COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00332-CR
JOSE PALACIOS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Jose Palacios of felony driving while intoxicated
(DW I) and assessed his punishment at three years’ confinement. The trial court
sentenced him accordingly. In his sole issue, Appellant contends that the evidence
is insufficient to prove intoxication and therefore insufficient to sustain his conviction.
He also complains within his sole issue that his hospital records were admitted in
1
See Tex. R. App. P. 47.4.
violation of his right of confrontation under the United States Constitution. Because
we hold that the evidence is sufficient to support his conviction and that his hospital
records were properly admitted, we affirm the trial court’s judgment.
I. Sufficiency of the Evidence
A. Standard of Review
After the parties briefed this case on appeal, the Texas Court of Criminal
Appeals held “that there is no meaningful distinction between a Clewis
factual-sufficiency standard and a Jackson v. Virginia legal-sufficiency standard” and
that
the Jackson v. Virginia standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is required to
prove beyond a reasonable doubt. All other cases to the contrary,
including Clewis, are overruled.2
Accordingly, we apply the Jackson standard of review to Appellant’s
sufficiency complaint. In reviewing the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the prosecution
in order to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.3 “Our review of ‘all of the
2
Brooks v. State, No. PD-0210-09, 2010 W L 3894613, at *14 (Tex. Crim.
App. Oct. 6, 2010).
3
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App. 2007).
2
evidence’ includes evidence that was properly and improperly admitted.”4
The sufficiency of the evidence should be measured by the elements of the
offense as defined by the hypothetically correct jury charge for the case, not the
charge actually given.5 Such a charge is one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily restrict the State’s theories of
liability, and adequately describes the particular offense for which the defendant was
tried.6 The law as authorized by the indictment means the statutory elements of the
charged offense as modified by the factual details and legal theories contained in the
charging instrument.7
B. The Indictment and Alternative Means of Proof
The indictment charged that Appellant “did then and there drive or operate a
motor vehicle in a public place, while [he] was then and there intoxicated, by reason
of the introduction of alcohol, a controlled substance, a drug, or a combination of two
or more of those substances in the body.” The indictment did not allege a means of
proof. Consequently, as the Texas Court of Criminal Appeals has explained,
4
Clayton, 235 S.W .3d at 778.
5
Hardy v. State, 281 S.W .3d 414, 421 (Tex. Crim. App. 2009); Malik v.
State, 953 S.W .2d 234, 240 (Tex. Crim. App. 1997).
6
Gollihar v. State, 46 S.W .3d 243, 253 (Tex. Crim. App. 2001); Malik, 953
S.W .2d at 240.
7
See Curry v. State, 30 S.W .3d 394, 404–05 (Tex. Crim. App. 2000).
3
Under the Texas DW I statute, intoxication may be proven in either of
two ways: (1) loss of normal use of mental or physical faculties or (2)
alcohol concentration in the blood, breath, or urine of 0.08 or more.
The first definition is the “impairment” theory, while the second is the
“per se” theory. They are not mutually exclusive, and, as long as there
is evidence that would support both definitions, both theories are
submitted in the jury charge.8
Here, both theories were submitted in the jury charge.
C. Application to the Facts
The jury heard the following evidence. On a sunny, dry Friday before Labor
Day 2008 at about 1:30 p.m., witnesses observed a Ford F-150 pickup being driven
erratically on the southbound service road of State Highway 121. Traffic was
moderate to heavy. The driver, later determined to be Appellant, wove in and out
of traffic with jerky movements, tailgated, used his brakes in an extreme manner, and
drove at inconsistent speeds. The pickup veered from the right lane in front of
middle-lane driver Cara W elsh, cutting her off, and hit a Toyota Camry in the left lane
“almost at a T.” The Camry had been trying to enter Highway 121 via an on-ramp
just past the highway's intersection with Main Street. The car and pickup spun and
flew off the road to rest on the left embankment of the overpass. The crash scene
was in Lewisville, Texas. The pickup was immobilized on a retaining wall with the
rear wheels suspended in the air. W hen Appellant could not free the pickup by
alternately putting it in forward and reverse gears, he exited the pickup. W itnesses
8
Kirsch v. State, 306 S.W .3d 738, 743 (Tex. Crim. App. 2010) (citations
omitted).
4
testified that he was bleeding profusely from his face or head. Appellant never
responded to the attempts at conversation by either the driver of the car he hit or the
witnesses to the crash.
After he left his pickup, Appellant crossed the busy feeder road, walked
approximately three hundred yards away from the accident, and entered a liquor
store and then, apparently, a convenience store. He wore a bloody shirt when he
entered the store. After he left the store, Appellant crossed a service road in traffic.
Drivers had to make “hard stop[s]” to avoid hitting him. A witness to the crash
stopped traffic as Appellant then crossed the busy northbound service road. About
150 yards away from the service road was a construction site. Appellant
disappeared briefly behind some portable toilets at the construction site. W hen he
reappeared, Appellant was no longer wearing his bloody shirt.
City of Lewisville Officer Jeremy Reyna testified that at 1:29 p.m. on August
29, 2008, he received a radio dispatch that a crash had occurred. He also received
information that one of the parties was leaving the scene. Reyna arrived at the
scene about six minutes after he received the dispatch. He was driving on Highway
121 “northbound or eastbound, however you look at it, going towards The Colony”
when somebody using a cell phone and standing at the entrance to a construction
site on the right side of the road waved him down. He drove into the site, and
another person using a cell phone pointed him toward Appellant. The construction
site was in The Colony, Texas.
5
Reyna testified that Appellant “had blood on him” and appeared disoriented.
Reyna asked Appellant if he was “okay” because of the lacerations on his face and
called EMS. Appellant told the officer that he had hurt his head and “that he got
scared.” Reyna also asked how the accident had happened. Appellant told him that
he had “passed through the light.” Reyna then asked Appellant if he had been
drinking any alcohol because, Reyna testified, he “could obviously smell the alcohol
on [Appellant] and . . . his demeanor, the way he was standing and walking, led
[Reyna] to believe [Appellant] may have been drinking.” Reyna explained to the jury
that Appellant was swaying as he stood in front of the portable toilet. At first,
Appellant denied drinking, but Reyna told him to tell the truth, so then Appellant
stated that he had consumed two beers.9
W hen paramedics arrived, Appellant fell asleep as he was being placed in an
ambulance. Reyna testified that he believed that Appellant’s falling asleep was due
to intoxication rather than injuries because the paramedic did not “sound too
concerned” when he was telling Appellant to wake up and because of the other
factors—the way Appellant was acting and his swaying. Even though Reyna did not
ask Appellant to perform field sobriety tests, Reyna believed, based on the accident,
Appellant’s location away from the accident site, their interactions, Appellant’s falling
asleep, and his admission to drinking two beers, that Appellant was legally
9
The record does not reveal that Appellant’s motion to suppress regarding
his statements and other evidence was ever presented or ruled on.
6
intoxicated.
W itnesses told Reyna that Appellant had left his shirt in a portable toilet.
Reyna retrieved it. W hen Reyna went to the crash site, he discovered that there was
no traffic light near the scene.
Officer Kyle Koiner of The Colony Police Department was dispatched to the
accident scene. An inventory of the pickup revealed a “strong odor of alcoholic
beverage.” Six 12-ounce beer bottles were on the front floorboard; one had a small
amount of beer left in it. Either all or “[p]robably all” of them were “kind of cold to the
touch.” Two unopened beer bottles, also “cold to the touch,” were in a six-pack
container in the back seat of the extended cab.
W hen Koiner left the accident site, he went to Trinity Medical Center in
Carrollton, Texas to check on Appellant, whom the ambulance had transported
there. Koiner spoke to registered nurse Mary Hyland, who, he testified, informed him
that Appellant’s blood had been drawn at approximately 2:25 p.m. Koiner then went
to Appellant’s room. The first thing Koiner noticed was “[t]he smell of a lot of alcohol,
of a big alcoholic beverage coming through the room, a strong odor.” The smell
became stronger as Koiner moved closer to Appellant, who was lying in the bed.
Appellant slurred his words and grunted when Koiner tried to converse with him.
Koiner smelled alcohol on Appellant’s breath and believed, based on that
observation, that Appellant “maybe” had been drinking. Koiner gave the nurses what
little information he had on Appellant and left the hospital.
7
Hyland, who was employed by Trinity Medical Center as an emergency room
nurse when Appellant was admitted, testified that upon his arrival, Appellant smelled
heavily of alcohol and bowel movement. His initial injuries were listed by EMS as
lacerations to the nose and left cheek.
W hen asked whether she had drawn Appellant’s blood, Hyland explained,
Usually, we do draw a toxic panel to see what their chemistry is, what
their blood counts are, what drugs might be in their system, especially
if they’re not able to state their own complaints; and it looks like he was
not able to state his own complaint.
She also testified that a “tox screen” for a nonresponsive patient would be a normal
procedure at the hospital. Hyland testified that Appellant’s medical records showed
that she supervised Dave Bills, an EMT she was training, who actually performed the
“vena puncture . . . using sterile technique under [Hyland’s] supervision.” Hyland
testified that the blood was taken from the inside of Appellant’s elbow at 2:15 p.m.
before intravenous fluids were given to him using the same site.
Hyland admitted on cross-examination that it appeared that pages in
Appellant’s medical records indicated that blood was drawn at the same time as
urine, 3:23 p.m., but also that for the serum alcohol test, blood was drawn at 3:31
p.m. She explained that she put her collection time, 2:15 p.m. in this case, on the
label, but that she did not enter that time in the computer; another hospital employee
generated the printed results. On cross-examination, Hyland answered, “Yes, sir,”
when asked, “This test was done for clinical purposes only, correct?” She did not
8
know whether the puncture site was cleaned with isopropyl alcohol or if it was
instead cleaned with chlorhexidine.
Appellant’s discharge summary contains the following diagnoses: “Nasal
bone fracture, alcohol, ATOH intoxication, mild facial strain, lumbar, facial laceration,
face, scalp, neck contusion.” Hyland testified that Appellant’s serum alcohol number
was high.
Emily Kuriakose, a laboratory technologist at the hospital, testified that she
analyzed Appellant’s blood sample for the presence of serum alcohol, specifically,
ethanol, otherwise known as drinking alcohol. To test the blood, “a chemistry
analyzer that is QC and calibrated regularly” was used. Serum blood rather than
whole blood was used because the manufacturer of the chemistry analyzer
recommended using serum blood. Kuriakose testified that the technique used is
valid and generally accepted in the scientific community and has been the subject
of different peer reviews. She said that Appellant’s sample contained 287 milligrams
per deciliter of ethanol alcohol.
Investigator Brent Robbins of the Denton County Criminal District Attorney’s
Office testified that 287 milligrams of alcohol per deciliter of serum is .247 grams per
100 milliliters of ethyl alcohol in the whole blood, “an extremely high level,” and
slightly higher than three times the legal limit. Robbins testified that the conversion
formula he used is the generally accepted way in Texas for converting from a serum
result to a result that corresponds to the DW I statute. Robbins admitted that he
9
could not say what Appellant’s alcohol content was at the time he was driving.
In complaining that the evidence is insufficient, Appellant contends that there
is no basis for Reyna’s opinion of Appellant’s intoxication because no field sobriety
tests were conducted, that the trial court improperly admitted Appellant’s hospital
records over his confrontation objection, that the State’s investigator, Robbins, relied
on those records to form his opinion regarding Appellant’s intoxication, and that even
Robbins’s opinion did not address Appellant’s alleged intoxication at the time of
driving.
In performing a sufficiency review, we consider all evidence, whether properly
or improperly admitted.10 Considering the testimony from the witnesses and police
officers about Appellant’s actions before and after the wreck, his demeanor, and his
odor, as well as his medical records, the testimony about his blood alcohol
concentration (BAC), and the evidence of the beer and beer bottles in his pickup,
and viewing all the evidence in the light most favorable to the prosecution, we must
conclude that any rational trier of fact could have found the essential elements of
DW I beyond a reasonable doubt. W e therefore hold that the evidence is sufficient
to support Appellant’s conviction.
10
See Clayton, 235 S.W .3d at 778 (providing that we consider even
improperly admitted evidence in performing legal sufficiency review).
10
II. Admission of Medical Records
Appellant also argues that his medical records were admitted in violation of
his right to confrontation. The lab technologist who determined his BAC results
testified. Thus, no violation of his right to confrontation occurred with regard to his
BAC results.11 Further, considering Appellant’s global challenge to the medical
records, the only evidence indicated that the medical records were created solely for
treatment purposes. They were therefore not testimonial, and their admission did
not violate Appellant’s right to confrontation. 12 Accordingly, the trial court did not
abuse its discretion by admitting Appellant’s medical records. W e overrule
Appellant’s sole issue.
III. Conclusion
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and W ALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 4, 2010
11
See Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1354, 1369
n.9 (2004).
12
See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2533 n.2 (2009);
Crawford, 541 U.S. at 42, 56, 124 S. Ct. at 1359, 1367.
11