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Payne v. State8/29/2003
one half of Appellant's vehicle was off the roadway. After Appellant hit Taylor, Murphey watched Appellant pull her truck over onto the side of the road. Bennington then turned the truck around, and Murphey ran over to Appellant's truck and pulled the keys out of the ignition.
Appellant called Terry Jones ("Jones"), a paramedic for East Texas Medical Center, as her sole witness. Jones stated that on July 31, he was driving the second ambulance that arrived at the scene of the accident. After he arrived at the scene, he examined Appellant and noted in his report that she correctly answered questions regarding who she was, where she was located, the time of the examination, and the event that had just occurred. Jones also said that he found crutches in Appellant's truck when he went to examine her and that Appellant was wearing a "foot support on her left foot." When he saw Appellant walking, he noticed that she appeared steady.
Analysis
In the indictment, the State alleged that Appellant was intoxicated "by not having the normal use of mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a dangerous drug, or a combination of two or more of those substances, or any other substance into the body. . . ." Appellant argues that based on Smithhart, the State failed to present legally and factually sufficient evidence of her intoxication because there was no expert testimony to prove that her intoxication was caused by the introduction of alcohol, a controlled substance, a drug, or a dangerous drug, or a combination of two or more of those substances, or any other substance into her body. In other words, Appellant contends that " he evidence is legally and factually sufficient to show the `by reason of' conjunction required to prove intoxication."
In Smithhart, the State attempted to prove that Smithhart's intoxication caused a traffic accident in Lewisville on April 22, 1972. The State based its case on the testimony of one witness, Gene Bolden ("Bolden"), an officer in the Lewisville Police Department. Smithhart, 503 S.W.2d at 285. At trial, Bolden testified that when he observed Smithhart, he noticed that Smithhart was "`incoherent, his eyes were glassy, the pupils were dilated, and he was unsure of himself.'" Id. Smithhart told Bolden that he had 1) been to the doctor's office to receive treatment for a broken foot and received a shot for pain, 2) consumed several shots of vodka earlier in the day, and 3) taken seven Valiums that day. When the State asked if Bolden had an opinion as to whether Smithhart was under the influence of drugs, the trial court sustained Smithhart's objection to such testimony on the basis that no predicate had been laid to demonstrate that Bolden was an expert. Id. Nevertheless, Smithhart was convicted of driving while intoxicated and was placed on probation for a period of six months. Id. On appeal, Smithhart contended that the evidence was "insufficient to support the conviction." Id.
In its analysis, the court of criminal appeals first noted the general rule in driving while intoxicated cases that in the absence of direct opinion testimony, intoxication may be shown by circumstantial evidence. Id. The court also observed that a non-expert witness may express his opinion that a person was drunk on his observation of the accused. Id. When dealing with an opinion regarding whether a person is under the influence of drugs, the court held that a non-expert witness may not testify that a person was under the influence of drugs because the effect from certain drugs is not like "alcoholic intoxication, which is `of such common occurrence' that its recognition requires no expertise. . .
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