John Anthony Miller v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00106-CR
JOHN ANTHONY MILLER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1428624
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MEMORANDUM OPINION 1
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A jury convicted appellant John Anthony Miller of driving while intoxicated,
misdemeanor repetition. See Tex. Penal Code Ann. § 49.09(a) (West Supp.
2017). The trial court sentenced him to 365 days in the county jail, probated for
15 months. See id. § 12.21(2) (West 2011). Miller contends, in his first point, that
the evidence was insufficient to support his conviction and, in his second point,
1
See Tex. R. App. P. 47.4.
that the State’s expert witness’s testimony was insufficient to support his
conviction. We construe these as two sufficiency complaints, with the latter
focusing on one particular aspect of the State’s case. We affirm.
Standard of Review
In our due-process evidentiary-sufficiency review, we view all the evidence
in the light most favorable to the verdict to determine whether any rational
factfinder could have found the offense’s essential elements beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). This
standard gives full play to the factfinder’s responsibility to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Jenkins,
493 S.W.3d at 599.
The factfinder alone judges the evidence’s weight and credibility. See Tex.
Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State, 483 S.W.3d 29,
33 (Tex. Crim. App. 2016). Thus, when performing an evidentiary-sufficiency
review, we may not re-evaluate the evidence’s weight and credibility and
substitute our judgment for the factfinder’s. See Montgomery v. State,
369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the
necessary inferences are reasonable based on the evidence’s cumulative force
when viewed in the light most favorable to the verdict. Murray v. State,
457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015). We
2
must presume that the factfinder resolved any conflicting inferences in the
verdict’s favor and must defer to that resolution. Id. at 448–49; see Blea,
483 S.W.3d at 33.
The Dispute
“Intoxicated” means “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. Penal Code Ann. § 49.01(2)(A) (West
2011). The State alleged and the jury found that Miller drove a vehicle while
intoxicated. The State presented evidence that (1) Miller had a large amount of
marijuana in his system and (2) marijuana could intoxicate a person—that is,
cause a person to not have use of his normal mental or physical faculties. In
contrast, Miller maintained that the evidence showed that (1) his conduct was
attributable to a manic episode and a physical impairment and (2) the State’s
expert witness, a toxicologist, affirmatively denied knowing whether the
marijuana in Miller’s system intoxicated him.
The Evidence
Officer Gasca
Officer Eduardo Gasca was a patrol officer for the Fort Worth Police
Department. On June 14, 2015, he was working the night shift, from 8:00 p.m. to
6:00 a.m. Around 5:00 a.m. he saw a pickup truck speed past him; he followed it
and determined that it was still speeding even as it was approaching a red light.
3
There were three lanes—a left-turn lane, a straight lane, and a right-turn
lane—and the pickup was in the left-turn lane. Thinking that the pickup’s speed
meant it was going to run the red light, Officer Gasca became concerned. He
then saw the brake lights illuminate and, without stopping, the pickup turned to
the right from the left-turn lane.
Following the pickup to the right, Officer Gasca saw it swerve just as he
was turning on his patrol car’s overhead lights. Officer Gasca testified that
normally when he activated his lights, drivers would slow down and pull over or
put on their car’s hazard lights until they reached a safe parking lot. Instead, the
pickup stopped immediately in an almost perpendicular fashion. 2 Officer Gasca’s
dashboard camera showed that the pickup swerved in an arc from the right lane
nearest the curb into the adjacent left lane and stopped obliquely—so that it was
pointing back toward the far right lane—just beyond the crosswalk in the
intersection itself.
When Officer Gasca walked up to the car, the driver, whom he identified at
trial as Miller, rolled down his window, thereby releasing a “pretty strong”
marijuana odor. Miller had bloodshot, watery eyes and slurred speech and
looked intoxicated to Officer Gasca, so Officer Gasca asked him if he had been
drinking; Miller denied consuming any alcohol. The odor, however, prompted
2
The second officer to arrive at the scene described the pickup as being in
the middle of the roadway instead of on the right-hand edge where a normal
traffic stop would take place.
4
Officer Gasca next to ask Miller if he had smoked any marijuana, and Miller
responded that he had, about an hour earlier.
At that point, Officer Gasca asked Miller to step out of the vehicle. Because
of all the circumstances, Officer Gasca testified that he thought that Miller was
most likely driving while intoxicated, so Officer Gasca wanted to confirm his
suspicion with a standardized field sobriety test. For Officer Gasca’s own safety,
he waited for another officer to assist him. Officer Michael Sullivan responded,
and it was he who conducted the actual field sobriety test while Officer Gasca
observed.
Based on his watching Miller perform the walk-and-turn and one-leg-stand
tests, Officer Gasca thought that Miller was intoxicated or, put another way, that
Miller had “lost his normal use of his faculties.” The two officers placed Miller
under arrest and transported him to the jail, where Miller consented to a blood
test. Officers Sullivan and Gasca then took Miller to John Peter Smith Hospital for
that purpose.
Miller’s Bloodwork
Charlotte Towler worked at John Peter Smith Hospital in Fort Worth as a
registered nurse. On June 14, 2015, she drew Miller’s blood at 6:33 a.m.
Connie Lewis worked in the toxicology department of the Tarrant County
Medical Examiner’s Office. She tested Miller’s blood for THC, the psychoactive
ingredient in marijuana, and the results showed 33 nanograms per milliliter, an
5
amount she described as uncommon; two to ten nanograms were what she
usually found.
Dash-cam Video
The jury watched the video from Officer Gasca’s dash camera, which was
triggered to start recording when he turned on his overhead lights. The video
included Miller’s field sobriety test.
Officer Sullivan
Officer Sullivan testified that when he arrived, he could smell a “[v]ery
strong” marijuana odor from about ten to fifteen feet away. In speaking with
Miller, Officer Sullivan found his responses to be “slow, sluggish.” Once out of the
pickup, Miller continually leaned on it for support, so Officer Sullivan instructed
him to move away, after which Officer Sullivan noticed that Miller swayed, his
balance was unsteady, and he had trouble walking.
Wanting to rule out other possible reasons for Miller’s behavior, Officer
Sullivan testified that he asked Miller if he was currently taking any medications
or if he was currently suffering from any disabilities or medical problems, and
Miller responded that he had broken his leg several years earlier. But when
Officer Sullivan asked Miller if he was capable of walking a straight line or
standing on one leg, Miller did not deny being capable and did not alert Officer
Sullivan to any other medical conditions.
6
Officer Sullivan asked Miller to perform the standardized field sobriety
tests, including the horizontal gaze nystagmus test (“HGN”). 3 “Horizontal gaze
nystagmus,” Officer Sullivan explained, “is caused by alcohol as well as other
central nervous system depressants and PCP.” But Officer Sullivan
acknowledged that THC did not cause HGN. 4 Officer Sullivan saw zero of the six
possible “clues” for HGN, consistent with someone who had only smoked
marijuana and had not drunk alcohol.
During the walk-and-turn test, Miller failed to maintain his balance, used
his arms to try to maintain his balance, stepped off the line by about a foot, made
an improper turn, and failed to touch his heel to his toe during the steps. Officer
Sullivan testified that these were all “clues” suggesting intoxication. The “decision
point” in the walk-and-turn test that indicates possible intoxication is when the
individual exhibits two out of the eight clues. Miller exhibited five of them.
During the one-leg-stand test, which has four “clues,” Miller exhibited all of
them: he swayed while balancing, he put his foot down, he used his arms for
balance, and he hopped. According to the National Highway Traffic Safety
Administration guidelines, “the decision point” for the one-leg stand was also two
clues.
3
HGN is the involuntary jerking or twitching motion that eyes make when
looking sideways; this phenomenon is more pronounced in someone impaired by
alcohol and certain drugs.
4
The toxicologist who testified also stated that THC did not cause HGN.
7
Officer Sullivan testified that “based on the totality of everything that [he]
saw, heard, smelled, and observed,” he believed Miller was intoxicated based on
“[t]he loss of mental or physical faculties due to the introduction of a substance.”
Officer Sullivan testified that he had received training about people who were
manic depressive, but he did not remember hearing anything about its affecting
their balance or causing them to exhibit signs normally associated with
intoxication. Officer Sullivan denied seeing any signs of mental illness in Miller
that night.
Dr. Johnson
Dr. Robert Johnson was the chief toxicologist at the Tarrant County
Medical Examiner’s Office. He holds a bachelor’s degree in biochemistry and a
master’s and a Ph.D. in chemistry. He has written 60 publications on toxicology,
but only one was specifically on marijuana, and it did not deal specifically with
driving an automobile but instead with pilots who had crashed while having THC
in their bloodstreams. In addition to being board certified by the American Board
of Forensic Toxicology, Dr. Johnson belongs to the Society of Forensic
Toxicologists, the American Academy of Forensic Sciences, and the
Southwestern Association of Toxicologists. And Dr. Johnson testified that in
addition to having read dozens of articles, he has taken courses on how drugs
affect the human body and on how those effects relate to everyday activities like
driving. Dr. Johnson has testified as a toxicology expert over 100 times.
8
Dr. Johnson testified that marijuana’s or THC’s common side effects are
drowsiness, dizziness, and confusion, along with red, watery eyes and hunger.
As a consequence, not being able to maintain one’s balance as instructed by a
police officer could be consistent with being intoxicated by THC. 5
Dr. Johnson explained that each person’s body could adapt to a drug’s
physical effects and quickly develop a tolerance—the degree of which can differ
from person to person—for the particular drug. The longer someone uses any
drug, the more the person’s body adapts, so that the drug’s physical effects
become less apparent. He agreed generally that someone who had used
marijuana for a long time would have to take a very large amount before being
impaired.
In situations such as driving, in which a person’s attention was divided, Dr.
Johnson testified that THC could impair that person’s coping ability. If someone
was experiencing THC’s side effects, it would slow down the person’s reaction
time and make “stoned driving just as risky as drunk driving.”
Dr. Johnson testified that 33 nanograms of THC per milliliter was a high
amount and that his laboratory typically saw between three and five nanograms
per milliliter in DWI cases. He stated that Texas had no law specifying how many
5
Dr. Johnson did agree that having one leg shorter than the other might
impact a person’s ability to perform the walk-and-turn test (but not the one-leg
stand).
9
nanograms presumptively constituted intoxication and that whether a person was
intoxicated had to be determined by observing.
Acknowledging that he could not tell the jury that Miller’s THC level
intoxicated Miller, and conceding that the lab report did not prove intoxication, Dr.
Johnson agreed that he could tell the jury only about marijuana’s general effects
on average people and how marijuana affected driving generally.
To determine whether Miller was intoxicated, Dr. Johnson told the jury that
it needed to rely on three informational pieces, of which the lab report was just
one. The other two were Miller’s conduct both before and after the police pulled
him over. As Dr. Johnson readily conceded, “The laboratory report on [its] own
doesn’t prove anybody is intoxicated.”
Donna Howard
Donna Howard was Miller’s sister and testified on his behalf. She testified
that Miller was diagnosed with bipolar disorder and that when he was manic, he
talked very fast and became “kind of detached from reality” and did not “make
sense.” She said that in such a state Miller became very reckless, drove fast, and
would drive “in and out of cars.” She did not know if it affected his balance, but
she added, “He just is kind of all over the place,” and “[h]e . . . moves constantly
and that sort of thing,” stumbling over his words and losing his train of thought.
Miller’s behavior would become “very irrational.”
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Howard said that Miller had been smoking marijuana since he was 14. 6
She described her brother as “kind of goofy” when smoking marijuana. “Mostly
just his eyes would be kind of glassy,” she added, and “[h]e may be a little more
relaxed.”
She also said that Miller had broken a leg when he was in high school and
that the doctors set the leg improperly so that one leg was perhaps a half-inch
shorter than the other—something that affected Miller’s balance if he was not
wearing corrective inserts in his shoes. (In the video, Miller was barefoot.) She
said, “I’ve seen him stumble, you know, probably lots of times. But he just doesn’t
have good balance.”
Ken Ankenbauer
The next witness was Ken Ankenbauer, a good friend of Miller’s.
Ankenbauer testified that when manic, Miller would talk fast, spend a lot of
money, dream up all kinds of business adventures, not sleep at night, and say
things that “normal” people would find “just crazy talk.” Ankenbauer further
explained that when Miller was manic, his eyes would glass over and his driving
would be more radical and careless. It was possible, Ankenbauer agreed, to be
manic, intoxicated, and driving at the same time. Ankenbauer testified that he
could not tell the difference between when Miller was in a manic state and when
Miller was intoxicated.
6
The indictment shows that Miller was born in September 1958 and was
56 years old in June 2015.
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Richard Howard
Miller’s last witness was Richard Howard, his brother-in-law. In the last
couple of years, Howard had noticed a change in Miller: he had begun having
grandiose ideas that “probably weren’t really rooted in reality.” Miller had no
balance problems, to Howard’s knowledge.
Discussion
In his first point, Miller contends that “[t]he evidence was legally insufficient
to support a conviction for the offense alleged in the information for driving while
intoxicated because there is no evidence that appellant Miller was intoxicated.”
Based on his briefing, his first point is clearly a sufficiency challenge.
In his second point, Miller contends that “[t]he State’s expert witness
admitted that he was not competent to testify as to the effects of marijuana in this
case to render appellant Miller intoxicated.” Miller does not argue that the trial
court improperly admitted Dr. Johnson’s testimony; rather, Miller seems to argue
that because Dr. Johnson himself conceded that he could not say that Miller was
intoxicated, there was a fatal evidentiary gap in the State’s case. We construe
this as a sufficiency attack on the offense’s intoxication element.
Because both his first and second points attack evidentiary sufficiency, we
address them together.
Miller relies primarily on Smithhart v. State, 503 S.W.2d 283 (Tex. Crim.
App. 1973). There, the State alleged that the defendant was intoxicated by drugs
while driving, and the evidence showed that the defendant had drunk vodka and
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taken seven valiums that day. Id. at 285. In the absence of expert testimony that
the valium would have rendered the defendant intoxicated—either by itself or
when mixed with vodka—the court held that the State had not proved that the
defendant had been intoxicated by drugs while driving. Id. at 286.
But Miller’s reliance on Smithhart is misplaced. The Smithhart court noted
that intoxication by alcohol was such a common occurrence that recognizing it
required no expertise, but when the accused was allegedly intoxicated by some
other drug, the same was not true. See id. Dr. Johnson’s testimony avoided the
Smithhart problem by confirming that marijuana could in fact render a person
intoxicated.
Miller also relies on Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001).
At trial, Miller tried to exclude Dr. Johnson’s testimony based on Mata, a case in
which an expert testified on retrograde extrapolation to determine that the
defendant’s blood-alcohol content (BAC) at the time of his arrest exceeded the
legal limit. Id. at 905. But when reviewing the literature on retrograde
extrapolation, the court of criminal appeals determined that the expert did not
have the information he needed to arrive at something resembling a reliable
conclusion. Id. at 917. The majority thus held that the trial court abused its
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discretion by admitting portions of the expert’s testimony and remanded the case
for a harm analysis. 7 Id.
Mata does not help Miller. As noted, the expert in that case testified that,
based on his retrograde extrapolations, the defendant’s BAC exceeded the legal
limits, effectively telling the jury that the defendant was guilty. Dr. Johnson did no
such thing here. Rather, Dr. Johnson did just the opposite: he candidly informed
the jury that his testimony, standing alone, would not be enough to convict Miller.
Miller complains that by noting that he had 33 THC nanograms per milliliter
in his blood, whereas the average amount in the lab’s marijuana DWI cases was
only three to five THC nanograms per milliliter, Dr. Johnson encouraged the jury
to convict Miller because his amount exceeded the average. We disagree. Dr.
Johnson explicitly declined to say that Miller was intoxicated, because Dr.
Johnson did not know his tolerance level. If Dr. Johnson had concluded Miller
was intoxicated without knowing Miller’s tolerance level, he arguably would have
committed the same error as the Mata expert. In contrast, though, Dr. Johnson
made clear that he was not there to testify that Miller was intoxicated by
marijuana but only to testify that marijuana could render a person intoxicated—
precisely the information that was missing in Smithhart, and information the jury
needed here to link Miller’s conduct to the marijuana in his system.
7
After a second remand, the San Antonio Court of Appeals concluded that
the error was harmful. Mata v. State, 143 S.W.3d 331 (Tex. App.—San Antonio
2004, no pet.).
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The two scenarios presented to the jury were that Miller’s conduct was
attributable either to marijuana intoxication or to a manic episode coupled with a
physical impairment. The evidence showed that Miller had elevated marijuana
amounts in his system and that marijuana could cause intoxication. From Miller’s
erratic driving before he was pulled over and from his poor performance during
the field sobriety tests after he was pulled over, the jury could have concluded
that Miller’s body, despite its having been exposed to marijuana for perhaps
decades, would still feel the intoxicating effects of 33 THC nanograms per
milliliter. Moreover, Officer Sullivan described Miller as “sluggish,” behavior that
was consistent with marijuana intoxication but inconsistent with the frenzied or
frantic behavior that Miller’s witnesses observed during his manic episodes.
Finally, although Miller apparently had one leg that was shorter than the other,
the jury—whose job it was to judge the evidence’s weight—was free to attribute
Miller’s conduct to marijuana intoxication and not to any physical impairment.
Viewing the evidence in the light most favorable to the verdict, we hold that a
rational factfinder could have found that Miller was driving while intoxicated by
marijuana. See Jenkins, 493 S.W.3d at 599.
We overrule Miller’s evidentiary sufficiency challenges.
Conclusion
We affirm the trial court’s judgment.
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/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE
PANEL: WALKER, MEIER, and KERR, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 12, 2018
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