Cathy Brockhaus Paradoski v. State

Affirmed and Opinion filed July 16, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00511-CR

               CATHY BROCKHAUS PARADOSKI, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                On Appeal from the County Court at Law No. 3
                          Fort Bend County, Texas
                   Trial Court Cause No. 10-CCR-152210


                                OPINION
      In this appeal appellant Cathy Paradoski challenges her conviction for
driving while intoxicated (DWI). The record contains evidence that appellant
ingested two types of prescription medication. Though appellant concedes she was
operating a motor vehicle without the normal use of her faculties, she asserts she
suffered a transient ischemic attack (TIA), causing her to lose control of her
faculties while driving. On appeal, we address the sufficiency of the evidence
supporting her conviction as well as claimed errors in the trial court’s admission of
evidence. We affirm.

                I.     FACTUAL AND PROCEDURAL BACKGROUND

      A witness called 911 after he saw appellant driving erratically. Shortly
thereafter, appellant rear-ended another vehicle. Witnesses reported that appellant
slurred her speech and was slow to respond to questions. Appellant could not
adequately explain where she was or what happened. Appellant concedes that her
mental and physical faculties were impaired.       Department of Public Safety
Corporal Chad Olive took appellant to a hospital. There, appellant consented to a
blood draw.     An analysis of appellant’s blood showed the presence of
hydrocodone, carisoprodol, and meprobamate (a metabolite of carisoprodol).
Appellant was charged by information with the misdemeanor offense of driving
while intoxicated. Appellant pleaded “not guilty.” A jury convicted appellant of
the offense and the trial court sentenced her to 180 days’ confinement and ordered
eighteen months of community supervision.

                                 II.   ANALYSIS

      A.    Sufficiency of the Evidence

      In the first issue, appellant asserts the evidence is legally insufficient to
support her conviction for driving while intoxicated. In evaluating a challenge to
the sufficiency of the evidence supporting a criminal conviction, we view the
evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d
103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a
court, believe the State’s evidence or believe that appellant’s evidence outweighs
the State’s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App.
1984). The verdict may not be overturned unless it is irrational or unsupported by
proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.


                                        2
Crim. App. 1991). The trier of fact “is the sole judge of the credibility of the
witnesses and of the strength of the evidence.” Fuentes v. State, 991 S.W.2d 267,
271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or disbelieve
any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the
trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867
S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt,
we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

      A person commits the offense of driving while intoxicated if a person is
intoxicated while operating a motor vehicle in a public place. Tex. Penal Code
Ann. 49.04(a) (West, Westlaw through 2013 3d C.S.). As is relevant in this case, a
person is “intoxicated” if she does not have the normal use of her mental and
physical faculties by reason of the introduction of a controlled substance into the
body. Id. at 49.01(2)(A) (West, Westlaw through 2013 3d C.S.). Penal Code
section 49.04, entitled “Driving While Intoxicated,” requires the State to prove that
a defendant lost her faculties by reason of the introduction of a substance into her
body, but it does not require the State to prove what substance caused the loss of
the normal use of mental or physical faculties. Gray v. State, 152 S.W.3d 125, 132
(Tex. Crim. App. 2004). A conviction for the offense of driving while intoxicated
may be supported solely by circumstantial evidence. Kuciemba v. State, 310
S.W.3d 460, 462 (Tex. Crim. App. 2010).

      The record contains evidence that appellant did not have the normal use of
her faculties while operating a motor vehicle in a public place. Appellant asserts
that the evidence is insufficient to prove the cause of the loss of faculties was by
reason of the introduction of a controlled substance into her body. Appellant

                                          3
asserts there is no evidence she introduced any substance into her body. She
claims there is no evidence that any of the prescription drugs found in her blood
caused her to lose control of her mental and physical faculties.          Appellant
presented evidence at trial that her impairment was caused by a transient ischemic
attack.

      The record contains the following evidence:

          • Appellant left her friend’s house between 11:30 p.m. and 11:45 p.m.
            Her friend’s husband testified that appellant was “fine” when
            appellant left. He did not see appellant take any pills.
          • Appellant was swerving in and out of lanes, driving her vehicle in an
            unsafe manner. A witness called 911 to report the erratic driving.
            Shortly thereafter, appellant crashed into another vehicle.
          • Officer Raymond Hastedt responded to the accident and determined
            appellant was impaired.
          • Corporal Olive took over the scene from Officer Hastedt. Corporal
            Olive determined appellant was intoxicated. He testified to his belief
            that appellant was intoxicated by a narcotic because he did not see any
            evidence appellant was intoxicated by alcohol.
          • Video of appellant taken from Corporal Olive’s vehicle was admitted
            into evidence.
          • Corporal Olive testified that he was at the scene for about an hour
            before taking appellant to the hospital and that he usually spends an
            average of thirty minutes at the hospital. On the night he arrested
            appellant it took him between one and two hours to “do everything.”
          • Corporal Olive transported appellant to the hospital. Appellant’s
            medical records contain notations that say “Lortab,” and “Multiple pill
            bottles.” Lortab is a generic hydrocodone. The clinical impression in
            the medical record is “substance abuse.”
          • Upon appellant’s arrival at the hospital, appellant had a shaky gait and
            was slurring her speech, but she was “alert and oriented.”
          • The nurse who saw appellant at the hospital testified that she believed
            appellant was intoxicated by reason of drugs and/or alcohol and that

                                         4
   these drugs have “similar side effects,” and when the drugs are taken
   together, those effects “will be additive.” According to appellant’s
   expert, when someone starts taking these drugs, “you would expect
   they would have some significant side-effects that would occur,
   meaning drowsiness, sleepiness, and perhaps the loss of mental and
   physical faculties during that time, but as time progresses both of
   those side effects parallel in their diminishing in the side effects that
   are producing that effect.”
• Appellant’s expert toxicologist testified that a person could take both
  drugs and have the normal use of mental and physical faculties “with
  chronic therapy.”
• Appellant’s expert toxicologist characterized the concentrations in
  appellant’s blood as “high therapeutic, consistent with long-term care,
  but not consistent with an overdose.” Appellant’s expert testified that
  although these drugs “were more than the minimum amount to
  produce an effect, they were not in the toxic range.” Appellant’s
  expert toxicologist testified that he assumed the dosage was “okay”
  because the doctor continued to prescribe the medication and the
  doctor would not have continued to do so if the medication caused
  appellant to be impaired.
• Records from a pharmacy showed appellant filled the prescriptions for
  hydrocodone and carisoprodol inconsistently. The date of the offense
  was April 10, 2010. The records revealed appellant received thirty
  350 mg tablets of carisoprodol on December 23, 2009, thirty 350mg
  tablets on December 29, 2009, twelve 350 mg tablets on January 18,
  2010, twelve 350 mg tablets on January 22, 2010, twelve 350 mg
  tablets on March 16, 2010, twelve 350 mg tablets on March 24, 2010,
  and twelve 350mg tablets on September 15, 2010. With respect to
  hydrocodone, appellant received fifteen pills on December 23, 2009,
  five pills on December 28, 2009, fifteen pills on December 29, 2009.
  The record reveals that the dosage of hydrocodone increased in
  January 2010. Appellant received ten pills of the higher dosage
  January 18, 2010, ten pills of the higher dosage March 16, 2010, five
  pills of the higher dosage March 23, 2010, and five pills of the higher
  dosage September 16, 2010.
• After appellant’s accident in April 2010, appellant did not fill a
  prescription for hydrocodone or carisoprodol until September 2010.
• Neither appellant’s doctor nor the emergency-room doctor testified at
                                6
             trial.
          • Appellant’s expert toxicologist testified that when an individual
            ingests hydrocodone and carisoprodol, there are four phases of drug
            metabolism: absorption, distribution, metabolism, and excretion. As
            the liver breaks down carisoprodol, it creates a second drug,
            meprobomate. Hydrocodone is broken down into a nonactive
            substance. According to the expert, the drugs reach a peak
            concentration and then are eliminated by the metabolism. As the liver
            breaks carisoprodol into carisoprodol and meprobomate, the two
            drugs are eliminated in parallel. The carisoprodol has a half-life of
            about ninety minutes, and it takes five times that amount of time to
            eliminate the drug. The half-life of meprobomate is ten to fifteen
            hours, and it takes about five times that length for the meprobomate to
            be eliminated. The half-life for hydrocodone is ten hours, so it takes
            about five times that to eliminate hydrocodone. The expert explained
            that the level of hydrocodone in a person’s system changes slowly.
          • Appellant also presented an expert neurologist who testified that
            appellant suffered a TIA and the TIA caused her to be impaired.
      Appellant argues the evidence is insufficient to prove that she introduced a
substance into her body causing her impairment. Appellant notes her friend’s
husband testified that appellant was fine when she got into her car and he never
saw her take any pills. But, the State’s toxicologist testified these medications
were present in appellant’s blood. Appellant also introduced records indicating
that she had a prescription for the medications and filled that prescription. Thus,
the jury had sufficient evidence to conclude appellant ingested the prescription
medications. See Kiffe v. State, 361 S.W.3d 104, 108–09 (Tex. App.—Houston [1st
Dist.] 2011, pet. ref’d) (holding that the jury has the responsibility of resolving
conflicts in the testimony).

      Appellant also asserts that there is no evidence proving she lost her faculties
by reason of the prescription drugs in her system.         The State’s toxicologist
provided evidence of the levels of prescription medication in appellant’s system.
The State’s toxicologist testified that the amounts of medication in appellant’s
                                         7
             trial.
          • Appellant’s expert toxicologist testified that when an individual
            ingests hydrocodone and carisoprodol, there are four phases of drug
            metabolism: absorption, distribution, metabolism, and excretion. As
            the liver breaks down carisoprodol, it creates a second drug,
            meprobomate. Hydrocodone is broken down into a nonactive
            substance. According to the expert, the drugs reach a peak
            concentration and then are eliminated by the metabolism. As the liver
            breaks carisoprodol into carisoprodol and meprobomate, the two
            drugs are eliminated in parallel. The carisoprodol has a half-life of
            about ninety minutes, and it takes five times that amount of time to
            eliminate the drug. The half-life of meprobomate is ten to fifteen
            hours, and it takes about five times that length for the meprobomate to
            be eliminated. The half-life for hydrocodone is ten hours, so it takes
            about five times that to eliminate hydrocodone. The expert explained
            that the level of hydrocodone in a person’s system changes slowly.
          • Appellant also presented an expert neurologist who testified that
            appellant suffered a TIA and the TIA caused her to be impaired.
      Appellant argues the evidence is insufficient to prove that she introduced a
substance into her body causing her impairment. Appellant notes her friend’s
husband testified that appellant was fine when she got into her car and he never
saw her take any pills. But, the State’s toxicologist testified these medications
were present in appellant’s blood. Appellant also introduced records indicating
that she had a prescription for the medications and filled that prescription. Thus,
the jury had sufficient evidence to conclude appellant ingested the prescription
medications. See Kiffe v. State, 361 S.W.3d 104, 108–09 (Tex. App.—Houston [1st
Dist.] 2011, pet. ref’d) (holding that the jury has the responsibility of resolving
conflicts in the testimony).

      Appellant also asserts that there is no evidence proving she lost her faculties
by reason of the prescription drugs in her system.         The State’s toxicologist
provided evidence of the levels of prescription medication in appellant’s system.
The State’s toxicologist testified that the amounts of medication in appellant’s
                                         7
system could cause one to lose mental and physical faculties. Appellant’s expert
toxicologist agreed. The record thus contains evidence that appellant had an
amount of prescription medications in her blood that could cause one to lose
control of her mental and physical faculties. See Paschall v. State, 285 S.W.3d
166, 177 (Tex. App.—Fort Worth 2009, pet. ref’d).

      Though appellant’s expert opined that appellant had developed a tolerance to
the drugs based on chronic therapy, his conclusion was based on a belief that
appellant’s doctor would not have continued prescribing the medication if it was
causing appellant problems.     Appellant’s pharmacy records showed that she
refilled her prescriptions inconsistently; she did not fill her prescriptions for a
number of months after the accident. The jury reasonably could have concluded
that appellant’s irregularity in filling the prescriptions prevented appellant from
developing the tolerance her expert toxicologist discussed.

      Regardless of the jury’s conclusion regarding appellant’s prescription
history, the jury had evidence from the State’s expert toxicologist and appellant’s
expert toxicologist that appellant had prescription medication in her system in a
quantity that could cause her to lose her mental and physical faculties. The video
taken of appellant the night of the incident showed she had lost control of her
mental and physical faculties. And, appellant conceded that she had. Additionally,
the nurse who evaluated appellant testified that appellant was impaired by reason
of drugs and/or alcohol. The record contains sufficient evidence to support the
jury’s finding that appellant was intoxicated by reason of the prescription
medications in her body. See Kiffe, 361 S.W.3d at 108–09 (holding testimony that
the levels of prescription in the defendant’s system were high enough to cause
intoxication sufficient to show the defendant was intoxicated by reason of the
prescription drugs); Harkins v. State, 268 S.W.3d 740, 751 (Tex. App.—Fort

                                         8
             B. Law Enforcement Officer’s Testimony

      In appellant’s second issue, appellant asserts that the trial court abused its
discretion by admitting into evidence testimony from Corporal Olive that
appellant’s faculties were impaired by narcotics because Corporal Olive was not
qualified to provide that opinion. See Smithhart v. State, 503 S.W.2d 283, 285
(Tex. Crim. App. 1973). Corporal Olive testified as a lay witness. Presuming for
the sake of argument that his testimony that appellant was impaired by narcotics
was inadmissible evidence from a lay witness, an appellate court may not reverse a
conviction without determining whether the evidence is harmful.

      The erroneous admission of Corporal Olive’s opinion testimony would be
non-constitutional error. See Tex. R. App. P. 44.2(b); Delane v. State, 369 S.W.3d
412, 423 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). Non-constitutional
error that does not affect the appellant’s substantial rights must be disregarded.
Delane, 369 S.W.3d at 423. A substantial right is affected when an error has a
substantial and injurious effect or influence in determining the jury’s verdict. Id.
A criminal conviction should not be overturned for non-constitutional error if the
appellate court, upon examining the record as a whole, has fair assurance that the
error did not influence the jury, or had but slight effect. Id.

      In assessing the likelihood that the jury’s decision was adversely affected by
the presumed error, we consider everything in the record, including any testimony
or physical evidence admitted for the jury’s consideration, the character of the
alleged error, and how it might be considered in connection with other evidence in
the case. Id. Corporal Olive testified that after he stopped appellant he “knew
something was wrong with her.” Corporal Olive stated in a conclusory fashion
that appellant was intoxicated by narcotics because he did not detect the presence
of alcohol. When questioned about the possibility of a medical explanation for

                                           11
ride to the hospital, and that she began recovering as she got closer to the hospital
and had recovered by the time Corporal Olive took appellant to jail. But the nurse,
who saw appellant in between the taking of the two videos, concluded that
appellant did not recover rapidly and had partial symptoms, inconsistent with a
TIA. The jury viewed the videos and also heard testimony from the nurse. Based
on this evidence, the jury could have concluded appellant did not suffer from a
TIA. See Harkins, 268 S.W.3d at 750 (holding jury was entitled to disbelieve
evidence that appellant’s impairment was caused by preexisting physical
impairment or sleep apnea and instead find that         a drug, Soma, caused the
impairment).

      Third, even if the jury believed appellant suffered from a TIA, the jury
reasonably could have concluded that appellant was impaired both by a TIA and
the levels of prescription medication in her system. Appellant did not present any
evidence that the presence of a TIA somehow negated any side-effects from the
prescription medications. In fact, appellant’s expert neurologist conceded that if
one were on the drugs carisoprodol and hydrocone and also had a TIA, the TIA
would not eliminate the effect of those drugs. Accordingly, the evidence presented
that appellant suffered a TIA did not negate the State’s evidence that appellant was
impaired by reason of the prescription medications in her system. See Kiffe, 361
S.W.3d at 108–09; Harkins, 268 S.W.3d at 750.

      The State presented sufficient evidence to prove that appellant was impaired
by reason of prescription medications. Thus, the evidence is sufficient to support
the jury’s verdict. See Landers v. State, 110 S.W.3d 617, 620 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d); Kiffe, 361 S.W.3d at 108–09; Harkins, 268
S.W.3d at 750. Appellant’s first issue is overruled.



                                         10
             B. Law Enforcement Officer’s Testimony

      In appellant’s second issue, appellant asserts that the trial court abused its
discretion by admitting into evidence testimony from Corporal Olive that
appellant’s faculties were impaired by narcotics because Corporal Olive was not
qualified to provide that opinion. See Smithhart v. State, 503 S.W.2d 283, 285
(Tex. Crim. App. 1973). Corporal Olive testified as a lay witness. Presuming for
the sake of argument that his testimony that appellant was impaired by narcotics
was inadmissible evidence from a lay witness, an appellate court may not reverse a
conviction without determining whether the evidence is harmful.

      The erroneous admission of Corporal Olive’s opinion testimony would be
non-constitutional error. See Tex. R. App. P. 44.2(b); Delane v. State, 369 S.W.3d
412, 423 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). Non-constitutional
error that does not affect the appellant’s substantial rights must be disregarded.
Delane, 369 S.W.3d at 423. A substantial right is affected when an error has a
substantial and injurious effect or influence in determining the jury’s verdict. Id.
A criminal conviction should not be overturned for non-constitutional error if the
appellate court, upon examining the record as a whole, has fair assurance that the
error did not influence the jury, or had but slight effect. Id.

      In assessing the likelihood that the jury’s decision was adversely affected by
the presumed error, we consider everything in the record, including any testimony
or physical evidence admitted for the jury’s consideration, the character of the
alleged error, and how it might be considered in connection with other evidence in
the case. Id. Corporal Olive testified that after he stopped appellant he “knew
something was wrong with her.” Corporal Olive stated in a conclusory fashion
that appellant was intoxicated by narcotics because he did not detect the presence
of alcohol. When questioned about the possibility of a medical explanation for

                                           11
appellant’s behavior, Corporal Olive discounted the possibility, recounting how, on
another occasion, he had been able to discern that a diabetic driver was
experiencing hypoglycemia and was not intoxicated because the diabetic had
“battleship, death eyes.”

      Corporal Olive conceded that when he arrived at the scene of appellant’s
accident the cause of appellant’s behavior was a “mystery.”          Corporal Olive
admitted that he is neither a certified drug recognition expert nor a doctor; he did
not have medical training, and would not know if appellant was experiencing a
TIA. He also testified that he was not educated on the effects of any particular
drug on an individual and did not know, and could not guess, what was in
appellant’s system. Corporal Olive specifically testified that he was not stating any
specific drug caused appellant to be intoxicated.

      Appellant cites Delane v. State for the proposition that the evidence was
inadmissible and harmful.      See 369 S.W.3d 412, 423–24.           In Delane, an
unqualified police officer testified that the defendant seemed intoxicated and had
“something else on board” other than alcohol. Id. at 422. The police officer
provided detailed testimony regarding the medications and their effects. Id. In
Delane, unlike in this case, it appears that no other witness testified regarding the
prescription medications and their effects. See id. at 423–24. Moreover, unlike the
testimony from the police officer in Delane, Corporal Olive’s testimony was
largely conclusory. Although Corporal Olive testified that he thought appellant
was intoxicated by narcotics, he acknowledged that his testimony had several
limitations, including his inability to evaluate whether or not appellant was
suffering from a TIA as appellant claimed at trial. While Corporal Olive provided
the jury with an example of a time that he was able to determine a diabetic was
impaired due to a medical condition and the diabetic’s “battleship, death eyes,” this

                                         12
testimony did not explain how he would be able to discern whether appellant was
impaired as a result of a medical problem.

          Considering the record as a whole, the evidence showed that appellant had
prescription medications in her blood and that those medications could cause
intoxicating effects. Appellant argued that, even though the medications could
cause intoxicating effects, they did not have an intoxicating effect on her and her
impairment stemmed from a TIA. Corporal Olive specifically admitted that he was
in no position to evaluate appellant’s argument, but the jury heard from several
individuals in the medical field who provided lengthy testimony about the different
potential causes of appellant’s impairment. In particular, the jury heard from the
nurse who concluded appellant was impaired by alcohol and/or drugs and not by a
medical condition. See Riley v. State, 988 S.W.2d 895, 899 (Tex. App.—Houston
[14th Dist.] 1999, no pet.) (holding erroneous admission of testimony from
unqualified police officer harmless where another expert provided similar
testimony); Jones v. State, 111 S.W.3d 600, 604–05 (Tex. App.—Dallas 2003, pet.
ref’d).

          Appellant notes that the State argued during its closing statement that
Corporal Olive was with appellant on the night of the accident and believed she
was intoxicated by reason of narcotics, but the medical experts had access to a
video recording of Corporal Olive’s interaction with appellant and used that video
to evaluate her demeanor. Thus, there was no reason for the jury to believe
Corporal Olive’s testimony over the various experts. Because Corporal Olive’s
testimony was conclusory and he acknowledged his lack of training as a drug-
recognition expert and admitted he could not determine whether appellant suffered
a TIA, and because the jury heard testimony from several medical experts on this
subject, we conclude that, at most, Corporal Olive’s testimony had only a slight

                                          13
effect on the jury’s verdict. See Smith v. State, 65 S.W.3d 332, 345 (Tex. App.—
Waco 2001, no pet.).        Therefore, the testimony did not affect appellant’s
substantial rights. See Hawes v. State, 125 S.W.3d 535, 542 (Tex. App.—Houston
[1st Dist.] 2002, no pet.). Any error in admitting Corporal Olive’s testimony is
harmless. Accordingly, appellant’s second issue is overruled.

      C. Testimony from the State’s Toxicologist

      In her third issue, appellant argues that the trial court abused its discretion in
permitting the State’s toxicologist to testify that prescription medications were
present in appellant’s system, over appellant’s objection. In particular, appellant
asserts that the evidence was irrelevant because the State did not present testimony
allowing the jury to determine the effect of the medication on appellant’s mental
and physical faculties. Appellant argues that the trial court’s ruling violates the
Court of Criminal Appeals’ holding in Layton v. State because the State did not
present extrapolation evidence of the amount of medication in appellant’s blood
while she was driving and because the toxicologist could not testify about the
effects of the medications found in appellant’s blood. See 280 S.W.3d 235, 241–
242 (Tex. Crim. App. 2009). In Layton, the Court of Criminal Appeals determined
an officer’s testimony that a defendant admitted taking the drugs Xanax and
Valium was irrelevant because the record contained no evidence that those drugs
affected the defendant’s level of intoxication. See id. The Layton court held that
“a lay juror is not in a position to determine whether Xanax and Valium, taken
more than 12 hours before arrest, would have any effect on appellant’s
intoxication.” Id.

      Evidence of a controlled substance in a defendant’s blood is relevant,
however, when the State presents testimony from which a lay juror reasonably
could determine that the drug affected the defendant’s intoxication. See Bekendam

                                          14
v. State, 441 S.W.3d 295, 302 (Tex. Crim. App. 2014). In Bekendam, the Court of
Criminal Appeals determined that expert testimony related to the amount of drug
detected in the blood, the half-life 1 of the drug, how the drug was metabolized, and
the drug’s effect on the central nervous system was sufficient evidence to allow a
lay juror to determine that the presence of a drug affected the defendant’s
intoxication. See id.

       The record contains evidence of the amount of the drugs detected in
appellant’s blood, the half-life of the drugs, how the drugs were metabolized, and
the drugs’ effect on the central nervous system, as well as testimony that appellant
was intoxicated by drugs and/or alcohol. The nurse testified that appellant was
intoxicated by drugs and/or alcohol and appellant’s behavior was consistent with
that of one under the effects of hydrocodone and carisoprodol. See Tex. R. Evid.
104(b) (“When the relevance of evidence depends on whether a fact exists, proof
must be introduced sufficient to support a finding that the fact does exist. The
court may admit the proposed evidence on the condition that the proof be
introduced later.”).      The nurse testified appellant’s behavior was particularly
consistent with side-effects of carisoprodol, and carisoprodol “pretty much has the
same [e]ffect on everybody that [she has] seen in her practice.”

       The toxicologist testified about the specific levels of the medications found
in appellant’s system and the general effects of the medications on the central
nervous system.         She explained that the side-effects of carisoprodol and
meprobomate include drowsiness, dizziness, lack of coordination and tiredness.
According to the toxicologist, side-effects of hydrocodone include drowsiness and
dizziness. The toxicologist also testified that an individual could experience a loss
       1
        The half-life of a drug is the time it takes for the amount of the drug in the body to be
reduced by fifty percent. See Steven E. Pegalis, American Law of Medical Malpractice § 17.3
(3d 2005).

                                               15
of mental and physical faculties if one had the same levels of medication in one’s
system as were present in appellant’s system.         The State’s toxicologist also
testified that the general half-life for carisoprodol is 100 minutes and the half-life
for meprobomate is anywhere from six hours to seventeen hours. The toxicologist
explained that the effects of the medications on individuals varied and that every
individual has a different metabolism. As recited above, appellant’s expert gave
detailed testimony regarding the half-lives of the carisoprodol, meprobomate, and
hydrocodone and provided detailed analysis of how those drugs were metabolized.
Appellant’s expert also conceded that an individual could be impaired by the
amount of medication present in appellant’s system.

      The jury had expert testimony related to the amount of the drug detected in
the blood, the half-life of the drug, how the drug was metabolized, and the drug’s
effect on the central nervous system.         See Bekendam, 441 S.W.3d at 302.
Accordingly, the jury had sufficient evidence to conclude that the medications
affected appellant’s level of intoxication, and the evidence was relevant. See id.
The trial court did not err in admitting the State’s toxicologist’s testimony into
evidence. See id. Appellant’s third issue is overruled.




                                         16
                               III.   CONCLUSION

      The evidence is sufficient to support appellant’s DWI conviction. If the trial
court erred in admitting Corporal Olive’s testimony that appellant was impaired by
reason of narcotics, that error was harmless. The trial court did not abuse its
discretion by admitting the State’s toxicologist’s testimony into evidence because
the evidence was relevant.

      The judgment of the trial court is affirmed.




                                /s/           Kem Thompson Frost
                                              Chief Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Publish — TEX. R. APP. P. 47.2(b).




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