Opinion
NO. 09-11-00635-CR
09-12-2012
BRIAN KEITH LORENZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 11-04-03817 CR
MEMORANDUM OPINION
A jury convicted Brian Keith Lorenz of driving while intoxicated as a habitual felony offender and the trial court sentenced Lorenz to forty years in prison. In one appellate issue, Lorenz challenges the admission of his medical records, which he contends contained inadmissible extraneous-offense evidence, into evidence at trial. We affirm the trial court's judgment.
Evidence of other crimes, wrongs or acts may be admissible for purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. We review a trial court's admission of extraneous-offense evidence under an abuse of discretion standard. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1998). "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]" Tex. R. Evid. 103(a); see Tex. R. App. P. 44.2(b). We will not overturn a conviction if, after an examination of the record as a whole, we have fair assurance that the error did not influence the jury or had but slight effect. Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008).
During trial, the defense questioned the arresting officer about how Lorenz's alleged knee and back problems might affect his performance on field sobriety tests. The State subsequently sought to admit Lorenz's medical records into evidence. Lorenz objected and argued that the records constituted mere character conformity evidence, were irrelevant, and violated Rules of Evidence 403 and 404(b). The State responded that the records were admissible for purposes of motive and absence of mistake. The State further argued that the defense opened the door to admission of the records by raising the issue of other "medical possibilities." According to the State, the defense left the jury with a misleading impression and the records were needed to show the jury which medical ailments affected Lorenz at the time of the offense. The trial court overruled Lorenz's objections and admitted the records into evidence. The records include references to Lorenz's overdose episode, mental diagnoses, frequency of prescription refills and usage, prescription drug abuse, and prior incarceration.
Assuming, without deciding, that the trial court abused its discretion by admitting Lorenz's medical records into evidence, we cannot say that Lorenz's substantial rights were affected. See Tex. R. Evid. 103(a); see also Tex. R. App. P. 44.2(b). During closing arguments, the State discussed the medical records, but explained that intoxication was the only issue and that the State had the burden to establish that Lorenz was intoxicated on prescription medication at the time of the offense. The trial court instructed the jury that extraneous-offense evidence could only be considered if the jury found, beyond a reasonable doubt, that Lorenz committed the extraneous act and that such evidence could only be considered when determining motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The trial court further instructed that evidence of extraneous acts could not be considered as evidence of guilt. We presume the jury followed the trial court's instructions. See Renteria v. State, 206 S.W.3d 689, 707 (Tex. Crim. App. 2006), cert. denied, 132 S.Ct. 1743, 182 L.Ed.2d 535, 80 USLW 3526 (2012).
Moreover, the jury heard evidence that Lorenz approached a fast-food drive-through window, slurred his speech, repeatedly asked for shrimp when the restaurant sold only chicken, appeared messy, had a bottle of alcohol in his vehicle, and after receiving food, pulled up just past the drive-through window, began eating, and drank from the bottle in his vehicle. An officer responded to the scene and discovered Lorenz passed out in his vehicle with an open bottle of Bacardi between his legs, and Lorenz was covered with food. The officer smelled an odor of alcohol, noticed Lorenz's glassy and bloodshot eyes, and testified that Lorenz was inconsistent, slurred his speech, was "uneasy on his feet[,]" and admitted having consumed alcohol and prescription medications. The jury also heard evidence that Lorenz's field sobriety test results suggested intoxication and the arresting officer believed Lorenz to be intoxicated. A search of Lorenz's vehicle led to discovery of drug paraphernalia, alprazolam, i.e., Xanax, and marihuana. Additionally, the jury viewed a video recording of the events preceding Lorenz's arrest. No alcohol was found in Lorenz's blood, but he tested positive for marihuana and various prescription drugs. A high therapeutic level of alprazolam was found in Lorenz's blood, and the State's expert testified that alprazolam can affect a person's driving by causing drowsiness, dizziness, involuntary jerking of the eyes, difficulty with voluntary muscle movement, and can interfere with driving skills. The State's expert testified that the type of circumstance in which Lorenz was found is consistent with that of a person under the influence of a central nervous system depressant, such as alprazolam. The record contains sufficient evidence from which the jury could find Lorenz guilty, beyond a reasonable doubt, of driving while intoxicated. See Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999) (Given all of the evidence before the jury, it was unlikely that the admission of extraneous-offense evidence had a substantial effect on the jury's verdict.).
After examining the record as a whole, we have fair assurance that the error, if any, did not influence the jury, or had but slight effect. See Taylor, 268 S.W.3d at 592. We overrule Lorenz's sole issue and affirm the trial court's judgment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ.