Opinion
01-21-00677-CR
12-29-2022
CIRO ENRIQUEZ, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the County Criminal Court at Law No. 9 Harris County, Texas Trial Court Case No. 2381187
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
MEMORANDUM OPINION
SARAH BETH LANDAU JUSTICE
A jury convicted appellant Ciro Enriquez of driving while intoxicated, and the rial court sentenced him to one year of confinement, probated for 15 months. nriquez raises two issues on appeal: (1) the trial court erred by admitting evidence f phencyclidine (PCP) in his bloodstream, and (2) the jury charge was defective because it was missing language allowing the jury to find him guilty. We affirm the trial court's judgment.
I. Background
Around 3:00 a.m. on September 12, 2020, Officer C. Brown saw Enriquez driving 30 miles per hour in a 65-mile-per-hour zone. Enriquez accelerated to 70 miles per hour. Officer Brown's dash camera recorded Enriquez weaving in his lane and failing to signal a lane change.
Officer Brown stopped Enriquez and observed that he had red glassy eyes, slurred speech, and smelled like alcohol. Enriquez told Officer Brown that he had been at a friend's house and had one beer. Officer Brown suspected that Enriquez was intoxicated, so he performed field sobriety tests. Officer Brown observed all six clues on the horizontal gaze nystagmus test, six of eight clues on the walk and turn test, and two of four clues on the one leg stand test, indicating impairment in each test. Because Enriquez refused to provide a breath or blood sample, Officer Brown obtained a search warrant to perform a blood draw. Enriquez's blood was drawn around 6:00 a.m. The blood draw results showed that Enriquez's blood alcohol level was .082 grams per hundred milliliters, more than the legal limit of .08. See TEX. PENAL CODE § 49.01(2)(B). THE RESULTS ALSO SHOWED 30 MICROGRAMS PER LITER OF PHENCYCLIDINE, A DRUG KNOWN AS PCP.
Before trial, Enriquez moved to suppress all evidence seized by law enforcement, alleging that Officer Brown lacked probable cause to detain him. The State argued that the evidence obtained was admissible because there was reasonable suspicion that Enriquez was driving while intoxicated, and that the PCP evidence was more probative than prejudicial. Before the trial court ruled on Enriquez's motion to suppress, Enriquez informed the court that he no longer wished to move forward with the motion. Enriquez told the trial court that the stop was valid and that all resulting evidence was admissible. Instead, Enriquez limited his objection to the relevance of the PCP evidence, arguing that it was more prejudicial than probative. The trial court overruled Enriquez's objection.
At trial, Officer Brown testified that when he stopped Enriquez, he believed Enriquez was intoxicated by alcohol, but that based on his experience, PCP can cause similar signs of intoxication. When the State moved to admit the lab report showing that Enriquez's blood contained PCP, Enriquez took Officer Brown on voir dire outside the presence of the jury. After some questioning, Enriquez asked for the jury to be brought back so that he could continue questioning Officer Brown before the jury. The jury returned, and Enriquez did not object when the State moved to admit the lab report. The lab report was admitted into evidence.
Dr. T. Gray, the director of forensic toxicology at the Harris County Institute of Forensic Sciences, testified that PCP, at low doses, can mimic the effects of alcohol. She testified that Enriquez had many of the signs of intoxication that one would expect from combining alcohol and PCP.
Before closing arguments, the trial court read its charge to the jury. The jury was told that "[i]f the State proves every element of the offense beyond a reasonable doubt then you must find the defendant guilty." The court provided written instructions informing the jury that Enriquez was charged with driving while intoxicated. The charge instructions explained that "[i]ntoxicated means either: (1) 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, a combination of two or more of these substances, or any other substance into the body; or (2) having an alcohol concentration of 0.08 or more at the time of driving."
The jury charge further instructed that "[i]f the State proves every element of the offense beyond a reasonable doubt, then [the jury] must find the Defendant guilty." It then applied the elements in the application portion of the charge: "Now, therefore, if you believe from the evidence beyond a reasonable doubt that the Defendant, CIRO ENRIQUEZ ENRIQUEZ, on or about September 12, 2020, in Harris County, Texas, did then and there unlawfully operate a motor vehicle in a public place while intoxicated." But rather than instructing the jury to then find the Enriquez guilty if the State proved all the elements beyond a reasonable doubt, the charge omitted that portion. But the charge included the instruction that "[i]f you do not so believe, or if you have a reasonable doubt thereof, then you will find the Defendant not guilty."
II. Blood Results
In his first issue, Enriquez contends that the trial court abused its discretion by admitting evidence of PCP in his bloodstream without evidence that PCP caused his intoxication. The State argues that Enriquez waived the objection by failing to object to the admission of the lab report and that the PCP evidence was not more prejudicial than probative.
A. Standard of Review
A trial court's decision on the admissibility of evidence is reviewed for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). A trial court abuses its discretion when its decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Id. at 83. A reviewing court must uphold a trial court's evidentiary ruling if it is correct on any theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). If there is error, it is only reversible when it has a substantial and injurious effect or influence in determining the jury's verdict. TEX. R. APP. Proc. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We will not overturn the conviction if, after examining the record, we determine that the error did not influence the jury, or only had a slight effect. Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).
B. Not more prejudicial than probative
Enriquez contends that for evidence of PCP ingestion to be admissible, the State must establish the relevance and reliability of the evidence through a Rule 702 hearing. But neither party asked for a Rule 702 hearing and there was no Rule 702 objection. Instead, Enriquez objected to the admissibility of the evidence of PCP in his blood based on its lack of relevance. The trial court asked, "so then it gets down to whether or not it's relevant and whether or not it's more prejudicial than probative. I mean . . . if that's what you want me to rule, I think I can rule on that now." Enriquez confirmed, "[i]t is what Defense asks the [trial court] to rule on." This is a relevance objection. See TEX. R. EVID. 401, 403, 702. THUS, THE QUESTION BEFORE U.S. IS WHETHER THE PCP EVIDENCE WAS MORE PREJUDICIAL THAN PROBATIVE.
We assume without deciding that Enriquez preserved his first issue and did not waive his right to appeal it. See TEX. R. APP. P. 33.1(A); See Thomas v. State, 408 S.W.3d 877, 881, 885 (Tex. Crim. App. 2013).
Relevant evidence is presumed to be more probative than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Texas Rule of Evidence 403 allows the trial court to exclude relevant evidence if the evidence's probative value is substantially outweighed by unfair prejudice. Tex. R. Evid. 403. "Unfair prejudice" refers to relevant evidence's tendency to tempt the jury into deciding on grounds apart from the proof presented in support of the claim. See Carr v. State, No. 05-17-01287-CR, 2019 WL 2136228, at *9 (Tex. App.-Dallas May 16, 2019, no pet.) (mem. op., not designated for publication). Rule 403's limited scope is important because, "all evidence against a defendant is, by its very nature, designed to be prejudicial." Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013). Consequently, Rule 403 does not exclude all prejudicial evidence; only evidence that is unfairly prejudicial. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).
A trial court conducting a Rule 403 analysis must balance (1) the inherent probative force of the proposed evidence along with (2) the proponent's need for the evidence, against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issue, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume too much time. Gigliobianco v. State, 210 S.W.3d 637, 641-62 (Tex. Crim. App. 2006). Without an explicit refusal to conduct a Rule 403 balancing test, we presume the trial court conducted the test when it overruled a Rule 403 objection. See Williams v. State, 958 S.W.2d 186, 195-96 (Tex. Crim. App. 1997).
To obtain a conviction for driving while intoxicated, the State must establish "a temporal link between the [] defendant's intoxication and his driving." Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). A conviction for driving while intoxicated can be supported solely by circumstantial evidence. Id. Whether direct or circumstantial, there must be evidence from which a jury could conclude that, at the time of driving, the defendant was intoxicated. Id.
Generally, all relevant evidence is admissible. Tex. R. Evid. 402. Relevant evidence is that which has any tendency to make the existence of any consequential fact more or less probable than it would be without the evidence. Tex. R. Evid. 401. When determining whether evidence is relevant, courts must examine the evidence's purpose. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009).
Rule 403 favors the admission of relevant evidence and presumes that relevant evidence will be more probative than prejudicial. Hernandez v. State, 390 S.W.3d 310, 323 (Tex. Crim. App. 2012). However, rule 403 allows for the exclusion of otherwise relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403; Hernandez, 390 S.W.3d at 323. A Rule 403 analysis includes, but is not limited to, four factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh'g.). We also consider whether the evidence tends to confuse or distract the jury from the main issues and any tendency of the evidence to be given undue weight by a jury unequipped to evaluate its probative force. See Gigliobianco, 210 S.W.3d at 641.
Enriquez contends that to be admissible, scientific evidence related to the ingestion of drugs must follow these rules:
(1) there must be testimony about the quantity of drugs consumed, the time of consumption, proof that the defendant is under the influence of the drugs in question, and proof of causation between the drug ingested and the defendant's behavior;
(2) the State must prove that there is evidence linking the ingestion of the drug to the intoxication of the defendant; and
(3) the expert testifying to establish the admissibility of the drug ingestion must have knowledge of the facts of the case, and knowledge of the individual characteristics of the defendant.
Enriquez emphasizes that there is no evidence on the amount ingested by Enriquez, the exact time of ingestion, or the half-life of the drug in the human body. Enriquez argues that without this information, a jury cannot determine whether PCP would affect whether he was intoxicated.
We disagree. The jury was instructed that Enriquez had been charged with the offense of operating a motor vehicle in a public place while intoxicated. The jury was also instructed as to the definition of intoxicated. The charge stated that "intoxicated" meant "(1) 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, a combination of two or more of those substances, or any other substance into the body; or (2) having an alcohol concentration of 0.08 or more at the time of driving." The State did not limit itself to proving intoxication by any specific substance. Therefore, to be relevant here, the evidence needed to influence the jury's determination of whether Enriquez was intoxicated by "alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance." See TEX. PENAL CODE § 49.01(2).
Evidence showing that Enriquez had PCP in his system is relevant because it could show that Enriquez was intoxicated, as defined in this case. See TEX. R. EVID. 401 ("EVIDENCE IS RELEVANT IF: (A) IT HAS ANY TENDENCY TO MAKE A FACT MORE OR LESS PROBABLE THAN IT WOULD BE WITHOUT THE EVIDENCE; AND (B) THE FACT IS OF CONSEQUENCE IN DETERMINING THE ACTION"). THE PRESENCE OF PCP IN ENRIQUEZ'S BLOOD MADE IT MORE PROBABLE THAT HE DID NOT HAVE THE NORMAL USE OF HIS MENTAL OR PHYSICAL FACULTIES BECAUSE OF THE INGESTION OF SOME SUBSTANCE OR COMBINATION OF SUBSTANCES INTO HIS BODY. See Carr, 2019 WL 2136228, at *9; cf. Ashby v. State, 527 S.W.3d 356, 364 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd) ("The failure to quantify the amount of [the drug] in this instance concerns the weight and sufficiency of the scientific evidence, but not its relevance and admissibility.").
Before trial, Enriquez objected to the admission of the evidence of PCP ingestion. During trial, G. Behnke, a toxicologist with the Harris County Institute of Forensic Science, testified about her qualifications, the underlying scientific theory relied on to determine whether alcohol was present in Enriquez's blood sample, the method used, and her conclusion that the blood testing here was properly performed. F. Chavez, also a toxicologist with the Harris County Institute of Forensic Science, testified about his qualifications, that when blood alcohol testing results are below a certain threshold, the laboratory automatically proceeds with testing the sample for the presence of drugs, the method used to conduct the test, and the results of the test. On voir dire, Chavez testified that he could not determine whether someone was intoxicated because of the presence of PCP because it was outside of his expertise. Chavez testified that the blood results showed that there was PCP in the amount of 30, plus or minus eight, micrograms per liter.
Next, T. Gray, the director of forensic toxicology for the Harris County Institute of Forensic Sciences, analyzed the results of the testing her office performed. She explained that alcohol is a nervous system depressant that slows down brain and spinal cord activity. She testified that PCP is classified as a dissociative anesthetic, meaning that it can block pain, but also can cause an individual to disassociate from reality. She continued that, depending on the amount of PCP ingested, it can have different effects: at low doses it can mimic the effects of alcohol, but at higher doses it can cause the heart to race, the individual to sweat, drool, or have a psychotic episode. It can cause someone to experience superhuman strength and hallucinations. The type of interaction between alcohol and PCP depends on the amount of each that is consumed. She testified that she cannot determine what amount of PCP would be required for a specific person to have a low-dose effect or a high-dose effect and could not do so here either. Finally, she testified that the half-life of PCP has a large range, anywhere from seven to 90 hours, depending on the individual.
While reliability concerns the scientific basis for the expert testimony, relevance concerns the "fit" of proffered evidence or testimony to the case. Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996). Here, Enriquez's argument about relevance challenges whether evidence showing PCP in his blood would be more probative than prejudicial where we do not know the dosage taken by Enriquez, the exact time of ingestion, or the half-life of the drug in the human body.
Here, the presence of PCP in Enriquez's blood was offered to show that his condition at the time of his arrest was caused by the introduction of some substance or combination of substances into his body. The PCP in Enriquez's blood tends to make it more probable that Enriquez did not have the normal use of his mental or physical faculties because of the introduction of a controlled substance, or some combination of substances, into his body. See TEX. R. EVID. 402; TEX. PENAL CODE §§ 49.01(2)(A), 49.04(A). THE ISSUES RAISED BY ENRIQUEZ CONCERN THE WEIGHT AND sufficiency of the scientific evidence, but not its relevance and admissibility. See Ashby, 527 S.W.3d at 364.
Enriquez relies on Layton v. State, for the proposition that "without evidence [of] the level of dosage, exact times of ingestion, or the half-life of the drug in the human body, the usage of a particular drug was not relevant to a person's intoxication." See 280 S.W.3d at 241-42. Layton concerns the relevance of evidence of use of a particular drug when a defendant faces a DWI charge based on alcohol consumption. See id. Unlike in Layton, Enriquez was charged with DWI, defined as not having the normal use of mental or physical faculties due to "the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body." Evidence that PCP was present in Enriquez's blood sample is relevant because it tends to make it more probable that Enriquez was intoxicated because of introduction of a controlled substance or some combination of substances. See TEX. R. EVID. 401; cf. Layton, 280 S.W.3d at 241-42.
Enriquez's reliance on DeLarue v. State, 102 S.W.3d 388 (Tex. App.- Houston [14th Dist.] 2003, pet. ref'd), is misplaced. In DeLarue, the admission of evidence of marijuana in the defendant's blood to show intoxication without a Daubert-Kelly hearing was error, because without proof of scientific reliability, the evidence was more prejudicial than probative. DeLarue, 102 S.W.3d at 401-02; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590-93 (1993); Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). The Texas Court of Criminal Appeals reversed the case that supported DeLarue's holding on that issue, Manning v. State, 84 S.W.3d 15, 22 (Tex. App.-Texarkana 2002), rev'd, 114 S.W.3d 922 (Tex. Crim. App. 2003), stating that just because there may be a sufficiency issue, without more, there was not an issue with admissibility. Our Court has followed the guidance provided by the Texas Court of Criminal Appeals. See Ashby, 527 S.W.3d at 364 (failure to quantify presence of substance in defendant's bloodstream lessens probative force of evidence, but it does not make it inadmissible under Rule 702). As to the issue of a lack of a Daubert-Kelly hearing, this case is distinguishable from DeLarue because none was requested here. Cf. DeLarue, 102 S.W.3d at 398.
As to Enriquez's argument that the expert did not know the quantity of PCP ingested, when Enriquez ingested it, whether Enriquez was under the influence of PCP while he was driving, and the connection between Enriquez's behavior and the PCP in his system, again, it is about the weight of the evidence, not the evidence's admissibility. See Kirsch v. State, 306 S.W.3d 738, 744-45, 747 (Tex. Crim. App. 2010) (distinguishing whether certain facts are needed for test results to be admissible). The weight of the PCP evidence is the jury's responsibility. See Ashby, 527 S.W.3d at 364. The trial court did not err in admitting the PCP evidence under Rule 403. We overrule Enriquez's first issue.
III. Jury Charge
In Enriquez's final issue, he contends that the jury charge was erroneous because it was missing language allowing for a verdict of guilty if the State proved its case beyond a reasonable doubt. The State responds that any error was harmless.
A. Standard of Review
The trial court must give a written charge to the jury that sets forth the applicable law in the case. See TEX. CODE CRIM. PROC. ART. 36.14. WHEN REVIEWING FOR JURY CHARGE ERROR, WE APPLY A TWO-STEP PROCEDURE. See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing test procedure from Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g)). Step one requires the appellate court to determine whether there is error in the charge. Id. If there is error, the appellate court must conduct a harm analysis. Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim. App. 2013). If there was error and a defendant timely objected, then reversal is required if the defendant was harmed. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). But if a defendant did not timely object, "then reversal is required only if the error was so egregious and created such harm that the defendant did not have a fair and impartial trial." Id.
B. Law
"Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory." Id. When determining whether charge error is egregious, we consider: "(1) the entirety of the jury charge itself, (2) the state of the evidence, (3) counsel's arguments, and (4) any other relevant information revealed by the entire trial record." Id. Egregious harm a difficult standard to satisfy that is determined on a case-by-case basis. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011). In this situation neither party bears the burden on appeal to show harm or lack thereof. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Instead, courts must examine the relevant portions of the record to determine whether an appellant suffered actual harm, not theoretical harm, because of the error. Marshall, 479 S.W.3d at 843.
C. Analysis
Enriquez contends that the court erred by not including a jury charge with an application paragraph that authorizes the jury to find him guilty. Enriquez did not object to the jury charge at trial. The State argues that the jury charge is not defective because the missing language is in another portion of the jury charge. The application paragraph of the jury charge reads:
Now, therefore, if you believe from the evidence beyond a reasonable doubt that the Defendant, CIRO ENRIQUEZ ENRIQUEZ, on or about
September 12, 2020, in Harris County, Texas, did then and there unlawfully operate a motor vehicle in a public place while intoxicated.
If you do not so believe, or if you have a reasonable doubt thereof, then you will find the Defendant not guilty.
The application paragraph here is a conditional statement applying all the elements of the offense but omitting the concluding portion which, if given, would have instructed the jury to convict Enriquez if it found that the State proved every element of the offense beyond a reasonable doubt.
We find that the trial court erred in omitting the portion of the application paragraph instructing the jury to find Enriquez guilty if the State proved all elements of the offense beyond a reasonable doubt, but the error did not egregiously harm Enriquez. We begin by looking at the entire jury charge. In the "Burden of Proof" section, the jury is instructed that "[i]f the State proves every element of the offense beyond a reasonable doubt, then you must find the Defendant guilty." It also instructs the jury that "[i]f the State does not prove every element of the offense beyond a reasonable doubt, then you must find the Defendant not guilty." The "Applying the Law to this Case" section follows the same if-then structure as the "Burden of Proof" section. The jury is informed by the trial court, and included in the jury instructions, that they must follow the instructions, which includes the "Burden of Proof" section and the "Applying the Law to this Case" section, in deciding whether Enriquez is guilty or not.
Thus, while the application section omitted the instruction of when to find Enriquez guilty, the error did not cause egregious harm because the instruction was included elsewhere in the jury charge that the jury had to follow. The jury is presumed to follow the court's instructions as given. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). Indeed, they did so here, finding Enriquez guilty despite the missing direction to do so if the State proved each element of the offense beyond a reasonable doubt. The error did not deprive Enriquez of any valuable rights nor vitally affect his defensive theory.
We overrule Enriquez's second issue.
Conclusion
We affirm the trial court's judgment.