Cheyenne Michael Halloran v. The State of Texas

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On October 11, 2014, an individual contacted 911 after observing a car drive

off the roadway and through a sign. A deputy sheriff was dispatched to the scene.

According to the deputy, it appeared the vehicle went off the road, through a

directional sign, and became stuck in the mud. The deputy testified that when he

arrived on the scene, Halloran was sitting in the vehicle with the lights on. He

observed that Halloran was lethargic, confused, and disoriented, with slurred speech

and red and glossy eyes. The deputy testified that these signs were indicators of

intoxication.

Additionally, the deputy testified that when he approached the vehicle, he

observed a small baggy of what he considered to be synthetic marijuana, labeled

“Geeked Up,” on the ground near the driver’s door.1 According to the officer,

Halloran admitted that the package was his and that he had thrown it out the window.

The deputy also testified that Halloran admitted he had smoked the substance

approximately two hours before operating his vehicle. The deputy found rolling

1 In the trial court, Halloran’s counsel generally referred to the substance not as synthetic marijuana, but as “flavored tobacco potpourri stuff” or simply potpourri.

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papers, commonly used to roll synthetic marijuana joints, in the door of the vehicle

as well.

The deputy subsequently administered several field sobriety tests and found

numerous additional indicators that Halloran was intoxicated. The deputy placed

Halloran under arrest for driving while intoxicated, then took him to a hospital to

have a blood sample drawn for testing. The sample was ultimately analyzed by the

State’s crime laboratory in Austin, Texas. Results from the sample revealed the

presence of methamphetamine in a concentration of .34 milligrams per liter, as well

as amphetamine as a metabolite of the methamphetamine. The sample was not

analyzed for the presence of synthetic marijuana, because the State’s crime

laboratory does not currently have a test for such drugs.2 The substance in the

“Geeked Up” package was also not tested.

The State charged Halloran with misdemeanor driving while intoxicated,

alleging that “on or about October 11, 2014, in Montgomery County, Texas,

CHEYENNE MICHAEL HALLORAN . . ., while operating a motor vehicle in a

public place, was then and there intoxicated[.]” The State further alleged that “prior

to the commission of the instant offense alleged . . . [Halloran] was convicted of an

2 Miller explained that because synthetic marijuana drugs are constantly changing, the crime lab is unable to keep up with the variations, making it financially infeasible to test for synthetic marijuana.

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offense relating to the operating of a motor vehicle while intoxicated.” The prior

conviction enhanced the current offense from a Class B misdemeanor to a Class A

misdemeanor. See Tex. Penal Code Ann. §§ 49.04(b); 49.09(a) (West Supp. 2017).

At trial, the State presented extensive testimony from Kelsi Miller, a forensic

toxicologist. Miller testified that methamphetamine is always active, meaning that if

the drug is present in the blood, it is going to have an effect on the body. She also

testified that the amphetamine in Halloran’s blood was an active metabolite, so it

would have an effect on the body, as well. She further opined that the level of

methamphetamine found in Halloran’s blood was such that it would be very unlikely

that he would not be impaired.

Miller also testified that with a methamphetamine high, there is an early phase

and a late phase. She explained that during the early phase, an individual would have

increased energy and alertness, twitches, rapid speech, and signs of excitability.

Miller noted the primary effect of the late phase is extreme fatigue or a “crash.” In

this stage, an individual coming down from the hyperactive excitability stage could

sleep periodically for days and have “nod-offs,” and they can also exhibit effects

similar to alcohol, including muscle twitching, shaking, dizziness, and slurred

speech. She further testified that Halloran falling asleep at the wheel, driving off a

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dead-end road, and running over a traffic sign would be consistent with late phase

methamphetamine use.

Before trial commenced, Halloran made an oral motion to suppress any

mention of synthetic marijuana, arguing that the fact that the substance found at the

scene was never tested and Halloran’s blood was never tested for synthetic marijuana

made any evidence regarding the substance irrelevant. He further objected that the

evidence constituted an extraneous bad act that would be inadmissible under rule

404 of the Texas Rules of Evidence. The court denied the motion and overruled the

objections. During trial, Halloran re-urged his objections to the testimony and other

evidence regarding synthetic marijuana. The trial court overruled the objection and

allowed Halloran to have a running objection.3

Standard of Review

We review a trial court’s rulings on admission of evidence for an abuse of

discretion. Montgomery v. State, 810 S.W.2d 372, 378–79 (Tex. Crim. App. 1990)

(op. on reh’g). We uphold a trial judge’s decision to admit evidence as long as the

3 In the trial court, Halloran also urged exclusion of the evidence on the grounds that it was unfairly prejudicial under Rule 403 of the Texas Rules of Evidence, and that the State’s forensic toxicologist was not qualified to testify under Rule 702 of the Texas Rules of Evidence. However, we address herein only the arguments asserted and briefed on appeal. See Tex. R. App. P. 38.1(i); See Colburn v. State, 966 S.W.2d 511, 517 n. 5 (Tex. Crim. App. 1998)

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result is not outside the zone of reasonable disagreement. Id. at 391. Appellate courts

must afford a trial court such great discretion in its evidentiary decisions “because

the trial court judge is in a superior position to evaluate the impact of the evidence.”

Id. at 378–79.

Analysis

“Generally, all relevant evidence is admissible.” Layton v. State, 280 S.W.3d

235, 240 (Tex. Crim. App. 2009); Tex. R. Evid. 402. Relevant evidence is that which

has any tendency to make the existence of any consequential fact more or less

probable than it would be without the evidence. Tex. R. Evid. 401. When

determining whether evidence is relevant, it is important for courts to examine the

purpose for which the evidence is being introduced. See Moreno v. State, 858 S.W.2d

453, 464 (Tex. Crim. App. 1993). In determining whether a particular piece of

evidence is relevant, the trial judge should ask if a reasonable person would believe

that the evidence is helpful in determining the truth or falsity of any fact of

consequence. Montgomery, 810 S.W.2d at 376.

In the present case, Halloran argues that there is no evidence as to the

composition of the substance referred to as synthetic marijuana, because the package

found at the scene was not submitted to the crime lab for testing. The officer

acknowledged that he did not know the composition of what was found in the

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package at the scene. However, he testified that the package was, based on his

experience in law enforcement, what is commonly known as synthetic marijuana.

Moreover, according to the officer, Halloran admitted the package found at the scene

was his, he threw it out his window, and he smoked it a couple of hours before he

ran his car off the road.

Halloran relies heavily on Layton, for the proposition that in order for a

substance, other than alcohol or marijuana, to be relevant in a driving while

intoxicated case, there must be evidence of the presence of the intoxicant in the

defendant and competent scientific evidence of the effect of each substance.

However, that case is distinguishable in that the Appellant in Layton was charged

specifically with alcohol intoxication. 280 S.W.3d at 241. The relevant inquiry in

that case was whether the Appellant was intoxicated by alcohol, not another

substance combined with alcohol. Id. The Court held that without expert testimony

establishing the relevance of the appellant’s prescription medication to the charge of

alcohol intoxication, testimony regarding the use of prescription medications was

not admissible. Id. at 241–42. We find the present case more analogous to Ashby v.

State, 527 S.W.3d 356 (Tex. App.—Houston [1st Dist.] 2017, pet. filed). In that case,

our sister court in Houston distinguished a matter on appeal from Layton on the basis

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that the DWI charge at issue was—as in this case— not limited to intoxication by

consumption of alcohol. See Ashby, 527 S.W.3d at 364–65.

The State charged Halloran with “operating a motor vehicle in a public place,

[and] was then and there intoxicated[.]” As defined in the jury charge,

“‘[i]ntoxicated’ means not having the normal use of mental or physical faculties by

reason of the introduction of alcohol, or a controlled substance, or a drug, or a

dangerous drug, or a combination of two or more of those substances, or any other

substance into the body . . . .”

The fact that Halloran admitted the package was his, admitted that he threw it

out of the vehicle, and admitted that he smoked it a couple of hours before the

incident would certainly have a tendency to make a fact more or less probable. See

Tex. R. Evid. 401(a). This, in light of the jury charge which indicates that

intoxication can occur by introducing a combination of two or more substances or

any other substance into the body, without specifying what kind of substance, makes

the evidence relevant. See Tex. R. Evid. 401, 402.

Halloran further argues that the evidence of synthetic marijuana is

inadmissible under 404(b)(1), which provides that evidence of a person’s bad acts

are not admissible to prove a person’s character in order to show that a person acted

in accordance with the character. Tex. R. Evid. 404(b)(1). We find this argument

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unpersuasive, as Halloran does not articulate any character trait with which the

evidence arguably shows conformance. Rather, it appears to have been offered to

show that, by Halloran’s own admission, he smoked the substance within a couple

of hours prior to operating his vehicle. See Tex. R. Evid. 404(b)(2). Halloran’s

admission that he had smoked the substance recently contributed to the deputy’s

belief that a DWI investigation was warranted. Accordingly, it was within the zone

of reasonable disagreement for the trial court to determine that the admission of

evidence regarding synthetic marijuana was relevant for a purpose other than to

show character conformance. See Montgomery, 810 S.W.2d at 391; Tex. R. Evid.

404(b)(2).

Identification of the substance that causes intoxication is not an element of the

DWI offense. Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004). “Instead,

it is an evidentiary matter.” Id. Even if the exact chemical compound is unknown,

evidence regarding synthetic marijuana found at the scene —especially in light of

Halloran’s admission that he smoked it within a couple of hours of his arrest—is

relevant, and we find that the trial judge did not abuse his discretion by admitting

this evidence.

Moreover, any nonconstitutional error that does not affect a substantial right

must be disregarded. Tex. R. App. P. 44.2(b). Substantial rights are not affected by

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the erroneous admission of evidence if, after examining the record as a whole, the

appellate court “has fair assurance that the error did not influence the jury, or had

but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002)

(quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)). In making

this determination, the reviewing court may consider the jury instructions, the State’s

theory and any defensive theories, closing arguments, and even voir dire, if

applicable, and should calculate as much as possible the probable impact of the error

on the jury in light of the existence of other evidence. Id. at 355–56.

In addition to the evidence regarding synthetic marijuana, there was evidence

of the presence of methamphetamine in Halloran’s blood at a level of .34 milligrams

per liter. The State’s forensic toxicologist explained that it would be unlikely an

individual would not be impaired with a level of methamphetamine that high.

Assuming, arguendo, that the admission of synthetic marijuana evidence was error,

there was sufficient evidence offered at trial that the level of methamphetamine

Halloran had in his system would have been intoxicating and that if Halloran fell

asleep at the wheel, went off the road and ran over a traffic sign, that behavior would

be consistent with late phase methamphetamine use. Additionally, the arresting

deputy testified at length and in detail regarding the number of indicators of

impairment Halloran exhibited at the time of his arrest. In light of the substantial

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evidence that Halloran was intoxicated while operating his vehicle, any error in the

admission of evidence regarding synthetic marijuana was harmless. See Wesbrook

v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000) (holding that “the presence of

overwhelming evidence supporting the finding in question can be a factor in the

evaluation of harmless error”).

In light of the foregoing, we find that the trial court did not abuse its discretion in admitting evidence of synthetic marijuana. Therefore, we overrule Halloran’s issue and affirm the trial court’s judgment.