Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-16-00218-CR

Javier Caesar GUTIERREZ,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court at Law No. 8, Travis County, Texas1

Trial Court No. C-1-CR-14-219821

Honorable Carlos Humberto Barrera, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice

Sitting: Sandee Bryan Marion, Chief Justice

Rebeca C. Martinez, Justice

Luz Elena D. Chapa, Justice

Delivered and Filed: February 1, 2017

AFFIRMED

Javier Caesar Gutierrez was convicted by a jury of driving while intoxicated and placed on 

fifteen months community supervision. The sole issue presented on appeal is whether the trial 

court abused its discretion in admitting evidence relating to Gutierrez’s use of Benadryl. We affirm 

the trial court’s judgment.

 1 The Texas Supreme Court transferred this appeal to this court for docket equalization purposes. See TEX. GOV’T 

CODE § 73.001.
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BACKGROUND

Around 2:38 a.m., Officer Vanessa Jimenez was dispatched to a one-car accident on the 

exit ramp to a highway. The car crashed head on into the wall of the exit ramp, and both air bags 

deployed. Gutierrez was driving the car.

At trial, Officer Jimenez testified she first encountered Gutierrez while he was being treated 

in an EMS van. Officer Jimenez described Gutierrez’s eyes as being bloodshot, red, and watery. 

She stated a strong smell of alcohol was coming from his breath which “was just pretty much 

taking over the whole van.” After EMS cleared Gutierrez, Officer Jimenez drove him to a nearby 

gas station because it was raining and she wanted to conduct the field sobriety tests under the cover 

of the gas station’s awning.

Gutierrez told Officer Jimenez he was returning home to San Antonio after drinking in 

downtown Austin. He stated he had consumed two eight-ounce drinks in approximately one-half 

hour. Although Gutierrez was a bartender, he stated he was not certain what type of alcohol the 

drinks contained because he ordered them off a menu. Gutierrez also informed Officer Jimenez 

he had taken a “couple of doses” of Benadryl a “couple of hours ago.” Officer Jimenez was handed 

a box of Benadryl which the trial court admitted for demonstrative purposes. The trial court 

instructed the jury not to be confused that the box contained the specific medication, if any, 

consumed by Gutierrez. Officer Jimenez read the following warning from the box:

Drowsiness may occur, avoid alcoholic drinks, be careful while driving a motor 

vehicle or operating machinery; alcohol, sedatives, and tranquilizers may increase 

drowsiness.

Officer Jimenez attempted to conduct the HGN test; however, Gutierrez failed to follow 

her instructions. After numerous attempts, Officer Jimenez determined Gutierrez was refusing the 

test based on his actions, and she placed him under arrest for driving while intoxicated. Gutierrez 

refused to consent to a breath test.
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A videotape of the conversation between Officer Jimenez and Gutierrez at the gas station 

and her subsequent efforts to conduct the HGN test also was introduced into evidence and played 

for the jury. Based on the evidence presented including the videotape and Officer Jimenez’s 

testimony, the jury found Gutierrez guilty of driving while intoxicated. Gutierrez appeals.

DISCUSSION

Gutierrez’s sole issue on appeal is whether the trial court erred in admitting evidence of his 

use of Benadryl. We review a trial court’s ruling on the admissibility of evidence under an abuse 

of discretion standard and uphold a trial court’s decision to admit evidence as long as the ruling is 

not outside the zone of reasonable disagreement. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. 

Crim. App. 2016).

In his brief, Gutierrez phrases his issue as follows:

Whether the Trial Court erred and abused its discretion by allowing the 

State to present evidence regarding Benadryl without the State laying the proper 

foundation for its entry. Specifically, whether the State is required to produce 

expert testimony to establish the reliability and relevancy of Benadryl when proving 

intoxication for a DWI offense.

Gutierrez first argues the State was required to produce an expert “within the particular field of 

toxicology or drug recognition” in order to introduce evidence of Benadryl intoxication, and 

Officer Jimenez was not qualified as such an expert. Gutierrez next argues the State failed to prove 

the evidence regarding the Benadryl was reliable and relevant.2

In support of his argument, Gutierrez primarily relies on the Texas Court of Criminal 

Appeals decision in Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2000). In Layton, Daniel 

 2 In making this argument, Gutierrez alludes to the reliability of the HGN test conducted by Officer Jimenez. Because 

Gutierrez combines more than one contention in a single issue, his issue is multifarious, and we could refuse to address 

the reliability of the HGN test for that reason. Prihoda v. State, 352 S.W.3d 796, 801 (Tex. App.—San Antonio 2011, 

pet. ref’d). Even if we elected to consider the reliability of the HGN test, Gutierrez did not object to Officer Jimenez’s 

testimony regarding the test; therefore, he has not preserved this complaint for our review. TEX. R. APP. P. 33.1. 
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Layton was convicted of driving while intoxicated by the introduction of alcohol into the body. 

280 S.W.3d at 237. On appeal, he argued the trial court erred in admitting evidence of his use of 

Xanax and Valium “without requiring the State to show it was reliable and competent scientific 

evidence.” Id. The evidence was in the form of statements Layton made to the arresting officer 

recorded on video. Id. In response to the officer’s question regarding whether he took any 

medications, Layton responded he took Xanax and Valium prescribed by his doctor, but qualified 

that he had taken the Valium at 2 p.m. the previous afternoon and had not taken Xanax since the 

day before. Id. The officer inquired whether Layton read the inserts included with those 

medications and commented “it was probably not a good idea to be drinking ‘on top of those.’” 

Id. At trial, Layton objected to the admissibility of his use of Xanax and Valium, arguing the 

evidence was inadmissible “without the State proving the accuracy and reliability of the evidence 

and its relevance to whether [he] was intoxicated by the introduction of alcohol.” Id. at 240. 

Layton further argued the State had not shown the relevance of the evidence “without extrapolation 

on the Xanax and Valium to determine their effect on the body.” Id.

As previously noted, Layton was charged with intoxication by introduction of alcohol into 

the body, and the jury was charged with a definition of intoxication limited to the introduction of 

alcohol into the body. Id. at 241. As a result, the Texas Court of Criminal Appeals concluded:

. . ., 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. Without a showing that Xanax and Valium, 

taken more than 24 hours and 14 hours prior, respectively, would have had a 

synergistic effect on Appellant’s degree of intoxication by alcohol, the evidence is 

not relevant.

Id. The court then held “the trial court erred in allowing [Layton’s] use of Xanax and Valium to 

be introduced to the jury without the State first showing that the evidence was relevant to 

[Layton’s] intoxication,” reasoning:
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The essential element disputed by Appellant is that the evidence of his use 

of medications should not have been admitted without the State establishing that it 

was relevant to his intoxication. There is no evidence as to the dosage taken by 

Appellant, the exact times of ingestion, or the half-life of the drug in the human 

body. Considering the length of time between the ingestion of the medication and 

the time of arrest, a lay juror is not in a position to determine whether Xanax and 

Valium, taken more than 12 hours before arrest, would have any effect on 

Appellant's intoxication. There was no testimony indicating that Officer Allen had 

any medical knowledge regarding the uses of Xanax and Valium, or about the effect 

of combining the medications with alcohol.

Id. at 241-42.

The decision in Layton is readily distinguishable from the instant case. First, the jury in 

the instant case was charged that intoxicated means “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.” Therefore, the State was not required to prove Benadryl “would have had a synergistic 

effect on [Gutierrez’s] degree of intoxication by alcohol.” Id. at 241. Instead, the State was only 

required to show Gutierrez introduced both alcohol and Benadryl into his body and was intoxicated 

as a result. Second, Gutierrez testified about the dosage he had taken, i.e., a couple of doses, and 

the time of the ingestion, i.e., a couple of hours ago. Finally, assuming Benadryl’s causing 

drowsiness was not within the common knowledge of lay jurors, Officer Jimenez confirmed its 

effect by reading the label from the box. We disagree that Officer Jimenez required any special, 

expert qualifications to read the label or that the State was otherwise required to prove the 

reliability of the scientific theory used in determining the side effects listed on the label of the box. 

Therefore, unlike the facts in Layton, ‘[c]onsidering the length of time between the ingestion of 

the medication and the time of arrest, a lay juror [was] in a position to determine whether [Benadryl 
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taken a couple of hours] before arrest, would have any effect on [Gutierrez’s] intoxication.”3 Id. 

at 242.

Even if we are incorrect in holding the trial court erred in admitting the evidence regarding 

Gutierrez’s Benadryl use, the error must be disregarded unless it affected Gutierrez’s substantial 

rights.4 TEX. R. APP. P. 44.2(b). “A substantial right is affected when the error had a substantial 

and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 

271 (Tex. Crim. App. 1997). A criminal conviction will not be overturned for non-constitutional 

error “if the appellate court, after examining the record as a whole, has fair assurance that the error 

did not influence the jury, or influenced the jury only slightly.” Schutz v. State, 63 S.W.3d 442, 

444 (Tex. Crim. App. 2001) (emphasis in original). We “consider everything in the record, 

including testimony and physical evidence, the nature of the evidence supporting the verdict, and 

the character of the error and its relationship to other evidence.” Id. We “might also consider the 

jury instruction given by the trial judge, the State’s theory and any defensive theories, closing 

 3 The fact that Benadryl is an over-the-counter medication with a label warning alcohol increases the risk of drowsiness 

also makes this case distinguishable from the other cases cited by Gutierrez which involved the use of marijuana, see 

DeLarue v. State, 102 S.W.3d 388, 400-02 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d), and the use of the 

prescription medications Lisinopril and Pyridoxine, see Delane v. State, 369 S.W.3d 412, 415, 419-22 (Tex. App.—

Houston [1st Dist.] 2012, pet. ref’d).

4 In his brief, Gutierrez refers to the standard of review for constitutional error, asserting Gutierrez was under arrest 

when he made the statements regarding his Benadryl use. Gutierrez argues the introduction of the statements violated 

his constitutional rights because Officer Jimenez did not read him his Miranda rights. First, Gutierrez did not raise 

this objection when Officer Jimenez testified about Gutierrez’s statements but only when the prosecutor began to play 

the videotape for the jury. Therefore, Gutierrez did not preserve this complaint with regard to the admissibility of 

Gutierrez’s statements. See TEX. R. APP. P. 33.1; see also Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) 

(noting error in admission of evidence is cured when same evidence comes in elsewhere without the objection) 

(quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)); Leday v. State, 983 S.W.2d 713, 718 (Tex. 

Crim. App. 1998) (“Our rule ... is that overruling an objection to evidence will not result in reversal when other such 

evidence was received without objection, either before or after the complained-of ruling.”). In addition, we disagree 

that Gutierrez was under arrest when Officer Jimenez drove him to the gas station and administered the field sobriety 

tests. See State v. Stevenson, 958 S.W.2d 824, 828-29 (Tex. Crim. App. 1997) (determining individual was not in 

custody during roadside investigation for driving while intoxicated); Castro v. State, 373 S.W.3d 159, 166 (Tex. 

App.—San Antonio 2012, no pet.) (“Moving a suspect a short distance to further an investigation is consistent with 

an investigatory detention’s purpose.”).
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arguments and even voir dire, if material to appellant’s claim.” Morales v. State, 32 S.W.3d 862, 

867 (Tex. Crim. App. 2000).

Gutierrez admitted he was drinking alcohol an hour before the accident. Although he stated 

he only had two drinks, the jury could have disbelieved that portion of his testimony based on 

Officer Jimenez’s description of his appearance and the strong odor of alcohol on his breath. The 

jury could also have believed Gutierrez was being evasive about the amount of alcohol he 

consumed from his testimony that he did not know what alcohol the drinks contained even though 

he was a bartender. The jury also was able to view the videotape and observe Gutierrez’s actions 

and demeanor in responding to Officer Jimenez’s questions and her instructions while she was 

attempting to administer the HGN test. The jury could have determined Gutierrez was being 

deliberately uncooperative to prevent Officer Jimenez from finding the necessary clues. See 

Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) (noting inability to perform field 

sobriety tests or follow directions supports inference of intoxication); Jackson v. State, 468 S.W.3d 

189, 193 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (noting appellant’s refusal to perform 

field sobriety tests as factor jury could consider in finding appellant intoxicated). Finally, the jury 

could infer Gutierrez was intoxicated based on his refusal to perform the breath test. See Bartlett 

v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (holding evidence of refusal to submit to 

breath test tends to show consciousness of guilt); Stovall v. State, 440 S.W.3d 661, 668 n.7 (Tex. 

App.—Austin 2011, no pet.) (noting refusal to submit to breath test supports inference that 

appellant was driving while intoxicated). The State’s theory was that Gutierrez was intoxicated, 

and most of the prosecutor’s arguments were focused on Gutierrez’s refusal to undergo the tests 

that would prove his intoxication. After examining the record as a whole, we hold the evidence 

strongly supports a finding of intoxication without considering the Benadryl evidence, and we are 

assured that if the admission of the Benadryl evidence influenced the jury at all, it did so only 
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slightly. See Schutz, 63 S.W.3d at 444; see also DeLarue v. State, 102 S.W.3d at 402 (holding 

erroneous admission of evidence regarding marijuana use was harmless where testimony at trial 

established appellant was highly intoxicated from alcohol). Therefore, if the trial court erred in 

admitting the Benadryl evidence, we hold its admission was harmless.

CONCLUSION

The trial court’s judgment is affirmed.

Rebeca C. Martinez, Justice

DO NOT PUBLISH