No. 04-07-00136-CR
Delivered and Filed: April 9, 2008. DO NOT PUBLISH
Appeal from the County Court at Law No. 1, Bexar County, Texas, Trial Court No. 926675, Honorable Al Alonso, Judge Presiding. AFFIRMED
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
CATHERINE STONE, Justice.
Cynthia Rodriguez was found guilty by a jury of driving while intoxicated and being in possession of an open container. The trial court assessed punishment of 180 days in jail, probated for two years, and a $1200 fine. On appeal, Rodriguez contends the evidence is legally and factually insufficient to support her conviction and that the trial court erred by (1) including a synergism instruction in the jury charge without expert testimony to support it; and (2) failing to exclude prosecutorial testimony. We affirm.
Factual and Procedural Background
San Antonio Police Sergeant Robert Farley testified that he was off duty, but still in uniform, when he observed that a truck was causing traffic to slow because it was traveling far below posted speeds and weaving on and off the road. Sergeant Farley radioed for assistance by on-duty officers and pulled the truck over on the side of the road. Sergeant Farley approached the truck observing an eighteen-pack of beer on the passenger seat and smelling the odor of intoxicants. Sergeant Farley asked the driver to turn off her engine and give him her drivers license and he noted that her speech was slurred and her eyes were bloodshot. When Officer Reed Hensley and Officer Steve Christian arrived in their patrol cars, Sergeant Farley identified the driver as Rodriguez, and gave them the drivers license and control of the stop. Before leaving, Sergeant Farley observed two full cans of beer fall to the ground as Rodriguez stepped out of her truck. Officer Hensley testified that after arriving on the scene, he asked Rodriguez to step out of her truck. Officer Hensley observed that Rodriguez's vehicle smelled of intoxicants, a case of beer was on the passenger seat, and Rodriguez appeared disoriented and confused, with glassy and bloodshot eyes. When Officer Hensley asked Rodriguez to exit the vehicle, she refused to give him an open can of beer she held in her right hand. He had to take the beer by force. When Officer Hensley asked Rodriguez where she was going, Rodriguez stated her destination was in the opposite direction from the direction she had been traveling on the highway. Officer Hensley administered field sobriety tests and testified that Rodriguez performed poorly on each test. Finally, Officer Hensley described Rodriguez's behavior throughout the traffic stop as confrontational. Officer Christian testified that Rodriguez's speech was slurred, her breath smelled of intoxicants, her eyes were bloodshot, and she had difficulty maintaining her balance. Officer Christian further testified that Rodriguez was holding an open can of beer which she tried to hide behind her back, and he described her mood as extremely combative and very uncooperative. Officer Christian inventoried the truck and testified that Rodriguez's truck contained an eighteen-pack of beer and beer cans on the floor, including older empty beer cans of another brand. Because he was concerned Rodriguez might fall and hurt herself, Officer Christian suggested to Officer Hensley that they should stop the field sobriety tests. Officer Christian drove Rodriguez to the police station and said he had to assist her from the car to the DWI room. After Rodriguez refused to submit to a breath test, Officer Christian brought her to the video room where Officer Charles Marcus administered sobriety tests which were recorded on video. Officer Marcus testified that Rodriguez resisted performing the sobriety tests because of back pain. As a result, Marcus decided to administer modified tests to reduce the strain to her back. On the horizontal gaze nystagmus test (HGN), Officer Marcus observed all six clues of intoxication. Officer Marcus administered other physical and mental acuity tests and concluded that Rodriguez had lost use of her mental and physical faculties because she was confused, had slurred speech, and was unable to follow instructions. According to Rodriguez's testimony, at 1:00 p.m. on May 31, 2005, she took medication for her back and ankle pain, she then slept for a few hours before driving from Laredo to her lake house at Canyon Lake. Rodriguez bought a case of beer which she said was for workers who had built a deck on her house and for a hitchhiker who was supposed to take the beer when she dropped him off. Around 8:00 p.m. Rodriguez was pulled over by a state trooper for speeding. She told the trooper she had consumed a beer, and she was asked to perform a field sobriety test. Rodriguez was released with a speeding ticket, and she continued driving to Canyon Lake. Around 10:00 p.m. as she was passing through San Antonio, she started to feel very ill and said that she kept pulling over to the side of the highway to make phone calls to friends. Rodriguez testified that during the traffic stop she was generally cooperative with the officers, but they refused to listen to her explanation that she was ill and not intoxicated. Rodriguez admitted that she held a beer can when she exited the truck, but contends she was trying to show the officers that she had consumed one beer. She denied refusing to give them the can, and she denied having difficulty maintaining her balance. Rodriguez testified that she tried multiple times to give a breath sample, but she was ill and could not blow correctly. Sufficiency of the Evidence
Rodriguez challenges the legal and factual sufficiency of the evidence supporting her conviction. When considering a legal sufficiency challenge, we review all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hernandez v. State, 198 S.W.3d 257, 260 (Tex.App.-San Antonio 2006, pet. ref'd). We affirm the trial court's judgment if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). When considering a factual sufficiency challenge, we view all the evidence in a neutral light and set aside the verdict only if: (1) the evidence is so weak the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). The jury evaluates the credibility and demeanor of witnesses and determines the weight afforded contradicting testimony. Stogiera v. State, 191 S.W.3d 194, 196 (Tex.App.-San Antonio 2005, no pet.). The offense of driving while intoxicated requires the State to prove beyond a reasonable doubt: (1) a person (2) drove or operated a vehicle (3) in a public place (4) while intoxicated. Tex. Penal Code Ann. § 49.04 (Vernon 2003). As relevant to this case, intoxication is defined as not having the normal use of mental or physical faculties due to consumption of alcohol. Tex. Penal Code Ann. § 49.01(2)(A) (Vernon 2003). The testimony of an officer regarding his opinion that the defendant was intoxicated is sufficient to establish intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex.Crim.App. 1979); Henderson v. State, 29 S.W.3d 616, 622 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Four different officers testified in this case that they believed Rodriguez was intoxicated and three of the officers testified there was evidence that she had consumed alcohol. Rodriguez argues for the first time on appeal that her symptoms were due to withdrawal from pain medications. To support her claim she contends it was not possible for her to consume enough beer to become intoxicated during the time between her first traffic stop, by a state trooper who administered field sobriety tests and let her go, and the subsequent traffic stop by Sergeant Farley. She also argues that the officers improperly investigated her case and were generally unreliable, as shown by their failure to preserve evidence and their inadequate investigation of her medical claims. To the extent that Rodriguez suggests alternate explanations for her state of mind and questions the reliability of the officers, these are issues of credibility which were to be presented to and determined by the jury in this case. Although Rodriguez criticizes the police reports and suggests alternative theories to explain her loss of mental and physical faculties, reconciling conflicts in the evidence is within the exclusive province of the jury. Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). We conclude the evidence is legally and factually sufficient to support Rodriguez's conviction. Synergism Instruction
Rodriguez argues that the jury charge was erroneous because it included a synergism instruction even though no expert testimony was presented to explain the interaction between the medications and alcohol. The applicable standard for reviewing an error in the jury charge requires that we determine (1) whether error exists in the jury charge, and (2) whether sufficient harm resulted from the error to compel reversal. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.Crim.App. 2005). The synergism instruction in the jury charge did not improperly expand on the charging instrument because it followed the language of the State's amended information. According to the Texas Court of Criminal Appeals, a synergism instruction must be given to the jury when a defendant raises evidence of intoxication due to an interaction with medication. Sutton v. State, 899 S.W.2d 682, 685 (Tex.Crim.App. 1995). While an expert testified for the defense in Sutton, Rodriguez cited no cases for the proposition that expert testimony is a prerequisite to including a synergism instruction. Other Texas appellate courts have considered the issue and have concluded that a synergism instruction is proper in the absence of expert testimony if evidence is presented at trial that a substance other than alcohol may have contributed to intoxication. See Romero v. State, No. 07-05-0466-CR, 2007 WL 4531967, *4 (Tex.App.-Amarillo Dec. 20, 2007, no pet.) (mem. op. not designated for publication) (holding that despite a challenge by appellant that there was no expert testimony on drug interaction with alcohol, "[w]e find some evidence was presented raising the issue of a synergistic relationship between appellant's medications and alcohol"); Robinson v. State, No. 05-05-01722-CR, 2007 WL 882487, at *4 (Tex.App.-Dallas March 26, 2007, no pet.) (not designated for publication) (upholding a synergism instruction although there was no expert testimony about synergism because appellant could not cite authority to support the contention that expert testimony was required); Eaton v. State, No. 06-06-00153-CR, 2006 WL 1702286 at *1, (Tex.App.-Texarkana, June 22, 2006, pet. ref'd) (mem. op. not designated for publication) (upholding the use of a synergism charge because evidence was presented by the State that appellant was on antibiotics at the time of arrest). Because Rodriguez presented evidence that she believed her intoxication was due to a combination of medication and alcohol, the trial court did not err in including a synergism instruction in this case. Rodriguez's point of error is overruled. Prosecutorial Testimony
Rodriguez finally argues that the trial court erred by allowing the jury to hear an exchange between Rodriguez and the prosecutor during cross-examination, which Rodriguez contends amounted to prosecutorial testimony. Rodriguez, however, failed to preserve this issue for appellate review because she never obtained an adverse ruling on the objection. See Tex. R. App. P. 33.1. In fact, the court eventually sustained Rodriguez's objection, but Rodriguez never asked the judge to instruct the jury to disregard the statement, nor did she request a mistrial. See Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App. 2004) (stating that to preserve error a party must (1) make a timely objection; (2) request an instruction to disregard; and (3) move for a mistrial if an instruction to disregard is not sufficient to cure the error). Because the issue was not preserved, the point of error is overruled. Based on the foregoing, the judgment of the trial court is affirmed.