ARLENE KAY ROBINSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued March 26, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01722-CR
............................
ARLENE KAY ROBINSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Criminal Court No. 5
Dallas County, Texas
Trial Court Cause No. MB04-51605-F
.............................................................
OPINION
Before Chief Justice Thomas and Justices Moseley and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Arlene Kay Robinson pleaded not guilty before a jury to the misdemeanor offense of driving while intoxicated (DWI). Tex. Penal Code Ann. §§ 49.01(2)(A); 49.04 (Vernon 2003). After the jury found appellant guilty, the trial judge assessed her punishment at 120 days' confinement in the Dallas County Jail and a $1,000 fine.   See Footnote 2  Appellant now appeals asserting two points of error: factual insufficiency of the evidence to prove intoxication   See Footnote 3  and jury charge error.   See Footnote 4  We affirm.
Background
        During the course of the DWI investigation appellant told the arresting officer she was under the care of a psychiatrist and had been prescribed Xanax. The officer noted this in his report. During trial, the officer testified he did not know whether appellant had taken Xanax at any point before he stopped her. The officer further testified, in his opinion, appellant's intoxication was because of the wine she admitted she had drunk and that Xanax had nothing to do with it as far as he was concerned. Without objection during trial, the trial judge took judicial notice of the Physicians' Desk Reference about Xanax and the effect alcohol has on it. Appellant did not testify at trial.
        In addition to the statutory definition of intoxication, the jury charge contained the following language:
 
        You are further instructed that if a Defendant indulges in the use of a controlled substance, to wit, Xanax, to such an extent that he [sic] thereby makes herself more susceptible to the influence of alcohol than she otherwise would have been, and by reason thereof becomes intoxicated from recent use of alcohol, she would be in the same position as though her intoxication was produced by the use of alcohol alone.
 
        
                Outside the presence of the jury, defense counsel objected:
 
 
        DEFENSE: In the jury charge on the proposed charge there is a paragraph related to the introduction of a controlled substance to wit: [X]anax into the system. I object to any reference being made to any other substance other than alcohol in this case specifically [X]anax as listed here because the officer just testified that it plays no part in this case and it's not been established through any credible evidence whatsoever that could cause intoxication or made her susceptible even if she had been taking it so in my opinion it would be error to have that in the charge and it might be uh ........
 
        
 
                JUDGE: He said it could affect her. He arrested her for alcohol. I believe the problem is somewhere on the video I thought she said, “I'm taking [X]anax.”
 
 
 
                STATE: Yes sir.
 
 
 
                DEFENSE: But she didn't say when she took it.
 
        
 
                JUDGE: Right, but she said I'm taking [X]anax.
 
 
 
                STATE: Yes sir.
 
 
 
                DEFENSE: But not the dosage. Judge you took judicial notice of the Desk Reference and I didn't worry about [X]anax before but as I read it would be difficult in my opinion to conclude from what you read there that it would play any part in this event and that's why I asked the question, was she drowsy because that's a side effect and he said no and at the end I said I asked him was did [X]anax play any part well along the lines of should be the jury be considering [X]anax as part of the reason you arrested her and to convict this woman beyond a reasonable doubt and he said in essence, no. I think that's the correct characterization of it and the only witness who testified was that officer and this is no evidence therefore that [X]anax played any part in this case to intoxicate Ms. Robinson whatsoever and I think it would be error to put that in the charge.
 
 
 
                JUDGE: I would be more than happy to take that out had she not stated on the video that she was taking [X]anax.
 
 
 
                DEFENSE: It was not tied in time at all.
 
 
 
                JUDGE: Well I understand that it wasn't tied in time but she said it several times and she also asked about drugs and the effect they could have and stuff like that and regardless of the witness' opinion the desk reference says that it can have an affect with alcohol.
 
 
 
                DEFENSE: My objection is overruled?
 
 
 
                JUDGE: It's overruled.
 
                
 
                DEFENSE: I have no further objections to the charge but let me talk to my client for a minute.
 
 
 
                JUDGE: Sure.
 
 
 
                DEFENSE: Nothing further.
                JUDGE: Bring the jury back in.
 
Jury Charge Instruction
        In point of error number two, appellant contends the trial court erred by instructing the jury on the synergistic effect of alcohol and Xanax because there was no evidence to support the instruction. Appellant concedes that although she told the officer she was “taking Xanax,” that “probably meant” only she had been prescribed Xanax and there was no evidence of when or how much she had taken on the date of the offense. Appellant further argues there was no expert testimony about such synergistic effect. Finally, appellant says she was harmed because the issue of intoxication was close and the trial court's instruction to the jury was a comment on the weight of the evidence. The State disagrees, contending ample evidence supported the giving of the challenged jury instruction.
Standard of Review
        The standard of review for jury charge error is set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) and reaffirmed in Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). We must first determine whether error exists in the jury charge, and if so, whether the error was sufficiently harmful to require reversal. Middleton, 125 S.W.3d at 453. When error has occurred, we determine harm based on whether error was preserved or unpreserved. Under Almanza, for preserved error, reversal is required if we conclude defendant suffered “some harm.” Almanza, 686 S.W.2d at 171. When a defendant either does not object or affirmatively waived objection, we reverse only if the record shows “egregious harm” to the defendant. Id.
Analysis
        The issue we must decide here is whether the “synergistic effect” charge was raised by the evidence, not whether such charge permitted conviction on a theory not alleged in the charging instrument. Cf. Gray v. State, 152 S.W.3d 125, 133 (Tex. Crim. App. 2004) (holding a similar synergistic charge did not expand on the allegations in the charging instrument, still required intoxication due to alcohol, and permitted the jury to convict defendant if drug use made him more susceptible to alcohol).
        Relevant portions of the record reflect the following exchange between the prosecutor and Officer Matthew Findley:
 
                STATE: Officer Findley when you first asked the defendant in the field if she had any major medical problems, what was her answer?
 
 
 
                FINDLEY: She stated that she had.
                STATE: And what did she say?
                FINDLEY: She suffers from depression and anxiety.
                STATE: Okay. I am showing you the Physician's Desk Reference, specifically the section on [X]anax.
 
 
 
                DEFENSE: Judge can we approach the bench?
                JUDGE: Yes.
                STATE: Would you read this paragraph to the jury please?
                FINDLEY: Xanax is a controlled substance of the controlled substance act by the Drug Enforcement Administration and has been assigned to schedule 4.
 
 
 
                STATE: Okay and would you read this paragraph starting with the word “because.”
                FINDLEY: Because of its CNS depression effects patients receiving [X]anax should be cautioned against engaging in hazardous occupations or activities requiring complete mental alertness such as operating machinery, or driving a motor vehicle. For the same reason patients should be cautioned about the simultaneous ingestion of alcohol and other CNS depressive drugs during treatment with [X]anax.
 
***
        The officer then testified to the field sobriety tests given defendant at the scene and his opinion that she had lost the normal use of her mental and physical faculties. The record then reflects the following exchange between the prosecutor and Officer Findley:
 
        STATE: And why do you think that she did not have the normal use of her mental and physical faculties?
 
 
 
        FINDLEY: Because she was intoxicated.
        STATE: Okay and intoxicated due to what?
        FINDLEY: The introduction of alcohol into her body.
        STATE: Do you think the [X]anax had anything to do with her intoxication?
 
 
 
        FINDLEY: It could have made it a little bit worse.
 
        After the State rested, defense counsel recalled the officer. After establishing the Physician's Desk Reference, of which the trial judge took judicial notice, was a 1991 edition and that Findley's notes referred to medication generally and not specifically to Xanax, the following relevant exchange occurred between defense counsel and Findley:
 
        DEFENSE: You testified on direct examination when you were asked the question about what caused you to form the opinion that Ms. Robinson was intoxicated and you said the ingestion of alcohol.
 
 
 
        FINDLEY: Correct.
        DEFENSE: And that's where you stopped and then when prompted you said I believe you were asked if [X]anax had anything to do with it and you said it could have.
 
 
 
        FINDLEY: Possibly.
 
Findley then testified he did not know what dosage Xanax comes in, what dosage appellant may have been taking, or even whether she had taken any the date of the offense - only that she said she was taking medication for depression and anxiety. Findley also testified he did not observe the appellant being drowsy during the hour he was with her. The following exchange then occurred between defense counsel and Findley:
 
        DEFENSE: So [X]anax was nowhere in your mind when you made the decision to arrest and is it now in your mind as being one of the things that you assert that the jury should believe beyond a reasonable doubt is the cause of intoxication in this case?
 
 
 
        FINDLEY: Again I said it could have possibly.
 
        Based on our review of the record, including the specific portions thereof set out above, that the “synergistic effect” instruction was raised by the evidence, and the trial judge did not error by so instructing the jury.
        Appellant also argues on appeal the instruction was improperly given because there was no expert testimony about such synergistic effect.   See Footnote 5  However, appellant cites no authority for such proposition. Thus, appellant has waived on appeal any complaint about the lack of expert testimony. See Tex. R. App. P. 38.1(h). We further note appellant's trial objection to the instruction was that there was no evidence to support the instruction - she did not complain there was no expert testimony to support it. Consequently, under Almanza, such error would be unpreserved, requiring reversal only if appellant shows “egregious harm.” No egregious harm is shown. We resolve appellant's first issue against her.
Factual Sufficiency
        In point of error one, appellant challenges the factual sufficiency of the evidence to prove she was intoxicated. When deciding whether the evidence is factually sufficient, we must examine all the evidence without the prism of the light most favorable to the verdict and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996); Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006). The ultimate question in a factual sufficiency review is whether, considering all the evidence in a neutral light, a fact finder was rationally justified in finding guilt beyond a reasonable doubt. Watson, 204 S.W.2d at 414-15. The fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Johnson, 23 S.W.3d at 9.
        As fact-finder, the jury was authorized to convict appellant of DWI if it found beyond a reasonable doubt appellant was intoxicated while operating a motor vehicle in a public place. See Tex. Pen. Code Ann. § 49.04 (Vernon 2003). The specific substance that caused intoxicated is not an element of the offense. See Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004). The DWI statute focuses on the acts of the defendant while intoxicated rather than the act of becoming intoxicated itself. See id.
Analysis
        Appellant contends the evidence of intoxication is too weak to support the verdict and the contrary evidence is overwhelming. Appellant contends the in-car video, admitted into evidence during trial, shows appellant was communicative, coherent, and cooperative. Appellant concedes she was very angry at being arrested. However, she contends she was equally focused, logical, and coherent, and that Findley was “patient, flustered and caught off guard” by appellant's reaction to being arrested.   See Footnote 6  In short, appellant contends she was convicted based on her “excessive and continual inappropriate anger” at the arresting officer. Appellant recognizes such behavior can be a manifestation of intoxication; however, she contends it is not in this case because of her psychological problems for which she was being treated “at the time.” Appellant contends the video taken shows appellant had lost neither the use of her mental or physical faculties.
        The State, of course, disagrees, contending that although there was some evidence favorable to appellant, there was more evidence unfavorable to her, and that the jury was free to evaluate and weigh the conflicting evidence.
        The record reflects the arresting officer saw appellant drive her vehicle through a red light, and drive over a curb. The officer smelled alcohol on appellant's breath and observed her bloodshot eyes. Appellant stated she had consumed wine with dinner. In the officer's opinion, appellant failed some of the field sobriety tests. The in-car and intoxilizer room videos were admitted into evidence and viewed by the jury. Those videos showed appellant to be belligerent, sarcastic, argumentative, and hostile. At one point, she told the officer she was going to hire an attorney and “get [his] ass.”
        As fact finder, the jury was free to determine whether appellant's bad behavior reflected on the tapes resulted from intoxication or anger. We have reviewed all the evidence in this case, including the videotapes. Viewing that evidence in a neutral light, favoring neither side and giving due deference to the jury's determinations, we conclude there is factually sufficient evidence to support the jury's guilty verdict. We resolve appellant's second issue against her.
        We affirm.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
051722F.U05
 
Footnote 1          The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2          The trial judge suspended imposition of the confinement portion of the sentence.
Footnote 3          Appellant contends both that the evidence of intoxication is too weak to support the guilty verdict and the contrary evidence is overwhelming.
Footnote 4          More specifically, appellant contends the trial court erred by instructing the jury on the synergistic effect of alcohol and Xanax over her objection there was no evidence to support the instruction.
Footnote 5          Without objection, the trial judge took judicial notice of the Physicians' Desk Reference about Xanax and the effect alcohol has on it.
Footnote 6          Appellant was given a breath test. The parties stipulated that the intoxilizer test result “may or may not be valid.” The result was not offered into evidence at trial.