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Click here for the full text of this decision FACTS:The driver of a pickup truck noticed a car driven by a teenager tailgating him and driving aggressively. After the teenager switched lanes several times, he again drove up behind the truck, but this time he rear-ended the truck. The truck driver confronted the teenager, Thomas Kerr Gray III. The truck driver said the radio was playing very loudly and that Gray was not acting normally. Police arrived and noticed Gray’s constricted pupils. An officer smelled alcohol on Gray’s breath and conducted field sobriety tests. Gray failed the tests and was arrested for DWI. Gray then told the officer that he was taking anti-depressant medication. The state charged Gray with misdemeanor DWI. The information alleged that Gray “did then and there unlawfully while intoxicated, namely not having the normal use of his mental and physical faculties by the reason of the introduction of ALCOHOL into his body, operate a motor vehicle in a public place.” Gray’s father testified at trial that Gray had taken four drugs for depression and that at the time of the accident he was taking two or three of them. The father explained that the medications often made Gray dizzy and disoriented. It was also his opinion that Gray would not have been drinking. Gray’s stepmother echoed much of the father’s testimony. The state called a chemist to testify about the effect alcohol and anti-depressant medications often have on each other. The chemist said that a “synergistic effect” could manifest itself even if only a small amount of alcohol was combined with the medication. The trial court’s jury instruction, which stated, “if a Defendant indulges in the use of a drug, to wit, Respiratol, Zoloft, Klonopin, and/or Depical, to such an extent that he thereby makes himself more susceptible to the influence of alcohol than he otherwise would have been, and by reason thereof becomes intoxicated from recent use of alcohol, he would be in the same position as though his intoxication was produced by the use of alcohol alone.” The application paragraph of the charge instructed the jury to convict if it found that Gray was driving while intoxicated “by reason of the introduction of alcohol into his body, either alone or in combination with Respiratol, Zoloft, Klonopin and/or Depical.” Gray objected on the ground that the charge did not follow the state’s information, but the trial court overruled the objection. Gray was convicted, and his 180-day sentence was suspended for one year. Houston’s 1st Court of Appeals affirmed. Gray petitioned for discretionary review, arguing the court of appeals erred in holding that the instruction constituted the law applicable to the case when Gray was not charged with intoxication by a combination of alcohol and drugs. HOLDING:Affirmed. The court recounts the background behind the “synergistic effect” charge. At the time the offense occurred in Heard v. State, 665 S.W.2d 488 (Tex.Crim.App. 1984), the DWI statute did not define “intoxication.” The court found in Heard that the “combination of liquor and drugs which would make an individual more susceptible to the influence of the liquor is in effect equivalent to intoxication by liquor alone.” The legislature subsequently amended the DWI statute to include a definition of “intoxicated.” After that, the court decided Garcia v. State, 747 S.W.2d 379 (Tex.Crim.App. 1988). In that case, the court concluded that, to provide sufficient notice to a defendant, a charging instrument alleging intoxication under the new DWI statute had to allege the intoxicant. The court notes that the status of Heard seemed in question after Garcia, and the question raised by the new statute and the new pleading requirements remained: “could a jury still be charged on the synergistic effect of more than one intoxicant of the State had not alleged a”combination’ theory in its indictment.” The court confronted that question in Sutton v. State, 899 S.W.2d 682 (Tex.Crim.App. 1995), though the court could not reach a majority decision. The jury charge in that case referred to the synergistic effect of alcohol the prescription medication the defendant was taking, permitting the jury to convict if it found that the defendant was intoxicated by reason of the introduction of alcohol into his body, either alone or in combination with an anti-depressant. A four-judge plurality opinion found the case similar to Heard, and said the jury charge at issue did not expand on the allegations in the information. The jury had to find that the defendant had been intoxicated with alcohol, not with a drug. Four dissenting judges in Sutton said the plurality had not taken into account the changed statute. The court then decided Rodriguez v. State, 18 S.W.3d 228 (Tex.Crim.App. 2000). There, the defendant was charged with DWI with alcohol. The evidence at trial indicated that the defendant had taken an over-the-counter cold medication that made him drowsy. The charge allowed for conviction for an alteration in behavior from “alcohol, a drug, or a combination of both of those substances,” and the application paragraph allowed the jury to convict if it found the defendant’s intoxication was due to a combination of unknown drugs and alcohol. Noticing that there was “no”additional susceptibility’ theory put to the jury,” the jury charge “improperly expanded on the allegations set forth in the information, and authorized a conviction on a theory not alleged in the charging instrument.” The court then goes on to apply the law to the facts. “In this case, the State alleged that Gray was under the influence of alcohol while driving, and Gray presented evidence that he was under the influence of anti-depressants at the time of the offense. The trial judge’s charge to the jury incorporated both the State’s allegation and the evidence presented at trial by instructing the jury that it should convict if it found that Gray had indulged in the drugs”to such an extent that he thereby makes himself more susceptible to the influence of alcohol than he otherwise would have been, and by reason thereof becomes intoxicated from recent use of alcohol.’ Under our caselaw, this charge instructed the jury on the law applicable to the case and applied that law to the facts presented. . . . So this was a standard”synergistic effect,’ and therefore valid, jury charge.” The court rejects Gray’s contention that the substance causing the intoxication must be proved as an element of the offense. The court finds that Garcia’s reference to an additional element was made in dicta and was unnecessary to the resolution of the case. The court disavows the Garcia dicta for three reasons: 1. the statement contradicts the statutory definitions of what constitutes an element of the offense; 2. the statement contradicts this court’s case law regarding elements of other offenses; and 3. making the intoxicant an element of the offense constitutes bad public policy by permitting defendants to secure an acquittal merely by proving an alternative intoxicant. The court then holds that the jury charge did not expand on the allegations the state made in the information. The court makes two observations. First, the jury charge in this case did not permit the jury to convict on a completely separate intoxicant. Instead, it permitted conviction if the consumption of one intoxicant made Gray more susceptible, and therefore intoxicated, by the charged intoxicant. Second, the six possible definitions of intoxication in the statute are not mutually exclusive, but instead overlap. As a result, these are not really six different intoxicants. “We conclude that the Sutton plurality was correct to uphold the synergistic effect jury charge, even though the DWI statute changed after Heard. The charge in this case was essentially identical to the one in Sutton and different from the one in Rodriguez. It permitted the jury to convict if Gray’s drug use made him more susceptible to alcohol, but it still required intoxication due to alcohol. Therefore, it did not expand on the allegations in the charging instrument, and it properly applied the law to the facts of the case.” OPINION:Keasler, J., joined by Keller, P.J., and Womack, Hervey, and Holcomb, JJ. Meyers, J., filed a dissenting opinion. Price and Johnson, JJ., concurred in the result. Cochran, J., filed a dissenting opinion in which Meyers, J., joined. DISSENT:Cochran, J. Justice Cochran would overrule both Garcia and Sutton and find that the “synergistic effect” jury instruction is not part of the law applicable in DWI cases. The dissent calls this case “a prime example of the Dickensian hair-splitting that we have allowed ourselves to fall into.” Gray is not claiming that he was not intoxicated; he was arguing that he was not intoxicated due to alcohol. “Suppose the defendant testified that he ate three M&Ms with his two glasses of beer. Would the trial judge then be required or permitted to give this same instruction but substitute the phrase”M&Ms’ for the phrase”Respiratol, Zoloft, Klonopin, and/or Depical’? No. Would the attorneys be able to argue”synergistic effect’? No. There is no evidence that M&Ms cause a”synergistic effect’ when combined with alcohol. It takes scientific evidence to support a possible conclusion that X substance, when combined with Y substance, causes a synergistic effect upon the body, making the effect of Y substance more pronounced than it otherwise would have been. “Suppose an expert witness testifies, as the State’s chemist did in this case, that Respiratol (or M&Ms or whatever), when combined with alcohol, creates a synergistic effect. Now there is evidence in the record that supports a possible inference that the defendant experienced greater effects from the alcohol that he consumed than he would have otherwise. Does that mean when any expert testifies to a scientific”fact’ or”opinion’ that the trial judge is required or permitted to instruct the jury that the expert’s testimony is the law applicable to the case? No. If the Defendant should call an expert who testifies that Respiratol has a reverse synergistic effect � i.e., a person who takes Respiratol is less susceptible to the effects of alcohol than one who is not taking Respiratol- should the trial judge instruct the jury in the converse? No. What is the logic of singling out one portion of one witness’s testimony and instructing the jury that a specific portion of that witness’s testimony is”the law applicable to the case’? I see no logic in this position, but there is considerable mischief lurking here.” DISSENT:Meyers, J. Justice Meyers joins in Justice Cochran’s dissent and adds, “The best that I can discern from the majority opinion is that the trial court can now expand the application paragraph to include additional theories of liability and incorporate evidence on how the defendant became intoxicated even though that intoxicant was not pled in the information. I am afraid that I have not come across this authority before.”

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