### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00678
- CR

Matthew Clay Bode , Appellant

v. The State of Texas , Appellee

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. CR2018
- 208 , THE HONORABLE DIB WALDRIP , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
A jury convicted appellant Matthew Clay Bode of the offense of driving while
intoxicated with two prior DWI convictions

. See Tex. Penal Code § § 49.04, .09. T he district

court sentenced Bode to four years ’ impri sonment but su s pe nded imposition of the sentence and placed Bode on community supervision for seven years. In two issues on appeal, Bode asserts that the evidence is insufficient to support his conviction and complains of error in the jury
char ge . We will affirm the j u dg ment of conviction.

BACKGROUND At trial, the jury heard ev idence that on October 23, 2016, several officers with the New Braunfels Police Department responded to a 911 call reporting a man who was pass ed

out inside a white pickup truck in a Taco Ca bana p arkin g lot

. Officer Tye Jackson testified that when he arrived, the truck was blocking one of the driveways in to the parking lot , the truck was2 locked, and the driver inside the truck , later identified as Bode, “ did not appear to be awake. ”
J ackson was u nable to wake Bode from outside the truck , and medics had to break the front
passenger window to get inside the truck and wake him. When Bode awoke, he tried to put the
vehicle in to gear but Jackson “ reached into the v ehicle and removed the ke ys fro m the ignition

. ”
Late r , when Jackson was conducting an inventory of the truck, h e found an empty bottle of ciprofloxacin inside the vehicle. 1
EMS Captain Michael Hays of the New Braunfels Fire Department , who reviewed the report of the in cident, testi fied tha t Bode told the medics that “ he had recently taken lorazepam, which is a benzodiazepine, approximately one hour earlier

. ” The medics told Bode
that he should not drive “ any more while the medications are in his system , ” and Bode “ agree d
and c ontact ed his w ife to pick him up. ”
Officer Matthew Burd i ck testified that when he arrived on the scene, Bode had already been treat ed by EMS and had declined transport to a hospital for any medical needs.
Medics told Burdick that Bode “ had taken some pr escrip tion med icine

. ” Burdick questioned
Bode about the “ medications that were brought to [his] attention , ” and Bode admitt ed that he was on high blood pressure medicine and alprazolam , which Burdick testified was a depressant

. Bode stated that the blood press ure medi cine made him “ dizzy and drowsy

. ” Burdick asked Bode if he thought it was a good idea for him to drive while he felt like that, and Bode replied,

“ [P]robably not. ” Burdick had Bode walk to a different location in the parking lot , and he

not iced t hat B ode was “ unsteady ” as he walked, “ leaning to one side and failing to maintain his
own balance

. ”

1 Bode tes tified that ciprofloxacin is an antibiotic medication that was prescribed to hi s wife. N o evidence in the record shows that Bode consumed this medication.3 Burdick decided to conduct field sobriety tests on Bode to determine if he was
intoxicated

. On the three standardized tests, Burdick testifi ed tha t Bode exhibited four out of six

“ clues ” of intoxication on the h orizontal gaze nystagmus (HGN) test ( “ lack of smooth pursuit ” in each eye and “ distinct and sustained nystagmus at maximum deviation ” in each eye ) , exhibit ed
one clue on the walk

- and

- tu rn tes t ( bei ng unable to maintain his position during the instruction ph ase of the test ) but refused to complete th at test because he claimed he had an ankle injury that would make it appear as i f he was intoxicated , and exhibited four out of four clues on the

o ne - leg

- stand tes t (putting his foot down, using his arms for balance, swaying while his foot was off the ground, and hopping )

. Burdick then conducted three non

- standardized tests : the alphabet test, the modified Romberg test (used to measure balance ) , and the f inger

- coun t ing tes t. Burdick
testified that Bode completed the se other tests “ fairly correctly , ” although Bode had difficulty counting his fingers , “ miss [ing] his ring finger and middle finger three times on his right hand when he was counting , ” and exhib ited “ some facial twitches , ” eye twitches, and shaky hands during the Romberg test. Based on the totality of the circumstances that Burdick and others had
observed , which included Bode falling asleep while driving and being unable to aw aken un til

me dics w ere forced to break his window , the statements that Bode had made to the medics and
officers regarding the d rugs he had taken , and Bode ’ s performance on the field sobriety tests,
Burdick decided to arrest Bode for driving while intoxicated, bel iev ing that Bode was u nder the influence of prescription medication and had lost the normal use of his mental and physical
faculties

. A video recording of the investigation, taken from Burdick ’ s patrol

- car dash camera,
was admitted into evidence and playe d for the ju ry
. On th e recording, Bode can be heard telling
Burdick that he had “ no idea ” how the b lood

- pressure medication would affect him and expressed surprise that he had fallen asleep while driving.4 Following Bode ’ s arrest, Burdick asked for consent to ob tai n a specimen of
Bode ’ s blood , which Bode refused. B urdick then obtained a search wa rrant for Bode ’ s blood
and transported Bode to a hospital , where his blood was dra wn
. Bode ’ s blood was teste d by Sarah Martin, a forensic toxicologist for DPS. M art in testif ied that B ode ’ s blood contained alprazolam at a concentration of .059 milligrams per liter , ” which was within the “ therapeutic
range, ” i.e., the prescr iption range of the drug. She explained that alp razolam , a controlled substance, is classifi ed as a cent ral nervou s system depressan t , “ commonly prescribed as Xanax to help with general anxiety or for panic attacks

. ” Martin testified that the presc r iption paperwork warns that “ it can cause side effects like drowsiness and dizziness and that you sho uld
be ca utious whe n driving for those reasons. ” When asked to explain the side effects in more detail, Martin testified,

So again, drowsiness, dizziness, slurred speech, blurred v ision. Regarding driving, you might have a hard time staying inside you r l ane or be weaving i n traffic. You also may have a delayed reaction rate. So that means that your brain is slowed down by the drug. Therefore, your brain is slower at sending signals to your hands and your feet telling you when to brake or when to swe rve
. Your w hole body is slowed down.
She added that unsteady balance, swaying, and facial twitching are other possible side effects of the drug , that these side effects can occur even i f the user is taking a dosage of the drug within
the prescribed range , an d t hat a u ser would start to feel the effects of the drug “ generally 30
minutes to an hour ” after taking it.
Martin testified that unlike with alcohol, there was no per se level of intoxication
with drugs and that drugs “ aren ’ t metabolized or eliminat ed in the body at a stea dy rate and so

we ’ re not able to calculate back in time the last time it was ingested or how muc h was ingested. ”5 She also testified that a drug ’ s side effects can vary , depend ing in part “ on the amount of time your body has had to g et use d to the type of e ffects ” the drug causes. She added, “ Every one is so
different. Your history is different. If y ou take one drug versus five drugs, all of that is going to further complicate how you are affected by the drug. And for that reason, t her e ’ s no established
p er se level [of intoxication] for drugs. ” When asked what information she would need to
determin e whether a person w ith . 059 milligrams per lite r of alprazolam in their system w as intoxicated , Martin testified, “ So this drug can pro duc e certain side effec ts. If those certain side
effects were noted and are correlated with driving negatively like y ’ al l were able to see, that can kind of help decide one way or the other. ”
Martin further testified that Bode ’ s blood did not contain lor aze p am , another

centra l nervous system depressant, and that the lab oratory did not test Bode ’ s blood fo r the presence of ciprofloxacin or blood pressure medicine . Martin explained that she had not heard of ciprofloxacin , which led her to believe that her lab o ratory n ever test e d for the presence of that drug, and that blood pressure medicine is “ generally not impairing , ” al though she added that “ [ i ] f
it ’ s taken in combination with other drugs, that ’ s kind of where it may start to show impairing. ”
Bode te sti f ied in his defense. Bode acknowledged that he had been prescribed alprazolam and had been taking that drug “ as need ed ” since 2015 . Bode also testified that he did not sleep well in 2016 and sought treatment for what h e believed to be a sleep disorder

. D octors diagnos ed hi m with sleep apnea and prescribed h im blood pressure medicine, which Bode began taking approximat ely one month before the incident

. Bode acknowledged taking both alprazolam and b lood pressure medi cine on the day of the incident but den i ed that he fell asl eep because he was intoxicated

. He opined , “ I felt like I had all capabilities of doing everythi ng. I just had a feeling that that blood pressure medication, along with the slee p apnea, probably6 dropped my blood pressure so low tha t I

— I just kind of zonk ed out. ” Bode acknowledged telling Officer Burdick that he did not know how the blood pressure m edicine would affect him
bu t denied telling Burdick that he did not know how takin g the drugs together woul d affect him. He testified, “ I h ad taken them for a couple of weeks prior to that and nothing like this had happened. ” Bode also claimed that his d izziness was the result of his sleep apnea rather than his

m edication

. The jury found Bode guilty of driving while intoxicated , and the di strict court placed him on probation as not ed above. This appeal followed.

DISCUSSION Evidentiary s ufficiency In his first issue, Bode asserts that the evidence is insufficient to support h is conviction. Specifically, he contends that the evi den ce is insufficient to p rove that he

was intoxicated.
Standard of review

“ In assessing the sufficiency of the eviden ce to support a conviction, we consider the evidence in the light most favorable t o the verdict and determine whether, based on the
evid enc e and reasonable inferen ces therefrom, a rational juror could have found th e essential elements of the crime beyond a reasonable doubt. ” Garcia v. State , 667 S.W.3d 756 , 761 (Tex. Crim. App. 2023) ( citing Jackson v. Virginia , 443 U.S. 307, 319, (1979); Wh atley v. State , 445 S.W. 3d 159, 166 (Tex. Crim. App. 2014) )

. “This familiar standard gives full play to the responsi bility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the7 evidence, and to draw reasonable inferences from bas ic facts to ultimate fac ts.” Jackson , 443
U.S. at 319

. “ A proper review of evidentiary sufficiency considers the cum ulative force of the
evidence. ” Garcia , 667 S.W.3d at 761

- 62 (citing Wise v. Stat e , 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) )

.

“ When con sidering a claim of evid entiary insufficiency, a reviewing court does not sit as the thirteenth juror and may not sub stitute its ju dgment for that of the factfinder by reevaluating the weight and cre dibility of the evidence. ” Id . at 762 (citing Isassi v. State , 330 S.W.3d 633, 6 38 (Tex. Crim. App. 2010) )

. “ The jury acts as the sole judge of the credibility
of the witne sses and may choose to believe all, so me, or none of the testimony presented. ” Id

. (citing Sharp v. State , 707 S.W.2d 611, 614 (Tex. Cr im. App. 1986) )

. “Furtherm ore, the trier of fact may use common sense and apply common knowledge, observation, and expe rience gained in ordinary affairs when drawing inferen ces from the evidence.” Aco sta v. State , 429 S.W.3d 621, 625 (Tex. Crim. App. 201 4). “ If the record support s conflicting inferences, the reviewing

court must ‘ presume that the factfinder resolved the conflicts in favor of the prosecution ’ and defer to the j ury ’ s factual determinati ons. ” Garcia , 667 S.W.3d at 762 (quoting Wise , 364 S. W.3 d at 903 )

.

“ We measure t he sufficiency of the evidence against the hypothetically correct jury charge. ” Id . ( citing Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) )

. “ The

‘ hypothetically correct jury charge accurately sets out the law, is a uth orized by the indictment , doe s not unnecessarily increase the State ’ s burden of proof or unnecessarily restrict the S tate ’ s theories of liability, and adequately describes the particular offense for which the defendant was
tried. ’ ” Id . (quoting Alfaro

- Jim enez v. State , 577 S.W.3 d 240, 244 (Tex. Cri m. App. 2019) )

.8 Analysis A person commits the offense of driving whi le intoxicated if the person is intoxicated while operating a motor vehicle in a p ublic place . Tex. Penal Code § 49.04(a).
“Intoxicated ” m eans either (1) not havi ng the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dange rous drug, a
combination of two or more of those substances, or any other substance into the body; or (2) having an alcohol c oncentration of 0.08 or more

. Id . § 49.01(2). “ The first definition is the

‘ impairment ’ th eory, while the second is the ‘ per se ’ theory. ” Kirsch v. State , 306 S.W.3d 738 , 743 (Tex. Crim. App. 2010). O nly the impairment theory is applicable in this case

. Intoxication
under th e impairment theory may be proven by either direct or circumstantia l evidence, both of which are equally probative in establishing intoxication

. See Kuciemba v. State , 310 S.W.3d 460 , 462 (Tex. Crim. App . 2 010)

. Evidence of intoxi cation includes any sign s that a person ’ s physical or mental abilities are diminished ; impa ired driving behavior such as driving erratica lly or not following the rules of th e road ; post

- driving behavior such as stumbling, swayin g, slurring or mumbling word s , and an inability to perform field sobriety tests or follow directions ; physical signs of intoxication such as bloodshot eyes or an od or of alcoho l ; any admissions by the
defendant regarding the substances that he has consumed ; a nd a refusal to submit to breath o r blood testing , which can indicate a consciousness of guilt

. See Kirs ch , 3 06 S.W .3d at 745;
Bartlett v. State , 270 S.W.3d 147 , 153 (Tex. Crim. App. 2008) ; Cotton v. State , 686 S.W.2d 140 , 142 n.3 (Tex. Crim. App. 19 85 )

. In arguing that the evi dence wa s insufficient to prove intoxication , Bode points to
evidence in the record that is contrary to the jury ’ s finding that he w as intoxicat ed , including that his speech was not slurred, that he responded to and understood a ll of Officer Burdick ’ s9 ques tions and instructions , and that he performed well on the non

- standardized field sobriety

t ests that Burdick administered . He also puts forth alter native explanations for the evidence showing that he was intoxicated, such as hi s s leep apnea for f alling as leep while driving a nd his ankle injury for his perfor mance on the standardized field sobri ety tests. He further contends that
Burd ick lacked cr edibility as a witness because he was not a “ drug

- recognition expert , ” that
Martin , th e toxicologist, was unabl e to provide “ definitive ” evidence that th e prese nce of alprazolam in Bode ’ s system caused him to be intoxicated , and that Bode ’ s ow n testimony that
he had the normal use of mental and physical faculties on the day of the incide nt “ further
established ” tha t he was not intoxicated

. Bode made similar arguments to the jury, and the jury rejected them

. A s mentioned above , this Court is not to act as a “ thir teenth juror ” and re weigh the evidence
prese nted at trial , and when the rec ord supports conflicting inf erences, as it does here, we presume that the factfinder resolved the conflicts in favor of the prosecution and defer to the jury’s factual determinations

. See Garcia , 667 S.W.3d at 762 ; Crouse v. State , 44 1 S.W.3d 508 , 51 5 (Te x. App.

— Dallas 2014, no pet. )

. Moreover, “ sufficient evidence n eed not exclude every
conceivable alternative to the de fendant ’ s guilt , ” Johnson v. State , 560 S .W.3d 224 , 226 (Tex. Crim. App. 2018) , and our sufficiency review does not involve “ negating exc ulp atory theories raised by the evidence , ” Ramsey v. State , 473 S.W.3d 805 , 811 (Tex. Crim. App. 2015). Instead,

o ur r eview is limited to determin ing whether , after viewing the evidence and all reasonable
inferences therefrom in the li ght most favorable t o t he prosecution, any ratio nal trier of fact co uld
have found beyond a reasonable doubt that Bode was guilty of drivin g while intoxicated

. See
Musacchio v. U n ited States , 577 U.S. 237 , 243 (2016); J o h n s o n , 560 S.W.3d at 226 ; Ramsey , 473 S.W.3d at 808

- 09, 81 1

.10 Here, the evidence s howed that Bode wa s found unconscious inside his vehicle , which was blocking the driveway into a restaurant parking lot. Bystanders and police were
unab le to rouse Bode , who did not a w a ken until after medics b roke the passenge r w indow in his
vehicle

. Fro m this evidence, the jury could have reasonably inferred that Bode was so impaired
while d riving that he was unable to finish entering the parking lot before he passed out

. Bode
admitted to Officer Burdick that he had taken al pra zolam and blood pressure m edicine before driving that day and that th e latter drug makes him feel drowsy and dizzy

. Martin t estified that alprazolam is a central nervous system depressant that can cause one’s brain and whole body to
slow down , that the si de effects of alprazolam i nclude drowsiness , dizzin ess , unsteady balance, swaying, and facial twitching , and that these effec ts can occur even when one is taking the drug as prescribed, i.e., within its “ therapeutic range

. ” Martin also testified that a lth ough blood pressure medici ne is “generally not impairing , ” it may be impairing if “taken in combination with other drugs

. ” A lthough Bode testified that he believed he “ zonked out ” while driving because of the combination of his blood pressure medi cine and his sleep a pnea, the jury could have reasonably inferred that it was the combination of the alprazolam , a central nervous sy stem depressant, and his blood pressure medi cine , which Bode had only recently begun taking, that caused him to pass out while d riv ing

. Additionally, during the DWI investigation, Officer Burdick observed several signs that Bode ’ s physical and mental fac ulties were imp aired , including that he was “unsteady”
and “leaning to one side and failing to maintain his own balance ” as he w alk ed across the parking lot ; t hat he exhibited four out of six clues of intoxication d uring the HGN test; that he
was unable to “ maintain his position ” during the instruction phase of the walk

- and

- turn test, which he ultimately refused to complete; that h e w as putting his foot down, us ing his arms for11 balance, swaying while his foot was off the ground, and hopping as he took the o ne - leg

- stand

test ; that he had difficulty counting his fingers during the finger

- counting test , “miss[ing] his ring finger and m idd le finger three times on his right hand when he was counting ” ; and that he exhibited “some facial twitches,” eye twitches, an d shaky hands during the Romberg test

. M any of these signs of impairment were consistent with the side effects of alprazolam th at Martin
described , and t he ju ry could have reasonably inferred from this evidence that because of the
introd uction of that drug in to his body, Bode did not have the normal use of his mental or physical faculties while he was drivi ng
. Finally, Bode refus ed to provide a specimen of his blood for testing, which the jury could have reasonably inferred indicated that Bode knew he was
int oxicated . Viewing the evidence in the l ight most favorable to the verdict, we conclude it was sufficient to pro ve that Bode wa s intoxicated. See Paradosk i v. State , 477 S.W.3d 342 , 348

- 49 (Tex. App.

— Houston [14 th Dist.] 2015, no pet.); Crous e , 441 S.W.3d at 514

- 15; Delane v. State , 369 S.W.3d 412, 418 (Tex. App.

— Houston [1st Dist.] 2012, pet. ref ’ d) ; Kiffe v. State , 361 S.W.3 d 1 04, 108

- 09 (Tex. App.

— Housto n [1st Dist.] 2011, pet. ref ’ d) ; Paschall v. State , 285 S.W.3d 166, 177

– 78 (Tex. App.

— Fo rt Worth 2009, pet. ref ’ d)

. We overrule Bode ’ s first issue.
Charge error
T he district court defin ed “ intoxicated ” in the ju ry charge as follows :

“ Intoxicated ” means not having the normal use of mental or physical faculties by reason of the in troduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other s ubs tance into the body.12 In his second iss ue, Bode contends that it was error for the district court to include the comp lete
definition of “ intoxicated ” in the charge “ because there was only evidence that Appe llant had one prescription medication in his sys tem

. ”
Standard of review
We review claim s of jury

- charge error under the two

- pronged test set out in
Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh ’ g)

. First, we must determine if there is error in the charge

. Campbell v. Stat e , 664 S.W.3d 240 , 245 (Tex . Crim. App. 20 22) (citing Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) )

. “ If t here is error, then a harm analysis must be conducted. ” Id

. If the defend ant objected to the charge at trial , “ the record need show onl y ‘ some harm ’ to justify re versal of the c onviction

. ” Id . (quoting
Almanza , 686 S.W.2d at 171 )

. However, i f the defen dant failed to object, “ the error will not
resul t in reversal of the conviction without a showing of egregious harm.” Price v. S tate , 45 7 S .W.3d 437, 440 (Tex. Cri m. App. 2015).
Bode did not object to the char ge in the court below. T hus, “reversal is req uired only if the error was fundamental in the sense that it was so egregious and created such harm that
the defendant wa s deprived of a fai r and impartial trial.” Villarreal v. Stat e , 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). “Cha rge error is egregiou sly harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally aff ects a de fensive theory.” I d

. “Egregious h arm is a ‘high and diff icul t standard’ to me et, and such a determination must be ‘borne out by the t rial record.’ ” Id . (quoting Reeves v. State , 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). “In examining the record to d etermine whether ch arge error has r esulted in egregious ha rm t o a defendant, we consider (1) the entirety of the jury charge, (2) the s tate of the13 evidence, including the contested issues and weight of probative evidence, (3) the arguments of

coun sel, and (4) any other re lev ant informatio n revealed by the trial r ecor d as a whole.” R eeves , 420 S.W.3d at 816.
Analysis

“ Trial courts are o bliged to instruct juries on ‘ the law applicable to the case, ’ which includes the statutory definitions that affect the meaning of the el eme nts of the offense. ”
Ouellette v. State , 353 S.W.3d 868 , 870 (Tex. Crim. App. 2011) (citing Villarreal v. State , 28 6 S.W.3d 321, 3 29 (Tex. Cr im

. App. 2009) )

. However, “ the charge must also be tailored to the facts presented at trial , ” Burnett v. State , 5 41 S.W.3d 77 , 84 (Tex. Crim. App. 2017), and

“ when only a portion of the statutory definition is relevant to the ele ments of the offense, giving the whole statutory definition may be error , ” O ulette , 353 S.W.3d at 870.
I n the context of DWI cases, “ t he trial court must submit to the jury only th e portions of the statutory definition of ‘ intoxicated ’ that are supporte d by the evidence. ” Burnett , 541 S.W.3d at 84. “ To do otherwise is error. ” Id

. For example, in Burnett , the evidence show ed
that the def endant was intoxicated only because he dran k alc ohol , but the jury c harge included a
definition of intox ication that referenced intoxication from drugs , which was a theory not supported by the evidence

. Id . at 78, 84

- 85 . The court concluded that “ the jur y charge was
erroneous because it did not a pply the law to the facts produced at trial. ” Id . at 85. In this case, contrary to Bode ’ s contention that “ there was only evidence that Appellant had one prescription medi cation in his system , ” B ode t estified tha t he had been prescribed both blood pressur e medicine and alprazolam and that he had taken both before driving on the day of the incident. Toxicolog ist Martin testified that alpraz olam is a drug that14 can cause impairment and that blood pressure medicin e , although “generally not impairing,” may be impairing if it is “taken in combination with other drugs.” Martin also testified that b lood pressure medi cine is a drug , s ee Tex. Health & Safety Code § 481.00 2(16), and that al prazolam
is a particu lar type o f d rug that is classified as a controlled subs tance under Texas law , s ee id

. § § 481.002(5), .104(a)(2). Because there was some evidence in the record that these substances
caused Bode ’ s impairment , it was not error for the charge to include references to “ a controlle d substance, ” “ a drug, ” and “ a com bination of two or more of those substances ” in the definition of
intoxication. See Oulette , 353 S.W.3d at 8 70 ( concluding that jury charge was not erroneous because although “ e vidence tha t the appellant was intox icated by drugs was circumstantial and

not obviously overwhelming, it [was] nonetheless present in the record ” ) ; Willemsen v. State , No. 14

- 17

- 00781

- CR , 2019 WL 3956177 , at *4 (Tex. App.

— Houston [14 th Dist.] Aug. 22, 2019 , no pe t. ) (mem. op., not designate d for publication) (following Oulette ) ; se e also Gray v. State , 152 S.W.3d 125, 133 (Tex. Crim. App. 2004) (expl aining that different categories of intoxicants in definition of intoxication overlap and “are not mutually exclusiv e”)

. However, we agree with Bode that there i s no evidence in the reco r d that Bode was impaired by alcohol , a “ dangerous drug , ” or “ any other substance. ” 2 Accordingly , it was
error for the charge to i nclude those terms in the definition of intoxication

. Se e Burnett , 541 S.W.3d at 8 5. Because Bode did not object at trial t o the definition of intoxication in the charge , we must next d etermine if th is definition caused him egregious ha rm
.

2 A “ dangerous drug ” is statutorily defined as “ a drug that is un safe for self

- medication and th at is not included in Schedules I through V or Penalty Groups 1 through 4 of Chap t er 481 (Texas Controlled Substances Act)

. ” See Tex. Health & Safety Code § 483.001( 2). N o evidence was presented that the blood pressur e me dicine or the alprazolam were cla ssified as dangerous drugs or that Bode was intoxicate d by “ a ny other substance , ” i.e., a substance that was not within one of the categories of possible intoxicants expressly listed in t he definition of intoxication

.15 First, we consider the entirety of the jury charge. The overly exp ansive definition
of into xication was limited to the abstract portion of the charge . The application paragraph of the charge did not repeat that definition, but it also did not tailor th e definition of intoxication to
the facts adduced at trial . Inste ad, it simply instructed the jury to find Bode guilty if the jury
found tha t he “ operated a motor vehicle in a public place while intoxicated as alleged in the
indictment , ” w hich did not allege a specific intoxica ting substance . Thus, the only definition of intoxication for the jury to consider was the erroneous definition provi d ed in the abstract portion of the charge, and the remainder of the charge did not hing to ameliorate th at error

. Thi s factor weighs in favor of a finding of egregious harm. See Hu mph rey v. State , No. 02

- 20

- 0 0017

- CR , 2021 WL 3085751 , * 4

- 5 (Tex. App.

— Fort W orth July 22, 2021, no pet.) (mem. op., not
d esignated for publication). Turning to the state of the evidence, thi s was not a case in which the parties
contested the substances t hat were in Bode ’ s system

. The State presented evidence that before driving o n the day of the incident, Bode ingested both alpraz olam and blood pressure medicine, and Bode did not disput e this evidence. In fact, he admitted in his testimony that he took tho se medic ations

. He also did not dispute that his blood pressure medicine w as a drug and that the alprazolam was a controlled substance

. T he conteste d issue during trial was whether Bode ’ s impairment that day w as caused by th e medications that he admit ted taking or were instead

c aused by some pre - existing medical condition , suc h as his sleep apnea . The State did not attempt to prove that alcohol, a dangerous drug, or some other substance caused Bode ’ s impairment

. Thus, there was minimal danger that th e j ury would convict Bode of driving while
intoxicated based on those other s ubstances

. This factor weighs against a finding of egregious
harm. See id . at *6.16 Regarding the arguments of counsel, the prosecutor briefly mentioned in her opening st atement t hat Bode “ tol d E MS that he had taken lorazepam, but then later changed it to

a lprazolam , ” which was consistent with the evidence presented during trial. She did not mention any other intoxicating substance. Defense counsel, in his opening sta tem ent, acknowledged that
pr ior to driving on the day of the incident, Bode “ took his

. . . regularly prescribed dose of alprazolam

. . . as well as a new bl ood pressure medication that he had just been prescribed

— just gotten on and taken for the first tim e
. ” Defense counsel then ar gued that those prescriptions did

not caus e Bode to fall asle e p inside his vehicle . Thus, from the beginning of trial, counsel for both parties focused the jury ’ s attention on Bode ’ s prescri bed medic ations rather than any other
in toxicating substances.
This focus on the evidence adduced at trial continued during t he parties ’ closing arguments

. Def ense counsel argued , “ So going to Ms. Martin ’ s testimony, all right, obviously Matt had alprazolam, not lorazepam or whatever it wa s, in his system. It was wit hin the therapeutic range.

. . . So the fact that Matt had a lprazolam in his bloodstream is completely expected. It ’ s
. . . not evidence

. . . that he was intoxicated in any way. ” The prosecutor , in her closing argument, ment ion ed the expansive definiti on of intoxication, but she also expressly told the jury tha t the portion of the definition referencing alcohol “does not apply in this case , ” that the portion of the definition referencing a controlled substance “ does apply , ” a nd that the portion
referenc ing a drug “ also applies. ” S h e then proceeded to focus her a rgument on the evidence
related to a lprazolam and blood pressure medicine , concluding with Bode ’ s admissions involving both of those drugs . She did not argue that Bod e h ad alcohol, a dangerous d rug, or any other substance in his blood. This factor weigh s against a f inding of egregious harm. See id . at *7.17 Finally, regarding any other relevant information in the record, during voir dire, the prosecutor m entioned the expansive defin ition of intoxication but focused her discussion on the intoxicating effec t s of prescription medic ine rather than othe r substances , which was
consistent with the evidence that the State would present during trial. This factor w eigh s against a finding of e gregious harm.
In sum, although the first factor weighs in favor of a find i ng of egregious harm, the second, third, and fourth factors weigh against such a finding. Accordingly, o n this record,

we cannot conclude that Bode wa s eg regiously harmed by the erroneous definition of intoxication in the charge.
We overrule Bode ’ s sec o nd issue.

CONCLUSION
We affirm the district court ’ s judgment of conviction.

______________________________________ ____ Gisela D. Triana , J u stice
Before Justices Baker, Tr iana, and Smith
Affirmed
File d: August 3 1 , 2023
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