In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-15-00433-CR
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CHRISTOPHER ELIAS SETH, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 4
Montgomery County, Texas
Trial Cause No. 14-301290
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MEMORANDUM OPINION
A jury convicted appellant, Christopher Elias Seth, of the misdemeanor
offense of Driving While Intoxicated (“DWI”). See Tex. Pen. Code Ann. § 49.04(a)
(West Supp. 2016). Seth appeals his conviction, and in his sole appellate issue, he
complains that the trial court improperly admitted a trial subpoena into evidence.
We affirm the trial court’s judgment.
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I. Background
This case arose out of an incident wherein police were called by the manager
of a fast food restaurant in Conroe, Texas, after she witnessed a man who appeared
to be intoxicated exit the driver’s side of a vehicle that was blocking the drive-thru
lane. The first responding officer arrived and made contact with Seth on the front
patio of the restaurant. Seth provided identification and informed the officer several
times that he was drunk. When the second officer arrived, Seth admitted to her that
he had driven there from The Woodlands. The officers administered field sobriety
tests, then placed Seth under arrest and brought him to jail. The officers obtained a
sample of Seth’s blood after a search warrant was granted by an on-call Judge.
The State originally charged Seth by information with misdemeanor driving
while intoxicated, alleging that “on or about October 12, 2014, in Montgomery
County, Texas, CHRISTOPHER ELIAS SETH . . .,while operating a motor vehicle
in a public place, was then and there intoxicated[.]” Before the case proceeded to
trial, the State amended the information to add that “at the time of analysis of a
sample of [Seth]’s breath or blood, [Seth] had an alcohol concentration of 0.15 or
more[.]” The addition of an allegation regarding the blood alcohol level has the legal
effect of enhancing the offense from a Class B misdemeanor to a Class A
misdemeanor. See Tex. Pen. Code Ann. § 49.04(b), (d). However, after a
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“scheduling issue” during the trial resulted in the inability of the State to secure the
testimony of its blood analyst, the State ultimately abandoned the enhancement
paragraph and the case proceeded solely on the Class B charge as originally filed.
The jury found Seth guilty of the charge, sentenced him to confinement in the
Montgomery County Jail for a period of 180 days, and assessed a fine of $2,000.
II. Admission of the Subpoena
After it became known to the State during the trial that their analyst would not
be available to testify before the case was ready to be concluded, the State offered
into evidence the subpoena it had issued to the analyst. The State explained to the
trial court that the purpose for its request was so that it would be able to discuss with
the jury in closing arguments why the evidence regarding Seth’s blood alcohol level
was not presented during the trial as the State’s opening statement had suggested it
would be. Seth objected to admission of the subpoena on the ground of relevance.
The trial court overruled the objection, acknowledging that it, too, had made
reference to the analyst in discussing scheduling with the jury, and admitted the
subpoena.
On appeal, Seth argues that the trial court erred in overruling his objection and
admitting the subpoena into evidence because it was not relevant. See Tex. R. Evid.
401 (“Evidence is relevant if: (a) it has a tendency to make a fact more or less
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probable than it would be without the evidence; and (b) the fact is of consequence
in determining the action.”). More specifically, Seth argues that there is no direct or
logical connection between the subpoena and the proposition that Seth was driving
while intoxicated. Assuming, without deciding, that the trial court erred in admitting
the challenged subpoena as evidence over Seth’s relevance objection, we conclude
that Seth did not show, nor even allege, actual harm resulting from the evidence.
A violation of evidentiary rules that results in the erroneous admission of
evidence is non-constitutional error that must be disregarded if it “does not affect
substantial rights[.]” Delane v. State, 369 S.W.3d 412, 423 (Tex. App.—Houston
[1st Dist.] 2012, pet. ref’d) (describing the required “harm analysis” as set out in
Texas Rule of Appellate Procedure 44.2(b)) (quoting Taylor v. State, 268 S.W.3d
571, 592 (Tex. Crim. App. 2008). Thus, an evidentiary error only constitutes
reversible error “when it has a substantial and injurious effect or influence in
determining the jury’s verdict.” Taylor, 268 S.W.3d at 592. The
erroneous admission of evidence is deemed harmless when other evidence that has
been properly admitted proves the same fact. Brooks v. State, 990 S.W.2d 278, 287
(Tex. Crim. App. 1999); see also Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim.
App. 1998) (“Our rule . . . is that overruling an objection to evidence will not result
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in reversal when other such evidence was received without objection, either before
or after the complained-of ruling.”)
In this case, Seth argues that “[t]he only logical conclusion that the jury could
draw from the subpoena was that the analyst was supposed to be there, and if he was,
the evidence would be bad for [Seth].” Logically, the only evidence the analyst could
provide that would be detrimental to Seth was the level of alcohol in Seth’s blood.
However, the precise level of alcohol in the blood ceased to be an issue when the
State abandoned the enhancement provision of a blood alcohol level of over 0.15, as
was made clear to the jury in closing arguments. Further, the record makes clear that
the issue Seth was arguing before the trial court was not whether he was intoxicated,
but whether or not the State had proven that he was driving a motor vehicle. There
was no dispute whatsoever as to whether or not Seth was intoxicated. In the body-
cam video of the first responding officer, which was admitted without objection and
viewed by the jury, Seth advised the officer no less than five separate times in the
first fifteen minutes of their encounter that he had had a lot to drink, and was drunk.
Moreover, Seth’s counsel conceded in his questioning of one of the officers that Seth
was undisputedly and highly intoxicated:
[SETH’S COUNSEL]: Okay. I think one of the -- something
we can all agree on is that the person that we see on that video is
intoxicated, right?
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[OFFICER]: Yes, sir.
[SETH’S COUNSEL]: In fact, would you agree with me that
person is highly intoxicated?
[OFFICER]: Yes, sir.
He then reminded the jury in his closing argument, that “you heard me concede it.
As far as the element, was he intoxicated while he was on that screen? Absolutely.”
Accordingly, even if the jury did draw any inference or conclusion about Seth’s
intoxication from the State’s subpoena of the blood analyst, it would merely have
been cumulative of evidence already admitted proving an undisputed fact.
Accordingly, Seth has failed to demonstrate, and we fail to find, any actual harm
from the admission of the subpoena. We therefore overrule Seth’s appellate issue
and affirm the trial court’s judgment.
AFFIRMED.
______________________________
CHARLES KREGER
Justice
Submitted on June 7, 2017
Opinion Delivered July 19, 2017
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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Christopher Elias Seth v. State
Combined Opinion