No. 2-04-437-CR
Delivered: May 19, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from County Criminal Court, No. 1 of Tarrant County.
Panel B: HOLMAN, GARDNER, and McCOY, JJ.
ANNE GARDNER, Justice.
I. Introduction Appellant John Anthony Young appeals from his conviction for driving while intoxicated. In three points, Young asserts that the evidence was legally and factually insufficient to support his conviction and that the trial court abused its discretion by admitting certain hospital records into evidence. We will affirm.
II. Background
Fort Worth Police Officer James Hill testified that he was dispatched to a traffic accident on the South Freeway in Fort Worth on August 24, 2003. When he arrived on the scene, Hill found an undamaged pickup truck parked on the shoulder of the freeway. Another officer, Detective Keyes, testified that the pickup was facing the "wrong direction," that is, facing oncoming traffic. Hill testified that based on what he saw at the scene, Young was the only person who could have been driving the pickup. Hill testified that Young told him that he had been driving the pickup and had lost control of the vehicle. Hill testified that he detected the odor of alcohol on Young's breath and person. He administered field sobriety tests to determine whether Young was intoxicated. Hill testified that Young presented six "clues" of intoxication during the horizontal gaze nystagmus test, attempted but could not complete the walk-and-turn test, and refused to attempt the one-leg-stand test. Hill concluded that Young was intoxicated and placed him under arrest. Detective Keyes drove Young to the jail. Keyes testified that Young smelled like alcohol, and his eyes were bloodshot. Keyes testified that upon arriving at the jail, Young began to complain of "diabetic shock or diabetic pain." Young was examined by emergency medical personnel, and then taken to the "Intoxilizer room" by Officer D.H. Towson. Towson testified after that he gave Young the appropriate statutory warnings, Young refused to give a blood sample. Towson smelled alcohol on Young's breath and person. Towson further testified that Young told him, "Sir, I had six to eight beers at my friend's house." Towson returned Young to the custody of Detective Keyes, who drove Young to the hospital. Over Young's objections, the trial court admitted into evidence Young's hospital records from the night in question. Several pages in the records list Young's medical history as "alcohol abuse, diabetic non-insulin dependent." The records also state that Young had an elevated blood sugar level. The jury returned a verdict of guilty. The trial court sentenced Young to 120 days in jail, probated for two years, and an $800 fine. III. Discussion
A. Young's extrajudicial statement In his first and second points, Young contends that the evidence is legally and factually insufficient to support his conviction because his extrajudicial statements that he consumed six to eight beers and drove a motor vehicle on the freeway were uncorroborated. We disagree. In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. "This standard acknowledges that evidence of guilt can `preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt." Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id. In performing a factual sufficiency review, we are to give deference to the fact finder's determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We may not substitute our judgment for that of the fact finder. Zuniga, 144 S.W.3d at 482. A proper factual sufficiency review requires an examination of all the evidence. Id. at 484, 486-87. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The corpus delicti of driving while intoxicated is (1) the driving of a motor vehicle (2) on a public highway (3) while intoxicated. Turner v. State, 877 S.W.2d 513, 515 (Tex.App.-Fort Worth 1994, no pet.). The State cannot rely solely on appellant's own extrajudicial confession to establish the corpus delicti of the offense; it must present some evidence to corroborate the confession. Id. However, proof of the corpus delicti does not have to be made independent of the extrajudicial admission. Id. To be sufficient, the corroborating evidence need only permit a rational finding of guilt beyond a reasonable doubt when considered in conjunction with the extrajudicial confession. Fruechte v. State, 166 Tex. Crim. 496, 316 S.W.2d 418, 419 (1958); Turner, 877 S.W.2d at 515. Here, Young made two extrajudicial statements: that he consumed six to eight beers, and that he drove a motor vehicle on the freeway and lost control. Young's extrajudicial admissions are corroborated by testimony that he was found on the freeway next to a vehicle facing the wrong direction, smelled of alcohol, and failed or refused various sobriety tests. This evidence, combined with Young's admission, is both legally and factually sufficient to convict Young of driving while intoxicated. We overrule Young's points one and two. B. Young's hospital records
In his third point, Young contends that the trial court abused its discretion by admitting into evidence medical records of Young's treatment at a hospital after his arrest on the evening in question. Specifically, Young points to the references in the medical records to "alcohol abuse" as part of his medical history. Young argues that the records (1) were not relevant, (2) were more prejudicial than probative and (3) represented inadmissible character conformity evidence. We agree that the records were irrelevant and should not have been admitted, but we conclude that the error was harmless. 1. Abuse of discretion
We review a trial court's ruling to admit or exclude evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). If the court's decision falls outside the "zone of reasonable disagreement," it has abused its discretion. Weatherred, 15 S.W.3d at 542; Montgomery, 810 S.W.2d at 391. Young first argues that the hospital records were not relevant evidence. "Relevant evidence" means evidence 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. Tex. R. Evid. 401. In this case, Young's hospital records had no tendency to make the existence of any fact of consequence more or less probable. The significant entry in the hospital records states that Young had a history of alcohol abuse and diabetes. The mere words "alcohol abuse" in a hospital record, without any explanation as to when such abuse might have occurred, do not make it more or less probable that Young was intoxicated on the evening in question. The State argues that the medical records are relevant, as the prosecutor said at the beginning of trial, "because the State anticipates Defense counsel is going to go with the old diabetic excuse in this case." While there was some testimony about diabetes at trial — Detective Keyes testified that Young complained of diabetic shock but did not have the "fruity" smell characteristic of diabetics — there was no evidence that the symptoms of diabetes can be confused for intoxication. Thus the evidence did not raise "the old diabetic excuse." We hold that the trial court abused its discretion by admitting the hospital records over Young's relevancy objection. 2. Harm analysis
Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. Tex.R.App.P. 44.2. Because we determine that the error is not constitutional, rule 44.2(b) is applicable. Tex.R.App.P. 44.2(b). Therefore, we are to disregard the error unless it affected appellant's substantial rights. Id. A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall v. State, 961 S.W.2d 639, 643 (Tex.App.-Fort Worth 1998, pet. ref'd). In making this determination, we review the record as a whole. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). As recounted above, Officer Hill testified that Young smelled of alcohol, failed or refused to attempt several field sobriety tests, and admitted to driving and losing control of a motor vehicle on the freeway. Detective Keyes testified that Young smelled of alcohol and had bloodshot eyes. Officer Towson testified that Young smelled of alcohol, refused to submit a blood sample, and admitted to drinking six to eight beers. Even without the hospital records, the evidence was legally and factually sufficient to convict Young of driving while intoxicated. We conclude that, in the context of the entire case against Young, the trial court's error in admitting Young's hospital records did not have a substantial or injurious effect on the jury's verdict and did not affect Young's substantial rights. See King, 953 S.W.2d at 271. Thus, we disregard the error. See Tex.R.App.P. 44.2(b). We overrule Young's third point. IV. Conclusion
Having overruled all three of Young's points, we affirm the judgment of the trial court. See Tex.R.App.P. 43.2(a).