Danny Roy Worth v. State of Texas ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-01-080 CR ____________________

DANNY ROY WORTH, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B-960,227-R

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O P I N I O N

A jury found Danny Roy Worth guilty of felony driving while intoxicated, and assessed his punishment at seven years' confinement in the Texas Department of Criminal Justice, Institutional Division. Bringing one issue, Worth appeals.

Worth maintains the trial court erred in not granting his request to omit certain language from the charge's definition of "intoxicated." The language to which he objected was "a controlled substance, a drug, or a combination of two or more of those substances." The language should not have been part of the charge, Worth says, as there was no evidence presented at trial that he used any substance other than alcohol.

While concurring that the trial court erred by including the language over Worth's objection, the State maintains the error was harmless. We agree.

When as here, the appellant timely objected to the charge error,

reversal is required if the error is "calculated to injure the rights of defendant," which means no more than that there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (emphasis theirs). "[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id.

The jury charge stated that "'intoxicated' means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances, or any other substance into the body." ⁽¹⁾ (Emphasis added.) Appellant's counsel requested that the language in italics be removed, and the trial court denied the objection. However, the inclusion of such language, unsupported by evidence, is harmless error where no other intoxicant is named and the prosecutor does not suggest that the jury could convict on the basis of another intoxicant. See Erickson v. State, 13 S.W.3d 850, 851-52 (Tex. App.--Austin 2000, pet. ref'd).

Worth does not maintain the State implied or suggested there was any intoxicant other than alcohol involved. And the record shows the State was consistent in identifying alcohol as the intoxicant. In its opening statement, the prosecutor stated that the evidence would show that Worth "had slurred speech, bloodshot eyes, the smell of alcohol about his . . . person, and you will also hear how he was driving that night that indicated to the officer that he was intoxicated." Officer James Johnson, the arresting officer and State's only witness, testified he observed several signs of Worth's intoxication. Johnson saw Worth's vehicle weaving in and out of the lane several times; Worth staggered as he got out of his car; Worth's breath smelled strongly of alcohol; and Worth's eyes were bloodshot and glassy. In explaining the horizontal gaze nystagmus test that he performed on Worth, Johnson stated that the introduction of alcohol would increase the amount of nystagmus (involuntary reaction of the eye muscles) that could be observed. After conducting the test, Johnson arrested Worth for driving while intoxicated and stated that consumption of alcohol was the reason for Worth's intoxication. Worth refused to take the breath test. Under cross examination, Johnson testified that, based on what he saw that night, Worth had consumed more than one beer, but Johnson had "no idea when [Worth] consumed whatever amount of alcohol he consumed." During closing arguments, the prosecutor noted that the arresting officer had smelled alcohol on Worth's breath, and that the officer's observations of Worth indicated Worth was intoxicated by reason of "the introduction of alcohol into his body." As in Erickson, here the prosecutor did not suggest to the jury that it should convict Worth on any other basis. See Erickson, 13 S.W.3d at 852.

Having considered the charge in light of the record as a whole, we find that any error was not calculated to injure Worth's rights and was harmless. Worth's issue is overruled and the judgment of conviction is affirmed.

AFFIRMED.

PER CURIAM

Submitted on May 13, 2002

Opinion Delivered May 22, 2002

Do not publish

Before Walker, C.J., Burgess, and Gaultney, JJ.

1.

The charge definition is substantially the same as the one contained in the Texas Penal Code, which defines "intoxicated" as meaning "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[.]" Tex. Pen. Code Ann. § 49.01(2)(A) (Vernon Supp. 2002) (the charge definition did not contain the italicized phrase).