# I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

N O
. P D
- 1770-10
J E R I L E IG H B A R R O N , Appellant

v . T H E S T A T E O F T E X A S
On Discre tionary

Review of Ca se 05-09- 00589-CR of the F ifth Court of Appea ls, Colli n County Womack, J ., delivere d the opinion of the Court, in which Price, Johnson, Herve y , Cochran, a

nd Alcala , J J ., joined. Keller , P.J ., filed a dissenting opinion. Mey ers, J., filed a dissenting opinion. Kea sler, J., di ssented.
The a ppellant was c onvicted of misdemea nor driving while intox icated, a nd she appe aled. The F ifth Court of Appea ls found err or in the trial cour t’s “sy nerg istic effe ct” instruction to the jury
. We gr anted the State’ s petition for discre tionary revie w on the issue of the Court of 1 

## Appea ls’s harm ana ly sis. Although w e do not ag ree with the way in which the Court of Appe als ana ly zed the harm

B a r r o n v . S t a t e , N o . 0 5
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.

## Ba rron - 2
cause d by the er roneous c harg e, we ag ree with its j udg ment reve rsing the trial cour t. I . Evidence of I ntox ication State Trooper

Eric Estes a

nd Offic er B rian Pfahning wer e the only witnesses testify ing f

or the State. Estes testified that he decide d to stop the appellant af ter he clocke d her ve hicle g oing 76 in a 60 miles-per -hour zone. When he g ot behind the appe llant’s vehicle, he saw it cross ove r the white lines a c ouple of times. Afte r he stopped the vehicle, he approa ched f rom the passe ng er side and shined his flashlig ht into the passeng er w indow. The a ppellant did not see him, so he walked to the f

ront of the ve hicle and shine d his flashlight into the fr ont window. The a ppellant still did not see him, so he walke d back a nd tapped on the pa sseng er w indow, at which point she rolled down the w indow. When the appellant g ot out of her ve hicle, Estes smelled a n odor of a lcohol. The appellant f

irst told him that she wa s coming from wor k, and then told him that she was c oming from happy

hour at a bar a nd g rill. Her r eac tion tim es we re nor mal. She first said she ha d drunk one g lass of wine tha t night, but later she said she ha d drunk two g lasses of wine
. On a sc ale of 2 

## intox ication from one to ten, the appe llant stated that she wa s “may be a two.” She said she wa s speeding beca

use she thoug ht Estes was try ing to g o around he r. Estes administered se vera l field sobriety tests to the appellant. She exhibited clues on the horizontal ga ze ny stag mus, walk-and- turn, and one -leg -stand tests. This indicated to Estes “ a level of intoxi cation.” When instructe d to rec ite the alphabe t beg inning f rom “G,” the appe llant
rec ited some letters incor rec tly when she rea ched “ W.” When the appellant re fused a portable

T h e a p p e l l a n t t e s t i f

i e d t h a t s h e h a d o n e g l a s s o f w i n e a t a r o u n d 6 : 0 0 p . m . a n d a n o t h e r g l a s s o f w i n e a t 2 a r o u n d 1 0 : 0 0 p . m .

## Ba rron - 3 brea th test, Estes arre sted her. Estes sear ched the appellant’ s vehicle a fter he r ar rest. I nside the appe llant’s purse he found a blister pa ck of e ight pills. Acc ording to Estes, the pac k was labe led simply “hy drocodone ” on the ba ck. The jury saw a video re cording which shows Estes, a nother off icer , and a tow- truck drive r all strug g ling to re ad the wr iting on the pa ckag e, and c oncluding that the writing said “hy drocodone ” or “ hy drocode ine.” Estes testified that four

pills were missing f

rom the pac k. He c ould not produce the pills at the trial be cause he lef

t them either in the a

ppellant’s vehic le or in her purse. He said he did not take picture s of the pills beca use he did not wa

nt to charg e the a

ppellant with another

offe nse. The a ppellant told him that the pill s were Bonine pills for motion si ckness. ( Her theory was that Estes misread the packa g ing. She introduc ed in evidenc e a blister pa ck of e ight B onine pills with the ing redie nt “meclizine hy drochloride ” wr itten on the back.) Offic e B rian Pfahning testified as a drug -re cog nition ex pert. He testified about the intox icating eff

ects of hy drocodone and the intoxi cating eff ects of mixing alcohol with hy drocodone . Acc ording to Pfahning , mix ing a lcohol and hy drocodone produce s a “c umulative eff ect,” as opposed to an “ additive ef fec t” or a n “anta g onistic effe ct”: “What y ou have is a one plus one equa ls a re- enfor ced [ sic ] one, meaning that it’s a cumulative e ffe ct. I t’s not one plus one equa ls two. I t’s that the alcohol c ombined with the medication ca n enhanc e the e ffe ct of both of [ sic ] t he drug and the a lcohol to kind of g ive y ou a strong er e ffe ct.” I I . The Jury

Charg e The jury instructions included most of the statutory definition of intox ication by loss of

## Ba rron - 4 fac ulties (omitti ng the phra se “or any other substanc e”)
. There also was what is sometim es 3 

## called a “sy nerg istic effe ct” instruction: The ter m “intox icated” means not having the normal use of mental or phy sical fa culties by

rea son of the introduction of a lcohol, a drug , a dang erous drug , or a c ombination of two or more of those substance s into the body
. You ar e fur

ther instructe d that if a pe rson by the use of me dications or drug s rende rs her self more susceptible to the influenc e of intoxi cating alcohol than she other

wise would be a

nd by rea son thereof

beca me intox icated f

rom the rec ent use of intoxicating a lcohol, she is in the same position as thoug h her intox ication was pr oduced by the intox icating alcohol alone
. The a ppellant timely

objected to the submission of the “sy nerg istic effe ct” instruction, but she did not object to the def inition of int ox ication. The tria l court over ruled the obje ction. The State c oncede d in arg ument that the fa ilure to prese rve the pills weakene d its case, but maintained that the jury could still find int ox ication throug h either dr ug s or alcohol: We have to prove intox ication. And wha t does that mean? I t means y ou wer e aff ecte d by whateve r y ou took. You know what? I don’t know wha t she took. I am so mad at that off

icer for not pre serving those pills. I ’ll just tell y ou, we a re not happy about that. Did not do a g ood job with that part of the c ase. We let him know that. He still has a f ield investiga tion and y ou still have e vidence of intox ication bef

ore y ou. The a lcohol, whether it was drug s, doesn’t matter, just so all of y ou ag ree it was one of the m, we ca n still prove it throug h intox ication. The a ppellant ar g ued that ther e wa s no evidenc e that the a ppellant had c onsumed hy drocodone or any

other ty pe of me dication.

I I I . On Appea l The Court of Appe als held that the “ sy nerg istic effe ct” instruction wa s err or bec ause it was not ra ised by

the evidenc e. I t was not raise d by the evidenc e bec ause “ there is no evidence that appellant ing ested hy drocodone , hy drocode ine, or a ny other pre scription medication on the

T E X . P E N . C O D E § 4 9
. 0 1 ( 2 ) ( A )
. 3

## Ba rron - 5 day in question.” 4 

## The Court took ca

re to distinguish this err or fr om the question of whethe r the instruction permitted convic tion on a theory not alleg ed in the informa tion. The Court noted our holding in Gray v . State that a “sy

nerg istic effe ct” instruction did not expand on alleg ations of intox ication 5 

## due to alcohol. The Court then stated, “B ut the issue we must dec ide her e is whethe r the ‘sy nerg istic effe ct’ instruction wa s raised by the evidenc e, not whethe r such a char g e per

mitted conviction on a theor

y not alleg ed in the cha

rg ing instrument.” 6 

## Having decide d that the instruction was not ra ised by the evidenc e, the Court conduc ted a harm a naly sis. The Court first discussed the finding of har m in Ferguson v. State , in which the 7 

## Third Court of Appe als found har m when jury

instructions “err oneously authorized the defe ndant’s convic tion on a theory that was not supported by the evidenc e.” I n this case, the 8 

## Court rea ched “ a similar conc lusion” : 9 

## The State’s the ory , as alleg ed in the informa tion, was that appe llant “did not have the normal use of

her me ntal or phy sical fa culties by rea son of the introduction of alcohol, a c ontrolled substance , a drug , a dang erous dr ug , a combination of two or more of those substances, or any other substanc e into the body .” The State

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## Ba rron - 6 pursued this theory

throug h Estes’ testimony and the testimony

of Pfahning , the drug rec og nition ex pert [who] t estified re g arding intox ication by drug s and the sy nerg istic effe ct of drug s and alc ohol. Furthe rmore, in its closing arg ument the State arg ued that, in proving the re quired e lement of intox ication, “The alcohol, whether it was drug s, doesn’t matter, just so all of y ou ag ree it was one of the m, we c an still prove it throug h intox ication.” The re is, howe ver, no e vidence in this rec ord that appe llant inge sted any intox icating substances othe r than a lcohol. Acc ording ly , we c onclude that the r ecor d as a w hole shows the trial c ourt’s er ror cause d appellant some a ctual har m, that is, it appea

rs from the r ecor d that the char g e er ror “ was c alculate d to injure the rig hts” of appe llant, and “it appe ars from the r ecor d that appellant ha s not had a fa ir and impartial tria l.” 1 0 

## We gr anted discr etionary revie w only

as to the Court’s har

m analy sis. The State a

rg ues that bec ause Grayheld that a “ sy nerg istic effe ct” instruction does not expand the theory

of intox ication bey

ond intox ication by

alcohol, a ha

rm ana ly sis should ask only “whe ther the jury

would have c onvicted the de fenda nt based on he r alc ohol consumption alone, without consider ing the sy nerg istic effe ct of a

drug .” I V. Analy sis Article 36.14 of

the Code of Criminal Proce dure r equire s that the judg e shall deliver to the jury “a w ritten cha

rg e distinctly

setting f orth the law a

pplicable to the c ase; not expressing any opinion as to the weig ht of the evide nce, not summing up the testimony , discussing the fac ts or using any

arg ument in his charg e ca lculated to ar ouse the sy mpathy or excite the passions of the jury .” I f the trial c ourt is found to have e rre d in its charg e, Ar ticle 36.19 provides that “ the judgme nt shall not be reve rsed unless the e rror appea ring from the r ecor d was c alculate d to injure the rig hts of defe ndant, or unless it appe ars f rom the re cord tha t the defe ndant has not had a fair and impartial trial.” As we e x plained in Almanza v. State , err or is “ca lculated to injure the rig hts of

I d

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. 3 6
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## Ba rron - 7 defe ndant” if the re is “some harm” to the acc used. Error s proper ly prese rved by

objection ca ll 1 1 

## for r ever sal “a s long a s the err or is not harmless.” Har m must be assay ed “in lig ht of the entire 1 2 

## jury char g e, the state of the e vidence , including the contested issues a nd weig ht of probative evidenc e, the a

rg ument of counse l and any other re levant informa tion revea led by the re cord of the trial as a

whole.” 1 3 

## I n this case the Court of

Appea ls found err or bec ause “ there is no evidence that the appellant ing ested hy drocodone , hy drocode ine, or a ny other pre scription medication on the da y in question,” and thus “the ‘sy nerg istic effe ct’ instruction wa s not raised by the evidenc e.” But the 1 4 

## Court then found “some ha rm” on the same basis that “ther e is no evidenc e in this recor d that appellant ing ested a

ny intox icating substances othe r than a lcohol.” 1 5 

## Whil e we ag ree with the outcome, the Court’s ha rm ana ly sis sim ply

repe ats its error analy sis. A proper a

naly sis should follow the guidelines of Almanza , assay ing the deg ree of har

m “in light of

the entire jury

char g e, the state of the e vidence , including the contested issues a nd weig ht of probative e vidence , the ar g ument of counse l and any other re levant informa

tion
reve aled by

the re cord of

the trial as a

whole.” 1 6

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. 1 1
I d

. ; s e e a l s o A r l i n e v . S t a t e , 7 2 1 S
. W
. 2 d 3 4 8 , 3 5 1 ( T e x . C r . A p p . 1 9 8 6 ) ( “ [ T ] h e p r e s e n c e o f a n y h a r m , 1 2 r e g a r d l e s s o f d e g r e e , w h i c h r e s u l t s f r o m p r e s e r v e d c h a r g i n g e r r o r , i s s u f f i c i e n t t o r e q u i r e a r e v e r s a l o f t h e c o n v i c t i o n . ” ) ( e m p h a s i s i n o r i g i n a l )
.

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## Ba rron - 8 The e ntire jury

char g e is important in this case, bec ause the char g e conta ined a statutebased de finition of intox ication that included “ not having the normal use of mental or phy sical fac ulties by

rea son of the introduction of a lcohol, a drug , a dang erous dr ug , or a c ombination of two or more of

those substance s into the body .” The que stion then becomes whe ther the 1 7 

## appellant wa s harmed by

the trial cour

t’s delivery , in addition to the definition of intox ication, of the following instruction: “if a pe rson by the use of me dications or drug s rende rs her self more susceptible to the influenc e of intoxi cating alcohol than she otherwise w ould be and by rea son there of bec ame intoxi cate d from the r ece nt use of intox icating alcohol, she is in the same position as though her

intox ication was pr oduced by the intox icating alcohol alone .” We find that the appe llant was har med by the additional “sy

nerg istic effe ct” instruction. At a minimum, the inst ruction empha siz ed the State’ s evidenc e of c ombination by sug g esting a specific mode of a ction (susce ptibili ty ) throug h which use of a “me dication or drug ” tog ether with use of alc ohol could produce intox ication. Off icer Pfahning did not introduce this mode of action by testify ing tha t hy drocodone would make the a ppellant more susc eptible to intox ication by alcohol alone – instead he te stified that “alc ohol combined with the medica tion can enha nce the ef fec t of both of the drug

and the a lcohol to kind of g ive y ou a strong er e ffe ct.” The a dditional emphasis on combination provided by the er roneous instruction wa s particula rly important in light of the state of the e vidence . The a ppellant’s testimony

that she had consumed only

two g lasses of wine was not re futed, a nd the State conc eded in ope ning a nd closing arg uments that the appe llant was not hea vily intox icated. T he “sy

nerg istic effe ct”

S e e T E X . P E N . C O D E § 4 9
. 0 1 ( 2 ) ( A )
. A s n o t e d a b o v e , t h e d e f i n i t i o n e x c l u d e d t h e p h r a s e “ o r a n y o t h e r 1 7 s u b s t a n c e . ”

## Ba rron - 9 instruction supported the State’s theor y of intox ication despite the e vidence of fa irly minimal alcohol consumption. As the trial c ourt stated in its analy sis of the appe llant’s Rule 403 objection to Estes’s testimony

about the pills, and as the State r eitera ted during a Motion for Ne w Trial hear ing r eurg ing the Rule 403 objection, the State nee ded evide nce of the pills to prove intox ication. The State a

rg ues that af

ter Gray a “sy

nerg istic effe ct” instruction “c annot have a har mful eff ect on a theory of intox ication other tha

n the alcohol theor

y .” B ut harm involves more tha n simply expanding e lements of an of fense such that newfac ts may be used to prove the eleme nts. Har m can a lso result from an instruc tion emphasizi ng a par ticular theor

y or the we ight to be g iven to a par

ticular piec e of e vidence . The “ sy nerg istic effe ct” instruction deliver ed in this case introduced a

specific mode of a ction and supported the State’s theory that the combination of hy drocodone and alc ohol produce d intox ication. Under the fa cts of this case we do not find such an instruction har

mless. We affir m the judgme nt of the Court of Appe als.
Deliver ed Nove mber 9, 2011. Publis h.