Opinion issued February 13, 2014




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-10-00504-CR
                           ———————————
                   MICHAEL PAUL EVERITT, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



       On Appeal from the Harris County Criminal Court at Law No. 4
                           Harris County, Texas
                       Trial Court Case No. 1655755



                 MEMORANDUM OPINION ON REMAND

      A jury convicted appellant Michael Paul Everitt of driving while intoxicated.

See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2013). The trial court assessed

punishment of 180 days in county jail, suspension of Everitt’s driver’s license for
one year, and a fine in the amount of $2,000. The court suspended the jail sentence

and placed Everitt on community supervision for two years.

      Everitt brought three issues on appeal. In his third issue, he argued that the

admission of evidence that he had taken a narcotic pain reliever, hydrocodone, was

error because there was no expert testimony that his use of the medication was

relevant to the question of intoxication. We affirmed the trial court’s judgment,

holding in part that Everitt’s challenge to the admission of expert testimony was

not preserved for appeal. The Court of Criminal Appeals held that the objection

was preserved and remanded for consideration of the merits of Everitt’s third issue:

whether the trial court abused its discretion by admitting into evidence a

videorecording in which Everitt admitted having used hydrocodone on the night he

was arrested. Everitt v. State, 407 S.W.3d 259 (Tex. Crim. App. 2013).

      We affirm.

                                   Background

      Houston Police Department Officer A. Richberg was driving his patrol car

around 2:30 a.m. when he saw appellant Michael Paul Everitt riding a motorcycle,

speeding, and changing lanes without signaling. When Officer Richberg stopped

Everitt, he observed signs of intoxication. The smell of alcohol emanated from

Everitt’s helmet, he had difficulty maintaining his balance, and he repeatedly failed

to engage the motorcycle’s kickstand. In addition, Everitt had difficulty

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understanding questions, he slurred his words, and he had bloodshot eyes. During

approximately 25 minutes of questioning Everitt admitted to having drunk alcohol

around 5:00 p.m. the prior day. He declined to perform any field sobriety tests.

      HPD Officer B. Taylor also responded to the traffic stop. She smelled

alcohol on Everitt’s breath, and she noticed that his eyes were glassy, he could not

stand without swaying, and his speech was slurred. She also said that Everitt was

talkative and asked her personal questions. She arrested him for driving while

intoxicated and placed him into the back of her patrol car, where the smell of

alcohol became “almost overwhelming.”

      At approximately 3:45 a.m., Officer Taylor brought Everitt to the “Intox

Room” at the police station, where an HPD sobriety test administrator asked him to

perform sobriety tests. A videorecording was made showing Everitt performing the

Rhomberg test, in which he was asked to close his eyes, tilt his head back, and

estimate when 30 seconds had passed. Everitt had an abnormal side-to-side sway,

and he failed to accurately estimate 30 seconds’ time. Instead, after 55 seconds he

told the officers that 60 seconds had passed, although he acknowledged that the

instruction had been to estimate only 30 seconds. Based upon his performance on

the test, the administrator determined that he was impaired. Everitt refused to

cooperate with any other field sobriety tests, and when Officer Taylor and the test

administrator asked whether he had any injuries, he said that he had taken

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“hydrocodeine . . . earlier today maybe” due to a back injury. The officer then

promptly informed Everitt of his Miranda rights.

         At trial, the State sought to introduce into evidence the videorecording of

Everitt’s admission that he had used hydrocodone. Everitt moved to suppress his

statement arguing that, under DeLarue v. State, 102 S.W.3d 388 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d), and Layton v. State, 280 S.W.3d 235 (Tex.

Crim. App. 2009), his statement regarding hydrocodone use was irrelevant unless

accompanied by competent expert testimony. 1

         The trial court held an evidentiary hearing on the motion to suppress. Officer

F. LaSalle, a Drug Recognition Expert, testified about his qualifications, the

impairing effects of hydrocodone mixed with alcohol, and methods he uses to

determine whether a person is impaired due to the use of alcohol, drugs, or both.

He also testified that the effects of a drug like hydrocodone last from six to eight

hours.


1
         In DeLarue v. State, 102 S.W.3d 388 (Tex. App.—Houston [14th Dist.]
         2003, pet. ref’d), the court of appeals held that the trial court erred when it
         admitted evidence showing the presence of marijuana in the defendant’s
         system without proof of reliability through a Kelly–Daubert hearing. 102
         S.W.3d at 401.

         In Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009), the Court held
         that, “without expert testimony to provide the foundation required to admit
         scientific evidence, the testimony regarding Appellant’s use of prescription
         medications was not shown to be relevant.” 280 S.W.3d at 242.

                                            4
      The court overruled the motion to suppress and stated that the jury would be

permitted to hear Everitt’s statement about using hydrocodone. The court

explained:

      My theory is this: He discriminates in his own mind between drinking
      yesterday and taking hydrocodone today. He’s stopped at 2:35 A.M.,
      which is two and a half hours into today. Officer LaSalle said that it is
      a psycho-physical reactive drug when taken for approximately six to
      eight hours. We don’t know the dosage. We do know whatever is
      there could be psycho-physical reactive at the time he stopped that
      night. I think it’s relevant, probative, and while prejudicial, not
      unfairly prejudicial.

The court also ruled that Officer LaSalle could testify as an expert witness.

      At trial, Officer LaSalle watched the videorecording and testified that he saw

“several signs of intoxication that would be consistent with the use of

hydrocodone.” He further testified that if Everitt had taken hydrocodone at

midnight or later, he would still have been under the influence of the drug when he

was driving at 2:30 a.m. Officer LaSalle specifically identified Everitt’s slowness

in responding to directions, abnormal sway during the Rhomberg test, and

difficulty estimating time as signs of impairment. He explained that difficulty

estimating time may impair a person’s driving ability by causing him to misjudge

the amount of time he has to make a decision.

      The jury instruction defined intoxication as “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, or a combination of two or more of those
                                          5
substances into the body.” The jury convicted Everitt of driving while intoxicated,

the court assessed punishment, and Everitt appealed.

                                      Analysis

      In his third issue, Everitt contends that the trial court abused its discretion by

admitting his statement that he used hydrocodone. He argues that the expert

testimony offered to explain how his use of hydrocodone was relevant to the

question of his intoxication was unreliable because it did not rest on reliable

information or properly apply a valid technique. Therefore, to resolve this issue

pertaining to the admissibility of the evidence of his use of hydrocodone, we must

consider both the relevance of Everitt’s statement and the admissibility of the

expert testimony.

      We review a trial court’s ruling on the admission of evidence, including

expert testimony, for an abuse of discretion. Layton v. State, 280 S.W.3d 235, 240

(Tex. Crim. App. 2009); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.

App. 2000). As with other types of evidentiary rulings, we will uphold the trial

court’s decision unless it lies outside the zone of reasonable disagreement. Layton,

280 S.W.3d at 240 (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990)).

      Generally, all relevant testimony is admissible. TEX. R. EVID. 402. “Relevant

evidence means evidence having any tendency to make the existence of any fact

                                          6
that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” TEX. R. EVID. 401. When

determining if proffered evidence is relevant, the court must consider whether

there is a logical connection between the evidence and the proposition sought to be

proved. Layton, 280 S.W.3d at 240.

      Everitt relies on Layton for the proposition that a connection between drug

use and intoxication is not automatically presumed when a defendant is charged

with driving while intoxicated. In Layton, the defendant was stopped for a traffic

violation, and he told the officer that he had taken Xanax and Valium. Id. at 237.

The statement was recorded by the officer’s dashboard-mounted video camera and

played before the jury at trial. Id. at 237–38. Layton was charged with driving

while intoxicated, and the jury was instructed that intoxicated meant “not having

the normal use of mental or physical faculties by reason of the introduction of

alcohol into the body.” Id. at 241. Because the charge was limited to intoxication

by use of alcohol, some expert testimony was needed to establish a connection

between the defendant’s use of controlled substances and the impact of such use on

his later intoxication. See id. at 242. The Court of Criminal Appeals noted that “to

be relevant in this specific case, the evidence needed to influence the jury’s

determination of whether Appellant was intoxicated by alcohol, not another

substance combined with alcohol.” Id. at 241. That is, the evidence of drug use

                                         7
would not have been relevant to Layton’s case without additional evidence

showing the synergistic effect of the drugs on his intoxication by alcohol,

considering the time when the drugs and alcohol were used. Id.

      Everitt was charged with driving while intoxicated, but unlike Layton the

charge was not limited to intoxication by consumption of alcohol. The jury was

instructed that intoxicated meant “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, or a combination of two or more of those substances into the

body.” In this case the evidence that Everitt used hydrocodone tends to make it

more probable that he was intoxicated by reason of introduction of alcohol or drugs

or both. See TEX. R. EVID. 401.

      In addition, the State offered expert testimony to establish the intoxicating

effects of the use of hydrocodone. Rule of Evidence 702 provides, “If scientific,

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

the evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify thereto in the form

of an opinion or otherwise.” TEX. R. EVID. 702. Expert opinion testimony must be

reliable, relevant, and helpful to the jury. Kelly v. State, 824 S.W.2d 568, 572 (Tex.

Crim. App. 1992). The qualification of an expert witness is a two-step inquiry. “A

witness must first have a sufficient background in a particular field, and a trial

                                          8
judge must then determine whether that background goes to the matter on which

the witness is to give an opinion.” Davis v. State, 329 S.W.3d 798, 813 (Tex. Crim.

App. 2010). The reliability of scientific evidence depends on whether the evidence

has a basis in sound scientific methodology. Layton, 280 S.W.3d at 241. To show

reliability, the following three criteria must be satisfied: (1) the underlying theory

is valid; (2) the technique applying said theory is valid; and (3) the technique was

properly applied on the occasion in question. Kelly, 824 S.W.2d at 573.

      Officer LaSalle’s qualifications are not in dispute. He testified that he had

been a certified peace officer for 16 years, he had specialized training in the area of

DWI, he is certified as an intoxilyzer operator, Drug Recognition Expert, and DRE

instructor, and he had attended courses pertaining to prescription drug abuse and

drug identification and screening. He testified that he had training and experience

that permitted him to relate how the human body is impaired by alcohol and

hydrocodone. He also testified that he had been previously “recognized as an

expert in ability to determine whether or not a person’s impaired on medications or

drugs and their effects on operating a motor vehicle.”

      Officer LaSalle addressed the reliability of the methods used by drug-

recognition experts. He testified that “the ability to determine impairment as a

result of the presence of [hydrocodone and alcohol] is valid” as a scientific theory,

and he described the scientific studies that formed the basis for the evaluation. He

                                          9
described the evaluation conducted by drug-recognition experts to determine

“which one or more than one of the seven drug categories would be in their

system.” He testified that a battery of field sobriety tests would permit him to

distinguish which substances caused a given subject’s impairment. He discussed

methods used by drug recognition experts to determine impairment as a result of

the presence of hydrocodone or alcohol, which included field sobriety tests,

especially indication of inability to divide attention between tasks; direct

observations of the suspected impaired person, such as constricted pupil size; and

clinical observations, such as blood pressure. During the Kelly hearing, LaSalle

admitted that he had never seen Everitt before. However, he said that he could

identify and describe “any possible general indicators of any one of those drugs in

a person’s system by looking at the video.” Finally he explained the combined

effect of hydrocodone and alcohol and that each has some characteristic

impairments not shared by the other substance.

      Officer LaSalle and the jury watched the police station videorecording.

Officer LaSalle heard Everitt’s recorded statement that he had used

“hydrocodeine,” which he explained is a common misnomer for hydrocodone,

which is a narcotic pain medication. LaSalle also testified that he saw “several

signs of intoxication that would be consistent with the use of hydrocodone on the

video.” He explained his observations, saying:

                                        10
      The subject had a low mumbled voice. It seemed to be a little raspy in
      his speech. He was slow to respond to directions of the person who
      was administering the test. When they asked him to put his feet
      together and hands at his side, it took him several seconds before he
      started to move and to do whatever it was he was asked to do. Then
      one field sobriety test that he actually performed, there were several
      signs on it that showed possible impairment for this type of substance.

Officer LaSalle opined that Everitt “obviously showed several mental and physical

impairment signs as a result of the ingestion of a drug like hydrocodone.”

      The court ruled that Officer LaSalle’s testimony was admissible. The record

includes evidence that Officer LaSalle was qualified by education and experience,

that his analysis was based on a valid scientific method, and that his method of

applying his expertise to offer an opinion in this case was also valid. In addition,

his expert testimony was relevant to a fact question at trial, namely whether Everitt

was intoxicated by hydrocodone or a combination of alcohol and hydrocodone

while operating a motor vehicle. See TEX. PENAL CODE ANN. §§ 49.01(2), 49.04.

Specifically, LaSalle’s testimony that he could detect the symptoms of

hydrocodone and saw those symptoms exhibited in the video made it more likely

that Everitt had been intoxicated while driving. In short, his testimony was

relevant, reliable, and helpful to the jury. See Kelly, 824 S.W.2d at 572.

      On appeal, Everitt argues that LaSalle’s opinion was not reliable because he

lacked sufficient information to do a proper drug recognition evaluation and that

his testimony did not amount to a proper drug recognition evaluation. In fact, the

                                          11
record shows that Everitt’s attorney thoroughly cross-examined LaSalle on this

topic and these alleged infirmities in his testimony. We do not disagree with

Everitt’s characterization of the evidence in this regard.

      However, as we have explained, in determining whether proffered evidence

is relevant, a trial court must consider the purpose for which it is offered and

whether there is a logical connection between the evidence and the proposition

sought to be proved. Layton, 280 S.W.3d at 240. Officer LaSalle’s testimony was

not offered to prove that Everitt had used hydrocodone or to identify “which one or

more than one of the seven drug categories” was in Everitt’s system at the time of

his arrest. Such testimony was not necessary because Everitt’s statement itself was

some evidence that he had used hydrocodone near the time of his arrest.

      However, there were fact questions as to when he used the hydrocodone and

whether he was still subject to the drug’s effects at the time of his arrest. Officer

LaSalle’s testimony was offered to show the kind of impairment that can result

from hydrocodone use and that an indication of impairment from hydrocodone was

evident in the videorecording taken shortly after Everitt’s arrest. The proposition

that the State was attempting to prove through this witness was that Everitt was

driving while intoxicated as a result, at least in part, of the use of hydrocodone.

Officer LaSalle’s testimony that Everitt showed signs of impairment consistent

with the use of hydrocodone supplied a logical connection between Everitt’s

                                          12
admitted use of hydrocodone and his driving. As such, this testimony was relevant.

See TEX. R. EVID. 401.

      Because the challenged evidence was relevant and reliable, we hold that the

court did not abuse its discretion in admitting the videorecording of Everitt’s

statement and LaSalle’s expert testimony.

      Moreover, even if the trial court had abused its discretion by admitting the

expert testimony, Everett cannot show that he was harmed. 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 Rule 44.2(b) of the Texas Rules of Appellate

Procedure, 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).

                                         13
      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.

      At trial, the jury instruction defined intoxication as “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, or a combination of two or more of

those substances into the body.” Throughout the course of the trial there was

overwhelming evidence of intoxication, even ignoring the evidence relating to

Everitt’s use of hydrocodone.

      Officer Richberg testified that Everitt was driving dangerously, including

speeding and switching lanes without a signal. Additionally, he testified that

Everitt had trouble keeping his balance when he stopped his motorcycle including

multiple attempts to put his kickstand down. Furthermore, Richberg stated, “When

I walked up to him, I was able to smell a strong odor of alcohol coming from his




                                         14
body. Then when I actually spoke to the defendant, I smelled alcohol coming from

his helmet from the mouthpiece by his helmet.”

       Officer Taylor testified that Everitt “had an inability to stand on his own

without swaying.” She noticed “a strong odor of alcoholic beverages coming from

his breath,” and testified that his “speech was slurred.” Additionally, she stated: “I

noticed that his eyes were glassy. He was very talkative. Like I said, he was asking

me personal questions.”

       The testimony from Officers Richberg and Taylor, coupled with Everitt’s

admission to drinking alcohol earlier in the evening, independently support the

conviction of intoxication. Furthermore, the State’s closing argument did not place

great emphasis on the hydrocodone evidence, focusing its argument on the totality

of the circumstances suggesting intoxication.

       Having held that the admission of the videorecording was not error and

having concluded that, in any event, any error was harmless, we overrule Everitt’s

third issue.




                                         15
                                    Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Chief Justice Radack, and Justices Sharp and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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