No. 05-09-00383-CR
Opinion Filed March 18, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-86527-07.
Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.
Opinion By Justice FILLMORE.
A jury convicted Manuel Gates Maldonado of misdemeanor driving while intoxicated (DWI). The trial court sentenced Maldonado to 120 days' confinement, suspended the confinement and placed Maldonado on community supervision for one year, and assessed a fine of $1000. In two points of error, Maldonado argues the trial court erred by denying his pretrial motion to suppress. We affirm the trial court's judgment.
Background
Because Maldonado has not challenged the sufficiency of the evidence to support the conviction, we discuss only the facts necessary to address Maldanodo's complaints on appeal.
After Maldonado was charged with DWI, an investigator with the Collin County District Attorney's Office sent an electronic request to the court clerk for a subpoena duces tecum to obtain records pertaining to dental treatment that Maldonado received on the date of his arrest. Maldonado's dentist responded to the subpoena duces tecum and filed the requested records with the clerk. Maldonado filed a pretrial motion to suppress the records arguing the State failed to comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). See Pub.L. No. 104-191, 110 Stat. 1936 (1996) (codified as amended at 42 U.S.C.A. §§ 1320d- 1320d-8 (2003 Supp. 2010)). Specifically, Maldonado argued the procedure used by the State to subpoena the records of his dental treatment failed to comply with the privacy rules promulgated by the United States Department of Health and Human Services pursuant to HIPPA. See 45 C.F.R. pts. 160 164 (2010). Maldonado contended article 38.23 of the code of criminal procedure therefore precluded the State from using the records at trial. Three days before trial, the trial court heard and orally granted Maldonado's motion to suppress the dental records, but indicated a qualified witness would likely be allowed to testify about Maldonado's treatment. However, immediately before trial began, the trial court stated it reviewed the applicable law in preparing an order on the motion to suppress and determined Maldonado did not have a right to privacy in the records. The trial court stated, "I'm going to sign an order denying the motion." The record contains a written order, dated the first day of trial, denying Maldonado's motion to suppress. The State called Laura Garay, a registered dental assistant employed by Maldonado's dentist. Without objection, Garay testified that, on the day he was arrested, Maldonado had three wisdom teeth extracted. He received twenty milligrams of diazepam, also known as Valium, and one-half of a milligram of Halcion. The State then offered Maldonado's dental records into evidence. Maldonado's counsel stated, "That's fine." The trial court asked, "Any objection?" Maldonado's counsel responded, "No objection, judge." Garay then testified that diazepam is a muscle relaxant and can cause drowsiness and dizziness. Halcion can also cause drowsiness and dizziness. Garay stated the dangers of driving under the influence of diazepam and Halcion included the driver having vertigo, disoriented vision, and "just not [being] sure what [he is] doing." According to Garay, both Maldonado and his wife were instructed that Maldonado could not drive a car after taking the medications and was required to have someone available to drive him home. Garay testified Maldonado signed an informed consent indicating he understood these instructions. The informed consent was contained in Maldonado's dental records. After the State rested its case-in-chief, Maldonado's counsel urged "the Motion to Suppress that was previously filed with this court. I believe it's been running with the trial. We would ask that the court at this time, after hearing their evidence, grant the Motion to Suppress." The trial court stated "Well, I already denied it but if it [sic] was anything left over, if you want to reurge it, leave is granted, but I deny it now still." The jury convicted Maldonado of DWI. Motion to Suppress
In two points of error, Maldonado argues the trial court erred by denying his motion to suppress the dental records because the procedure used by the State to issue the subpoena for the records violated HIPAA and article 24.03 of the code of criminal procedure. We must first determine whether Maldonado preserved this issue for appellate review. When the State offered the dental records into evidence at trial, Maldonado affirmatively stated that he had no objection. When a motion to suppress evidence is denied, the defendant does not need to object at trial to the same evidence in order to preserve error on appeal. Garza v. State, 126 S.W.3d 79, 84 (Tex. Crim. App. 2004); Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986). However, when a defendant affirmatively states during trial that he has "no objection" to the admission of the complained-of evidence, he waives any error in the admission of the evidence despite the pretrial ruling. Estrada v. State, 313 S.W.3d 274, 302 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 905 (2011); Swain v. State, 181 S.W.3d 359, 368 (Tex. Crim. App. 2005); Jones v. State, 833 S.W.2d 118, 126 (Tex. Crim. App. 1992); Moraguez, 701 S.W.2d at 904. Relying on Shedden v. State, 268 S.W.3d 717 (Tex. App.-Corpus Christi 2008, pet. ref'd) and Bouyer v. State, 264 S.W.3d 265 (Tex. App.-San Antonio 2008, no pet.) (mem. op.), Maldonado asserts he did not waive any error in the admission of the dental records by affirmatively stating "no objection" because the trial court did not construe his statement to be a waiver of the motion to suppress. Maldonado argues the hearing on the motion to suppress and comments made by the trial court during that hearing "show that the trial court fully understood that this issue was being preserved for appeal." See Shedden, 268 S.W.3d at 730 (defendant's affirmative statement of "no objection" did not waive error where motion to suppress was denied, defendant's counsel clarified after apparent waiver that he did not intend to waive ruling on motion to suppress, and trial court "expressly represented to [the defendant's] counsel that it considered the suppression issue preserved for appeal"); Bouyer, 264 S.W.3d at 268-69 (defendant's statement of "no objection" did not waive error in ruling on motion to suppress because trial court indicated it would hear evidence before ruling on motion, conducted suppression hearing after purported waiver and over State's objection defendant had waived error, and "clearly did not construe [the defendant's] `no objection' as a waiver of his motion to suppress"). We cannot conclude that statements made by the trial court at the pretrial hearing support the contention the trial court understood Maldonado's statement of "no objection" at trial was not intended as a waiver of the pretrial motion to suppress. Further, the trial court ruled on Maldonado's motion to suppress prior to trial and did not carry the motion with the trial. The trial court gave no indication during the trial that it considered the suppression issue preserved for appeal in spite of Maldonado's assertion of "no objection" to the dental records. We conclude Maldonado waived any error by the trial court in denying the motion to suppress. Further, even if Maldonado's statement of "no objection" did not waive any error in the trial court's ruling on the motion to suppress and we assume, without deciding, that the trial court erred by denying the motion to suppress, Maldonado was not harmed by the admission of the dental records. It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); see also Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) ("An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.") (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)). Garay testified, without objection, about the drugs Maldonado received at the dental office, the potential effects of those drugs on Maldonado, and that both Maldonado and his wife were instructed that Maldonado should not drive a motor vehicle. Because the dental records were cumulative of Garay's testimony, Maldonado was not harmed by the admission of the records. We overrule Maldonado's two points of error and affirm the trial court's judgment.