3] Morrison stated that the
bottle contained a warning label stating, “Do not drive or operate heavy
machinery.”   
          In
regard to Pyridoxine, Officer Morrison explained that his drug handbook for
nurses stated that it also caused ataxia. 
After referring to his notes in his arrest report, in which he had
written that Pyridoxine causes ataxia and malaise, Morrison described these
conditions as being “real laid back” and “feeling kind of lethargic.”  According to Morrison, the nursing handbook
also stated, in regard to both medications, that users should “avoid alcoholic
beverages or any other depressant.”  Morrison
opined that Pyridoxine “is not a strong depressant” and would not have caused
the HGN “clues” exhibited by appellant.  Morrison
also noted that the Pyridoxine bottle also contained a label stating, “Warning,
do not drive or operate heavy machinery while taking this medication.”  Morrison opined that appellant was
intoxicated by use of “drugs based on the lack of odor of any alcoholic
beverage.”
Officer Morrison transported
appellant to a police station, where appellant declined to provide a breath
sample, which precluded Morrison from obtaining “additional information” on
appellant’s drug use.  He explained that
an HPD drug-recognition expert could only have performed a twelve-step
examination of appellant if he had provided a breath sample, which was
necessary to rule out alcohol or quantify any “additive effect.”  Morrison noted that when a defendant refuses
a breath test, an officer “can’t continue with the drug evaluation after
that.”     
          Officer
Morrison testified that although he did not have a video camera in his patrol
car, he did videotape appellant’s performance on the sobriety tests at the
police station.  Morrison explained that
appellant performed “a lot better at the station,” and he opined that “whatever
[appellant] was on had time to pretty much go through his system because he was
able to walk a lot better.”  Although
Morrison could understand appellant “a lot better” at the station, he opined
that appellant’s “mental faculties” remained “about the same” at the station.  When Morrison asked appellant to perform additional
sobriety tests, appellant was not able to keep his hands at his side, his perception
of “time and distance” was “way off,” and he swayed.  Morrison noted that appellant failed a
one-leg stand test and a walk-and-turn test, which demonstrated that he had
lost the normal use of his mental and physical faculties.   The videotape, which the State introduced
into evidence, shows appellant’s performance of the tests at the station and
reveals that at the conclusion of the walk-and-turn test, appellant stated, “I
am under the influence of my medication. 
It is making me drowsy.”  
          Officer
Morrison stated his “personal opinion” that appellant had “something else on
board besides” his prescription medications because appellant’s “pupils were
pinpoint at the station.”  Morrison
explained,
          There is only one drug that would
cause your pupils to be real pinpoint even in ambient lighting and that is a
narcotic analgesic, a pain pill or a pain medication. That is the only medication
that will make both pupils real tiny which his were. They were real pinpoint
approximately three millimeters or 3.5 millimeters which indicated that [appellant]
was on pain medication besides a [central nervous system] depressant.
 
Morrison then explained that he had been a Houston
police officer for eighteen and one-half years and had made over one thousand
arrests for driving-while-intoxicated offenses. 
Based upon his training and experience and his observations, he opined
that appellant was intoxicated.
          On
cross-examination, when asked about his qualifications to make statements about
the “affects of medications on the central nervous system,” Morrison admitted
that he had taken a “course” to be a drug-recognition expert, but he had not
taken the exam for certification.  He
further agreed that to be considered a drug-recognition expert, he would first
have to pass the certification exam.  However,
Morrison reiterated that he was offering his opinions based upon his training
and experience, and he explained that Lisinopril, which was taken by his wife, did
not affect her physical and mental faculties. 

Officer Morrison agreed that
although he suspected that “some sort of compound or chemical” was in
appellant’s system, he conducted “standard” field-sobriety tests without
consulting a drug-recognition expert.  And
he acknowledged that a drug-recognition expert’s evaluation of a defendant
would consist of twelve parts and would include further evaluation of the defendant’s
pupils as well as blood pressure tests.  Morrison
also agreed that without a drug-recognition expert or “blood work,” it would be
“impossible to have anything other than a subjective opinion about what might
be in” a defendant’s system.
          Appellant
testified that at the time of his arrest, he had been working on repairing his
house, which had been severely damaged by Hurricane Ike.  On the day of his arrest, appellant had
finished a long day of repairing his house, he was dehydrated and exhausted,
and he had not slept in several days. 
Appellant, who was taking “non-narcotic” medicine for his heart and his
high blood pressure, noted that when his blood pressure is high, he gets “dizzy”
and “drowsy” and “not being able to have food to eat to take this type of
medication cause[s] extra . . . dysfunction to [his] body.”  
Appellant explained that just prior
to his arrest, he was driving his car to the house of his mother-in-law for a
meal.  As he was driving, he was dodging
debris in the street that had been left there from the hurricane.  He explained that when he took his eyes off
the road to reach for his cellular telephone, which was on the floorboard of
his car, his car scraped the side of a curb, which caused his tire to blow out
and him to hit his stomach and chest on the steering wheel of his car.  After he exited his car and leaned against it
to catch his breath, Officer Morrison, approximately three or four minutes
later, drove by and appellant flagged him down to ask for assistance.   
Officer Morrison asked appellant
for his identification and if he was “all right.”  Appellant explained that he could not talk
because he was dehydrated, hungry, tired, and just had an accident; he had not
eaten since the day before and had been awake for three days.  After Morrison asked appellant how much he
had been drinking, appellant explained that he did not drink, but told Morrison
that he takes “high blood pressure pills, TB medication,” and another
medication.  Appellant told Morrison that
the medication was in his car, and Morrison retrieved the medication and told
appellant that he was not “supposed to be operating this vehicle on medication.”  Appellant explained that the medication was
“prescribed by [his] doctor.”  
Officer Morrison then looked at
appellant’s eyes with a flashlight and took him to the police station, where appellant
attempted to perform various sobriety tests pursuant to Morrison’s
instructions.  Appellant stated that he
was “sluggish” as he had suffered a head injury.  
Appellant further testified that he
had taken his blood pressure pill “right before” he drove his car.  He had noticed that his “blood pressure was
up because [he] was lightheaded” and “dizzy.” 
Appellant explained that he feels lightheaded, dizzy, and weak when he
has not been taking his blood pressure medication and, once he takes his
medication, “after awhile” he “start[s] feeling better.”  Appellant estimated that it generally takes
45 minutes for the medication to “kick in,” he took his pill around 3:15 p.m.,
and he entered in his car around 4:00 p.m.
On cross-examination, appellant
admitted that he had twice been previously convicted of felony offenses.  He agreed that he felt lightheaded when he
left his house, but he noted that he could feel the medication working.  When the State asked appellant a series of
questions about how often his medications made him dizzy, appellant answered sometimes
“one time out of a week” or “two days out of the week.”  Appellant also noted that the warning labels
on his medications cautioned that he should not operate heavy equipment “unless
familiar with medication.”  Appellant explained
that he was familiar with the medications because he had been taking them for
three years.  Although the medications
periodically make him dizzy, appellant noted that he cannot stop this and sometimes
the dizziness “comes out of nowhere.”
 
 
Sufficiency of the Evidence
          In
his second issue, appellant argues that the evidence is legally and factually
insufficient to support his conviction for driving while intoxicated “due to
medication” because it “was weak, unreliable, and irrelevant.”  Appellant bases his argument on the arguments
made in his first issue, in which he attacks the “reliability” of Officer
Morrison’s testimony about appellant’s medications.
We review the legal sufficiency of the evidence by
considering all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct.
2781, 2788–89 (1979).  Evidence is legally insufficient when
the “only proper verdict” is acquittal.  Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2218 (1982).  Our role is that of a
due process safeguard, ensuring only the rationality of the trier of fact’s
finding of the essential elements of the offense beyond a reasonable doubt.  See Moreno v. State, 755 S.W.2d 866, 867 (Tex.
Crim. App. 1988).  We give deference to
the responsibility of the fact finder to fairly resolve conflicts in testimony,
to weigh evidence, and to draw reasonable inferences from the facts.  Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  However, our duty requires us to “ensure that
the evidence presented actually supports a conclusion that the defendant
committed” the criminal offense of which he is accused.  Id.  We now
review the factual sufficiency of the evidence under the same appellate
standard of review as that for legal sufficiency.  Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston
[1st Dist.] 2010, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893,
894–913 (Tex. Crim. App. 2010)).    
          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) (Vernon Supp. 2011).  The term “intoxicated” means (1) 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, a combination of
those substances, or any substance into the body, or (2) having an alcohol concentration
of 0.08 or more. Id. at § 49.01(2)
(Vernon 2011).   The substance that
causes intoxication is not an element of the offense of driving while
intoxicated that must be proved at trial. 
See id. § 49.04(a).  Thus, the State can prove intoxication
without proof of the type of intoxicant.  See Gray
v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004).
          Here, the jury heard the testimony of
Officer Morrison, who explained that a witness had reported that appellant had
been driving dangerously.  Morrison
followed appellant, who Morrison saw driving in a dangerous manner.  Morrison explained that, from the tests he
attempted to administer to appellant at the scene, he believed appellant to be
intoxicated.  Appellant had no odor of
alcohol on his person, so Morrison concluded that the intoxication was due to the
ingestion of some type of drug.  Morrison
testified that appellant’s pupils exhibited signs consistent with intoxication
by a drug.  The jury was also presented
with the videotape, which shows that appellant, at the police station, had
difficulty following Morrison’s instructions. 
Moreover, on the videotape, appellant indicates that he was having
trouble understanding Morrison because his medications were making him “drowsy.”    
During his testimony, appellant denied being intoxicated,
but, on cross-examination, he admitted that the medications that he takes
sometimes make him “dizzy.”  The jury was
entitled to consider all of this evidence in finding that appellant was driving
his car while intoxicated.  See Cotton v. State, 686 S.W.2d 140, 143
n.3 (Tex. Crim. App. 1985) (enumerating nonexclusive list of signs recognized
as evidence of intoxication, including staggered gait and slurred speech); Paschall v. State, 285 S.W.3d 166, 177 (Tex. App.—Fort
Worth 2009, pet. ref’d) (holding evidence sufficient based, in part, on
officer’s testimony regarding defendant’s performance on field-sobriety tests,
videotape of field sobriety tests, and officer’s opinion that defendant had
lost normal use of his mental and physical faculties); Compton v. State, 120 S.W.3d 375, 380 (Tex. App.—Texarkana 2003,
pet. ref’d) (concluding that evidence was sufficient to support DWI conviction
when jury heard officer’s testimony surrounding stop and viewed video-recording
of defendant’s performance of field-sobriety tests); Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston [1st
Dist.] 2000, pet. ref’d) (concluding that officer’s testimony “that an
individual is intoxicated is probative evidence of intoxication”); see also Tex. Transp. Code Ann. § 724.061 (Vernon 2011) (“A person’s
refusal of a request by an officer to submit to the taking of a specimen of
breath or blood, whether the refusal was express or the result of an
intentional failure to give the specimen, may be introduced into evidence at
the person’s trial.”).
          Viewing the evidence in the light most
favorable to the prosecution, we conclude that a rational trier of fact could
have found beyond a reasonable doubt that appellant committed the offense of
driving while intoxicated.  Accordingly,
we hold that the evidence is sufficient to support appellant’s conviction.
          We overrule appellant’s second issue.
Admission of Evidence
          In
his first issue, appellant argues that the
trial court erred in admitting “unreliable and irrelevant scientific evidence”
to prove that he “was intoxicated due to medication” because Officer Morrison
“was not certified as a drug recognition expert.”  He also complains about Morrison’s testimony
regarding the effects of the medications. 
Appellant argues that because the State’s evidence is not “sound and
verifiable,” it is irrelevant.  He
asserts that the trial court “should not have admitted the unreliable evidence
of an officer not adequately qualified under the rules to provide scientific
evidence of intoxication due to medication.” 
Appellant further asserts that the State did not present any evidence of
“the exact times of ingestion” or the “half life of the drug,” the jury could
not have determined the time between when he took his medications and “how it
may have affected intoxication,” and the State did not “sufficiently establish[]”
that his poor performance on the sobriety tests was “due to intoxication due to
medication.”  
We review
a trial court’s ruling on a motion to suppress evidence for an abuse of
discretion. Layton v. State, 280
S.W.3d 235, 240 (Tex. Crim. App. 2009).  We
will uphold a trial court’s decision to admit evidence as long as the result is
not outside the zone of reasonable disagreement.  Id.
In support of his arguments,
appellant relies on Layton, in which the Texas Court
of Criminal Appeals held that “[w]ithout expert testimony to provide the
foundation required to admit scientific evidence,” evidence regarding a
defendant’s “use of prescription medications” is not relevant.  280 S.W.3d at 242.  In Layton,
the defendant was convicted of the offense of driving while intoxicated by the
introduction of alcohol into the body.  Id. at 237.  The defendant objected to the admission of
evidence pertaining to his use of Xanax and Valium.  Id.  Specifically, a videotape recording of the
defendant’s traffic stop showed that the arresting officer had stopped the defendant
at approximately 4:00 a.m. because the car that he was driving was protruding into
an intersection.  Id. The arresting officer asked the defendant if he had taken any
medications, and the defendant acknowledged that he had taken both Xanax and
Valium pursuant to his doctor’s prescriptions for the treatment of his high
blood pressure.  Id.  The defendant then
clarified that he had taken Valium at 2:00 p.m. the previous afternoon, but he had
not taken any Xanax since the day before the traffic stop.  Id.  The arresting officer commented that the
medications were for “anxiety,” not high blood pressure, and he asked the
defendant whether he had read the “inserts” included with the medications.  Id.  The officer further told the defendant that
“it probably was not a good idea to be drinking ‘on top of those.’”  Id.
The defendant
contended that such evidence “was inadmissible without the State proving the
accuracy and reliability of the evidence and its relevance to whether [he] was
intoxicated.”  Id. at 240.  He “noted that
without extrapolation on the Xanax and Valium to determine their effect on the
body, the State had not shown their relevance to the issue in question.”  Id.  The defendant argued that this evidence
should not have been admitted “without expert testimony to provide foundation.”
Id. at 237–38.  The trial court admitted the evidence over the
defendant’s objection.  Id.
On appeal,
the court of criminal appeals characterized the defendant’s challenge as
follows: 
Appellant’s
contention on appeal is not that the evidence of his prescription-drug use is
irrelevant per se, but that the relevance is conditional upon proof that it is
sound and verifiable. Appellant argues that without that showing, the evidence
is not reliable, and, therefore, irrelevant.
 
Id. at 241. The court
explained that “[w]hen the relevance of evidence depends upon the fulfillment
of a condition of fact, the court may admit the evidence contingent upon the
introduction of evidence sufficient to support a finding of the fulfillment of
the condition.”  Id. (citing Tex. R. Evid.
104(b)). The court further explained that “[r]eliability of scientific evidence
demands a certain technical showing and depends on whether the evidence has a
basis in sound scientific methodology.”  Id. (citing Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996)).  
The court
then set forth, in significant detail, a trial court’s obligation in regard to
the admission of scientific evidence:
Scientific
evidence has the ability to mislead a jury that is not properly equipped to
judge the probative force of the evidence.
Pursuant to Rule 702, it is the responsibility of the trial court to
determine whether the scientific evidence offered is sufficiently reliable, as
well as relevant, to help the jury in reaching accurate results. This places the trial judge in the role
of a “gatekeeper,” whose responsibility it is to weed out inadmissible evidence
based on a lack of reliability.  The
proponent of scientific evidence bears the burden of proving to the trial
court, by clear and convincing evidence, that the evidence is sufficiently
relevant and reliable to assist the jury in determining a fact in issue.
 
We
have previously asserted that evidence derived from a scientific theory must
meet three criteria in order to be reliable in any given case: “(a) the
underlying scientific theory must be valid; (b) the technique applying the
theory must be valid; and [(c)] the technique must have been properly applied
on the occasion in question.”  We also
identified an nonexclusive list of factors that could influence a trial court’s
determination of reliability. These
include: (1) the extent to which the theory and procedure are accepted as valid
by the relevant scientific community; (2) the technique’s potential rate of
error; (3) the availability of experts to test and assess the method or
technique; (4) the clarity and precision with which the underlying scientific
premise and approach can be explained to the court; and (5) the knowledge and
experience of the person(s) who applied the methodology on the occasion in
question.
 
Id. (citations omitted).  Applying these principles regarding the
admission of scientific evidence, the court noted that, in the case before it,
there was no evidence as to the dosage of the medications taken by the
defendant, the exact times of ingestion, or the half-life of the drugs in the
human body.  Id. at 241–42.  The court
further noted that, in light of the length of time between the ingestion of the
medications and the time of the defendant’s arrest, lay jurors were “not in a
position to determine whether Xanax and Valium, taken more than 12 hours before
arrest, would have any effect on [the defendant’s] intoxication.”  Id.
at 242.  Finally, the court noted that
there was no testimony indicating that the arresting officer had any medical
knowledge regarding the uses of Xanax and Valium, or about the effect of
combining the medications with alcohol.   Id.  Thus, the court of criminal appeals held that
the trial court had erred in admitting evidence pertaining to the defendant’s
use of Xanax and Valium “without the State first showing that the evidence was
relevant” to intoxication.  Id.
Here, the
State contends that Layton is
distinguishable because, in that case, the jury charge defined intoxication by
reference only to alcohol, so the evidence pertaining to the narcotics was
irrelevant.  Although Layton is distinguishable on this point,
the principles regarding the admission of scientific testimony that the court
of criminal appeals set forth in Layton
apply to our review of the trial court’s admission of Officer Morrison’s
testimony about the prescription medications that Morrison located in
appellant’s car and other evidence regarding these medications.  
In support
of its argument that Officer Morrison’s testimony was both relevant and
reliable and he was qualified to offer his opinions, the State notes that Morrison
testified that he had significant experience as an officer and had made over
1000 arrests for driving-while-intoxicated offenses, he had taken a field-sobriety-testing
detection course, and he had taken a drug-recognition-expert course in which he
had learned about the “seven drug categories,” the ten systems of the human
body, and “what the specific drugs do as far as the signs and symptoms to
impair a person’s ability to operate a motor vehicle safely.”  Morrison also had previously worked as a
mortician and an emergency medical technician.
However, Officer
Morrison conceded that he was not certified by HPD as a drug-recognition expert
and had not taken the exam to obtain certification.  The record establishes that HPD employs drug-recognition
experts, Morrison is not one of them, and Morrison failed to consult a drug-recognition
expert about appellant’s condition.  Morrison
agreed that he did not conduct the standard twelve-step examination that would have
been conducted by a drug-recognition expert, and he explained that he did not
contact such an expert in accord with HPD policy after appellant refused a
breath test.  Morrison’s testimony does
not reveal that he had expert knowledge about the medications that appellant
had taken or their effects on patients.  He
could state only that he was “familiar” with the medications based upon his
review of a drug handbook for nurses, which Morrison consulted in conjunction
with appellant’s arrest.  Thus, there is
no evidence that Morrison had previously studied or read about the medications
and no evidence that he had any personal experience or training regarding the
medications, other than his anecdotal report as to how one of the medications had
generally affected his wife in the past. 
Nevertheless,
the trial court permitted Officer Morrison to testify, in great detail, about
these medications and their effects both generally and specifically in regard
to appellant.  Morrison was permitted to
compare how one of the medications affected his wife with how he opined that it
had affected appellant.  Morrison was also
allowed to refer to general statements contained in a drug handbook for nurses regarding
these medications, explain the symptoms and side effects of these medications, and
define to the jury the medical terms contained in the handbook.  Yet there is no evidence that Morrison had
any specialized knowledge about these medical terms.  More importantly, Morrison was allowed to specifically
state that the medications could not have caused the “overwhelming signs” of
intoxication or the HGN clues exhibited by appellant.  Significantly, based upon this “expert”
testimony, Morrison offered his opinion that appellant had “something else on
board” besides his prescription medications.  

The trial
court also permitted Morrison to testify that once at the police station,
appellant was “a lot better” because “whatever” appellant had in his system had
“time to pretty much go through his system.” Morrison presented no foundation
for his testimony regarding the length of time that these medications could
have affected appellant or how these medications would have affected “whatever”
other narcotic Morrison suspected that appellant had “on board.”  
We
conclude that the record before us demonstrates that Officer Morrison’s
testimony concerning the medications at issue was neither relevant nor reliable
and that Morrison was not qualified to offer such detailed testimony concerning
appellant’s prescription medications or his understanding of the effects of the
prescriptions on appellant.   Accordingly, we hold that the trial court
abused its discretion in allowing Morrison to testify regarding his opinion on these
medications in conjunction with his ultimate opinion on appellant’s
intoxication.
Having
concluded that the trial court erred in admitting Officer Morrison’s testimony about
the medications and his opinion that appellant had “something else on board,”
we must now conduct a harm analysis.  A
violation of evidentiary rules that results in the erroneous admission of
evidence is non-constitutional error.  See Tex.
R. App. P. 44.2(b); see also
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).  The appropriate harm analysis is therefore
the one set out in Texas Rule of Appellate Procedure 44.2(b), which dictates
that a non-constitutional error “that does not affect substantial rights must
be disregarded.”  Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008)
(quoting Tex. R. App. P.
44.2(b)).  A substantial right is
affected when an error has a substantial and injurious effect or influence in
determining a jury’s verdict.  King v. State, 953 S.W.2d 266, 271 (Tex.
Crim. App. 1997).  Therefore, a criminal
conviction should not be overturned for non-constitutional error if the
appellate court, upon examining the record as a whole, has fair assurance that
the error did not influence the jury, or had but slight effect.  Cobb v.
State, 85 S.W.3d 258, 272 (Tex. Crim. App. 2002).  
In
assessing the likelihood that the jury’s decision was adversely affected by the
error, we consider everything in the record, including any testimony or
physical evidence admitted for the jury’s consideration, the character of the
alleged error, and how it might be considered in connection with other evidence
in the case. Motilla v. State, 78
S.W.3d 352, 355 (Tex. Crim. App. 2002). 
We may also consider any jury instruction given by the trial court, the
State’s theory and any defensive theories, closing arguments, and voir dire, if
material to the claim.  Id. at 355–56.
As
explained above, Officer Morrison was not merely permitted to testify that, in
his opinion, appellant was intoxicated due to the introduction of drugs or a controlled
substance into his body.  Such testimony
would have been unremarkable and within the bounds of Morrison’s training and
experience. Rather, the trial court permitted Morrison to testify in great
detail about appellant’s prescription medications, the purposes of the
medications, the side effects of the medications, how the medications affect
the human body in general, and how the medications affected appellant
specifically.  Indeed, Morrison was
allowed to testify that the medications could not have caused the “overwhelming
signs” of intoxication exhibited by appellant and, in Morrison’s opinion,
appellant had “something else on board.” 
A review of the record reveals that Morrison’s testimony pertaining to
these medications and their effects constituted a substantial part of the
State’s case.        
During
closing arguments, the State specifically argued to the jury that each member
did not have to agree on “what drug it was” that caused appellant’s
intoxication, and it noted that some jurors could believe that appellant was
intoxicated by reason of his ingestion of prescription medications while others
could believe that appellant had “something
a little stronger on board, some sort of central nervous depressant.”  (Emphasis added.)  Although the State’s argument may have been
legally correct and complied with the charge given, it is significant in regard
to our harm analysis because, as previously noted, neither Officer Morrison’s
extensive testimony about the medications at issue, nor his opinion that
appellant had something else “on board,” should have been admitted into
evidence for the jury to consider.  In
his closing argument, counsel for appellant obviously concluded that the
evidence pertaining to appellant’s medications, Morrison’s expert testimony
about the medications, and their effects on appellant’s intoxication, was a
critical part of the State’s case.  Appellant’s
counsel devoted a significant portion of his closing argument to challenging
the reliability of Morrison’s opinions on the effects of appellant’s
medications and their causal relationship to appellant’s intoxication.   He argued that the jury should not consider Morrison
to be an expert and, thus, his testimony was not reliable.  In rebuttal, the State conceded that Morrison
was not an expert, but the State continued to make reference not only to
Morrison’s testimony regarding his general opinion of intoxication but also to
his testimony about the medications.  
We
recognize that the State presented the videotape of the sobriety tests that
appellant performed at the police station. 
As appellant has conceded in his brief, the videotape demonstrates that
he did not perform well on the tests.  We
also note that the State, without objection, was able to introduce into
evidence the hearsay testimony of an unidentified witness who reported
appellant’s “crazy” driving to Officer Morrison.  
However, the
State was not merely required to prove that appellant had lost the normal use
of his mental or physical faculties, but that he had done so “by reason of the
introduction” of a “drug,” a “controlled substance,” a “combination of two or
more” controlled substances or drugs, or “any other substance” into his body.  Here, appellant testified that he was not
intoxicated, but rather, he was exhausted, dehrydated, and sleep-deprived.  In contrast, Morrison testified as to his
opinion that appellant was intoxicated and his intoxication was caused by the
introduction of a drug into his body.  Again,
significantly, he was permitted to opine that appellant’s medications could not
have caused the “overwhelming signs” of intoxication exhibited by appellant
and, therefore, appellant must have had “something else on board,” a point emphasized
by the State in its closing argument.  Because
Morrison was permitted to provide such detailed and extensive testimony
regarding appellant’s prescription medications and their potential effects, and
because this testimony was unreliable, we cannot conclude with “fair assurance”
that the trial court’s error in admitting his expert testimony “did not
influence the jury” or had “but a slight effect” on the jury’s finding that
appellant committed the offense of driving while intoxicated.  See
Layton v. State, No. 01-05-00950-CR, 2009 WL 1886162, at *3–4 (Tex.
App.—Houston [1st Dist.] Jul. 2, 2009, pet. ref’d) (mem. op.).  Accordingly, we hold that the trial court’s
error affected appellant’s substantial rights. 
See Tex. R. App. P. 44.2(b).
We sustain appellant’s first issue.[4]
Conclusion
          We
reverse the judgment of the trial court and remand for proceedings consistent
with our opinion.  
 
 
                                                                   Terry
Jennings
                                                                   Justice

 
Panel
consists of Justices Jennings, Higley, and Brown.
Justice
Brown, dissenting.
Publish.
 Tex. R. App. P. 47.2(b).
 




[1]
          See Tex. Penal Code Ann.
§§ 49.04(a), 49.09(b)(2) (Vernon Supp. 2011).  The offense of driving while intoxicated
(being intoxicated while operating a motor vehicle in a public place) (“DWI”)
is ordinarily a Class B misdemeanor.  See id. § 49.04(b).  However, it is elevated to “a felony of the
third degree if it is shown on the trial of the offense that the [accused] has
previously been convicted . . . two times of any other offense relating to the
operating of a motor vehicle while intoxicated.”  See id.
 § 49.09(b)(2).  Here, appellant stipulated that he had twice
been convicted of driving while intoxicated before the instant offense.
 


[2]
          See id. § 12.42(d) (Vernon Supp. 2011) (providing that range of
confinement for person’s third felony conviction, other than state jail felony,
is twenty-five years to ninety-nine years or life).


[3]
          When appellant objected to this
question as calling for hearsay, the trial court overruled the objection, and
appellant does not challenge this ruling on appeal.


[4]
          Our dissenting colleague opines
that appellant has not preserved error because his motion (1) “operated as a
motion in limine, not as a motion to suppress” and (2) “the objections made
therein are not the same objections raised on appeal.”


            In regard to the first point, we note that the record
reveals that at the pretrial hearing, the State itself treated appellant’s
motion as “the motion to suppress drug and medication evidence” and the trial
court denied it as such.  Moreover, after
obtaining the trial court’s ruling, appellant did not affirmatively waive his
relied-upon objection as asserted in his motion to suppress evidence.  See
Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986) (stating that
“[i]t is well settled that when a pre-trial motion to suppress evidence is
overruled, the defendant need not subsequently object at trial to the same
evidence in order to preserve error on appeal,” and noting that only when “the
defendant affirmatively asserts during trial he has ‘no objection’ to the admission
of the complained of evidence” does he waive “any error in the admission of the
evidence despite the pre-trial ruling”).
 
            In regard to the assertion
that appellant below did not contest the “reliability” of the State’s evidence,
we note that at the pretrial hearing, appellant cited and provided the trial
court with a copy of Layton v. State, 280 S.W.3d 235, 240 (Tex.
Crim. App. 2009).  As argued by appellant
to the trial court, “The conclusion in [Layton]
is that if you are going to provide medication evidence or evidence that there
is some intoxication caused by medication, that is scientific evidence; and we
have got to have an expert who can testify as to how the medication is ingested
in the body, how it metabolizes in the system in terms of when you took it and
what the affects are and they psychopharmacological affects are, without that
sort of testimony, you cannot admit that evidence because it is not relevant;
and it is not more probative than prejudicial.” 
The record further reveals that the State understood appellant’s
argument and tried to distinguish Layton.  The defendant in Layton made a point similar to that asserted by appellant in the
instant case. As noted by the Texas Court of Criminal Appeals:
 
Appellant’s
contention on appeal is not that the evidence of his prescription-drug use is
irrelevant per se, but that the relevance is conditional upon proof that it is
sound and verifiable. Appellant argues
that without that showing, the evidence is not reliable, and, therefore,
irrelevant. When the relevance of evidence depends upon the fulfillment of
a condition of fact, the court may admit the evidence contingent upon the
introduction of evidence sufficient to support a finding of the fulfillment of
the condition. Tex. R. Evid.
104(b).  Reliability of scientific
evidence demands a certain technical showing and depends on whether the
evidence has a basis in sound scientific methodology.  Jordan
v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996).
            Id.
at 241 (emphasis added).
 
            Here, after receiving a copy of Layton, the trial court should have been
aware of appellant’s grounds for the exclusion of Officer Morrison’s
testimony.  Again, as explained by the
court of criminal appeals:
 
After
receiving a copy of DeLarue and
hearing Appellant’s argument, the trial
judge should have been aware of the basis of the objection.  It is apparent that Appellant’s objection was
that evidence of his use of Xanax and Valium was inadmissible without the State
proving the accuracy and reliability of the evidence and its relevance to
whether Appellant was intoxicated by the introduction of alcohol.  Appellant noted that without extrapolation on the Xanax and Valium to determine their effect
on the body, the State had not shown their relevance to the issue in question.  Although the parties did not specifically
address the officer’s subsequent statements regarding the medications, such
statements fall under Appellant’s objection to the relevance of his use of
these medications.
Id. at 240 (emphasis added).
            
            Accordingly, we
conclude that appellant has preserved his issue for our review.  See id.  As previously explained in Layton, 
 
[A]ll the party has to do to avoid the forfeiture of a
complaint on appeal is to let the trial judge know what he wants, why he thinks
he is entitled to it, and to do so clearly enough for the judge to understand
him at a time when the trial court is in a proper position to do something
about it.  Beyond this, there are no
specific words or technical considerations required for an objection to ensure
that the issue will be preserved for appeal. 
If the correct ground of exclusion
was apparent to the judge and opposing counsel, no waiver results from a
general or imprecise objection. 
For example, we said that the one-word objection, “hearsay,”
was sufficient to put the trial judge and opposing counsel on notice of the
reason for the objection.   In addition,
we have previously stated that we will not be hyper-technical in examination of
whether error was preserved.
            Id. at 239 (emphasis added) (citations omitted).


