TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00151-CR
Paul Miles Sullivan, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 47,303, HONORABLE JOE CARROLL, JUDGE PRESIDING
After finding appellant guilty of intoxication manslaughter, the jury assessed punishment at confinement for five years. See Tex. Penal Code Ann. § 49.08 (West 1994). Appellant asserts four points of error, contending that error occurred in the trial court because: (1) the trial court refused to grant appellant's motion for directed verdict because there was no evidence that appellant had lost the normal use of his mental and physical facilities due to the introduction of alcohol into his body; (2) the evidence was legally insufficient to support the conviction; (3) the evidence was factually insufficient to support the conviction; and (4) appellant's medical records were searched in violation of article I, § 9 of the Texas Constitution. We will overrule appellant's points of error and affirm the judgment of the trial court.
About 6:40 p.m. on December 21, 1996, a three-vehicle collision on Highway 371 in North Belton resulted in the death of Laura Ellison. Due to appellant's challenge of both the legal and factual sufficiency of the evidence, our review will include evidence that each party urges is favorable to its position.
Belton police officer Patrick Mullins, the first officer dispatched to the scene, testified as to the results of his investigation. The three vehicles were positioned in the southbound lane with the right of appellant's van in the northbound lane. Mullins found a bag containing a six-pack of empty beer bottles and a "three-fourth's empty bottle of tequila" on the floor of appellant's van. Appellant's van had neither headlights nor parking lights on; however, Mullins observed that appellant's light switch was in a "park position." The Mazda automobile in which the deceased was a passenger left skid marks but none were shown to have been made by appellant's van. Department of Public Safety ("DPS") trooper Thomas Peoples's investigation showed that appellant's vehicle was the heavier and the position of the two vehicles indicated that the Mazda's speed was greater than that of the van. Peoples did not receive any report from other officers relative to appellant's intoxication.
The third vehicle involved in the accident was occupied by James and Deborah Larue. Their testimony reflected that they were driving in a southerly direction when they observed a car that "looked like it had just hit a wall." It was not until the car spun around that they were able to observe another vehicle. The Larue vehicle was unable to stop before colliding with the car. At this point, the Larues observed a van that had collided with the car. They did not see any lights on the van before or after the collision. Deborah Larue testified that the van was partially over the center stripe.
Mark Goddard testified that he was driving into Belton shortly before the collision when he met a vehicle "mostly over in my lane--I saw no lights at all." When Goddard returned a short time later, the road was blocked as the result of an accident.
Santos Garza and his wife stopped at the scene of the wreck. Garza talked to the man in the van and did not observe any signs of intoxication. Teri Galloway and Donna Perlitz, paramedics at Scott and White Hospital in Temple, were dispatched to the scene. They found appellant virtually immobile since his legs were pinned in the van. Despite appellant's denial of having had any alcohol to drink, they smelled alcohol on his breath. They did not observe any alcohol impairment of appellant. Appellant was given oxygen and an "IV of normal saline" at the scene. Upon arrival at Scott and White, appellant was given one unit of blood. Ben Rodriguez, a medical technologist at the hospital, ran a test on appellant's blood at 9:20 p.m. The reading was equal to 0.16 blood-alcohol concentration. Frank Santos, a medical lab technician at the hospital, ran an alcohol analysis on appellant's blood after he came on duty at 11:00 p.m. Santos's test result was equal to 0.096 blood-alcohol concentration. Charles Mott, a chemist with DPS, arrived at the foregoing test results by converting the findings of Santos and Rodriguez measured in milligrams per deciliter to grams per 100 milliliters. (1) Rodriguez testified that the hospital's blood analyzer is regularly checked to determine whether results are within acceptable ranges. Under cross-examination, Rodriguez stated that it was impossible to conclude that there would not be a deviation of ten to fifteen percent in the results even though a previous check on the same day had shown that the machines were accurate. Appellant urges that the system used by the hospital fails to adjust for hemoglobin, triglycerides, or cholesterol, all of which are present in human beings and interfere with the machines' analysis. After factoring in all of the foregoing possible deviations, appellant concludes that the adjusted figures would show 0.13 grams per 100 milliliters and 0.076 grams per 100 milliliters.
Mott testified that people "become impaired as far as driving when they reach a level of .08." With respect to persons who have received a saline solution, Mott stated "You would expect that to dilute the blood-alcohol concentration in their blood." In terms of grams per 100 milliliters, Mott opined that the decline of alcohol in a person's body is .02 to .03 per hour.
Under the indictment and the trial court's charge, the jury was authorized to find appellant guilty if he had an alcohol concentration in his blood of 0.1 grams or more of alcohol per 100 milliliters of blood or if he did not have the normal use of his mental and physical facilities by the introduction of alcohol in his body.
In reviewing the legal sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jakson v. Virginia, 443 U.S. 307, 319 (1979). Under the Jackson standard, the reviewing court is not to position itself as a thirteenth juror in assessing the evidence, nor is it our place to second guess the determination made by the trier of fact. See Collins v. State, 800 S.W.2d 267, 269 (Tex. App.--Houston [14th Dist.] 1990, no pet.). The trier of fact (jury in this cause) is in a better place than an appellate court to weigh, accept, or reject all or any portion of any witness's testimony. It is the duty of this Court to determine if the explicit and implicit findings by the trier of fact are rational under legal standards to support the conviction. See Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992).
Viewing the evidence in the light most favorable to the jury's verdict, the evidence shows that appellant drove his vehicle at least partially on the wrong side of the road on a dark night without lights. Appellant had the smell of alcohol on his breath and alcoholic beverage containers were found in his vehicle. It was logical for the jury to infer that appellant had not applied his brakes before the collision since it was shown that his vehicle did not lay down any skid marks. Under DPS's conversion of hospital blood-test results, appellant's blood alcohol was shown to have ranged at different time intervals from 0.16 to 0.096.
Viewing the evidence in the light most favorable to the verdict, we hold that any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Accordingly, appellant's first and second points of error are overruled.
On appellate review, we may consider factual sufficiency as well as legal sufficiency. See Stone v. State, 823 S.W.2d 375 (Tex. App.--Austin 1992, pet ref'd untimely filed); see also Clewis, 922 S.W.2d 126 (adopting Stone test). In Stone, this Court set the following standard for factual review:
[T]he court reviews all the evidence without the prism of "in the light most favorable to the prosecution." Because the court is not bound to view the evidence in the light favorable to the prosecution, it may consider the testimony of defense witnesses and the existence of alternative hypotheses. The court should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Stone, 823 S.W.2d at 381 (citations omitted).
Our analysis of appellant's factual challenge to the sufficiency of the evidence includes the testimony of witnesses who did not observe any impairment in appellant at the scene as well as evidence of possible deviations in blood-alcohol test results. After reviewing all of the evidence and the arguments and the existence of alternative hypotheses, we conclude that the verdict is not so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. Appellant's third point of error is overruled.
In his fourth point of error, appellant contends that the trial court erred in refusing to suppress evidence derived from a search and seizure of appellant's medical records. It appears that officer Mullins's and another officer's meeting with the district attorney's office resulted in a determination that appellant's medical records at Scott and White were needed for the investigation. Adella Gomez, legal assistant to the district attorney, testified that she signed the district attorney's name with her initials beside it to a grand jury subpoena for appellant's medical records. Gomez stated that the district attorney had instructed her to sign his name when a grand jury subpoena was needed. Appellant directs our attention to the fact that the subpoena was not issued by a court, that no application was made to the district clerk's office for a subpoena duces tecum for appellant's medical records, and that no charges were pending against appellant at the time the subpoena was issued.
Appellant elicited testimony from Dr. Gregory Hobbs, Chairman of the Department of Emergency Medicine at Scott and White, that he viewed patient-physician communications as private, and that both physician and patient expected their communications to be private. Dr. Hobbs testified that he referred subpoenas for medical records to the hospital's legal department.
While appellant did not testify at trial or at the pre-trial motion to suppress the medical records, appellant urges that he had a reasonable expectation of privacy in his medical records as a result of Dr. Hobbs's testimony. Based on this expectation of privacy, appellant asserts that the prosecutor's exploration of appellant's medical records constituted a search within the meaning of the Texas Constitution article I, section 9. In addition, appellant argues that the fruits of the illegal search, the results of the blood test, should have been suppressed. See Tex. Code Crim. Proc. Ann. art. 38.23 (West Supp. 1999).
In Corpus v. State, 931 S.W.2d 30 (Tex. App.--Austin 1996, pet. dism'd), the defendant was taken to a hospital emergency room where blood-alcohol tests were made for medical purposes. The defendant urged that the trial court erred in denying his motion to suppress evidence of the results of the hospital's blood-alcohol test under the Fourth Amendment to the United States Constitution, article I, sections 9 and 10 of the Texas Constitution, and article 38.23 of the Code of Criminal Procedure. This Court found that the statute providing for the confidentiality of medical records was repealed upon the adoption of Texas Rules of Criminal Evidence 509 which abolished the doctor-patient privilege in criminal proceedings. Id. 32. Corpus held that since the defendant could not invoke a physician-patient privilege to prevent testimony about the blood- test results, he had no reasonable expectation of privacy in the results on which to base his motion to suppress. Id. 32-33.
In State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997), the defendant was hospitalized following an accident. As in the instant cause, the hospital drew blood for alcohol or drug testing to be utilized in the defendant's treatment. Like the instant cause, an officer obtained a grand jury subpoena for the hospital's alcohol or drug information prior to the defendant being charged with an offense.
In Hardy, the Court of Criminal Appeals did an extensive review of the legislative history granting that court rulemaking power. The court stated: "In the repealer section of the statute relating to evidence, § 5.08 [of the Medical Practice Act] was specifically mentioned as one of the statutes designated for repeal. To the extent that Rule 509 may be interpreted as modifying substantive rights created by the Medical Practice Act, one can logically infer from the committee report, the committee's proposed draft of the rules, and the statute that the Legislature intended to abrogate any privilege contained in § 5.08." Id. 521. With respect to the defendant's claim of denial of Fourth Amendment rights, Hardy noted the distinction when the drawing of blood is instigated by the government. A subsequent analysis of the blood by the government violates a socially recognized expectation of privacy. Id. 523. Hardy held that "[w]hatever interests society may have in safeguarding the privacy of medical records, they are not sufficiently strong to require protection of blood-alcohol test results from tests taken by hospital personnel solely for medical purposes after a traffic accident." Id. 527.
Appellant contends that Hardy is not applicable because the subpoena in the instant cause did not issue from a grand jury. A similar complaint was raised by the defendant in Dickerson v. State, 965 S.W.2d 30, 31 (Tex. App.--Houston [1st Dist.] 1998, pet. dismissed as improvidently granted), where the officer obtained a subpoena from the district attorney's office to obtain records from the hospital where the defendant was taken following an accident. Dickerson held that in the absence of constitutional or statutory expectation of privacy, the defendant had no standing to complain of defects in the grand jury process. Id. Appellant's fourth point of error is overruled.
The judgment is affirmed.
Tom G. Davis, Justice
Before Justices Jones, Patterson and Davis*
Affirmed
Filed: April 29, 1999
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See
Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1. The record reflects that the hospital's blood analyzer, unlike the one operated by DPS,
was designed to assist doctors in treating patients.
made for medical purposes. The defendant urged that the trial court erred in denying his motion to suppress evidence of the results of the hospital's blood-alcohol test under the Fourth Amendment to the United States Constitution, article I, sections 9 and 10 of the Texas Constitution, and article 38.23 of the Code of Criminal Procedure. This Court found that the statute providing for the confidentiality of medical records was repealed upon the adoption of Texas Rules of Criminal Evidence 509 which abolished the doctor-patient privilege in criminal proceedings. Id. 32. Corpus held that since the defendant could not invoke a physician-patient privilege to prevent testimony about the blood- test results, he had no reasonable expectation of privacy in the results on which to base his motion to suppress. Id. 32-33.
In State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997), the defendant was hospitalized following an accident. As in the instant cause, the hospital drew blood for alcohol or drug testing to be utilized in the defendant's treatment