Opinion issued July 9, 2015




                                    In The

                              Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                              NO. 01-14-00247-CR
                          ———————————
                     TERRI COX FERGUSON, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 174th District Court
                          Harris County, Texas
                      Trial Court Case No. 1330035


                        MEMORANDUM OPINION

      In a single point of error, appellant Terri Cox Ferguson challenges the

sufficiency of the evidence to support her conviction for the offense of felony

murder. We affirm.
                                  BACKGROUND

      On September 29, 2011, Gabriela Rodriguez was standing in the emergency

lane of Beltway 8 putting gasoline in her vehicle when appellant swerved her

vehicle onto the shoulder, striking and killing Rodriguez. Appellant was charged

with felony murder predicated on causing Rodriguez’s death while committing the

offense of driving while intoxicated as a third offender.

      At trial, the State argued that appellant was intoxicated as the result of

mixing consumption of numerous prescription medications and marihuana.

Appellant argued that she was not intoxicated and that instead she had suffered a

seizure that rendered her actions involuntary. The jury found appellant guilty of

felony murder, and the trial court sentenced her to fifteen years’ confinement.

                                  INTOXICATION

      The jury was properly charged with the Penal Code definition of

“Intoxication”:

       (2) “Intoxicated” means:
          (A) 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; or
          (B) having an alcohol concentration of 0.08 or more.

TEX. PENAL CODE ANN. § 49.01 (West 2011). Under this section, “intoxication

may be proven in either of two ways: (1) loss of normal use of mental or physical


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faculties or (2) alcohol concentration in the blood, breath, or urine of 0.08 or

more.” Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010). “The first

definition is the “impairment” theory, while the second is the “per se” theory.” Id.

      The identity of the particular substance causing the intoxication is not an

element of the offense. Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App.

2004). And an intoxication finding may be supported entirely by circumstantial

evidence. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010).

                           STANDARD OF REVIEW

      When reviewing the sufficiency of the evidence, we view all of the evidence

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

finder could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that

Jackson standard is only standard to use when determining sufficiency of

evidence). The jurors are the exclusive judges of the facts and the weight to be

given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App.

2008). A jury, as the sole judge of credibility, may accept one version of the facts

and reject another, and it may reject any part of a witness’s testimony. See Sharp v.

State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson v. State,




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29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (stating jury

can choose to disbelieve witness even when witness’s testimony is uncontradicted).

      We    afford   almost    complete    deference   to   the   jury’s   credibility

determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).

We resolve any inconsistencies in the evidence in favor of the verdict. Curry v.

State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record supports conflicting

inferences, we presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination.”). Circumstantial evidence

is as probative as direct evidence in establishing guilt, and circumstantial evidence

alone can be sufficient to establish guilt. Sorrells v. State, 343 S.W.3d 152, 155

(Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at 778). “Each fact need not

point directly and independently to the guilt of the appellant, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the

conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

                                    ANALYSIS

A.    Trial Testimony about Appellant’s Actions on September 29, 2011

      Several witnesses testified to their observations of appellant’s driving and

behavior around the time appellant struck Rodriguez with her vehicle. Charlie

Holly testified to first spotting appellant’s vehicle about 5:00 p.m. on September


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29, 2011 while driving on Interstate 45 on his way home from work. He was in the

far right-hand lane preparing to take the exit to Beltway 8 when he “looked up to

the ramp going up onto the beltway and observed a lot of cars were backing up.”

This was because appellant’s black SUV was driving slowly, causing a back-up

behind it. Holly testified that appellant was driving so slowly that he assumed that

she was having vehicle trouble.

      As he merged onto Beltway 8, Holly also spotted a white SUV on the right-

hand shoulder of the freeway. Rodriguez was putting gas in that white SUV.

Holly testified to seeing appellant’s SUV move into the emergency lane behind

Rodriguez’s stopped vehicle, and he assumed that appellant was stopping to assist

Rodriguez. Instead, appellant began swerving back into the main lanes of Beltway

8, striking Rodriguez’s body and throwing her into the air. Holly testified that

appellant continued driving another 40 or 50 yards, and then moved over onto the

shoulder and stopped. Holly stopped and called 911.

      Gretchen Janecek also testified to driving behind appellant as she exited

Interstate 45 and merged onto Interstate 10. Janecek saw appellant’s vehicle

repeatedly swerve between lanes such that Janecek was concerned it would collide

with another car. Janecek saw appellant strike Rodriguez.

       Essence Bukem also testified to driving behind appellant and purposely

staying back “a little bit” because appellant’s vehicle was fishtailing. Bukem saw


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appellant swerve onto the shoulder lane, strike Rodriguez, and then speed up.

Bukem starting honking at appellant to get her attention while she called 911.

Buken continued to follow appellant for about 10 or 15 minutes while Buken’s

passenger stayed on the phone to keep a police dispatcher apprised of appellant’s

location.

      Deputy M. White with the Harris County Constable’s office was dispatched.

White spotted appellant driving as he got onto Beltway 8 about 17 miles from the

accident scene. She was “swerving, unable to maintain her lane.”        She did not

immediately pull over when White activated his lights and sirens. She eventually

pulled over, striking a barrier as she did so.

      White testified that appellant had little reaction to anything he said. She did

not respond when he asked her to put her vehicle in park, turn the vehicle off, and

step out of the vehicle. Thus, White reached in, put appellant’s vehicle into park,

turned off the ignition, and helped appellant out of the vehicle. He described her as

“very incoherent” and “just in a daze.” Appellant also had a lot of saliva collected

at the sides of her mouth. From his interactions with her, White surmised from his

knowledge and experience that appellant was under the influence of something.

From his experience, he did not see any signs of a medical problem or condition.




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      Pursuant to instructions from his Sergeant, White called a wrecker to take

appellant’s vehicle back to the accident scene. White also drove appellant there

and then turned appellant over to Deputy Stanley.

      Officer Robert Francis was dispatched to the scene to investigate.            He

testified that he first encountered appellant about 1 or 1 1/2 hours after the accident

when she was brought back to the scene. Francis described appellant as appearing

confused, exhibiting slurred speech, and unsteady on her feet. He opined that she

appeared “as an intoxicated person would appear.”           Francis performed field

sobriety tests, although he did not detect the odor of alcohol on her breath.

      Francis first planned to perform a Horizontal Gaze Nystagmus Test (HGN),

which is designed to detect nystagmus (i.e., involuntary jerking of the eyeballs).

He noticed her pupils were different sizes, however, and inquired whether she had

a recent head injury. Appellant responded that her dog had recently knocked her

down. He continued with the test even though he knew that the unequal pupil size

and possible head injury would invalidate any HGN results. He did not detect any

nystagmus.    Francis testified that result did not surprise him, because not all

intoxicating substances cause nystagmus.

      Francis next planned to complete a Walk-and-Turn Test on appellant.

Appellant, however, claimed that she had an injured knee from either falling down

stairs or her dog knocking her down that prevented her from completing that test.


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        Francis next attempted to administer the One-Leg-Stand Test.           When

appellant again claimed injury, Francis asked if she could lift her injured leg and

stand on her good leg. Appellant responded that she did not think she could do

that.

        Francis then administered the Rhomberg Balance Test, which required

appellant to tilt her head back slightly, close her eyes, and approximate the passage

of 30 seconds.        She exhibited eyelid tremors (which are an indication of

consumption of drugs), swaying (which indicates impairment), and an inability to

accurately estimate the passage of time (which can indicate a subject is under the

influence).

        Next Francis asked appellant to recite the alphabet from A to Z. She had a

difficult time, stumbled around, and was unable to finish. Her speech was also

noticeably slurred.

        Finally, Francis administered the Dexterity Test, which requires “touching

your thumb to your fingers and counting in sequence forwards and then

backwards.”     Appellant was able to complete that task, and in fact started

performing that test before Francis gave her the instructions.

        Francis then asked appellant several questions that he believed she

understood. He asked her what she was doing, and she said she was taking food to

a friend in the area of Monroe Road off of Interstate 45. She told him that she


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believed that the accident happened on Interstate 45 (rather than Beltway 8, where

it actually occurred). She also told Francis that earlier that same day she had

forgotten to open her garage door and struck the door while backing out. Finally,

she told Francis that she had a 500-acre ranch and the damage on the front of her

vehicle resulted from her hitting a tree on that ranch. Francis opined that there was

no damage to the vehicle consistent with a tree strike.

      Deputy James Stanley with the Harris County Constable’s Office testified

that he was dispatched to the scene of the hit-and-run. After appellant was brought

back to the scene, Stanley was instructed to give her statutory warnings and take

her to the hospital for a blood draw. He did so, and then returned with her to scene

so that Francis could conduct the field sobriety testing described in Francis’s

testimony.   After Francis obtained consent from appellant for a blood draw,

Stanley took her back to the hospital for a second blood draw.

      Deputy James Meaux, an accident reconstructionist with the Harris County

Sheriff’s Office, testified that he reconstructed the accident by using the

responding officers’ offense reports, the officers’ photographs from the scene, the

Medical Examiner’s report, the autopsy report, the autopsy photographs, and data

from appellant’s airbag control module. He concluded that appellant failed to

control her speed around Rodriguez and that she failed to maintain a single lane of

traffic by veering into the emergency shoulder lane.


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B.    Intoxicating Substances

      The jury also heard testimony about appellant’s possession and ingestion of

various medications. Dr. Stephen Sapsowitz testified that appellant was his patient

and that he had seen her a total of five times beginning on June 7, 2011. In August

2011, at her second visit, she had recently fallen. She had an injured ankle and

knee, and complained about lower back pain. Appellant reported at that visit that

the anti-inflammatories she was taking for these injuries were not sufficiently

helping with pain, and she requested, and received, a prescription for Soma (i.e.

Carisoprodol).

      Appellant also had an appointment with Sapsowitz on September 29, 2001,

the day of the accident. He treated her on that day for a cold, and at that visit she

asked for additional Soma. At that visit, he prescribed for her (1) antibiotics, (2)

60 pills of Soma, and (3) cough syrup with codeine.

      Sapsowitz testified that appellant did not report taking any illegal drugs,

including marihuana. Appellant did not disclose to Sapsowitz that she was taking

quazepam or temazepam. Sapsowitz explained at trial that these other medications

are benzodiazepines, which would not mix well with Soma—it would have an

additive effect. He testified that he would not have prescribed Soma if he had been

told that she was taking benzodiazepines. He also testified that knowledge of

marihuana use would not have prevented him from prescribing Soma.


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      Sapsowitz noted Soma carries manufacturer’s warning because it “can have

the same effects as alcohol.” It can make a patient drowsy and “[y]ou can get

impaired with your ability to do things and . . . have similar effects to believed to

be drunk.”

      Dr. James Wright, appellant’s treating psychiatrist, testified that he treated

appellant for Bipolar II Disorder, anxiety, and insomnia from 2007 through 2013.

In 2011, Wright was prescribing appellant four medications: Seroquel XR (mood

stabilizer), Lexapro (antidepressant), Clonazepam (antianxiety), and Ambien CR

(sedative).   Appellant had been warned that she should not drive if these

medications had a sedation effect. Appellant had disclosed to Wright’s office in

2007 that she had a history of abusing Soma, and that concerned him because it

would not mix well with the medications he prescribed to her.

      In February 2011, appellant disclosed to Wright’s office that she was again

using Soma. In March 2001, she said that she was no longer using Soma. In June

2011, she told Wright’s office that she had been off of Soma for about one month.

In August 2011, she reaffirmed to Wright’s office that she had been off of Soma

since May.

      On September 29, 2011—the day of appellant’s appointment with Sapsowitz

—appellant filled her newly acquired Soma prescription at 3:45 p.m., two hours

before she struck and killed Rodriguez. The instructions on the Soma prescription


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bottle stated that appellant should take one pill, four times a day as needed. The

Soma prescription bottle recovered from appellant’s car after the accident

contained only 50 of the 60 prescribed pills. When Officer Francis asked her about

medications after the accident, appellant stated that she “took a pill that starts with

C that morning for her knee and then two more pills that start with C immediately

before she left her home.” Marihuana was also found in appellant’s purse.

      The two blood draws taken in the hours after the accident reflected, in

appellant’s    system,    Carisoprodol     (Soma),     Delta-9-tetrahydrocannabinol,

Meprobamate, Norcarboxytetrahydrocanabinol, 7-aminoclonazepam, Clonazepam,

and Temazepam. Appellant’s toxicology expert, Dr. Laura Plunkett, testified that

the active and inactive components of marihuana in appellant’s blood sample

“shows that it had been smoked very recently.” Plunkett also testified that there is

no safe level of marihuana for operating a motor vehicle, and that combining

marihuana with certain prescription drugs can lead to tragic consequences. She

further opined that the levels of each substance in appellant’s blood draws were

“low” and that the levels in appellant’s blood were not consistent with having

taken 10 Soma pills.

      While evidence about the substances in appellant’s system were admitted in

evidence and the levels of each, the trial court did not allow either the State’s or




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appellant’s witnesses to opine about whether particular levels would indicate

intoxication.

      Appellant returned to Sapsowitz about a week after the accident requesting

more Soma because her medication had been taken with her vehicle by the police.

Sapsowitz then only gave her a prescription for ten pills because at that point (i.e.,

six weeks after the injury for which he was prescribing Soma), she should be

treated as a chronic pain, rather than acute pain, patient. He performed a urine

drug screen and asked her to come back for a full physical and psychological test.

He also had her sign a controlled-substances contract in which she agreed to only

utilize one doctor and one pharmacy.

      When Sapsowitz received appellant’s drug test results from her October

2011 screen, he discovered her urine contained two different benzodiazepines,

marihuana and Carisoprodol (Soma). He had his nurse call appellant to come in to

discuss the results, but she never returned to his office.

      At a November 16, 2011 appointment at Wright’s office, appellant told

Wright’s nurse practitioner that she had hurt her back and been prescribed Soma by

a different doctor.    She also told Wright’s office about striking and killing

Rodriguez with her vehicle on September 29. Appellant said that she did not

remember the crash at all, and that she was participating in a 12-step program and

would never take Soma again.


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C.     Appellant’s Seizure theory

       Appellant’s theory at trial was that she may have suffered a seizure, and that

the symptoms of that seizure would be consistent with those of intoxication.

       Wright had no record of appellant suffering any seizure disorder except his

nurse practitioner’s note on July 1, 2013 stating that appellant said “she determined

that she had been having seizures as far back as her accident [and] that her, as the

medical record reads, new attorney had been able to obtain proof of her seizure

provided by a bystander and that she also said to my nurse practitioner that she had

recently been sent to an emergency room for a seizure.”

       Dr. Irwin Novak, a neurologist, testified for the defense. Novak explained

the definition and indicators of a seizure. He testified that patients with complex

partial seizures are unaware of their surroundings, are disoriented, and that seizures

can be “associated with slurred speech, shaking and salivation or foaming at the

mouth.” They may also experience a faulty memory. It is rare for a person with a

seizure to be able to drive a motor vehicle, and it would make them drive

erratically.   He opined that a parson in a state of a seizure is not capable of a

voluntary conscious act, so they cannot keep a proper lookout, control their speed,

or maintain a single lane of traffic. Studies reflect that sometimes a patient does

not know they have seizures until they are involved in a traffic accident.




                                         14
      Novak further testified that unequal sized pupils would make him concerned

about a potential underlying medical condition.          Possible conditions include

seizures, aneurysms, tumors, or eye disease.

      Novak testified to having significant experience giving HGN tests, and

expressed the opinion that when a patient is taking certain medications in high

levels, “you see nystagmus in every single patient.”

      Novak examined appellant on September 13, 2013 and ordered several tests,

including a EKG, electrocardiogram, EEG, electroencephalogram, MRI, x-ray and

urinalysis. The EEG test requires electrodes and a monitor be worn for 72 hours.

The recording are “reviewed and then a diagnostic impression is made by an

epilepsy specialist.”

      Novak also reviewed emergency room medical records from September 25,

2013, when appellant was brought in by EMS while wearing her 72-hour EEG

monitor. Novak testified that the emergency-room physician’s “impression was

seizure and she was discharged in stable condition.”

      Novak testified that the reports generated from appellant’s 72-hour EEG

monitors reflected “interictal activity consistent with a seizure, but no actual

seizures that were ongoing at the time of the 72-hour monitors.” He explained that

interictal activity is not seen in healthy patients. He opined that the “it is probable”

that the reports from the EEG are “consistent with seizure activity.”


                                          15
      Novak also reviewed appellant’s medical records from when she was again

admitted to the hospital on January 21, 2014. Novak testified that she presented

with “altered mental status, probable seizure, possible pseudoseizure.” She was

“intubated after sedation and admitted on a respirator.” Novak testified that the

EEG readings at that point were abnormal and could be suggestive of a seizure.

On cross-examination, Novak acknowledged that appellant’s treating physicians

indicated that appellant’s EEG results were unremarkable. Appellant’s treating

physician’s records also indicate that appellant reported taking Xanax and Atavan,

which could cause pseudoseizures.         Finally, Novak acknowledged that an

abnormal EEG reading could be caused by any number of things other than a

seizure, including sleep disorders, migraines, head injury, or substance abuse.

D.    Parties’ Arguments

      On appeal, appellant argues that the evidence was insufficient for a rational

trier of fact to have found beyond a reasonable doubt that appellant did not have

normal use of her mental faculties by reasons of the introduction of drugs.

Appellant acknowledges that proving the identity of a particular intoxicating

substance is not an element the State must prove. She contends nonetheless that

the State did not introduce evidence that she did not have the normal use of her

mental of physical faculties “by reason of the introduction” of drugs. She argues

that cases finding sufficient evidence are distinguishable, in part because—in this


                                         16
case—there was no expert testimony to the effect that she was intoxicated from the

introduction of drugs.

      The State responds that the jury had ample evidence from which it could

have rationally found beyond a reasonable doubt that appellant was intoxicated.

We agree with the State and hold that a rational factfinder could have found

appellant was intoxicated while rejecting her alternative seizure theory. Crouse v.

State, 441 S.W.3d 508, 511–12 (Tex. App.—Dallas 2014, no pet.) (holding that,

although appellant presented possible seizures an alternative explanation for his

condition, it was the trial court’s function in its role as fact finder to resolve any

conflicts in the evidence, and the judge was free to accept or reject any and all of

the evidence presented by either side and conclude that appellant did not have

normal use of his mental or physical faculties from the introduction of a drug).

“Circumstantial evidence may prove that a person has lost the normal use of his

mental or physical faculties by reason of introduction of a controlled substance or

drug into his body.” Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st

Dist.] 2011, pet. ref’d). The jury’s finding here is supported by the evidence about

appellant’s erratic driving, her failure to respond when pulled over by police, her

poor performance on field sobriety testing, the presence of various drugs in her

blood, her failure to disclose to Dr. Sapsowitz what other medications she was




                                         17
taking that were prescribed by other doctors, and the lack of any medical

documentation to support the possibility of seizures until after the accident.

      We overrule appellant’s sole issue.

                                  CONCLUSION

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

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




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