COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00185-CR
MELISSA CROCKETT APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Melissa Crockett of driving while intoxicated (DWI),
and the trial court sentenced her to 180 days’ confinement. The trial court
suspended imposition of the sentence for twenty months, placing Appellant on
community supervision. Appellant brings two points, arguing that the trial court
abused its discretion by excluding her exhibits 7A and 7B. Because the trial court’s
abuse of discretion was harmless, we affirm the trial court’s judgment.
1
See Tex. R. App. P. 47.4.
On December 31, 2009, Lewisville Police Officer Jon Martinez made a traffic
stop of Appellant after another driver called 911 and reported that Appellant was
driving erratically. Martinez asked Appellant if she had any medical conditions, and
Appellant stated that she was undergoing hormonal therapy. After conducting field
sobriety tests, Martinez arrested Appellant for DWI. Appellant agreed to take a
breath test and registered .149 and .142.
At trial, Appellant testified that she had not been intoxicated. She testified that
she had gone to a restaurant that evening for dinner and that while there, she had
three glasses of wine and a margarita, plus a sip of champagne, over the course of
about four hours.
Appellant testified that she had hypothyroidism and also testified about her
symptoms and treatment. She stated that she was undergoing hormone therapy as
part of her treatment. She also testified that her hypothyroidism caused her to be
fatigued, unable to concentrate, and to have brain fog. She further testified that she
realized that her medication was not effective on the date of her arrest when she
found that she could not see while driving home on I-35 after leaving the restaurant.
The trial court sustained the State’s objections to two medical records exhibits
that Appellant sought to admit. The first, Exhibit 7A, includes two pages. The first
page is a copy of a prescription, dated February 19, 2010, for thyroid medication,
and on the page is a handwritten doctor’s note stating, “Please have patient call
office ASAP. She is overdue for thyroid testing.” The second page is a refill request
for Appellant’s thyroid medication, dated January 15, 2010. Exhibit 7B contains
2
thirty-five pages of medical records, including refill authorization requests, doctor’s
notes, lab test confirmations, and lab evaluations, although, as the State points out,
only the first page of 7B, a refill authorization request and signed prescription, was
represented by defense counsel as 7B when it was admitted for record purposes.
The State argues that the exhibits were not admissible because they were not
relevant. The State argues alternatively that even if the records were admissible,
Appellant’s testimony nevertheless essentially encompassed the evidence that she
was attempting to place before the jury in the form of her exhibits, rendering any
error in refusing to admit the records harmless. Appellant argues that the excluded
exhibits were relevant because they explained her apparent intoxication and also
argues that that they supported and lent credibility to her testimony explaining her
physical condition on the night that she was arrested.
We review a trial court’s decision to admit evidence under an abuse-of-
discretion standard.2 Under this standard, if the trial court’s ruling was within the
zone of reasonable disagreement, we will not disturb the ruling.3 The medical
records were relevant because they to some degree supported Appellant’s
defensive theory. Appellant’s medical records dealt with the hypothyroidism
diagnosis and treatment and were accompanied by a proper affidavit in compliance
2
Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App.), cert. denied, 549
U.S. 1056 (2006).
3
Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).
3
with rule 803(6).4 The records related directly to her defense. We hold that the trial
court abused its discretion by excluding the medical records.
Having found error, we must conduct a harm analysis to determine whether
the error calls for reversal of the judgment.5 If the error is constitutional, we apply
rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the
error did not contribute to Appellant=s conviction or punishment.6 Otherwise, we
apply rule 44.2(b) and disregard the error if it did not affect Appellant=s substantial
rights.7
Generally, the erroneous admission or exclusion of evidence is
nonconstitutional error governed by rule 44.2(b) if the trial court=s ruling merely
offends the rules of evidence.8 But in addition to her evidentiary complaint,
Appellant preserved her complaint that the trial court’s exclusion of the records
violated her right to present a defense under the Due Process Clause of the United
States Constitution. Nevertheless, the Texas Court of Criminal Appeals has held
4
See Tex. R. Evid. 803(6), 902(10).
5
Tex. R. App. P. 44.2.
6
Tex. R. App. P. 44.2(a).
7
Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998) (op. on reh=g), cert. denied, 526 U.S. 1070 (1999).
8
See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); see also
Walters v. State, 247 S.W.3d 204, 222 (Tex. Crim. App. 2007) (determining that
exclusion of evidence supporting defendant=s defensive theory was
nonconstitutional error).
4
that “the exclusion of a defendant’s evidence will be constitutional error only if the
evidence forms such a vital portion of the case that exclusion effectively precludes
the defendant from presenting a defense.”9
The exclusion of the two exhibits did not prevent Appellant from presenting
her defense. While it is true that her testimony was not corroborated by medical
evidence as she preferred, neither was it truly contested. Additionally, she was able
to testify at trial at length about her diagnosis and condition, generally and on the
night in question. We therefore hold the error harmless, overrule Appellant’s two
points, and affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 14, 2012
9
Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002).
5