Bradley Dwayne Humphrey v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00017-CR
___________________________

BRADLEY DWAYNE HUMPHREY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court No. 2
Tarrant County, Texas
Trial Court No. 1587393

Before Kerr, Birdwell, and Womack, JJ.
Memorandum Opinion by Justice Womack
 MEMORANDUM OPINION

I. INTRODUCTION

The jury convicted Appellant Bradley Dwayne Humphrey of driving while

intoxicated. In three points, Humphrey argues that jury-charge error and improper

jury argument require this court to reverse his conviction. Because the record does

not reveal the harm required for reversal for jury-charge error and Humphrey did not

preserve his jury argument complaint, we affirm.

II. BACKGROUND

On the night of November 15, 2018, Humphrey took etizolam, a

benzodiazepine that cannot be legally prescribed in the United States. When he woke

up the next morning—and while the etizolam was still in his system—he took

hydrocodone, an opiate for which he has a prescription. Humphrey then went

through his normal morning routine, got in his pickup truck, and began his drive to

work. On the way, he was involved in a traffic accident. A police officer investigating

the accident asked Humphrey to perform field sobriety tests. Based on Humphrey’s

performance of those tests, he was arrested for driving while intoxicated. He was

subsequently charged by information for that offense.

At trial, Dallas/Fort Worth International Airport Police Sergeant Ryan

Gresham testified about his roadside investigation of Humphrey for DWI. Gresham

testified that when he spoke to Humphrey, Humphrey’s words were slurred and that

he seemed to have degraded fine motor skills. Based on Humphrey’s demeanor,

2
Gresham asked him to perform field sobriety tests. With Humphrey’s consent,

Gresham administered the horizontal-gaze-nystagmus test (which Humphrey was

unable to perform), the walk-and-turn test, and the one-legged stand test, and,

according to Gresham, these tests indicated that Humphrey was impaired. The jury

members saw for themselves Humphrey’s performance on these tests through footage

from Gresham’s body camera and his dash camera.

Gresham testified that he initially thought that Humphrey was intoxicated by

alcohol because he detected what smelled like alcohol on Humphrey’s breath, but

Humphrey explained that he had recently used mouthwash, and Gresham found

mouthwash in Humphrey’s truck. An intoxilyzer test conducted after Humphrey’s

arrest did not detect any alcohol in Humphrey’s breath. But Gresham asked for and

obtained a sample of Humphrey’s blood, which tested positive for both hydrocodone

and etizolam.

Dr. Robert Johnson, chief toxicologist at the Tarrant County Medical

Examiner’s Office, testified for the State to explain the results of Humphrey’s blood

test. Johnson told the jury that etizolam is a benzodiazepine like Valium and Xanax.

He explained that benzodiazepines are central-nervous-system depressants and that all

drugs in that class can cause side effects similar to those caused by alcohol:

“drowsiness, dizziness, confusion, [and] horizontal gaze nystagmus, where the eyes

don’t move smoothly from left to right.” And, like alcohol, they can cause short-term

3
memory loss. Johnson stated that etizolam is more potent than Xanax and Valium—

“on the potency scale, it’s pretty high up there.”

As for the hydrocodone, Johnson testified that it is an opiate that causes

depressant-like side effects. Johnson acknowledged that the amount of hydrocodone

in Humphrey’s blood was within the therapeutic range. But he testified that when

combined with etizolam, “[t]he combination could be significant because anytime you

combine two drugs that cause similar side effects, those side effects can be multiplied.

So if you use one thing that causes drowsiness and you add something else that also

causes drowsiness, that effect could be multiplied.” He agreed that combining the

two drugs could affect someone’s balance, ability to speak, and fine motor skills and

could cause confusion. Johnson also agreed, however, that people can build up a

tolerance to the drugs.

Humphrey testified in his own defense. He stated that on the morning of his

arrest, he woke up, took the hydrocodone and a cyclobenzaprine,1 and drank “two or

three five-hour energies” because he is “not really a morning person.” Humphrey

claimed that because he had previously taken etizolam for several years—before it

became illegal to prescribe—he had built up a tolerance to it. He testified that he

started taking medication for pain around December 2017 after he woke up one day

with five fractured thoracic vertebrae. He told the jury that he had no explanation for

Cyclobenzaprine is a muscle relaxant. See Jane C. Ballantyne, Scott M.
1

Fishman, James P. Rathmell, Bonica’s Management of Pain ch. 80 (5th. ed. 2018).

4
how he had been injured, but he also told the jury about having bouts of memory

loss; he gave as an example a time when he went to Sam’s Club to shop and then

woke up in jail, having “apparently . . . decided it was okay to light a cigarette up in

Sam’s Club.” Regarding the day of his arrest, he stated that on the way to work, “he

had gotten into what, at the moment, seemed like a very insignificant accident,”

“[j]ust kind of a paint-splat kind of scenario,” and the last thing he remembered was

getting out of his car and writing down his insurance information. The next memory

he had was being in a jail cell the following morning.

In Humphrey’s defense, he produced medical records from the neurologist

who he sought treatment from after his arrest. He relied on the records to show that

he had a pre-existing head injury that explained his signs of intoxication. He told the

jury that he had been diagnosed with chronic traumatic encephalopathy, and he

suggested to the jury that his condition may have resulted from multiple concussions

that he received playing football in junior high and high school. After the prosecutor

noted that his medical records did not contain that diagnosis and that chronic

traumatic encephalopathy is a “postmortem diagnosis”—that is, diagnosed via

autopsy after death—Humphrey pointed to a part of the records in which he was

diagnosed with “[e]ncephalopathy, chronic.” No testimony, expert or otherwise,

explained what the difference is, if any, between chronic traumatic encephalopathy

and chronic encephalopathy. No testimony explained whether those conditions could

cause the intoxication-like signs that Humphrey displayed on the day of his arrest.

5
The closest evidence on that point came from the toxicologist’s statement that,

although he is “not an expert in that medical side of things,” he “would assume [it

was] possible” for someone with a head injury to display signs of intoxication.

The prosecutor asked Humphrey about the fact that his records stated that,

based on the results of an MRI Humphrey’s doctor had ordered performed after the

car accident, “[t]here [wa]s no evidence of acute intracranial abnormality or brain

parenchymal lesion or mass effect or hydrocephalus or extra-axial collection,” to

which Humphrey replied only that the doctor who made those statements also

diagnosed him with chronic traumatic encephalopathy. No testimony explained what

the terms meant or how they related to Humphrey’s ability to perform field sobriety

tests on the day of his arrest.

The prosecutor also asked Humphrey about a doctor’s note in his records

regarding his November 2018 arrest:

Of note, [Humphrey] reports [a]n episode where he suffered amnesia
attack and “ended up in Grapevine Jail.” He reports “waking up with
track marks” upon awakening and believes this is due to staff obtaining
lab work. He is requesting a “note for his prosecutor” that indicates he is suffering
from “epilepsy.” He uses this word exactly despite his noted diagnoses of
disorientation and post-traumatic amnesia . . . . EEG on 11/29/18 was
normal. This was not his first event and notes four other similar
episodes where he lost consciousness of 7–24 hours. [Emphasis added.]

Humphrey disputed the note and said that he had not asked the doctor to provide

him with an epilepsy diagnosis for purposes of his criminal case. He explained the

note by saying that he had mentioned epilepsy as “a quest to basically find out” why

6
he had woken up in December 2017 with spinal fractures with no idea how those

fractures had occurred.

After Humphrey acknowledged that he was “impaired in some way” in the

video the jury saw of his field sobriety tests, his attorney asked him,

Q. You shouldn’t have been driving after the accident, right?

A. Absolutely.

Q. Because you probably hit your head, right?

A. That’s correct.

This testimony was the only evidence that Humphrey had possibly hit his head in the

apparently minor traffic accident that led to his arrest; in closing arguments, however,

his attorney argued that during the accident, he suffered another concussion.

At the jury charge conference, Humphrey’s attorney objected to a paragraph in

the proposed charge defining the term “controlled substance.” The trial court

overruled that objection, and Humphrey’s attorney made no other objections. The

jury charge thus instructed 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, a dangerous drug, a combination of two or more of
those substances, or any other substance into the body.

“Controlled substance” means a substance, including a drug, an
adulterant, and a dilutant, listed in Schedules I through V or Penalty
Groups 1, 1-A, or 2 through 4. The term includes the aggregate weight
of any mixture, solution, or other substance containing a controlled
substance.

7
 The trial court found Humphrey guilty, and the trial court assessed punishment

at ninety days’ confinement in the Tarrant County Jail, suspended for fifteen months.

III. DISCUSSION

We begin with Humphrey’s first two points, which challenge the jury charge’s

inclusion of “alcohol,” “dangerous drug,” and “controlled substance” in the

intoxication definition and the charge’s inclusion of a definition of “controlled

substance.” In addressing these points, we first consider Humphrey’s complaint

about the jury charge’s inclusion of “alcohol” in the intoxication definition and then

consider Humphrey’s arguments with respect to the inclusion of “dangerous drug”

and “controlled substance” in the definition and the charge’s inclusion of the statutory

“controlled substance” definition. Finally, we address Humphrey’s third point raising

a jury-argument complaint.

A. The Charge’s Erroneous Intoxication Definition Did Not Cause Egregious
Harm.

1. Jury-Charge Error is Subject to Harmless-Error Review.

When the trial court provides an erroneous jury charge, we analyze that error

for harm. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). When the

defendant complains of jury-charge error to which the defendant did not object, we

will reverse the conviction “only if the error is so egregious and created such harm

that [the defendant] ‘has not had a fair and impartial trial’—in short ‘egregious harm.’”

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); see also Abdnor v. State,

8
871 S.W.2d 726, 732 (Tex. Crim. App. 1994). “Errors that result in egregious harm

are those that affect ‘the very basis of the case,’ ‘deprive the defendant of a valuable

right,’ or ‘vitally affect a defensive theory.’” Ngo v. State, 175 S.W.3d 738, 750 (Tex.

Crim. App. 2005). “Egregious harm is a difficult standard to prove[,] and such a

determination must be done on a case-by-case basis.” Hutch v. State, 922 S.W.2d 166,

171 (Tex. Crim. App. 1996).

On the other hand, when the defendant has objected to the error, the appellate

court must reverse when the error “is calculated to injure the rights of the defendant,”

that is, when the record shows the error resulted in “some harm.” Barrios v. State,

283 S.W.3d 348, 350 (Tex. Crim. App. 2009); Ngo, 175 S.W.3d at 743; Kenney v. State,

No. 02-19-00313-CR, 2021 WL 832718, at *5 (Tex. App.—Fort Worth Mar. 4, 2021,

no pet.) (mem. op., not designated for publication). Regardless of whether we are

reviewing for some harm or egregious harm, we consider “the entire charge, the state

of the evidence, including contested issues and the weight of the probative evidence,

the argument of counsel and any other relevant information revealed by the record of

the trial court as a whole.” Almanza, 686 S.W.2d at 171.

2. No Egregious Harm Resulted from Including “Alcohol” in the
Charge.

Because the trial court must tailor the jury charge to the facts presented at trial,

the trial court errs by submitting to the jury parts of the statutory “intoxication”

definition that are not supported by the evidence. Burnett v. State, 541 S.W.3d 77, 84

9
(Tex. Crim. App. 2017). Humphrey argues that because there was no evidence that he

had consumed alcohol and no evidence that hydrocodone and etizolam are controlled

substances or dangerous drugs, the trial court erred by including those substances in

the charge’s intoxication definition. The State does not address the alleged error in its

analysis and instead argues that any error was harmless, which we interpret for

purposes of this appeal as a tacit acknowledgment of error. See id. (holding trial court

erred by submitting entire statutory intoxication definition when there was no

evidence of intoxication from any substance other than alcohol). We will therefore

assume error and address harm; more specifically, because Humphrey did not object

to the charge on this basis, we review the record for egregious harm. See Almanza,

686 S.W.2d at 171. We first review whether he was egregiously harmed by the

inclusion of “alcohol.”

We start by reviewing the entire charge. See Ngo, 175 S.W.3d at 750. An

application paragraph that correctly instructs the jury weighs against finding egregious

harm from an error in the abstract instruction. Medina v. State, 7 S.W.3d 633, 640

(Tex. Crim. App. 1999). Here, however, the application paragraph did not correct the

error; instead, it simply stated that the jury should find Humphrey guilty if he operated

his vehicle in a public place “while [he] was intoxicated,” language that referred the

jury back to the erroneous intoxication definition. No other part of the charge

corrected the erroneous inclusion of alcohol in the intoxication definition.

10
Nevertheless, as we discuss next, the evidence and arguments at trial weigh against

egregious harm.

Our review of the record reveals that there was no real dispute that

Humphrey’s impairment was not from alcohol. The jury was told that the intoxilyzer

test indicated that Humphrey had no alcohol in his system. On the video shown to

the jury, although Gresham told Humphrey that he could smell alcohol on

Humphrey’s breath, Humphrey immediately explained that he had recently used

mouthwash, and trial evidence backed up that explanation. Gresham testified that he

“determined that that was—there was [mouthwash] that was actually located in

[Humphrey’s] vehicle, so I took that as the truth that he had just used [mouthwash],

which will also give that odor of alcohol.” When asked if he was surprised when the

intoxilyzer showed that Humphrey had not been drinking, he told the jury, “I would

say that I was not exactly surprised because he did say that he had not been drinking

and [mouthwash] was found in the car and he admitted to having just used

[mouthwash], but he also admitted to taking drugs that morning.” In other words, the

suggestion that Humphrey had consumed alcohol was dismissed by the same officer

who initially raised it, and other evidence supported his conclusion that the odor he

detected was caused by mouthwash. Any suggestion that alcohol could have caused

Humphrey’s impairment was ruled out by the State’s own evidence. And in its closing

argument, the prosecutor told the jury, “We do not have alcohol in this case, but what

11
we do have is evidence that the Defendant had drugs in his system at the time he was

driving.”

In considering the harm factors together, we conclude that including the word

“alcohol” in the intoxication definition did not deprive Humphrey of a fair and

impartial trial. See Almanza, 686 S.W.2d at 171. We overrule this part of Humphrey’s

first point.

3. Including “Dangerous Drugs” and “Controlled Substances” Did Not
Cause Egregious Harm.

The terms “dangerous drug” and “controlled substance” are statutorily defined

by reference to the Texas Controlled Substances Act’s drug schedules and penalty

groups and are mutually exclusive; while “controlled substance” is defined to include

substances that are listed in Schedules I through V or in a penalty group, “dangerous

drug” is defined as a device or drug that is not on the schedules or in the penalty

groups and is unsafe for self-medication. Tex. Health & Safety Code Ann.

§§ 481.002(5), 483.001(2); see also Tex. Penal Code Ann. § 1.07(16) (incorporating the

“dangerous drug” definition in Health and Safety Code Section 483.001).

As we noted above, rather than ruling out controlled substances and dangerous

drugs as bases for finding Humphrey intoxicated, the application paragraph merely

directed the jury back to the intoxication definition. Further, regarding the inclusion

of the term “dangerous drug” in the charge, harm can result when, as here, a term has

both a commonly understood meaning and statutory meaning, the common meaning

12
is not defined for the jury, and the common meaning differs from or is more

expansive than the statutory meaning. See e.g., Lindsay v. State, 102 S.W.3d 223, 231

(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). While the charge told the jury

what the statutory definition of “controlled substance” is (which, according to

Humphrey’s second point, created some harm), the jury charge did not explain what

the term “dangerous drug” means under Texas law. The common meaning of

“dangerous drug” is more expansive than the statutory definition because, although

the common meaning and the statutory definition both include substances that are

unsafe for self-medication, the common meaning is not limited by reference to

schedules or penalty groups. See Dangerous, Merriam-Webster.com Dictionary,

https://www.merriam-webster.com (last visited July 14, 2021) (defining “dangerous”

as “involving possible injury, pain, harm, or loss” and “able or likely to inflict injury or

harm”). There was no evidence that either hydrocodone or etizolam is classified as a

dangerous drug under Texas law. But the toxicologist testified that etizolam is a

“designer drug or a research chemical, and those types of substances are always

changing,” and Humphrey was questioned about the fact that the drug is illegal to

prescribe in the United States. The toxicologist further testified that etizolam is more

potent than Xanax, testimony that the State emphasized during its closing arguments.

Based on this testimony, the jury could have, in theory, applied the common meaning

of “dangerous drug” and concluded—incorrectly—that etizolam fits within that

13
category.2 But, as with the charge’s inclusion of “alcohol,” consideration of other

factors weighs against egregious harm.

Concerning the state of the evidence, whether hydrocodone and etizolam are

statutorily classified as controlled substances or dangerous drugs was not raised as an

issue at trial. As Humphrey acknowledges, the only contested issue at trial was

whether Humphrey was intoxicated by drugs. More specifically, the contested issue

was whether Humphrey’s impairment was from intoxication or from something else.

In a DWI case, the State does not have to prove what substance a defendant

consumed to become intoxicated. Gray v. State, 152 S.W.3d 125, 131–32 (Tex. Crim.

App. 2004); Carrasco v. State, No. 02-17-00142-CR, 2018 WL 283790, at *1 n.2 (Tex.

App.—Fort Worth Jan. 4, 2018, no pet.) (mem. op., not designated for publication);

cf. Burnett, 541 S.W.3d at 84 (“[T]he legislature has adopted a broad definition of

‘intoxicated’ that focuses on whether a person is intoxicated and not the agent that

caused it.”). But if, in the attempt to prove intoxication, the State relies on evidence

that the defendant ingested a specific substance other than alcohol, it does have to

prove that the substance can cause intoxicating effects and that the symptoms of

intoxication shown by the defendant indicate intoxication by that substance. See

Burnett, 541 S.W.3d at 84. The State met that burden here. The toxicologist testified

2
Hydrocodone is listed on a schedule under the Texas Controlled Substances
Act, and etizolam is in a penalty group under the Act, meaning that both substances
are controlled substances under Texas law. Tex. Health & Safety Code Ann.
§§ 481.002(5), .032, .104(a)(2).

14
that etizolam, a central-nervous-system depressant, can cause drowsiness, dizziness,

confusion, horizontal gaze nystagmus, and short-term memory loss and that

hydrocodone, an opiate, can cause similar signs. And the jury also had before it

evidence that Humphrey had experienced memory loss and that, in the field sobriety

tests, he had trouble keeping his balance and understanding the officer’s instructions.

The terms “controlled substance” and “dangerous drug” were mentioned at

trial, but not as a central part of the State’s case. Rather, the prosecutor used the

terms briefly in questioning Humphrey:

Q. [the prosecutor] . . . . So when Sergeant Gresham had asked
you if you had taken any controlled substance drugs or dangerous drugs
or any other substances, did you include [clonazolam]3 when you
responded?

A. No.

Q. Well, when you did respond, you said Hydrocodone and
muscle relaxers.

A. Correct.

Q. Why did you not include that one?

A. I had not taken any that day.

3
Humphrey does not have a prescription for clonazolam because, like etizolam,
it is a benzodiazepine that is not approved for medical use in the United States.
International Drug Scheduling, 86 Fed. Reg. 10,097, 10,103 (Feb. 18, 2021) (noting
that clonazolam is not approved for medical use in the United States); International
Drug Scheduling, Request for Comments, 84 Fed. Reg. 47,521, 47,524 (Sept. 10,
2019) (noting that etizolam is not approved for medical use in the United States).
Humphrey orders the drug on the internet, and he told the jury that when he took the
etizolam, he believed he was taking clonazolam.

15
 ....

Q. Are you aware that items that are not prescribed are
controlled substances?

A. I disagree with that statement.

Q. Okay. Are you sure?

A. Yes.

Q. Okay. Why?

A. Ginseng is not a controlled substance.

Q. Ginseng?

A. Yes.

Q. That’s a natural—it comes from a plant.

A. Every drug comes from a plant.

Q. Okay. So Etizolam is now illegal and is a controlled substance
and you’re still getting it off the Internet; is that right?

A. Not intentionally.

Q. How is it not intentional if you press the complete sale, ship it
to me?

A. I intended to order [c]lonazolam.

This brief questioning did not make the legal classification of the drugs important to

the State’s intoxication theory or its efforts to show that the two drugs can and did

cause intoxication.

Likewise, Humphrey’s defense did not turn on disputing the drugs’

classification or potential effects. Humphrey acknowledged that he had taken both

16
hydrocodone and etizolam, did not dispute that those two drugs can cause

intoxication, and admitted that he was impaired during the field sobriety tests.

Instead, his defensive theory was that he had built up a tolerance for the two drugs

and that his impairment was caused by either hitting his head in the (admittedly

minor) car accident or by a pre-existing condition, and thus his impairment was not

because he was intoxicated. This theory did not depend on and was not affected by

the classification of etizolam or hydrocodone.

The jury arguments did not contribute to any harm from the intoxication

definition. In the State’s opening statement, the prosecutor told the jury, “Now, the

evidence that you’ll hear from that witness stand will show that the Defendant was

intoxicated by the introduction of drugs into his system.” Humphrey’s attorney told

the jury that on the morning of the accident, Humphrey took “medication for pain”

as he does every day. He also brought up Humphrey’s medical issues, stating that

Humphrey had had “a very serious concussion six months prior.” He mentioned

prior concussions and Humphrey’s alleged amnesia as well. Neither party mentioned

the phrase “dangerous drug” or “controlled substance.”

The parties’ closing arguments, like their opening statements, focused primarily

on whether the drugs caused Humphrey’s impairment or whether a pre-existing

medical condition or a concussion caused it. When they mentioned the substances at

issue, the prosecutor and Humphrey’s attorney both referred to them by their names

or as pills, drugs, or, in one instance, central-nervous-system depressants. And the

17
prosecutor’s arguments urged the jury to convict Humphrey on the basis of

intoxication by drugs:

During voir dire, we talked about the definition of intoxication, how we
had three different ways to prove to you that someone has been
intoxicated while driving. First, the person had lost the normal use of
their mental faculties. The second, the loss of their physical faculties.
Finally, the third would be the blood alcohol concentration of .08. We
do not have alcohol in this case, but what we do have is evidence that
the Defendant had drugs in his system at the time he was driving.

....

. . . . It was a minor accident, like Sergeant Gresham told you. A
minor accident caused by the Defendant losing the normal use of mental
and physical faculties due to the introduction of the drugs that were
found in his system.

....

. . . . Because of that, I’m asking you to find him guilty of driving
while intoxicat[ed] due to the introduction of the drugs that were in his
system.

And the only instances when the prosecutor used the terms “controlled substance”

and “dangerous drugs” in questioning witnesses occurred in the above-quoted parts

of Humphrey’s testimony.

On balance, in light of the evidence and arguments and the issues contested at

trial, the intoxication definition did not affect the case’s foundation, deny Humphrey a

valuable right, or significantly affect Humphrey’s defensive theories, and thus did not

cause Humphrey egregious harm. See Ngo, 175 S.W.3d at 750.

18
 Finally, Humphrey argues that the cumulative effect of including the terms

“alcohol,” “controlled substance,” and “dangerous drug” in the intoxication definition

and defining controlled substances (discussed below) constitutes egregious harm. We

disagree; as we discuss above and under Humphrey’s second point, the record does

not indicate that the charge errors gave the State an unfair advantage or that the errors

rendered the trial fundamentally unfair. See Lumsden v. State, 564 S.W.3d 858, 899

(Tex. App.—Fort Worth 2018, pet. ref’d) (citing Linney v. State, 413 S.W.3d 766, 767

(Tex. Crim. App. 2013) (Cochran, J., concurring in refusal of pet.) (explaining the

doctrine of cumulative error and stating that “[a] string of harmless errors does not

arithmetically create reversible, cumulative error”)).

We overrule the remainder of Humphrey’s first point.

B. The Controlled-Substance Definition Did Not Injure Humphrey’s Rights.

In Humphrey’s second point, he complains that the trial court erred by

including the statutory definition of a “controlled substance” in the charge when no

evidence showed that Humphrey’s medications were controlled substances. As with

the intoxication definition, the State’s brief skips straight to a harm analysis, which we

take as an admission of error for purposes of this appeal. Because Humphrey’s

attorney objected to including a controlled-substance definition in the charge,4 we

4
The exact basis of the objection is not entirely clear; Humphrey’s attorney
stated, “I don’t think it applies. That’s not what he’s been charged for. That
definition of intoxicated is pretty clear what we’re going for.” Based on this statement
and the prosecutor’s statement in response that he had originally thought the

19
review the record for some harm from the definition’s inclusion. “Some” harm

means “any harm, regardless of degree,” Arline v. State, 721 S.W.2d 348, 351 (Tex.

Crim. App. 1986), but it includes only “actual—rather than merely theoretical—

harm.” Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim. App. 2019).

As we noted above, neither the application paragraph nor any other part of the

charge limited the jury to considering only whether Humphrey was intoxicated by

drugs, and the inclusion of a controlled-substance definition could have further

indicated to the jury that it could consider whether Humphrey had become

intoxicated by a controlled substance. But nevertheless, the statutory controlled-

substance definition did not raise the kind of concern usually implicated by

superfluous and nonstatutory definitions or instructions; it could not have emphasized

or given weight to any schedule or penalty group evidence because there was no

schedule or penalty group evidence.5 See Kirsch, 357 S.W.3d at 651 (stating that a trial

court “may not include an instruction that focuses the jury’s attention on a specific

definition’s inclusion “went to an offense extraneous that was not filed out of the
same criminal episode,” Humphrey’s attorney may have been arguing that the
definition had no relevance because Humphrey had not been charged with an offense
related to possession of a controlled substance. But regardless of the underlying
argument, the trial court understood Humphrey’s request and rejected it. See Tex. R.
App. P. 33.1
5
Although the prosecutor used the words “controlled substance,” a
prosecutor’s questions to a witness are not evidence, and the prosecutor did not
mention penalty groups or schedules. Stobaugh v. State, 421 S.W.3d 787, 837 n.238
(Tex. App.—Fort Worth 2014, pet. ref’d); Wells v. State, 730 S.W.2d 782, 786 (Tex.
App.—Dallas 1987, pet. ref’d).

20
type of evidence that may support a finding of an element of an offense”); Hess v.

State, 224 S.W.3d 511, 514 (Tex. App.—Fort Worth 2007, pet. ref’d) (stating that “trial

judges must refrain from making any remark calculated to convey to the jury his or

her opinion of the evidence in a particular case”). Nor is there any evidence that the

definition confused the jury. And we must assume that the jury applied the

controlled-substance definition, see Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim.

App. 2005); Scott v. State, 555 S.W.3d 116, 124 (Tex. App.—Houston [1st Dist.] 2018,

pet. ref’d), meaning that the jury would have found that Humphrey had ingested a

controlled substance only if it had heard evidence that the drugs were scheduled or in

penalty groups.6

As for the state of the evidence, it weighs against finding any actual harm.

Humphrey acknowledged taking the two drugs, and the decision for this jury was

relatively simple and turned on accepting or rejecting Humphrey’s explanations of his

condition, which had nothing to do with whether the drugs were controlled

substances. If the jury believed Humphrey, then he could take the two drugs without

6
As a matter of law, etizolam and hydrocodone are controlled substances, and
Humphrey admitted taking them; thus, if either or both of the drugs caused
Humphrey’s intoxication, then, as a matter of law, he was intoxicated by a controlled
substance or a combination of controlled substances. See, e.g., Falero v. State, No. 02-
19-00205-CR, 2020 WL 1949018, at *5 (Tex. App.—Fort Worth Apr. 23, 2020, pet.
ref’d) (mem. op., not designated for publication) (noting that the substance that the
defendant was charged with possessing was included in Penalty Group 1 and was
therefore a controlled substance as a matter of law and that defendant thus suffered
no harm from the inclusion of the nonstatutory phrase “methamphetamine is a
controlled substance” in the charge).

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experiencing side effects, and his impairment at the time of his arrest—witnessed and

attested to by Gresham, displayed on the video played for the jury, and confessed to

by Humphrey—was caused by Humphrey hitting his head in the car accident, by a

pre-existing medical condition, or both. On the other hand, if the jury did not believe

Humphrey’s explanations, then he took two drugs to which he did not have a

tolerance (or at least not as much as he thought he did) and which are known to cause

the intoxication signs that he displayed and one of which is “pretty high up” on the

potency scale. Defining the term “controlled substance” had no relation to

Humphrey’s explanations and would not have helped or nudged the jury to either

believe or disbelieve him.

Regarding jury arguments, as explained above, neither side’s counsel

emphasized the term “controlled substance,” and they did not mention penalty

groups or schedules. The prosecutor did not attempt to argue in opening or closing

that the drugs were controlled substances or ask the jury to convict on that basis, and

the defense did not try to argue that Humphrey could not be convicted because the

State had failed to prove that the drugs were controlled substances. The parties’

arguments focused on whether it was the drugs or a medical condition that caused

Humphrey’s impairment.

When, as here, the record “reveals a risk of harm that is so small that it may

properly be characterized as not ‘remotely significant,’ or where the risk of harm is

‘almost infinitesimal,’ any harm resulting from the error is only theoretical harm.”

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French v. State, 563 S.W.3d 228, 239 (Tex. Crim. App. 2018). On this record, we

conclude that Humphrey suffered no actual harm from the inclusion of the

controlled-substance definition in the jury charge. We overrule Humphrey’s second

point.

C. Humphrey Did Not Preserve His Jury Argument Complaint.

In his third point, Humphrey argues that the State made an improper jury

argument that clearly misstated the evidence and had a substantial and injurious

influence on the jury’s verdict. Humphrey is correct that the prosecutor’s argument

misstated a witness’s testimony, but because Humphrey did not preserve this

complaint, we overrule it.

In closing arguments, the prosecutor misstated the record when he said that the

toxicologist “told you that [e]tizolam is at least five times more potent than your

typical Xanax.” Humphrey’s attorney objected, “He did not testify to that, that it’s

more potent. He never said that.” While the toxicologist Johnson had testified that

etizolam was more potent than Xanax and was “pretty high up there” on the potency

scale, he had not specified how much more potent. In response to Humphrey’s

objection, the trial court stated, “The jury will remember the evidence.” The

prosecutor then again stated that Johnson had said “five times more potent.”

A trial court’s statement that “the jury will remember the evidence” is not an

adverse ruling on an objection and does not serve to preserve error. Mayberry v. State,

532 S.W.2d 80, 84 (Tex. Crim. App. 1975); Washington v. State, 16 S.W.3d 70, 73 (Tex.

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App.—Houston [1st Dist.] 2000, pet. ref’d). Thus, Humphrey has not preserved this

complaint for appeal.

Humphrey acknowledges that he has not preserved his complaint. But, citing

Janecka v. State, 937 S.W.2d 456, 474 (Tex. Crim. App. 1996), Humphrey argues that

“an appellate court may, in the interest of justice, review unobjected-to jury arguments

that are manifestly improper.” The Court of Criminal Appeals has rejected that part

of Janecka both as dicta and as no longer an accurate statement of the law. Threadgill v.

State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004); see also McDonald v. State,

186 S.W.3d 86, 91 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Because

Humphrey failed to secure an adverse ruling, “he has forfeited his right to raise the

issue on appeal.” See Threadgill, 146 S.W.3d at 670; see also Hernandez v. State,

538 S.W.3d 619, 622–23 (Tex. Crim. App. 2018) (“Even an inflammatory jury

argument is forfeited if the defendant does not pursue his objection to an adverse

ruling.”). We overrule Humphrey’s third point.

IV. CONCLUSION

Having overruled Humphrey’s three points, we affirm the trial court’s

judgment.

/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: July 22, 2021

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