Zachary Bernard Smith v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-125-CR
ZACHARY BERNARD SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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The trial court convicted Appellant Zachary Bernard Smith of felony
driving while intoxicated (DWI), finding the two jurisdictional prior DWI
convictions alleged in the indictment true. The trial court also granted
Appellant’s motion to quash the repeat offender notice alleging a prior
aggravated robbery conviction out of Nueces County. The trial court, therefore,
1
… See T EX. R. A PP. P. 47.4.
did not find the enhancement allegation true. The trial court sentenced
Appellant to five years’ confinement in the Institutional Division of the Texas
Department of Criminal Justice.
In his sole point, Appellant challenges the factual sufficiency of the
evidence to support the guilty verdict. The State brings a crosspoint
challenging the trial court’s order to seal Appellant’s medical records. Because
we hold that the evidence is factually sufficient to support the judgment and
that the trial court had the authority to seal Appellant’s medical records, we
overrule Appellant’s sole point and the State’s crosspoint and affirm the trial
court’s judgment as modified.
C LERICAL E RROR IN J UDGMENT
Initially, upon our review of the record, we discovered that the trial court
granted Appellant’s motion to quash the sole “repeat offender notice” regarding
Appellant’s prior conviction for aggravated robbery. Because the enhancement
count was quashed, we modify the trial court’s judgment to delete the finding
of “ONE PRIOR FELONY CONVICTION” on the line for “Findings on
Enhancement/Habitual Paragraphs(s),” and we insert the word “NONE” in place
of the deleted language. 2 The jurisdictional allegations, however, were proved,
2
… See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992)
(holding that appellate court has authority to make the record speak the truth);
2
and the trial court’s judgment correctly reflects the finding that the State
proved beyond a reasonable doubt the jurisdictional prior DWI convictions.
F ACTUAL S UFFICIENCY
The indictment provided in relevant part that Appellant “was intoxicated
by not having the normal use of his mental or physical faculties by reason of
the introduction of alcohol, a controlled substance, a drug, a dangerous drug,
or a combination of two or more of these substances into his body.” In his sole
point, Appellant contends that the evidence is factually insufficient to support
his conviction because there was no evidence that he had any drugs in his body
when he was stopped, or, alternatively, no evidence of the quantity of drugs
in his body at the time of the stop; no evidence that the amount in his body
would have resulted in intoxication; and no evidence of the effect such drugs
would have had on the human body or on Appellant’s in particular. The
following evidence was admitted at trial.
Around 3 a.m. on August 28, 2005, Arlington, Texas resident LaDonna
Zepeda saw a compact, beige-colored vehicle hit a telephone pole at the side
of her house. She then called 911. As she was on the telephone with the 911
Bray v. State, 179 S.W.3d 725, 729 (Tex. App.—Fort Worth 2005, no pet.)
(modifying judgment to delete parole condition on court’s own motion).
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operator, she saw the car back up, drive across her lawn, strike her car, and
drive away.
A short time later, Arlington police officer Kevin Brown stopped
Appellant’s car about three miles away from Zepeda’s house after observing
him twice swerve into the oncoming traffic lane. Appellant’s vehicle had
moderate damage to the front left and appeared to have a flat tire.
Officer Brown noted that Appellant’s eyes were “extremely glassy” and
that his movements were “slow and lethargic.” Appellant told Officer Brown
that he was on “pain pills” or, variously, “painkillers.” Officer Brown did not
smell alcohol on Appellant. Officer Brown conducted a field sobriety test, on
which Appellant performed poorly. Appellant was then arrested. Appellant had
offered to take a breath test and to give a urine sample, but he ultimately
refused to give a blood sample. At trial, the State introduced the in-car video
of the stop as well as the in-station video. Appellant introduced medical
records showing that he had been prescribed hydrocodone for an infected
insect bite.
Appellant stated on the in-station video that he “was on” Vicodin and
Lortab and perhaps should not have been driving and told the officers that he
could get the prescriptions and show them what “these things” do to him. He
denied that he had been drinking and blamed his driving on the drugs and his
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tiredness. He seemed to be under the impression that he had not committed
an offense because he had prescriptions for the drugs. The trial court
recognized the Controlled Substances Act, which lists hydrocodone as a
Schedule II drug,3 and took judicial notice of the fact that Vicodin and Lortab
both contain hydrocodone. 4
Applying the appropriate standard of review,5 we hold the evidence
factually sufficient to support Appellant’s conviction and overrule Appellant’s
sole point.
S EALING OF THE M EDICAL R ECORDS
In its crosspoint, the State complains that the trial court had no authority
after the trial ended to seal Appellant’s medical records, introduced into
evidence by Appellant on the subject of his guilt. The State did not seek
access to the medical records for purposes of appeal or request that they be
included in the record on appeal. After this case was submitted, this court on
its own motion ordered the medical records as well as State’s Exhibits Number
3
… See T EX. H EALTH & S AFETY C ODE A NN. § 481.032 (Vernon Supp. 2007).
4
… See T EX. R. E VID. 201(b); see also http://www.pdr.net (search terms
lortab and vicodin) (last visited June 25, 2008).
5
… See Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006);
Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); Sims v. State,
99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1,
11 (Tex. Crim. App. 2000) (all providing factual sufficiency standard of review).
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4, 5, and 5A (the video of the stop, its case, and the in-station video) to be
delivered to this court. They were filed on June 3, 2008, and are now part of
the appellate record. We reviewed them in addressing factual sufficiency of the
evidence.
Should a party likewise need to review the sealed medical records in
preparing or responding to a motion for rehearing or a petition for discretionary
review, we hold, as is our customary policy, that counsel for the State or
Appellant shall be allowed to review the sealed records at the office of the clerk
of this court. We are not, however, prepared to hold that the trial court acted
outside its authority by shielding the medical records from the public eye, nor
are we prepared to reverse the trial court’s decision. We overrule the State’s
crosspoint.
Having overruled Appellant’s point and the State’s crosspoint, we affirm
the trial court’s judgment as modified.
LEE ANN DAUPHINOT
JUSTICE
PANEL B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: June 26, 2008
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