Lisa Overstreet Massey v. State ( 2011 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00014-CR
______________________________
LISA OVERSTREET MASSEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. One
Angelina County, Texas
Trial Court No. 10-0641
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Lisa Overstreet Massey appeals her conviction by a jury for driving while intoxicated
(DWI).1 Officer Jimmy Marble, of the Huntington Police Department, and Trooper Brian Henry,
of the Texas Department of Public Safety (DPS), were dispatched to investigate a one-vehicle
accident. When Marble arrived, he observed a white SUV facing south in the ditch on the
northbound side of the road. Massey admitted to being the driver. The State alleged Massey did
not have normal use of her mental and physical faculties by reason of the introduction of
carisoprodol (commonly prescribed under the brand name as Soma)—a drug which had been
prescribed to Massey. The jury found Massey guilty and the trial court assessed punishment at
180 days‘ confinement. The trial court suspended the sentence and placed Massey on one year of
community supervision.
Massey raises four issues on appeal. First, Massey contends the evidence is insufficient to
support the jury‘s verdict. Second, Massey argues the trial court erred in overruling her objection
to the State‘s chemist testifying about the psychological effects of carisoprodol. Third, Massey
alleges the trial court erred in denying her motion for a mistrial when the State‘s chemist testified
hydrocodone had been detected in Massey‘s blood. Finally, Massey claims the trial court abused
its discretion in denying her motion for new trial.
1
Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV‘T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
The Evidence Is Sufficient
In her first issue, Massey argues the evidence is legally insufficient. According to
Massey, the State failed to prove she was driving on a public road and failed to prove the
introduction of alcohol, drugs, or a combination thereof caused Massey‘s loss of use of physical or
mental faculties. Massey argues that her condition was caused by a head injury sustained during
the accident.
In evaluating sufficiency of the evidence, we review all the evidence in the light most
favorable to the verdict to determine whether any rational jury could have found the essential
elements of DWI beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Our rigorous legal sufficiency
review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917 (Cochran, J.,
concurring). We examine legal sufficiency under the direction of the Brooks opinion, while
giving deference to the responsibility of the jury ―to fairly resolve conflicts in testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts.‖ Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). When
reviewing the sufficiency of the evidence, we must evaluate all of the evidence in the record, both
direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735,
740 (Tex. Crim. App. 1999); see Neal v. State, 256 S.W.3d 264, 277 (Tex. Crim. App. 2008).
3
The State introduced sufficient evidence for a rational juror to conclude Massey committed
the offense while driving on a public road. Marble testified the roadway was a ―gravel road,‖ but
was a ―Huntington City street‖ and was a public place. The jury could make a reasonable
deduction that a road, described as a city street and as a ―public place,‖ was a public road.
The State also introduced sufficient evidence that Massey did not have normal use of her
physical and mental faculties by reason of the introduction of a drug. Marble testified that
Massey‘s speech was slurred, she had difficulty staying awake, and she failed several field
sobriety tests. During the one-legged-stand test, Massey was unable to hold her foot up longer
than two or three seconds, used her arms for balance, and failed to count aloud as instructed.
During the walk-and-turn test, Massey failed to walk a straight line, took ten steps instead of the
instructed nine, failed to walk heel-to-toe, used her arms for balance, and was stumbling. The
horizontal gaze nystagmus test was administered, but neither officer recorded the results.
The State introduced some evidence Massey‘s condition was not caused by a head injury.
Marble testified he did not observe any injury to Massey‘s head. Trooper Henry also testified that
he ―never suspected any kind of injury, did not see any injury.‖ Massey refused medical
attention. Marble testified he did not observe anything unusual when examining Massey‘s pupils
during the horizontal gaze nystagmus test.2 The two officers agreed Massey was intoxicated,
arrested her for DWI, and obtained consent for a blood sample to be taken.
2
Marble testified a person who has suffered a severe head injury sometimes has one pupil larger than the other.
4
At trial, Eduardo Padilla, a chemist with the DPS Crime Laboratory, testified he analyzed
the blood sample and detected the presence of carisoprodol and meprobamate.3 Padilla testified
the concentration of carisoprodol was 10 mg/L and the concentration of meprobamate was
27 mg/L. Padilla testified the concentration of carisoprodol, which can be prescribed under the
brand name Soma, exceeded therapeutic levels. The concentration of carisoprodol in Massey‘s
blood was 10 mg/L, while the therapeutic level is 2–6 mg/L. When asked whether any other
drugs were identified, Padilla testified that a small amount of hydrocodone had been discovered.
When the State asked Padilla ―what a person would expect the effect of taking that medicine to
be,‖ Massey objected and challenged Padilla‘s qualifications. Following a brief voir dire outside
the presence of the jury, the trial court found Padilla to be qualified as an expert witness. Padilla
testified that carisoprodol causes drowsiness, dizziness, slurred speech, slurred vision, and lack of
motor coordination.
We note that there is contrary evidence that Massey‘s condition may have been due to
injuries sustained in the accident. Massey testified she has been taking carisoprodol for six years.
Because she was having back muscle spasms on the day in question, Massey testified she took one
carisoprodol in the morning before work and another after work approximately around 5:00 p.m.
Massey testified, due to previous mercury poisoning, she was being closely monitored by her
doctor. Massey testified she was taking her medication as prescribed, had met with her doctor the
day before the accident, and was taking the same dosage she had always taken. Around 9:00 p.m.,
3
A person‘s body converts carisoprodol into meprobamate.
5
Massey left home to go to a store to get cigarettes. Massey testified she swerved to avoid hitting a
dog, hit a pothole, lost control, and veered into a ditch. Massey testified she hit her head on her
windshield. Massey introduced pictures of the head injury, including dried blood. Massey
testified that the head injury made her confused and that she had difficulty recalling the events of
that evening. Officer Marble testified there was ―egg-shaped‖ damage to the windshield of the
car where Massey ―hit her head.‖4 Trooper Henry admitted a head injury could affect a person‘s
―coordination ability,‖ including the ability to perform field sobriety tests.
While we may not have reached the same decision as the jury, we are unable to conclude a
rational juror could not find Massey guilty beyond a reasonable doubt. The weight and credibility
of the evidence is the sole province of the jury—we will not substitute our judgment for that of the
jury. See Brooks, 323 S.W.3d at 901–02. The evidence is sufficient.
Any Error in Permitting the Chemist to Testify on the Effects of Soma Is Not Preserved
Massey, in her second issue, complains that the trial court erred in overruling her objection
to the State‘s expert concerning the ―psychological effects of soma (carisoprodol).‖ Padilla
testified he had a bachelor of science degree in biochemistry and had worked as a chemist for ten
years. Padilla also testified he had completed an introductory graduate course in toxicology
offered online by the University of Florida. Over objection, Padilla testified as follows:
Q. [State] You‘re familiar with the psychological effects of
carisoprodol?
A. [Padilla] Yes.
4
Marble, though, testified he did not observe any injury to Massey‘s head.
6
Q. What would those psychological effect[s] be?
A. Like I described earlier, it is a CMS depressant just like alcohol, so
you could see those effects like drowsiness and dizziness, slurred speech, slurred
vision and lack of motor coordination.
Q. Would confusion and disorientation be some of them, too?
A. . . . . Yes.
Immediately before this testimony, the trial court had overruled, outside the presence of the jury, a
defense objection to Padilla‘s qualifications.
The Texas Rules of Evidence provide, ―[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.‖ TEX. R. EVID. 702. In determining whether to
admit an expert witness, the trial court must inquire whether: (1) the witness qualifies as an
expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter
of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony
will actually assist the fact-finder in deciding the case. Rodgers v. State, 205 S.W.3d 525, 527
(Tex. Crim. App. 2006).
The trial court‘s decision to admit expert testimony is reviewed for abuse of discretion.
Alvarado v. State, 912 S.W.2d 199, 216 (Tex. Crim. App. 1995). The decision will be upheld
unless it is outside the zone of reasonable disagreement. Layton v. State, 280 S.W.3d 235, 240
(Tex. Crim. App. 2009). ―Qualification is distinct from reliability and relevance and, therefore,
should be evaluated independently.‖ Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006).
7
An expert witness must have both a sufficient specialized knowledge in a particular field, and that
specialized knowledge ―must be tailored to the specific area of expertise in which the expert
desires to testify.‖ Id. at 133; see Davis v. State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010).
It is not necessary, though, for us to decide whether Padilla was qualified to testify
concerning the effects of carisoprodol on a person. 5 Prior to Massey‘s objection, Padilla
testified––without objection—as follows:
Q. [State] What is Soma normally taken for?
A. [Padilla] It is a muscle relaxer usually given for back pain.
Q. If you categorized it, would it fall into the category of a central
nervous system depressant?
A. Yes.
Q. What does a central nervous system depressant do?
A. It can produce effects like drowsiness and dizziness and slurred
speech, blurred vision, and a lack of motor coordination.
If a defendant fails to object to other evidence proving the same matters as the objected-to
testimony, reversible error has not occurred. Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim.
App. 1998) (disapproving of term ―curative admissibility,‖ but noting disapproval ―does not imply
that the doctrine so named was unsound or misapplied‖); see Coble v. State, 330 S.W.3d 253, 282
(Tex. Crim. App. 2010). The Texas Court of Criminal Appeals has noted ―overruling an
5
This opinion should not be relied upon as endorsing that an expert in one field can testify concerning another field.
The Texas Court of Criminal Appeals has emphasized the importance of the ―‗fit‘ requirement.‖ Vela, 209 S.W.3d at
133. We do not express any opinion concerning whether one introductory graduate level course taken online is
enough to create sufficient specialized knowledge to qualify as an expert. We also do not express any opinion
concerning whether the specialized knowledge of Padilla, whose specialized knowledge is primarily in chemistry, is a
―fit‖ to the specific area of expertise in this case—the effects of the drug on a person.
8
objection to evidence after the same evidence has been admitted without objection‖ will not be
reversible error. Leday, 983 S.W.2d at 717.
While we note Padilla did not testify carisoprodol could cause ―confusion and
disorientation‖ until after Massey‘s objection, the objected-to testimony is substantially similar to
his previous testimony admitted without an objection. Even if the trial court erred in overruling
Massey‘s objection, reversible error did not occur because evidence that was substantially the
same had been previously admitted without objection. The unobjected-to evidence does not have
to be identical to the objected-to evidence—it must merely be ―substantially the same.‖ See
Prieto v. State, No. 07-10-00225-CR, 2011 Tex. App. LEXIS 2606 (Tex. App.—Amarillo Apr. 7,
2011, pet. filed) (quoting Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991)). Because
substantially the same evidence was admitted without objection, reversible error has not occurred.
Massey‘s second issue is overruled.
The Trial Court Did Not Err in Denying Massey’s Motion for a Mistrial
In her third issue, Massey argues the trial court erred in denying her motion for a mistrial.
Padilla‘s report indicated he had detected the presence of two drugs—carisoprodol and
meprobamate. At trial, though, the State asked Padilla if any other drugs were identified and
Padilla testified, ―[W]e also saw a very small amount of hydrocodone . . . .‖ Massey immediately
objected and requested a hearing outside the presence of the jury. Massey requested a mistrial
because hydrocodone had not been listed in Padilla‘s report and the State had not otherwise
9
disclosed its detection.6 The trial court did not rule on the initial objection,7 but explicitly denied
the motion for a mistrial.
Although Massey did initially object, Massey never secured a ruling on the objection. In
addition, Massey did not request an instruction to disregard. The only ruling the trial court made
was to deny Massey‘s motion for a mistrial. The Texas Court of Criminal Appeals stated in
Young v. State:
[W]hen a party‘s first action is to move for mistrial, as this appellant‘s was, the
scope of appellate review is limited to the question whether the trial court erred in
not taking the most serious action of ending the trial; in other words, an event that
could have been prevented by timely objection or cured by instruction to the jury
will not lead an appellate court to reverse a judgment on an appeal by the party who
did not request these lesser remedies in the trial court. Limited as this scope of
appellate review may be, such an appellate review is available to such a party.
137 S.W.3d 65, 70 (Tex. Crim. App. 2004). Because Massey failed to secure a ruling on the
initial objection, this case is the functional equivalent of the situation in Young. Therefore, the
scope of our appellate review is limited to whether the trial court erred in denying the motion for
mistrial.
The granting of a mistrial is an extreme remedy. Brossette v. State, 99 S.W.3d 277,
282–83 (Tex. App.—Texarkana 2003, pet. dism‘d, untimely filed). A grant of a motion for
6
During voir dire, Padilla testified the amount of hydrocodone was ―below our administrative cut off level.‖ Padilla
was not asked to explain the justification for the administrative cutoff—e.g., whether the cutoff level was designed to
prevent contamination from prior tests, was due to the detection levels of the instrument, or was justified by another
reason.
7
The trial court also stated, ―[S]ince the hydrocodone is below the administrative level, there‘s really no need to go into
it.‖
10
mistrial should be reserved for those rare cases in which neither an objection or an instruction to
disregard could have prevented or cured the error. Young, 137 S.W.3d at 69. This Court has
noted that an error in admitting improper testimony
may be generally cured or rendered harmless by a withdrawal of such testimony
and an instruction to disregard the same except in extreme cases where it appears
that the question or evidence is clearly calculated to inflame the minds of the jury
and is of such character as to suggest the impossibility of withdrawing the
impression produced on their minds.
Lollis v. State, 232 S.W.3d 803, 810 (Tex. App.—Texarkana 2007, pet. ref‘d) (challenge to
admissibility of testimony).
Assuming, without deciding, that Padilla‘s testimony was inadmissible, an instruction to
disregard would have been sufficient to cure the error. Except in extreme cases where it appears
that the evidence is clearly calculated to inflame the minds of the jury and where the conduct is of
such a character as to suggest the impossibility of withdrawing the impression produced on the
jurors‘ minds, a prompt instruction to disregard will ordinarily cure any error. Ovalle v. State, 13
S.W.3d 774, 783 (Tex. Crim. App. 2000); Livingston v. State, 739 S.W.2d 311 (Tex. Crim. App.
1987). The testimony in this case is not sufficiently inflammatory that an instruction to disregard
would have prevented a fair trial. Because a prompt instruction to disregard would have cured
any error, the trial court did not err in denying Massey‘s motion for mistrial.
The Trial Court Did Not Abuse Its Discretion in Denying the Motion for New Trial
11
In her remaining issue, Massey argues the trial court abused its discretion in denying her
motion for new trial. Massey filed a motion for new trial alleging newly discovered evidence
alleging that Dr. Alexander Orlov, Massey‘s treating physician, could have ―presented an opinion
that she was driving in accordance with his treatment and the Defendant would not have been
impaired at the levels recorded in the blood test.‖8 The trial court held a hearing on the motion for
new trial. Over the State‘s objection, Massey introduced business records9 consisting of a brief
medical history and prescriptions. The trial court denied Massey‘s motion for new trial.
If material evidence favorable to the accused has been discovered since trial, a new trial
shall be granted to an accused. TEX. CODE CRIM. PROC. ANN. art. 40.001 (West 2006). We
review the denial of a motion for new trial for an abuse of that discretion. Lewis v. State, 126
S.W.3d 572, 579 (Tex. App.—Texarkana 2004, pet. ref‘d). A trial court does not abuse its
discretion in denying a motion for new trial unless the record demonstrates that (1) the newly
discovered evidence was unknown at the time of the trial; (2) the failure to discover the new
evidence was not due to a lack of diligence; (3) the new evidence is admissible and not merely
8
In the affidavit attached to the motion for new trial, Dr. Orlov certified the statements were ―true and correct,‖ but did
not swear to the affidavit before an official authorized to administer oaths. See TEX. GOV‘T CODE ANN. § 602.002
(West Supp. 2010). Dr. Orlov‘s affidavit provided he ―was not available to testify for Lisa Massey previously as a
result of unrelated legal matters related to my doctor‘s office.‖ We note the State argues Massey‘s affidavit in
support of her motion for new trial was not sworn and, therefore, insufficient. Because the trial court held a hearing
on the motion for new trial, it is not necessary for us to express an opinion concerning whether the affidavits were
sufficient to require the trial court to hold a hearing. Massey did not tender the affidavit for admission into evidence
during the hearing.
9
Scott Landers, medical assistant to Dr. Orlov, testified concerning the business records and stated Dr. Orlov, who was
under subpoena, was unavailable due to ―some other type of legal matte[r].‖
12
cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and
will probably bring about a different result in a new trial. Id.; see Wallace v. State, 106 S.W.3d
103, 108 (Tex. Crim. App. 2003); Keeter v. State, 74 S.W.3d 31, 36 (Tex. Crim. App. 2002);
Moore v. State, 882 S.W.2d 844, 849 (Tex. Crim. App. 1994). Massey failed to meet these
requirements.
―An accused may not secure a new trial by failing to call a witness whose identity is
known, and whose knowledge of the case might have been known prior to trial in the exercise of
reasonable diligence.‖ Fuqua v. State, 457 S.W.2d 571, 572 (Tex. Crim. App. 1970). Massey
failed to establish the evidence was unknown at the time of trial or the failure to discover the
evidence was not due to a lack of diligence. Even if Dr. Orlov was unavailable to testify
personally, Massey could have called another medical doctor to provide substantially equivalent
testimony. The alleged ―newly discovered‖ evidence could have been presented at trial with the
exercise of reasonable diligence. In addition, Massey failed to prove the evidence would
probably bring about a different result. Massey testified at trial that she was taking her
medications as prescribed and the medications did not affect her ability to drive. The trial court
did not abuse its discretion in denying Massey‘s motion for new trial.
Conclusion
The evidence is sufficient to support the jury‘s conclusion. A rational juror could have
concluded Massey was guilty beyond a reasonable doubt. Massey failed to show reversible error
13
occurred when the trial court overruled her objection to Padilla‘s qualifications to provide expert
testimony on the effect of carisoprodol. Even if the trial court erred, substantially the same
evidence had previously been introduced. Because an instruction to disregard would have cured
any error in permitting Padilla to testify a small amount of hydrocodone was detected, the trial
court did not err in denying Massey‘s motion for mistrial. Finally, the trial court did not abuse its
discretion in denying Massey‘s motion for a new trial because the alleged newly discovered
evidence could have been presented at trial with the exercise of reasonable diligence.
For the reasons stated, we affirm.
Bailey C. Moseley
Justice
Date Submitted: May 27, 2011
Date Decided: June 14, 2011
Do Not Publish
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