             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-19-00011-CR
      ___________________________

        TROY E. DOVE, Appellant

                      V.

          THE STATE OF TEXAS


On Appeal from County Criminal Court No. 1
           Tarrant County, Texas
         Trial Court No. 1559206


Before Sudderth, C.J.; Birdwell and Womack, JJ.
  Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

      Appellant Troy E. Dove was convicted of driving while intoxicated. In his first

two issues, Dove contends that the trial court abused its discretion by allowing two

nonexperts to testify that he showed signs of narcotic intoxication. He argues that the

subject of narcotic intoxication falls within the exclusive domain of an expert

toxicologist and that lay opinion on the topic is forbidden. But even assuming the trial

court erred by allowing this testimony, any error is harmless. The State concedes

Dove’s third and fourth issues, which call for only minor modifications to the judgment.

Therefore, we affirm as modified.

                                           I.

      On the afternoon of August 12, 2018, Officer Cleburne Eardley was dispatched

to address a report of a possibly intoxicated driver at a gas station. He found Dove

slumped over at the wheel of an idling gas tanker truck and what appeared to be a trail

of vomit leading from the ground up to the truck’s cab. When Officer Eardley spoke,

Dove jolted awake. Officer Eardley had to catch Dove as he unsteadily climbed down

from the cab, and his speech was slurred and mumbled. Officer Eardley did not smell

any alcohol, but he still suspected that Dove was intoxicated. Seeing how unsteady

Dove was, Officer Eardley believed it would be unsafe to conduct field sobriety testing.

When paramedics were through treating Dove, Officer Eardley arrested him. As they

drove to the jail, Dove repeatedly told Officer Eardley that had taken prescription



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hydrocodone; Dove asked if the charges would be dropped in light of the fact that he

had a prescription.

      At the jail, Dove refused consent for a blood draw, and Officer Eardley obtained

a blood warrant.      Dove’s blood alcohol level was .127.      He was charged with

misdemeanor driving while intoxicated with an enhancement for a prior assault offense.

      At trial, the State sought to elicit Officer Eardley’s testimony concerning the

signs that Dove was intoxicated by narcotics, including his slow movements, constricted

pupils, and apparent dry mouth. Dove objected that Officer Eardley was not qualified

as an expert in toxicology and should therefore not be allowed to opine on narcotic

intoxication. The trial court overruled the objection and allowed this testimony.

      Later, the State called Grayson Sterrett, one of the paramedics who examined

Dove at the scene. When the State asked Sterrett what symptoms would suggest

intoxication by heroin or hydrocodone, Dove again objected that Sterrett had not been

qualified as an expert. The trial court overruled the objection and allowed Sterrett to

testify that Dove showed symptoms of narcotic intoxication.

      Despite Dove’s admitted use of hydrocodone and the testimony concerning

symptoms of opioid use, the jury was not charged on intoxication by a controlled

substance. Instead, the jury was charged only on intoxication by alcohol. The jury

found Dove guilty as charged. After finding his enhancement true, the trial court

sentenced Dove to 90 days in jail. Dove appeals.



                                           3
                                            II.

       In his first two issues, Dove contends that the trial court abused its discretion by

allowing two nonexperts to testify concerning narcotic intoxication.           Relying on

Smithhart v. State, 503 S.W.2d 283, 285 (Tex. Crim. App. 1973), Dove argues that the

topic of narcotic intoxication is solely the province of an expert on toxicology and that

lay opinion on the matter is impermissible.

       The State argues that even assuming there was error in allowing lay testimony on

this subject, it would be a harmless error. We agree with the State.

       Because any error is not constitutional, we apply rule 44.2(b). Tex. R. App. P.

44.2(b). That rule requires us to disregard any nonconstitutional error that does not

affect appellant’s substantial rights. Id. An error that has a “substantial and injurious

effect or influence in determining the jury’s verdict” affects a substantial right. Haley v.

State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct.

1239, 1253 (1946)). Conversely, an error does not affect a substantial right if we have

“fair assurance that the error did not influence the jury, or had but a slight effect.”

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d

410, 417 (Tex. Crim. App. 1998).

       In determining whether an error affected an appellant’s substantial rights, we

review the record as a whole, including any testimony or physical evidence admitted for

the jury’s consideration, the nature of the evidence supporting the verdict, and the

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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 the jury instructions, the State’s theory and any defensive theories,

whether the State emphasized the error, closing arguments, and even voir dire, if

applicable. Haley, 173 S.W.3d at 518–19; Motilla, 78 S.W.3d at 355–56.

      A person commits DWI when the person is “intoxicated while operating a motor

vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a). The Texas Penal Code

sets out two definitions of “intoxicated.” Crenshaw v. State, 378 S.W.3d 460, 466 (Tex.

Crim. App. 2012). The subjective definition of intoxicated is “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 these

substances, or any other substance into the body.” Id. (quoting Tex. Penal Code Ann.

§ 49.01(2)(A)). The per se definition of intoxicated is “having an alcohol concentration

of 0.08 or more.” Id. (quoting Tex. Penal Code Ann. § 49.01(2)(B)).

      However, the charge did not instruct the jury on the full definitions of

intoxication; omitted from the charge on the subjective definition of intoxication was

any mention of intoxication by a controlled substance, a drug, a dangerous drug, a

combination of two or more of those substances, or any other substance into the body.

Instead, the jury was instructed that it could find the defendant guilty only if it found

beyond a reasonable doubt that Dove was intoxicated by alcohol, either in that alcohol

impaired the normal use of his faculties or in that his blood alcohol concentration was

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0.08 or more. The jury is presumed to have understood and followed the court’s charge,

absent evidence to the contrary. Id. at 467. Thus, in Crenshaw, the court presumed that

the jury convicted the defendant based only on the subjective theory of intoxication

that was charged and not on the uncharged per se theory of intoxication. Id. Likewise,

we presume that the jury convicted Dove based only on the alcohol intoxication that

was charged and placed no reliance on the drug intoxication that was uncharged.

       In a certain sense, the charge thus did away with the sole area where harm might

reside. A purely obedient jury would not have considered the drug evidence at all in

reaching its conclusion that Dove was intoxicated by reason of alcohol alone. Lacking

any evidence to the contrary, we are required to presume that the jury was obedient to

the charge in this way. See id.

       A similar conclusion was reached in Sifford v. State, 741 S.W.2d 440, 441 (Tex.

Crim. App. 1987). There, the indictment wrongly alleged two offenses that were not

properly subject to joinder, aggravated sexual assault and robbery, and the State

introduced evidence of both. Id. at 440. Nonetheless, the State elected to proceed only

on the aggravated sexual assault charge. Id. at 441. The Sifford court held that the

election cured any harm from the misjoinder or from the introduction of evidence

concerning a robbery offense that was never submitted for the jury’s consideration. Id.

In the same way, here, the State’s election to proceed solely on alcohol intoxication

would seem to mitigate any harm flowing from evidence relating to a drug-intoxication



                                           6
theory that was never submitted to the jury. Thus, the nature of the charge strongly

implies that any error was harmless.

       The overwhelming evidence of alcohol intoxication also suggests harmless error.

The prosecution introduced testimony and body-camera video demonstrating that

Dove exhibited many of the telltale signs of alcohol intoxication:        being found

unconscious near a pool of his own vomit, only to wake, lurch down from the truck,

and slur incoherent responses to Officer Eardley’s questions. Analysis showed that

Dove’s blood alcohol level was .127, more than enough for per se alcohol intoxication.

A lab supervisor for the Texas Department of Public Safety testified that because of the

high blood alcohol concentration, the lab decided not to even test the blood’s drug

content, concluding that the State had no need for this alternate form of intoxication

evidence. In the same way, the force of this blood and video evidence might have

further convinced the jury to put any drug intoxication out of its collective mind and

focus only on alcohol intoxication. See McRae v. State, 152 S.W.3d 739, 745 (Tex. App.—

Houston [1st Dist.] 2004, pet. ref’d) (op. on reh’g) (holding improper intoxication

evidence harmless in light of “more persuasive” blood and video evidence, among other

things).

       Also of note is that the complained-of evidence was elicited from nonexperts,

was cumulative, and was not emphasized by the State. See Bagheri v. State, 119 S.W.3d

755, 763 (Tex. Crim. App. 2003). The State never attempted to qualify the officer or

the paramedic as experts in order to strengthen their testimony. Moreover, by the time

                                           7
the State introduced this evidence, the jury had already seen a video in which Dove

proclaimed ten times in the space of six minutes that he had taken prescription

hydrocodone. Thus, it was Dove himself who gave the first and strongest evidence of

drug intoxication; the officer’s and paramedic’s testimony on this front was duplicative

and lesser. See Harrington v. California, 395 U.S. 250, 254, 89 S. Ct. 1726, 1728 (1969)

(holding improper evidence harmless because it was, among other things, cumulative

of the defendant’s own inculpatory statements). And rather than distancing from this

topic, Dove revisited the subject of opioid intoxication multiple times during the

defense case and closing argument, further diluting the effect of the complained-of

evidence. By contrast, the State never mentioned drug intoxication in voir dire or

opening statement. During closing argument, the State even downplayed the legal

significance of this evidence, saying “this case isn’t all about drugs. . . . All we needed

to prove intoxication was this score, a .127.” Later, the State again ventured, “We don’t

need the drugs. This case was not about drugs.” Thus, we are fairly assured that this

nonexpert, cumulative, and deemphasized testimony could not have had more than a

slight effect on the jury’s decision. See Bagheri, 119 S.W.3d at 763; Solomon, 49 S.W.3d at

365.

       In light of these factors—a charge that offered little opportunity for prejudice; a

compelling record apart from the drug evidence; and the State’s efforts to minimize this

cumulative, nonexpert testimony—we hold that any error was harmless. See Haley, 173



                                            8
S.W.3d at 518–19; Motilla, 78 S.W.3d at 355–56. We therefore overrule Dove’s first and

second issues.

                                         III.

      In his third issue, Dove submits that the trial court assessed him with an

unconstitutional “Emergency Management Services” fee. He notes that we held such

a fee to be unconstitutional in Casas v. State, 524 S.W.3d 921, 927 (Tex. App.—Fort

Worth 2017, no pet.). The State concedes error and asks this court to modify judgment

and the bill of costs to strike this $100 fee. We will modify the judgment accordingly.

See Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Gonzalez v. State, No. 02-

17-00373-CR, 2019 WL 983699, at *3 (Tex. App.—Fort Worth Feb. 28, 2019, no pet.)

(mem. op., not designated for publication). Dove’s third issue is sustained.

      In his fourth issue, Dove contends that there was insufficient evidence to

support his enhancement as a repeat offender.         He observes that the judgment

incorrectly recites that he pleaded true to the enhancement; in fact, he simply stood

silent on the enhancement. Dove argues that the evidence is therefore insufficient to

support the enhancement, because the State offered no evidence demonstrating a prior

assault conviction. As a remedy, he asks us to simply reform the judgment without a

remand for resentencing because he has already been released from jail, because the

removal of the enhancement does not impact the upper limit of punishment, and

because his ninety-day sentence remains within the applicable range of punishment after

deleting the enhancement.       Compare Tex. Penal Code Ann. § 12.22(2) with id.

                                           9
§ 12.43(b)(2). The State again concedes error and asks us to accommodate Dove’s

request. We will modify the judgment accordingly. See Bigley, 865 S.W.2d at 27; Gaddy

v. State, 433 S.W.3d 128, 131 (Tex. App.—Fort Worth 2014, pet. ref’d). Dove’s fourth

issue is sustained.

                                         IV.

       We modify the judgment to delete the enhancement and to reflect that Dove did

not plead true to any enhancement. We further modify the judgment and the bill of

costs to delete the $100 emergency services fee, leaving total costs of $332.10. As

modified, we affirm. See Tex. R. App. P. 43.2(b).


                                                    /s/ Wade Birdwell
                                                    Wade Birdwell
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: January 30, 2020




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