Brodrick Dechone Delane AKA Broderick Shun Delane AKA Shaun Scott v. State

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).