In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-06-00065-CR

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BRANDON GENE EVERTS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law #2

Gregg County, Texas

Trial Court No. 2005-4208

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          Brandon Gene Everts, appellant, has filed with this Court a motion to dismiss his appeal. The motion is signed by Everts and by his counsel in compliance with Tex. R. App. P. 42.2(a). As authorized by Rule 42.2, we grant the motion. See Tex. R. App. P. 42.2.

          Accordingly, we dismiss the appeal.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      May 2, 2006

Date Decided:         May 3, 2006

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sel, objected to this instruction, stating, "Only objection I have, Judge, is paragraph three -- or section three, about the synergistic effect of alcohol in the case. There's no evidence that he was on any type of medication at the time the alleged event occurred." The trial court overruled this objection and included the instruction in its final charge to the jury.

            During the State's case-in-chief, Trooper Ricardo Landeros testified that, at the time of Eaton's arrest, Eaton admitted "that he was taking an antibiotic, and [that] he shouldn't be mixing alcohol with antibiotic medication." Pamela Ray Eaton, a licensed vocational nurse and the appellant's wife, was asked, "Was Mr. Eaton on any type of medication at that time?" She answered, "Yes, he was," and described the medications as prescription strength Benadryl, Ultram (a nonnarcotic pain medication), and Keflex (an antibiotic) to treat several spider bites Eaton had recently received. She agreed that pain medicine should not be mixed with alcohol. This testimony, argues the State, is some evidence Eaton was on medication when Trooper Landeros made the traffic stop and, therefore, supports the trial court's decision to include the jury instruction now at issue. We agree.

            The Texas Court of Criminal Appeals has expressly authorized jury instructions on the synergistic effect of drugs and alcohol in DWI cases where there is some evidence presented at trial that the accused's loss of the normal use of his or her mental and/or physical faculties due to alcohol consumption was enhanced or worsened because the accused had also consumed drugs. Gray v. State, 152 S.W.3d 125, 127–34 (Tex. Crim. App. 2004). In Gray, the defendant had been charged with DWI by reason of the introduction of alcohol into his system. Id. at 126. Evidence at trial showed Gray had also been taking antidepressants at the time of his arrest. Id. The trial court gave a synergistic charge quite similar to the one now at issue. Id. at 127. The Texas Court of Criminal Appeals found no error. Id. at 133–34.

            The charge in Eaton's case authorized the jury to convict only if it found the use of any drugs made Eaton more susceptible to the effects of any alcohol he had ingested. Thus, the trial court's charge did not permit the jury to convict Eaton on a theory unalleged in the charging instrument. Cf. id. at 133. Accordingly, because the trial court's charge correctly applied the applicable law to the facts adduced during trial, we find no error in the charge.

            We affirm the trial court's judgment.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          June 5, 2006

Date Decided:             June 22, 2006

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