## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 19

- 00011

- CR

___________________________

On Appeal from County Criminal Court No. 1

Tarrant County, Texas Trial Court No. 1559206
Before Sudderth, C.J.; Birdwell and Womack, JJ. Memorandum Opinion by Justice Birdwell 

### T ROY 

### E. D OVE 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appellant Troy E. Dove was convicted of driving while intoxicated. In his first two issues, Dove contends that the trial court abused its discretion by allowing two nonexperts to testify that he showed signs of narcotic intoxicat ion

. He argues that the

s ubject of narcotic intoxication falls within the exclusive domain of an expert toxicologist and that lay opinion on the topic is forbidden. But even assuming the trial court erred by allowing this testimony, any error is harmless. The State concedes
Dove ’s third and fourth issues, which call for only minor modifications to the judgment. Therefore, we affirm as modified.
I. On the afternoon of August 12, 2018, Officer Cleburne Eardley was dispatched to address a report of a possibly intoxicated driver at a gas station. He found Dove slumped over at the wheel of an idling gas tanker truck and what appeared to be a trail of vomit leading from the ground up to the truck’s cab. When Officer Eardley spoke, Dove jolted awake. Officer Eardley had to catch Dov e as he unsteadily climbed down from the cab, and his speech was slurred and mumbled. Officer Eardley did not smell any alcohol, but he still suspected that Dove was intoxicated. Seeing how unsteady Dove was, Officer Eardley believed it would be unsafe t o conduct field sobriety testing. When paramedics were through treating Dove, Officer Eardley arrested him. As they drove to the jail, Dove repeatedly told Officer Eardley that had taken prescription3

hydrocodone; Dove asked if the charges would be droppe d in light of the fact that he had a prescription. At the jail, Dove refused consent for a blood draw, and Officer Eardley obtained a blood warrant. Dove’s blood alcohol level was .127. He was charged with misdemeanor driving while intoxicated with an enhancement for a prior assault offense. At trial, the S tate sought to elicit Officer Eardley’s testimony concerning the signs that Dove was intoxicated by narcotics, including his slow movements, constricted pupils, and apparent dry mouth. Dove obje cted that Officer Eardley was not qualified as an expert in toxicology and should therefore not be allowed to opine on narcotic
intoxication. The trial court overruled the objection and allowed this testimony

. Later, the State called Gr a yson Sterrett, one of the paramedics who examined Dove at the scene. When the State asked Sterrett what symptoms would suggest intoxication by heroin or hydrocodone, Dove again objected that Sterrett had not been qualified as an expert. The trial court overru led the objection and allowed Sterrett to testify that Dove showed symptoms of narcotic intoxication. Despite Dove’s admitted use of hydrocodone and the testimony concerning symptoms of opioid use, the jury was not charged on intoxication by a controll ed substance. Instead, the jury was charged only on intoxication by alcohol. The jury found Dove guilty as charged. After finding his enhancement true, the trial court sentenced Dove to 90 days in jail. Dove appeals.4 II. In his first two issues, Dove contends that the trial court abused its discretion by allowing two nonexperts to testify concerning narcotic intoxication. Relying on
Smithhart v. State , 503 S.W.2d 283, 285 (Tex. Crim. App. 1973), Dove argues that the topic of narcotic intoxication is s olely the province of an expert on toxicology and that lay opinion on the matter is impermissible. The State argues that even assuming there was error in allowing lay testimony on this subject, it would be a harmless error. We agree with the State.
Beca use any error is not constitutional, we apply rule 44.2(b). Tex. R. App. P. 44.2(b). That rule requires us to disregard any nonconstitutional error that does not affect appellant’s substantial rights. Id. An error that has a “substantial and injurious effect or influence in determining the jury’s verdict” affects a substantial right. Haley v.
State , 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States , 328 U.S. 750, 776 , 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial right if we have “fair assurance that the error did not influence the jury, or had but a slight effect.”
Solomon v. State , 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johns on v. State , 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In determining whether an error affected an appellant’s substantial rights, we review the record as a whole, including any testimony or physical evidence admitted for the jury’s consideration, the na ture of the evidence supporting the verdict, and the5

character of the alleged error and how it might be considered in connection with other
evidence in the case. Motilla v. State , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury i nstructions, the State’s theory and any defensive theories, whether the State emphasized the error, closing arguments, and even voir dire, if applicable. Haley , 173 S.W.3d at 518

– 19; Motilla , 78 S.W.3d at 355

– 56. A person commits DWI when the person is “intoxicated while operating a motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a). The Texas Penal Code
sets out two definitions of “intoxicated.” Crenshaw v. State , 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). The sub jective definition of intoxicated is “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, or a combination of two or more of these substances, or any other su bstance into the body.” Id. (quoting Tex. Penal Code Ann. § 49.01(2)(A)). The per se definition of intoxicated is “having an alcohol concentration
of 0.08 or more.” Id. (quoting Tex. Penal Code Ann. § 49.01(2)(B)). However, the charge did not instruct the jury on the full definitions of intoxication; omitted from the charge on the subjective definition of intoxication was any mention of intoxication by a controlled substance, a drug, a dangerous drug, a
combination o f two or more of those substances, or any other substance into the body. Instead, the jury was instructed that it could find the defendant guilty only if it found beyond a reasonable doubt that Dove was intoxicated by alcohol, either in that alcohol impai red the normal use of his faculties or in that his blood alcohol concentration was6

0.08 or more. The jury is presumed to have understood and followed the court’s charge, absent evidence to the contrary. Id. at 467 . Thus, in Crenshaw , the court presumed that the jury convicted the defendant based only on the subjective theory of intoxication that was charged and not on the uncharged per se theory of intoxication. Id. Likewise, we presume that the jury convicted Dove based only on the alcohol intoxicatio n that was charged and placed no reliance on the drug intoxication that was uncharged.
In a certain sense , the charge thus did away with the sole area where harm might reside. A purely obedient jury would not have considered the drug evidence at all in reaching its conclusion that Dove was intoxicated by reason of alcohol alone . Lacking any evidence to the contrary, we are required to presume that the jury was obedient to the charge in this way. See id.
A similar conclusion was reached in Sifford v. State , 741 S.W.2d 440, 441 (Tex.
Crim. App. 1987). There, the indictment wrongly alleged two offenses that were not properly subject to joinder, aggravat ed sexual assault and robbery, and the State
introduced evidence of both. Id. at 440. Nonetheless, the State elected to proceed only

on the aggravated sexual assault charge. Id. at 441. The Sifford court held that the
election cured any harm from the m isjoinder or from the introduction of evidence concerning a robbery offense that was never submitted for the jury’s consideration. Id.
In the same way, here, the State’s election to proceed solely on alcohol intoxication
would seem to mitigate any harm f lowing from evidence relating to a drug

- intoxication7

theory that was never submitted to the jury. Thus, the nature of the charge strongly implies that any error was harmless.
The overwhelming evidence of alcohol intoxication also suggests harmless error. The prosecution introduced testimony and body

- camera video demonstrating that
Dove exhibited many of the telltale signs of alcohol intoxication: being found
unconscious near a pool of his own vomit, only to wake, lurch down from the truck,
and slur incoherent responses to Officer Eardley’s questions. Analysis showed that
Dov e’s blood alcohol level was .127, more than enough for per se alcohol intoxication. A lab supervisor for the Texas Department of Public Safety testified that because of the high blood alcohol concentration, the lab decided not to even test the blood’s dru g content, concluding that the State had no need for this alternate form of intoxication
evidence. I n the same way, the force of this blood and video evidence might have further convinced the jury to put any drug intoxication out of its collective mind an d focus only on alcohol intoxication. See McRae v. State , 152 S.W.3d 739, 745 (Tex. App.

— Houston [1st Dist.] 2004, pet. ref’d) (op. on reh’g) (holding improper intoxication evidence harmless in light of “more persuasive” blood and video evidence, among ot her things ). Also of note is that the complained

- of evidence was elicited from nonexperts, was cumulative, and was not emphasized by the State. See Bagheri v. State , 119 S.W.3d 755, 763 (Tex. Crim. App. 2003). The State never attempted to qualify the off icer or the paramedic as experts in order to strengthen their testimony. Moreover, by the time8

the State introduced this evidence, the jury had already seen a video in which Dove proclaimed ten times in the space of six minutes that he had taken prescript ion hydrocodone. Thus, it was Dove himself who gave the first and strongest evidence of drug intoxication; the officer’s and paramedic’s testimony on this front was duplicative
and lesser. See Harrington v. California , 395 U.S. 250, 254, 89 S. Ct. 1726, 1728 (1969) (holding improper evidence harmless because it was , among other things, cumulative of the defendant’s own inculpatory statements). And r ather than distancing from this topic, Dove revisited the subject of opioid intoxication multiple times dur ing the defense case and closing argument , further diluting the effect of the complained

- of
evidence . By contrast, the State never mentioned drug intoxication in voir dire or opening statement . During closing argument, the State even downplayed the legal significance of this evidence, saying “this case isn’t all about drugs.

. . . All we needed to prove intoxication was this score, a .127.” Later, the State again ventured, “We don’t need the drugs. This case was not about drugs.” Thus, we are fairly a ssured that this nonexpert, cumulative, and deemphasized testimony could not have had more than a slight effect on the jury’s decision. See Bagheri , 119 S.W.3d at 763; Solomon , 49 S.W.3d at
365. In light of these factors

— a charge that offered little opportunity for prejudice; a compelling record apart from the drug evidence; and the State’s efforts to minimize this cumulative, nonexpert testimony

— we hold that any error was harmless. See Haley , 17 39

S.W.3d at 518

– 19; Motilla , 78 S.W.3d at 355

– 56. We therefore overrule Dove’s first and
second issues.
III. In his third issue, Dove submits that the trial court assessed him with an unconstitutional “Emergency Management Services” fee. He notes that w e held such
a fee to be unconstitutional in Casas v. State , 524 S.W.3d 921, 927 (Tex. App.

— Fort Worth 2017, no pet.). The State concedes error and asks this court to modify judgment
and the bill of costs to strike this $100 fee. We will modify the judgme nt accordingly.
See Bigley v. State , 865 S.W.2d 26, 27 (Tex. Crim. App. 1993) ; Gonzalez v. State , No. 02

- 17

- 00373

- CR, 2019 WL 983699, at *3 (Tex. App.

— Fort Worth Feb. 28, 2019, no pet.) (mem. op., not designated for publication). Dove’s third issue is sustained. In his fourth issue, Dove contends that there was insufficient evidence to support his enhancement as a repeat offender. He observes that the judgment incorrectly recites that he pleaded true to the enhancement; in fact, he simply stood silent on the enhancement. Dove argues that the evidence is therefore insufficient to support the enhancement, because the State offered no evidence demonstrating a prior
assault conviction. As a remedy, he asks us to simply reform the judgment without a remand for resentencing because he has already been released from jail , because the removal of the enhancement does not impact the upper limit of punishment, and because his ninety

- day sentence remains wit hin the applicable range of punishment after deleting the enhancement. Compare Tex. Penal Code Ann. § 12.22(2) with id.10

§ 12.43(b)(2). The State again concedes error and asks us to accommodate Dove’s request. We will modify the judgment accordingly. Se e Bigley , 865 S.W.2d at 27 ; Gaddy
v. State , 433 S.W.3d 128, 131 (Tex. App.

— Fort Worth 2014, pet. ref ’ d)

. Dove’s fourth
issue is sustained.
IV. We modify the judgment to delete the enhancement and to reflect that Dove did not plead true to any enhancement. We further modify the judgment and the bill of costs to delete the $100 emergency services fee, leaving total costs of $332.10. As modified, we affirm. See Tex. R. App. P. 43.2(b)

.
/s/ Wade Birdwell Wade Birdwell Justice
Do Not Publish Te x. R. App. P. 47.2(b)
Delivered: January 30, 2020