Opinion
No. 05-04-01476-CR
Opinion Filed June 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-83701-03. Affirmed.
Before Justices O'NEILL, RICHTER, and FRANCIS.
OPINION
A jury convicted Kevin Douglas Perry of driving while intoxicated, and the trial court assessed punishment at ninety days in jail, probated for eighteen months, and a $500 fine. In three issues, appellant complains about the legal and factual sufficiency of the evidence to convict him, admission of blood test results, and charge error. We affirm. Officer Jeff McNair of the Allen Police Department was dispatched to a single-vehicle accident in the 1100 block of Thoreau Lane. On arrival about six minutes later, McNair saw a white Ford F-150 pickup and attached trailer parked in the yard between two houses. A large tree was jammed underneath the trailer. Appellant was standing outside the driver's door. McNair asked if he was okay, and appellant said he was. McNair noticed fluid and smoke coming from the truck and trailer and called for the Allen Fire Department. McNair asked appellant what was in the trailer, and appellant told him paint thinner. Appellant opened the door to the trailer, and McNair found items consistent with appellant's statement. McNair noticed that appellant smelled of alcohol, had bloodshot eyes, and was unsteady on his feet. (McNair acknowledged in his report that the last factor could be attributed to the wreck.) McNair found several empty Budweiser beer bottles "cold to the touch" inside the cab of the pickup. He also found full beer bottles. McNair testified appellant said he had had one beer. When paramedics arrived, they checked appellant and found him to be alert. Just as McNair informed paramedics that he was going to perform field sobriety tests on appellant, appellant collapsed. McNair testified the collapse "seemed too coincidental," explaining that he believed appellant was trying to avoid the field sobriety tests and jail. Paramedics testified that enroute to the hospital, appellant's alertness returned. At the hospital, McNair asked appellant to provide a blood sample, and appellant refused. However, hospital workers apparently drew blood during treatment because appellant's medical records, admitted over objection, showed that appellant had alcohol and THC in his bloodstream. (Specifically, the report shows an alcohol reading of 54.5 and a "positive" reading for THC.) The State did not call any witnesses to explain the results. In his first issue, appellant complains the evidence is legally and factual insufficient to prove that he was "operating" the vehicle. He argues there was no evidence from either him or an eyewitness that he was the driver of the crashed vehicle. Under these circumstances, he argues, the necessary element of "operating" a motor vehicle was not established. The standards of reviewing the legal and factual sufficiency of the evidence are well-established. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004) (factual sufficiency). "Operating" is exerting personal effort upon the vehicle in a manner that shows intentional use of the vehicle for its intended purpose. Barton v. State, 882 S.W.2d 456, 459 (Tex.App.-Dallas 1994, no pet.). Where the driver admits to driving, only some other corroboration is needed. Turner v. State, 877 S.W.2d 513, 515 (Tex.App.-Fort Worth 1994, no pet.). Contrary to appellant's argument, the record contains evidence that appellant told hospital personnel that he was driving the vehicle. Specifically, the Emergency Physician Record, which was contained in the treatment portion of appellant's hospital medical records, reflects that appellant was the "driver" in a motor vehicle accident. Additionally, the record contains a handwritten notation that appellant felt like he was going to have a seizure and then hit a tree at 30 mph. The "historian" of this information is listed as appellant. In other words, appellant provided this information to the emergency room personnel. In addition to this evidence, police arrived within minutes of the accident and found appellant standing outside the pickup truck. He knew what was inside the trailer and also directed officers to his insurance information in the glove compartment. Reviewing the evidence under the appropriate standard, we conclude it is legally and factually sufficient to prove beyond a reasonable doubt that appellant was operating the vehicle. We resolve the first issue against appellant. In his second issue, appellant contends the trial court abused its discretion in admitting appellant's medical records that contained blood test results. He argues the State failed to establish the chain of custody, which he contends is a necessary prerequisite to the admission of the blood test results. Assuming without deciding that (1) appellant's objection at trial was specific enough to apprise the trial court of the complaint he now makes on appeal and (2) the evidence was inadmissible, we cannot conclude its admission was harmful error. Error that does not affect substantial rights must be disregarded. Tex.R.App.P. 44.2(b). Error affects a substantial right when it has a substantial and injurious effect or influence in determining the jury's verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App. 2001). In assessing the likelihood that the jury's decision was adversely affected by the error, we consider everything in the record, including the testimony or any physical evidence admitted for the jury's consideration; the nature of the evidence suppporting the verdict; and the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). Because appellant's complaint is directed at the admission of the blood test results, that is the focus of our analysis. The blood test results in appellant's medical records showed that alcohol and THC were in appellant's bloodstream. The record showed the alcohol content at 54.5 mg/dl; it showed "positive" for THC on the drug screen. No witness explained what the "54.5 mg/dl" meant nor did any witness explain what THC is. Consequently, we question how appellant could be harmed by this information. The jury could have inferred that appellant's blood-alcohol content was below the legal limit of intoxication, particularly in light of the fact that the prosecutor and defense counsel both argued in closing that "54.5 milligrams per deciliter" converted to .05 and was below the legal limit of .08. Moreover, the evidence at trial was sufficient to prove that appellant did not have the normal use of his mental or physical faculties due to the introduction of alcohol into his body, even without the blood test results. According to McNair, appellant smelled of alcohol, had bloodshot eyes, and was unsteady. McNair found several empty Budweiser bottles, still cold too the touch, in the cab of the truck, and the jury could have concluded appellant had recently drank the beers. In conjunction with this evidence, the testimony showed that appellant uprooted a tree and dragged it more than a block, knocked over two mailboxes, and knocked down a sign before coming to rest in the yard between two houses. Officer McNair testified he believed appellant was too impaired to drive a motor vehicle. Officer William Robertson, an advanced accident investigator with the Allen Police Department, testified that he observed the accident scene and thought the driver might be intoxicated because of "where the accident occurred at and the distance it took to actually get the vehicle stopped." Given the lack of evidence to explain the blood tests and the clarity of evidence to support a finding that appellant was too impaired to drive, we conclude appellant was not harmed by the blood test results. We resolve the second issue against appellant. In his third issue, appellant contends the trial court improperly commented on the weight of the evidence in the charge by including the statement, "Marijuana is a controlled substance." Appellant objected to the instruction at trial, arguing there was no evidence presented that marijuana played a role in the case. On appeal, he argues the instruction was improper because there was no evidence presented that marijuana is a controlled substance. He argues the issue is a "subject of reasonable dispute." We disagree. A charge that assumes the truth of a controverted issue is a comment on the weight of the evidence and is erroneous. Whaley v. State, 717 S.W.2d 26, 32 (Tex.Crim.App. 1986). "Controlled substance means a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4." Tex. Health Safety Code Ann. § 481.002(5) (Vernon Supp. 2004-05). Marijuana is a Schedule I hallucingenic substance. 29 Tex. Reg. 12055 (Dec. 31, 2004). Therefore, marijuana is a controlled substance, and the instruction is a correct statement of the law. Moreover, whether marijuana is a controlled substance was not a controverted issue. Appellant's defense at trial was that he had a seizure that led to the accident. Under these circumstances, we conclude the trial court did not err in giving the instruction for the reason complained of by appellant. To the extent appellant complains there was no evidence of marijuana at trial, we agree. There was, however, evidence that appellant had THC, the active ingredient in marijuana, in his bloodstream. Thus, the instruction appears to be relevant to the case. The problem is the State failed to establish the link between THC and marijuana for the jury. Even if we assumed this failure of proof precluded the trial court from including the instruction in the charge, we would not conclude the error was reversible. Because appellant objected below, reversal is required only if the error was "calculated to injure the rights of defendant," which means there must be some harm to appellant from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). In determining whether some harm occurred, we examine the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Id. Here, the charge allowed the jury to convict appellant if it found he did not have the normal use of his mental or physical faculties either by reason of alcohol, a controlled substance, or a combination of the two. The contested issue at trial was not the particular substance that caused appellant's intoxication; the issue was whether appellant was intoxicated at all or whether he had suffered a seizure. If the jury believed that appellant's actions were the result of a seizure, it would have found him not guilty. By finding him guilty, the jury necessarily believed he was intoxicated, and there is ample evidence to support intoxication by alcohol. As stated previously, McNair testified to appellant's condition at the scene, (i.e. smelled of alcohol, had bloodshot eyes, and was unsteady), finding several cold, empty beer bottles in the cab of the truck, and the damage done over a two-block area by appellant. Under these circumstances, we cannot conclude the trial court's one-sentence instruction harmed appellant. We resolve the third issue against him. We affirm the trial court's judgment.