Opinion
No. 10-16-00337-CR
09-06-2017
RICHARD ANGEL GARCIA, Appellant v. THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas
Trial Court No. 2014-140-C1
MEMORANDUM OPINION
In two issues, appellant, Richard Angel Garcia, challenges his conviction for intoxication manslaughter. See TEX. PENAL CODE ANN. § 49.08 (West 2011). Specifically, Garcia contends that the trial court erred in: (1) excluding the expert testimony of a medical doctor with a specialty in toxicology; and (2) admitting evidence in violation of the Texas exclusionary statute. Because we overrule both of Garcia's issues, we affirm.
I. EXPERT TESTIMONY
In his first issue, Garcia complains that the trial court erred in excluding the expert testimony of his witness, Dr. Ryan Morrissey, who is a doctor with a specialty in toxicology. We disagree.
A. Applicable Law
We review a trial court's decision to admit or exclude expert testimony using an abuse-of-discretion standard. See Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
The Texas Rules of Evidence set out three separate conditions regarding the admissibility of expert testimony. First, Rule 104(a) requires a trial judge to determine "[p]reliminary questions concerning the qualification of a person to be a witness." TEX. R. EVID. 104(a). Next, Rule 702 states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness is qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Id. at R. 702. And finally, Rule 402 renders relevant evidence admissible. Id. at R 402. Rule 401 defines "relevant evidence" as "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. at R. 401.
These rules require a trial judge to make three separate inquiries, all of which must be met before admitting expert testimony: "(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case." Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006). These inquiries are commonly referred to as qualification, reliability, and relevance, respectively. See Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006).
B. Discussion
At trial, the focus of the State's challenge to Dr. Morrissey's testimony was the reliability element. Reliability focuses on the subject matter of the witness's testimony; the proponent of the expert testimony must demonstrate by clear and convincing evidence that the expert testimony is reliable. Russeau v. State, 171 S.W.3d 871. 881 (Tex. Crim. App. 2005). To be considered sufficiently reliable, scientific evidence must meet the following criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Vela, 209 S.W.3d at 134; see also Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). Factors that could affect the trial court's determination of reliability include, but are not limited to: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) a potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Kelly, 824 S.W.2d at 573; see Jessop v. State, 368 S.W.3d 653, 671 (Tex. App.—Austin 2012, no pet.).
At a hearing conducted outside the presence of the jury, Dr. Morrissey testified that it is "very difficult" to determine whether a person was intoxicated from examining drug-test results alone, and one could get "more of a handle on whether someone is intoxicated" by "being at the bedside myself or reading a medical record." Despite this admission, Dr. Morrissey offered the opinion that Garcia was not intoxicated at the time of the crash. Furthermore, it was apparent that Dr. Morrissey's testimony was based solely on his evaluation of and disagreement with treating physician Dr. Randy Hartman's observations, as recorded in the medical records. Dr. Morrissey admitted that he had not talked with any doctors about their personal observations of Garcia, nor had he observed the testimony of Dr. Hartman at trial. Additionally, Dr. Morrissey did not speak with any of the officers who were present at the scene of the accident. Furthermore, Dr. Morrissey acknowledged that he did not watch the interview of Garcia recorded an hour and a half after the crash, nor did he meet with Garcia to establish baseline levels of physical and mental abilities. In addition, Dr. Morrissey agreed that, depending on the training, an officer's observation of a subject would be more relevant to determining intoxication than "simply looking at a medical report." See TEX. R. EVID. 701 (providing that a lay witness may testify to opinions or inferences that are "(a) rationally based on the witness's perception; and (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue").
The record establishes that the entire basis of Dr. Morrissey's testimony was the medical record. And in light of this, the State objected to Dr. Morrissey's testimony, arguing that intoxication was presented,
through a totality of witnesses, including the people that were closest to this defendant at the scene. The medical records serve to support those findings, but him offering this opinion that the medical records don't say this defendant was intoxicated would only serve to confuse the jury and do not go to an ultimate issue in this case.
With regard to the validity and application of his scientific theory, Dr. Morrissey testified that he had done ten hours of research to "put a frame of reference" on "interpreting the number on the blood test." Dr. Morrissey failed to state the type of opinion he intended to give. Furthermore, he admitted that his methodologies had not been peer-reviewed and that this type of testimony had not been allowed in other cases.
Later in his testimony, Dr. Morrissey stated that "any number of reasons" could account for Garcia's high blood pressure and discounted Garcia's elevated heart rate. And when asked if he would "be guessing" as to which of these reasons would account for Garcia's high blood pressure, Dr. Morrissey responded that the State would also "be guessing to say it's just amphetamines." Dr. Morrissey was also asked about his opinion that Garcia showed no signs of methamphetamine use. Specifically, Dr. Morrissey noted that "[h]e has one or two out of 20, and then those numbers quickly change." In response to this answer, the trial court asked whether Garcia had methamphetamine in his system, and Dr. Morrissey admitted: "He has it in the urine."
Ultimately, the trial court excluded Dr. Morrissey's testimony, noting the following:
[T]aking into consideration all of this testimony of the doctor and everything I've heard about this, I just don't think he has a sufficient factual basis for making—arriving at the conclusions and giving the opinion that he has expressed. I also have a lot of questions about the reliability of the underlying theory and the facts that he's relying on. This witness testified he has never testified before in court about this issue, there is no reliable testing of this theory, it's not any demonstration that has been relied upon or peer reviewed or anything else. I just don't see how it comes in. . . . [A]ll he is testifying to is an opinion based on the absence of something in the medical record. He has never examined this defendant. He knows nothing about his tolerance levels to drugs. . . . I just don't see how it comes in. I think it's going to confuse the jury. The factual basis for it is so incomplete. . . . He hasn't interviewed this defendant, he wasn't there at the scene, he didn't observe, he didn't have all of the factual data that I've talked about is 7 lacking. He doesn't have the sufficient factual basis to state the opinion that he's giving. It's going to mislead the jury, and then the reliability
We agree with the trial court's reasoning set forth above for excluding Dr. Morrissey's testimony. Accordingly, we cannot say that the trial court abused its discretion in excluding Dr. Morrissey's testimony under Texas Rules of Evidence 702 and 705(c). See TEX. R. EVID. 702, 705(c) (providing that an expert's opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion); see also Vela, 209 S.W.3d at 134 ("Without more than credentials and a subjective opinion, an expert's testimony that 'it is so' is not admissible." (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987))); Russeau, 171 S.W.3d at 881; Kelly, 824 S.W.2d at 573; Jessop, 368 S.W.3d at 671. We overrule Garcia's first issue.
II. THE TEXAS EXCLUSIONARY RULE
In his second issue, Garcia asserts that the trial court erred in failing to suppress urinalysis toxicology results because the urine sample was taken by force through catheterization and purportedly constituted sexual assault. As such, Garcia contends that article 38.23 of the Code of Criminal Procedure mandated the exclusion of this evidence. See TEX. CODE CRIM. PROC. ANN. Art. 38.23(a) (West 2005).
A. Standard of Review
We review the trial court's ruling on a motion to suppress evidence for an abuse of discretion, using a bifurcated standard. See Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give "almost total deference" to the trial court's findings of historical fact that are supported by the record and to mixed questions of law and fact that turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89; see State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006) (noting that, if the trial court makes findings of fact, we determine whether the evidence supports those findings; we then review the trial court's legal rulings de novo, unless the findings are dispositive). We review de novo the trial court's determination of the law and its application of law to facts that do not turn upon an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We will uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Dixon, 206 S.w.3d 587, 590 (Tex. Crim. App. 2006).
When ruling on a motion to suppress, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). When reviewing a trial court's ruling on a motion to suppress, we view all the evidence in the light most favorable to the ruling. Garcia-Cantu v. State, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
B. Applicable Law
In his motion to suppress and on appeal, Garcia contends that the urinalysis test results should have been excluded under the Texas Exclusionary Rule, which provides the following, in relevant part:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.TEX. CODE CRIM. PROC. ANN. art. 38.23(a). Garcia argues that the insertion of a catheter without his permission constitutes sexual assault, and thus, any evidence associated with the actions should have been suppressed.
C. Discussion
The record reflects that the trial court made the following findings of fact:
1. On March 5, 2013, Melissa Fields died as a result of colliding with a vehicle driven by the Defendant;
2. Because the Defendant was also injured, he was transported to Baylor Scott and White Hospital, Hillcrest Campus in Waco[,] Texas;
. . .
5. The Defendant[']s medical records showed he was not cooperative with hospital personnel in the emergency room;
6. The Defendant[']s injuries and lack of cooperation prompted medical personnel to take, without his consent, a sample of the Defendant[']s urine for purpose of medical diagnosis and treatment;
7. The medical records affirmatively stated the sample was taken for medical purposes only;
8. The test showed the Defendant had methamphetamine and marijuana in his system shortly after the car wreck;
. . .
11. The Defendant asserts the urine sample results are not admissible because how the sample was obtained constituted an impermissible search;And based on these fact findings, the trial court concluded:
12. The Defendant testified at the suppression hearing and denied he had used any controlled substance or marijuana prior to the collision. He also denied the reports he was uncooperative;
13. The Court had the opportunity to observe the Defendant[']s demeanor and hear his testimony;
14. The Court finds the Defendant is not credible or worthy of belief.
1. The urine sample taken without the Defendant[']s consent by medical personnel was not a search by the State;
2. Hospital personnel were not acting as agents of the State in taking the urine sample;
3. At the time[,] the police had already obtained a sample of the Defendant[']s blood pursuant to a then still valid procedure, and thus had no need or reason to secure a urine sample;
4. The Defendant[']s urine sample was taken for purposes of medical treatment and diagnosis;
5. The taking of the urine sample did not constitute the criminal offense of Sexual Assault as alleged by the Defendant.
Among the evidence adduced at the suppression hearing was Garcia's medical records from the incident. Those medical records indicated that: (1) methamphetamine was found in Garcia's car; and (2) Garcia refused to answer questions and was uncooperative with treating physicians at the hospital on the evening in question. Moreover, the treating physician, Dr. Randy Hartman, ordered a battery of tests as part of his assessment and treatment of Garcia. Included in the tests was obtaining a urine sample through catheterization. The trial court could properly infer that catheterization was necessary due to Garcia's lack of cooperation with treating physicians. See Pennywell v. State, 127 S.W.3d 149, 152 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (noting that we may infer all findings necessary to support the trial court's ruling on a motion to suppress (citing State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000))). Furthermore, the nursing exam indicated that Garcia was suffering from tachycardia, which is characterized as the heart beating faster than normal and is a symptom of methamphetamine abuse. And finally, Dr. Hartman noted that he believed Garcia abused multiple controlled substances and ordered Garcia to "Stop taking drugs!"
Viewing the evidence in the light most favorable to the trial court's ruling, we conclude that the trial court's fact findings are supported by evidence offered at the suppression hearing. See Kelly, 204 S.W.3d at 818. Given those fact findings, we cannot say that the trial court's conclusions of law are erroneous. See id. And to the extent that Garcia's testimony at the suppression hearing conflicted with the State's evidence, we resolve any such conflicts in favor of the denial of the motion to suppress. See Wiede, 214 S.W.3d at 24-25; Vargas v. State, 18 S.W.3d 247, 251 (Tex. App.—Waco 2000, pet. ref'd) ("Because the trial court denied Vargas' motion to suppress, we will resolve any conflicts in the evidence in favor of the denial of the motion." (citing Hunter v. State, 955 S.W.2d 102, 105 n.4 (Tex. Crim. App. 1997))); see also Heiden v. State, Nos. 05-94-00579-CR & 05- 94-01076-CR, 1995 Tex. App. LEXIS 3391, at *14 (Tex. App.—Dallas Aug. 18, 1995, no pet.) (mem. op., not designated for publication) ("As we noted above, the trial court is the sole judge of the witnesses' credibility and the weight given their testimony and may accept or reject any or all of the witnesses' testimony. Thus, the fact that evidence conflicts does not show that the trial court abused its discretion in overruling appellant's motion to suppress."). Accordingly, we conclude that the trial court did not abuse its discretion in denying Garcia's motion to suppress. See Crain, 315 S.W.3d at 48; Guzman, 955 S.W.2d at 88-89. We overrule Garcia's second issue.
III. CONCLUSION
Having overruled both of Garcia's issues on appeal, we affirm.
AL SCOGGINS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed
Opinion delivered and filed September 6, 2017
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