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

TROY E. DOVE, Appellant

V.

THE STATE OF TEXAS
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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 intoxication. He argues that the 

subject 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 Dove 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 to 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 prescription 
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hydrocodone; Dove asked if the charges would be dropped 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 State 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 objected 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 Grayson 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 overruled 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 controlled 

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.
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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 solely 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.

Because 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); Johnson 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 nature of the evidence supporting the verdict, and the 
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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 instructions, 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 subjective 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 substance 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 of 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 

impaired the normal use of his faculties or in that his blood alcohol concentration was 
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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 intoxication 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, aggravated 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 misjoinder 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 flowing from evidence relating to a drug-intoxication
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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 

Dove’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 drug 

content, concluding that the State had no need for this alternate form of intoxication 

evidence. In 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 and 

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 other 

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 officer or 

the paramedic as experts in order to strengthen their testimony. Moreover, by the time 
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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 prescription 

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 rather than distancing from this 

topic, Dove revisited the subject of opioid intoxication multiple times during 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 assured 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, 173 
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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 we 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 judgment 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 within the applicable range of punishment after 

deleting the enhancement. Compare Tex. Penal Code Ann. § 12.22(2) with id.
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§ 12.43(b)(2). The State again concedes error and asks us to accommodate Dove’s 

request. We will modify the judgment accordingly. See 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

Tex. R. App. P. 47.2(b)

Delivered: January 30, 2020