## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00154

- CR

LLOYD ADAM TOLER , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the County Court at Law No. 2

Hunt County, Texas Trial Court No. CR2100144

B efore Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION
A Hunt County jury convicted Lloyd Adam Toler of driving while intoxicated (DW I) , and he was assessed a sentence of 180 days ’ confinement. On app eal, T oler challenges the sufficiency of the evidence supporting his conviction

. We find sufficient evidence suppor ts the jury ’ s finding . Because the judgment requires modification, we will affirm the trial court ’ s judgment , as modified

. I. The Evidence a t Tria l Hunt County D eput y Sheriffs Sam Stephens and Eddie Wa de Jones responded to a report of a reckless driver on Interstate 30 in the vicinity of Caddo Mills around 11:00 p.m. on September 11, 202 0

. T he recording from the deputies ’ dash camer a showed t h at , whe n the pickup driven by Toler was first observed on the south service road of Interstate 30, it swerved into the left, oncoming

- traffic lane , then swerved back into the right lane as an onco mi ng automobile approached. After the oncoming a utomobile p a ssed , Toler ’ s pickup return ed to the oncoming

- traffic lane for around ten seconds , swerve d back into the right lane briefly, then
return ed to t he oncoming

- traff ic lane

. At that point, the deputies engage d their overhead lights to pursue Tol er ’ s pickup. T oler t h en swerved to the left, grassy shoulder, where he drove for around ten seconds, the n swerved across the oncoming

- traffic lane and into the right lane. Toler then rolled to a stop in the right lane. As the officers approached the s topp ed vehicle , Toler opened the driver ’ s side door. After a short conversation, the pickup began movi ng forward , and Jones reached into the pickup , engaged the emergency brake , and turne d the engine off

. When Toler exited the pickup , he3

stumbled, and th e of

ficers ass i st ed hi m to the side of the bed of the pickup , on whic h he leaned for support. As he talked with the officers, Toler ’ s body swayed from side to side. Throughout the stop, Toler had difficulty walking and standing, stumbled at times, and al most f e ll.
Ev e ntually , he l aid down on his b ack on the roadway , straddling the right lane and the shoulder.
A t one point, Toler placed a cigarette in his mouth backward and attempted to light the filter

. The deputies testified tha t Toler w as l etha rgic , slow to respo n d, and ver y slow to answer question s and that he had slurred, incoherent speech. Jones testified that Toler also thought that he was in Greenville, rather than near Caddo Mills. Toler de ni ed consuming alcohol but told Stephens th at h e had taken too much of his pre scrip tion pills . Toler told them that he took medication for bipolar dis order , schizophrenia , a nd depression

. Both officers opined that Toler had lost the norm al control over his physical faculties because of his inabil ity to keep h is balance, his tendency to fal l, hi s inability to walk without assistance , and his lack of simple motor skills

. They also opined that he had lost the normal control ov er his mental faculties because of his inability to remember, his delayed responses to simp le ques t ions, and his confusion as t o where he was. Because they suspected Toler was driving while intoxicated, the deputies contacted the Texas D ep artment of Public Safety (TDPS) to conduct a DWI investigation. TDPS Trooper Greg Joyner testified that h e was c a lle d to assist the depu ties with a reckless, and possibly impaired , driver

. After talking with the deputies, Joyner approached Toler , who was laying on his back in the roadway. As he talked to him, Toler ’ s eyes were closed. Joyner de scribed his speech p attern as extremely slo w and thick

- tongued. Toler told4

Joyner that he had taken too much of hi s medications for bipolar dis order and schizophrenia and th at he also took anti

- depressants , including Ser oquel

. At one point, Toler stated that he was trying t o have some fun

. Joyner perfo rmed a horiz ontal gaze nystagmus f ie ld sobri ety test on Toler after he was placed in an ambulance. Toler exhibited six out of six clues of intoxicati on. 1 Joyner opined that Toler was i ntoxicated and that he had lost the nor m al use of his phys ic al and mental f aculties bas ed on the deput ies ’ description of the traffic stop and Toler ’ s driving behavior ; Toler ’ s laying lethargic on the street, red eyes, dilate d pupils, and speech pattern ; and the clues observed in th e HGN test

. After T ol er was taken to a hospital, Jo yner obtaine d a blood specimen from him at 1:09 the following morning. Taylor S chwartz, a forensic scientist at the TDPS Crime Laboratory in Tyler , analyzed Toler ’ s blood specimen for the presence of al coho l

. She d etermined that the spe cimen had 0.025
g rams of alco hol per 100 milli liters of blood. Although she could not say whether Toler was impair ed without more information , she opined that it is possible that a person c ould be impaire d b elow 0.08 gra ms per 100 m i lliliters.
Dana B axter, a forensic sc ientis t at the TDPS Crime Laboratory in Austin , analy zed Toler ’ s blood specimen for the presence of drugs. She testified that , in her initia l t est for the presence of ten broad categories of drugs, incl uding such su b stances as am phetami ne , barbitu r ates , a nd opiates , none were detected

. She also performed a t arget qualitative test because the TDPS trooper ha d li sted Seroquel as a suspected dru g . Baxter explained that the test

1 The jury als o viewed a reco r ding from Joyne r’ s body camera that showed Joyner’s i nte r a ction with Toler in the roadway and in the ambulance, which was consist ent with Joyner’ s te stimony.5

performed for the pres ence of Seroquel a l so tests for th e prese nce of twenty

- four other drugs, including c italopram

. When this test was performed , the pre sence of c italopram was detected.
Baxter explained that the test for those twe nty

- five drugs will not yiel d the amount of any drug in the s ystem because they s et the cutoff at the l ow end of the therapeutic range that a
p hysi cian would prescribe for his patient . As a result, it is at a concentration that can affect a
person. She explained that , if a doctor prescribes anti

- anxiety medicine, then the t herapeutic
range is en ough to treat the patient ’ s anxiety. She also testified that c italopram is prescribed for depression and that it affects the body by elevatin g the mood to lessen the de pression. Sh e noted that some possible side effects w ere dizz iness, drowsiness, and slowe d reaction times. Baxter tes tified that the warning label for citalopram says to avoid drinking alcohol while taking it because i t can increase the effects of alcohol

. She opined that c italopram ’ s side effects of dizz i ness, dro wsines s, and slowed reaction times could be i ncreased if taken with alcohol . She also opined that a person c ould lose their mental or physical facul ties while in the therapeutic range of th e drug. Baxter acknowledged that impairment cannot be b ase d sole ly on her laboratory report. She also acknowledged that she did not know whether Toler experience d the drug ’ s side effects.
II. Standard of Review

“ In evaluating legal sufficiency, we review all th e evidence in the light most favorable to the tria l court ’ s j udgmen t to d etermine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. ” Williamson v. State , 589 S.W.3d 292, 297 (Tex. App.

— Texarkana 20 19 , pet. ref ’ d) (citing Brooks v. State , 323 S.W.3 d 893, 912 ( Tex.6

C ri m. A pp. 2010) (plura lity op.) ). “ Our rigorous legal sufficiency review focuses on the quality of the evidence presented. ” Id

. (citing Brooks , 323 S.W.3d at 917

– 18 (Cochran, J., concurri ng)).

“ We examine legal sufficiency under the di r ection of t he Bro oks opinion, wh ile giv ing deference to the responsibility of the jury ‘ to fairly resolve conflicts in testimony, to weigh the evidence,

a nd to d raw reasonable inferences from basic facts to ultimate facts. ’ ” Id

. (quoting Hooper v.
State , 214 S.W.3d 9, 13 (Tex. Crim. Ap p. 2 007) ).

“ Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically c orrect jury charge. ” Id

. at 298 (quoting Malik v. S tate , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997))

. “ The ‘ hyp othet ically correct ’ jury c h arg e is ‘ one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State ’ s burde n of proof or unnecessarily restrict t he State ’ s theories of liability, and adequately d escribes th e
par ticular offense for wh i ch the defendant was tried. ’ ” Id

. (quoting Malik , 953 S.W.2d at 240).

“ In our review, we consider ‘ events occurri ng before, dur ing and after the commission of the of fense and may rely on actions of the defendant wh i c h show an under standing and common de s ign to do the prohibited act. ’ ” Id

. at 297 (quoting Hooper , 214 S.W.3d at 13). “ It is not required that each fact ‘ point directly and independently to the guilt of t he appellant, as long as the cumulative force of a l l the inc rimin ating circumstances is s uffic ient to support the conviction. ’ ” Id

. (quoting Hooper , 214 S.W.3d at 13). “ Circumstantial evidence and direc t evidence are equal ly probative in establishing the guilt of a defendant, and guilt can be establish e d by circu mstan tial evidence alone. ” I d

. (c itin g Ra msey v. State , 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper , 214 S.W.3d at 13). “ Further, ‘ we m ust consider all of the7

evidence admitted at trial, even if that evidence was improperly admitted. ’ ” I d

. (quoting Fo wler
v. State , 517 S.W.3 d 16 7, 17 6 (T ex. App.

— Texarkana 2017), rev ’ d in part by 544 S.W.3d 844 (Tex. Crim. App. 2018)). The jury, as “ the s ole judge of the cr edibility of the witnesses and th e weight to be given their testimony[, could] ‘ be l i eve all of [th e] witnesses ’ testimony, por tion s of it, or none of it. ’ ” Id

. (second alteration in original) (quoting Thomas v. State , 444 S.W.3d 4, 10 ( Tex. Crim. App. 2014)). “ We give ‘ almost complete deference to a jury ’ s decision when that dec ision i s based on

a n evaluation of credibilit y. ’ ” Id

. (quoting Lancon v. State , 253 S.W .3d 699, 705 (Tex. Crim. App. 2008)). “ We may not re

- weigh the evidence or substitute our judgment for that of the fact [

- ] f i nder. ” Zuniga v. State , 551 S.W.3d 729, 732 (Te x . Crim. App. 2018) (citing Williams v.
State , 235 S.W.3d 742, 750 (Tex. Cr im. App . 20 07) )

. “ The court conducting a sufficiency review must not engage in a ‘ divide and conquer ’ strategy but must consider th e cumulative force of all the evidence. ” Id

. at 7 3 3 (quoting V illa v. State , 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) )

. “ Althoug h ju ries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences fr om the facts so long as each inference is support e d by the evid ence presented at trial. ” Id

. (citing Cary v. State , 507 S.W .3d 750, 757 (Tex. Crim. App. 2016) ).
III. Analysis Toler challenges the sufficiency o f the evidence to support his con viction for drivin g while intoxicated. “ A person commits Cl ass B m i s demeanor DWI if the person is intoxica ted while operating a motor vehicle in a pu blic place. ” Ramjattansingh v. State , 548 S.W.3d 540,8

548 (Tex. Crim. Ap p. 2018) (citing T EX
. P ENAL C ODE A NN . § 49.04(a ), (b)). As applied in this

case, “ ‘ [i]ntoxi cated ’ m e a ns . . . no t having the normal use of mental or physical faculties by

re ason of the i ntroduction of alcohol , a controlled substance, a drug, a dangerous d rug, [or] a combination of two or more of those substances

. . . into the body. ” T EX
. P ENA L C ODE A N N
. § 49.01(2 ) ( A). Under the statute a nd the i nformation , in order to co nvict To ler of DWI , the State had to show, beyond a reasonable doubt, that Toler , (1) while operating a motor vehicle ( 2 ) in a
pu blic place , ( 3 ) did not have the normal use o f his ment a l or physi cal faculties (4) by reaso n of the introduction of alcohol , a con tro lled substance, a drug , a dangerous drug, or a combination of
two or more of those substances into his body

. See T EX
. P EN AL C ODE A NN
. § 49.01(2 ) ( A), § 49.04 (a) (Supp.)

. Toler d o es not ch allenge the sufficiency of the evidence that he did not have the n orma l use of his mental or physical faculties while operating a motor vehic le in a public place. He only challenges the s ufficiency of the evidence that he w as intoxicat ed by rea s o n of the introduction of alcohol , a drug, or a combination of those substa nces . Toler argues that , because Baxter could not identify the amount of c italop ram that was in his blood , cou ld not identify how the known side effects of the drug specifically a f f e ct ed him , and could not testify that he was intoxicated solely on the results of the te st s he pe rformed, there was no evidence that his intoxicat ion was a result of the introduction of alcohol and c italopram into his body. The DWI statute contains two t h e o ries of intoxication

. Kirsch v. Sta te , 306 S.W.3d 738, 743 (T ex. Crim. App. 2010). One is th e per se theory , that is, “ having an alcohol c oncentration of 0.08 or more. ” T EX
. P ENAL C ODE A NN
. § 49.01(2 ) ( B). To support a conviction for DWI under this t h e o ry , the State must show that the defen dant ’ s alcohol concentration was at least9

0 .08 at t he t ime he was operating a motor vehicle , either by expert retrograde extrapolation testimony or by the introduction of other evidence “ that would support an infer e n c e that the defendant was intoxicated at the time of driving

. ” Ki rsch , 306 S.W.3d at 745

– 46

. Thi s evidence

“ includes, inter alia , erratic driving, post

- driving behavior such as stumbling, swaying, slurring or mumbli ng words, inability to perform field s o b r iety tests or follow directions, blo odshot eyes,

. . . in short, any and all of the usua l in dicia of intoxica tion. ” Id

. at 745. This theory of intoxication focuses on both the intoxicant, alcohol, and the amount of that intoxicant ’ s concentration

. Ne v e r theles s, indirect evidenc e of the def endant ’ s intoxication w ill s upport a conviction und er t he p e r se theory of intoxication. I d

. at 746 The other theory of into xication is the “ impairment ” th eory. Id

. at 743. The impairment theory , which is applicab l e to thi s case , “ focuses on the state o f intoxication, not on the
i ntoxicant

. ” Ouellette v . St ate , 353 S.W.3d 868 , 869 ( Tex. Crim . App. 2011) (citing T EX
. P ENAL C ODE A NN
. § 49.01(2 ) ( A)). Under this theory, “ the subs tance that causes intoxication is not a n elemen t of the offense. ” Gray v. Sta te , 152 S.W.3d 125, 132 (Te x. Crim. App. 2004). R at her , the intoxicant “ is an evidentiary matter

. ” Id

. However, there must be some evidence that the intoxicant , or a combinati on of intoxicants, can cause symptoms i n d icativ e of intoxication and some evi dence from which the jury c an reasonably infer that the i nto xicant, or a combination of
in toxicants, caused the symptoms displayed by the defendant. See Ou e l l ette , 353 S.W.3d at 8 70;
Burnett v. State , 541 S.W.3d 77 , 8 4 ( Tex

. Crim. App. 2017) ( “ The jury is permitted to consider whet her a defendant was intoxic ated f rom ‘ any other substance ’ when there is evidence that the defendant ingested a substance that caused him to become int oxicated or there is sufficient10

evidenc e f

or a rational juror to infer such. ” )

. Nevertheless, expert tes timony of the amount of int oxic an t in the defendant ’ s blood, or how the known side effects of the intoxicant specifically affected him , is not required

. 2
In Ou e l l ette , the defendant was char g e d with DWI “ ‘ by reason of the introdu ction of alcohol, a contr ol led substance, a drug, a dang erou s drug, or a combination of tw o or more of those substances into the body. ’ ” Ouellette , 353 S.W.3d at 869. At the ti me of her arrest , the defendant exhibit e d physi cal signs of intoxication and h ad the odor of alcohol on he r breath

. Id

. The arresting of

ficer f ound a bottle of pills in the defendant ’ s vehicle containing Soma and testified “ that both alcohol and Soma [ w ere ] cent ral nervous system depressants. ” Id

. at 870. In upholding the judgm ent of conviction , the Texas Court of Criminal Appeals held that ,

“ [a]lthough ther e was no direct evidence that the defendant consumed the drug, there was evidence from which a r ational juror could have found that the d e f endant did so. ” Id

. Thus,

even in the ab sence of evidence of the amo unt of intoxicant s in a defendan t ’ s blood, the evidence can be sufficient to show the intoxication was caused by the introduction of the intoxi cants into the defendant ’ s body.
In Rich t e r v. State , Richter was involved in a one

- c ar accident around 4:00 a.m.
Re sponding officers found her in the driv er ’ s seat a nd testified that she was glassy

- eyed, had slurred speech, and w as disoriented

. Richter v. State , 482 S.W.3d 288, 291 (Tex. App.

—

2 Under either th eory of intoxicatio n, the results of a test of the defendant’s b l ood sp ecimen , without more, wo ul d be insufficient to show the defend ant w as intoxi cated at the time she was driving. Although the laboratory results may be “hi ghly probative to pr ove both per se an d impairment intoxi cation ,” the evidence mus t also “inclu d e[] either (1) expert testimon y of retrograde extrapolation, or (2) oth e r evidence of intoxication that would support an in ference that the defendant was in toxi cated at the time of driving as well a s at the time of ta king the test. ” Kirsch , 306 S.W.3d at 745

– 46.11

T e xarkana 2015, no pet.). Richter was in posse ssion of several prescriptio n medications and admitted that she took two T ra madol for pa in, something for anxiety, and some other pills before the accident

. Id

. The evi dence showed that Richter yielded six c l u es of intoxica tion on the HGN
test and perfo rmed poorly on the other tw o f ield sobriety tests. “ A urine drug screen

. . . was negative for all screened drugs ” but indicated “ an unknown amount of opiate. ” Id

. at 292. A

s tate trooper, who was a drug r e c o gnition exper t, reviewed the accident report s, medical reports, and the recording of the officers ’ encounter with Ric hter at the accident scene an d opined that the medical records “ suggested that ‘ something [was] depressing her central nervous system ’ a n d that it was ‘ possible that she [was] on CNS depressants or narcotic an algesics ’ (ei ther of which would severely inhi bit her ability to operate a v ehicle safely). ” Id

. at 290, 293 (alterations in

or iginal )

. Base d on this evidence, we held that a reason a b l e fact

- finde r could have found that Richter operated a motor vehicle w hile intoxicated

. 3 Id

. at 29 5. Our sister cou rt s have also found suffi cient evidence of intoxic atio n by alcohol, drugs, or a combination of those causing intoxication even in the abs e n c e of evid ence of the concentration of the d rugs in the defendant or d irect testimony of how the drugs specifi cally affe cted him . In
Crouse v. State , officers stoppe d Cr ouse after observing erratic driving behavior

. Crouse v.
State , 441 S.W.3d 508, 510 ( T ex. App.

— Dallas 2014, no pet.). On questi oning, he was confused and disoriented, his speech was slurred , his eyes were dilated , and he did not know where he was or what d ay it was. Cro use told the office rs that he had been in the hospital that day for c h ronic ba ck pain and a depression check whe n they asked about medical release papers on the front seat

3 Richter was charged u nder the impairment theory of intoxi cat i o n. See Ritcher , 482 S.W.3d at 291.12

of the car. Id

. The release pap ers listed all his medications , all of which had warnings regarding dizziness that could affect the operation of a mot o r vehic le , and some of which warned that they could cause drowsiness when taken with alcohol or other kinds of medication. The office rs also observed six clues of intoxication whil e ad ministering standar dized field sobriety tests. Id

. at 511. Laborator y r esults of Cr ouse ’ s blood specimen showed that he ha d 0.006 milligrams of

a lpra zolam per lit er, 0.02 milligrams of l orazepam per liter , an unquan tified amount of

c yclobenzaprine , and an unquan tifi ed amoun t of m irtazapine

. Id

. There was also evidence th a t he had received i ntravenous morphine at the hospita l a few hours before the tr affic stop and that he had taken Depakote and Neurontin the morni ng before the stop

. Id

. at 511

– 12

. Crous e ’ s expert opined that the combin ation , timing, and level of medicat i o n s he took would not cause Crouse to not have the n orma l use of his mental or physical faculties

. However, she acknowledged that warning s not t o operate a motor vehicle were associated with the use of

m orphine, testified the morphine could have affecte d h i m, and tes tified that she did not know whe ther his pre scription medications a lso affected him. She also testified that the Depakote and
Neuron tin could have negatively affected his per form ance on the H GN portio n of the standard ize field sobriety test

. I

d

. at 512. Regarding the evidence that supported whet her a combination of dr ugs caused Crouse ’ s intoxication, the Dallas court noted that Cro use admitted that he took numerous prescrip tion drugs , that the drugs had potent ial side effects of dizziness an d inabi lity to operate motor vehicles , and that his expe rt “ adm itted the drugs could have an effect on some people, and she had no personal knowledge of wh ether any of appellant ’ s prescription medic atio ns affected him13

in thi s manner. ” Id

. at 514. It al so p ointe d to the evidence that showed Crouse had been giv en
morp hine and a muscle relaxant while in the hospital , that both carried warnings against operati ng a motor vehicle , and that they could caus e dr o wsiness. Id

. Based on th is evidence, the
court o f a p peals held that the fact

- finder coul d reasonably find that Crou se ’ s loss of the “ normal

u se of his mental or physical faculties result [ ed ] from the intro du ction of a drug or combination of drugs. ” I

d

. a t 51 5

. In Crouse , the Dallas court cite d the opin io n s of sev eral other courts of appeals tha t have found su fficient evidence of intoxication b y the introduction of a drug or a combination of drugs without a s howing of the quantity of drugs present in t he d efendant ’ s blood stream or how they specifically a f

f e cted t he defendant

. Id . at 51 3

– 15 ( citing , inter ali a , Delane v. State , 369 S.W.3d 412, 418 (Tex. App.

— Houston [1st Dist.] 2012, pet. ref ’ d) ; Landers v . State , 110 S.W.3d 617,
620

– 21 (Tex. App.

— Hou ston [14th Di st.] 2003, pet. ref ’ d) ; Kiffe v. State , 36 1 S .W.3d 104, 108 (Tex. App.

— Houston [1st Dist.] 201 1, pet. re f ’ d) ; Paschall v. State , 2 85 S.W.3d 166, 177

– 78 (Tex. App.

— Fort Worth 2009, pet. ref ’ d) )

. In Paschall , the F ort Worth C ourt of A ppeals n oted that the S tate only offere d circumstantial evidenc e t h a t Paschall ’ s lo ss of the normal use of his
ment al or physic al faculties was caused by the introduction of a drug or combination of drugs. Paschall v. S tate , 285 S.W.3d 166, 177

– 78 (Tex. App.

— Fort Worth 2009, pe t. r ef ’ d) . This evidence came from the te s t i mony of a pharm acist who testified that two of the drugs th at Paschall admitted to ta king, Thorazine and Trazodone, were “ central nervous system depress ants that would cause a person intoxicated b y use of the dr ugs to ex hibit slurred speech, affected ba l a n ce, abnormal ga it, and constricted pupils and t hat it would be dangerous for a person so14

intoxicated to drive

. ” Id

. at 178. This testimony, combined w ith the arresting officer ’ s testimony “ that Paschall exhibi ted slurr ed speech, swaying, and constri ct e d pupils , ” was

su fficient to allow the fact

- finde r to infer th at his loss of the normal use of his mental or physical faculties was caused by the introduct ion of a drug or a combination of drugs

. I d

. In this case , Ba xter t estified that Toler ’ s blood sp ec i m e n tested positive for the presence of c italop ram , which is prescribed for depression. E ven though Baxter could not identify the exact amount of c it alop ram in Toler ’ s blood, she testified that t he amount was in the therapeutic
range and that a therape ut i c amount c an have an affect on the person ta king it. She al so testified that c italopr am c ould cause dizziness, drowsiness, and slowed reaction times an d that the warning label for this drug ca utions not to drin k al cohol because it can increase the effe ct s o f alcoh ol. She also opined that c ita lopram ’ s side effect s could be increased if taken with alcohol. The evidence also showed that Toler ’ s bloo d specimen contained 0.025 grams of alco hol per 100
millili ters of blood. Finally, the evidence showed tha t T o l e r was stopped because he was

s werving between his lane and the oncoming

- traf fic lane and drove in the oncoming

- traffic lane and the grassy sho ulder. When he was stopped, he was leth argic, slow to resp ond, and very slow to answer question s , and he ha d s l u rred, incoherent speech . Toler also showed s igns of dizziness in that he had difficulty standing, stumbled at times, almost fell, and lay down on the roadway. Although Toler d enied that he had d r u nk alcohol, he admitted that he had taken anti

- depre s sa n t s and , in hi s own estimation, perhaps too man y . Based on this evidence, we find that a reasonable jury could infer that Toler ’ s loss o f th e normal use of his mental or physical f aculties was the re sult of the introduction of alcohol and15

c italo pram int o h i s body. Se e Richter , 482 S.W.3d at 295; Crous e , 441 S.W.3d at 514

– 15;
Pasc hall , 285 S.W.3d at 178. For that reason, we find that sufficient evidence supports Toler ’ s DWI convictio n. We overrule Tole r ’ s sole issue. IV. Modification of Judgment
I n the oral re nd i t ion of it s judgment, the trial court noted th at there was a fine of $3, 100.00 associated with the DWI conviction . The trial court then found that Tole r was indigent and that he did not have th e resources to pay o r ot herwise discharge the fine, and th e

c o u rt waived the fine. Nevertheless, the written judgment contains an entry of “ $3,100.00 ” under “ Fines

. ” The judgment also indicates that $100.00 of the fine is for “ EMS, Trauma Facilities and Tra uma Care Syste ms F ine

. . . (CCP , Art. 102. 018 5) ” 4 and tha t $3,000.00 of t he fine is for “ DWI 1 st (Transportation Code § 709.001). ” 5
Bec ause fines are punitive and intended to be a part of the de fendant ’ s sentence, they

“ gene ra lly must b e or ally pronounced in the defendan t ’ s pres en ce. ” Arms trong v. State , 340
S .W.3d 759, 767 (Tex. Crim. App. 2011) (citing T EX
. C ODE C RIM
. P ROC
. A NN
. art. 4 2.03, § 1(a); Taylor v. State , 131 S.W.3d 497, 500 (Tex. Cr im. App. 2004)). When there i s a conflict bet ween the oral pron ouncement of sentence i n o p e n cou rt and the written j u dgment, the oral pronouncement controls. See Taylor v. State , 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (citing Thompson v. State , 108 S .W.3d 287, 290 (Tex. Crim. App

. 2003)). “This Court has the

4 S ee T EX
. C ODE C RIM
. P ROC
. A NN
. art. 102 .0185(a) (Supp.)

.
5 Section 709.001 of the Texas Transportation Code provides that, “[e]xcept as provided by Subsection (c), . . . a pers on who has been finally convicted of an offense relating to the operating of a motor vehicle wh ile intoxicated shall pay a fine of: (1) $3,000 for the first conviction within a 36

- month period.” T EX T RANSP
. C ODE A NN
. § 70 9 .001(b). Subsection (c) provides t hat, if the trial court “makes a finding that the person is indigent, the court shall waive all fines and costs imposed on the person under [that] section.” T EX
. T RANSP
. C ODE A NN
. § 709.001(c).16

power to correct and mod ify the judgment of the trial co u rt for accuracy when the necessary data and information are part of the record.” Anthony v. State , 531 S.W.3d 739, 743 (Tex. App.

— Texarkana 2016, no pet.) (citing T EX
. R. A PP
. P. 43.2(b); Bigley v. State , 865 S.W.2d 26, 27 (Tex. Crim. App. 1993)). “We ha v e the authority to modify the judgment to make the record speak the truth

. ” Minter v. State , 570 S.W.3d 941, 944 (Te x. App.

— Texarkana 2019, no pet.) (citing T EX
. R. A PP
. P. 43.2(b) ; French v. State , 830 S.W.2d 607, 609 (T e x. Crim. App. 1992)).
I n th is ca s e, the trial court ’ s oral rendition fo u n d tha t Toler was indige nt , and pursuant to subsection (c) of S ectio n 709.001 of the Texas Transportation Code, it waived the $3,000.00 fine provided in subsection (b) of tha t section

. For th at reason, w e modify the jud gmen t by changing the entry unde r “ F i nes ” to “ $100. 00. ” The record also shows that the trial court found Toler indige nt before trial and appointed
him counsel. Because he was found indigent, he was p resumed to remain i n digent a bsent proof of a m ateria l change in his circumstances. See T EX
. C ODE C RIM
. P ROC
. A NN
. arts. 26.04(p), 26.05(g) (Supp.); Walker v. Stat e , 557 S.W.3d 678, 689 (Tex. App.

— Texarkana 2018, pet. ref ’ d). Nevertheless , and even though the trial court fo u nd that Toler was indig ent when i t rende red its judgment , it stated at r e nditi on that Toler ’ s trial counsel would submit a bill for his fees and that those fees would be added to reimburse ment fees. Under “ Reimburseme nt Fees ” the writte n judgment states “ SEE BILL OF COST S. ” T he certifi e d bill of costs includes a charge f or “ C ourt Appointed Attorney Fee ” of $3,1 5 0.00, under “ ADDITIONAL REIMBURSE MENT FEES ASSESSED

. ”17

Under Article 26.05(g ) of the Texas Code of Criminal Procedure, a tria l court has the
aut h ority t o order the reimbursement of cou rt

- appointe d attorney fees on ly i f “ th e judge determines that a defendant has financial resources that e nable the defendant to offset in part or
in whole the costs of the legal services provided .

. . , including an y ex pense s and costs. ” T EX
. C ODE C RIM
. P ROC
. A NN
. art . 26.05(g). “ [T ]he d efendan t ’ s financial resources and ability to pay are explicit critical e lements in the trial co urt ’ s determination of the propriety of ordering reimbursement of cost s and fees ” of l e ga l serv ices provided. Armstron g , 340 S.W.3 d at 765

– 66 (quoting May er v . State , 309 S.W.3d 552, 556 (Tex. Crim. App. 2010))

. Further, “ [c] ourt costs, as reflected in a certified bill of costs, need neither be orally pr onou nced nor incor porated by refere n ce in th e judgment t o be effecti v e. ” I d. at 766

– 77 (citing Weir v. Sta t e , 278 S.W.3d 364, 367 (Tex. Crim. App. 2009)). We have reviewed the ap pellate record and conclud e th at nothing sh owed that Toler had the a bility to pay attorney fe es. We also note that the trial court found Toler indige nt in it s rendition and in a sub s e quent order appointing him appellate counsel. As a result, we modify t he certified bil l of costs by d eleting the charge for “ Court Appoint ed Attorney Fee , ” chang in g the

“ TOTAL REIMB U RSEMEN TS ” to $150.00 , and chang i n g th e “ GRAND TOTAL ” to $570.00

. V. Disp osi t i on We modify the trial court ’ s judgment by changing the entry under “ F ines ” to “ $100.0 0. ”
W e modify the certifie d bill of costs by deleti ng the charge for “ Court Appointed Attorney F ee , ”18

changing the “ TOTAL REIMBU R S EME NTS ” to $150.00, and changing th e “ G R AND TOTAL ” to $570.00. W e affirm the trial court ’ s judgm ent , as modified.

Jeff Ramb in J ustice
Date Submitted : May 26, 2023 Date Decid ed: June 16 , 2023 Do Not Publish