You are further instructed that if a person by the use of medications or drugs renders herself more susceptible to the influence of intoxicating alcohol than she otherwise would be and by reason thereof became intoxicated from the recent use of intoxicating alcohol, she is in the same position as through her intoxication was produced by the intoxicating alcohol alone.That sentence, in the world of Texas DWI litigation, is known as the “synergistic effect” instruction. It is typically given to a jury in a DWI case that involves both the use of alcohol and drugs (including over-the-counter medications). The Texas Court of Criminal Appeals has held that the synergistic effect instruction does not expand on allegations of intoxication due to alcohol, which means that a person charged with DWI due to intoxication from alcohol alone, may be convicted if the State proves that the intoxication occurred due to a combination of alcohol and drugs. See Gray v. State, 152 S.W. 3d 125 (Tex.Crim.App. 2004).
Last week, the CCA revisited this issue (somewhat) in Barron v. State, a case on appeals from the 5th District Court of Appeals (Dallas). In Barron, there was minimal evidence of intoxication and the defendant did not submit to a breathalyzer test. However, the arresting officer found (but failed to seize) what he identified as hydrocodone in the defendant’s vehicle. Although there was no evidence at trial that (1) the substance in the pill bottle was in fact hydrocodone, or (2) the defendant actually ingested the alleged substance, the trial court, nonetheless (and over defense objection), gave the synergistic effect instruction to the jury. In closing argument, the state relied on the scant evidence of drug/alcohol combination and the defendant was convicted.
On appeal, the 5th COA held that the trial court erred by giving the synergistic effect instruction when there was no evidence in the record to support the theory that the defendant ingested hydrocodone. The 5th COA further held that the erred was harmful. On petition to the CCA for discretionary review, the State relied on the CCA’s holding in Gray to argue that because the synergistic effect instruction does not expand the allegation of intoxication due to alcohol, then there was no error (or it was harmless).
The CCA agreed with the COA that it was error for the trial court to give the instruction when there was no evidence in the record that the defendant ingested a drug in combination with her consumption of alcohol. The CCA, however, disapproved of the manner in which the 5th COA conducted the harm analysis, noting that the COA’s harm analysis “simply repeats its error analysis.” A proper analysis, the CCA explains:
should follow the guidelines of Almanza, assaying the degree of harm ‘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.’The CCA concluded that the error was harmful in this case because it emphasized the State’s theory of the case (that the defendant was intoxicated due to a combination of alcohol and drugs), when the state of the evidence did not support this theory.
Takeaway: The “synergistic effect” instruction is not an all-out license for the State to pursue a theory of intoxication that it did not charge in the indictment/information. The theory must be supported by the evidence, rather than a mere hunch.
Presiding Judge Keller dissented, noting that the synergistic effect instruction in this case might not have been error under the CCA’s recent holding in Ouellette v. State (2011 Tex. Crim. App. LEXIS 1373 (October)), a case that had not been published when the COA decided this case. She would have vacated the COA decision and remanded the case for reconsideration in light of Ouellette.
Judge Meyers dissented and would send the case back for the COA to conduct a legal sufficiency review rather than a harm analysis.
Judge Keasler also dissent, but without a written opinion.