Randal Wayne McNulty v. State ( 2007 )

                                                NO. 12-06-00019-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RANDAL WAYNE MCNULTY,      §                      APPEAL FROM THE 349TH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

            Randal Wayne McNulty appeals his conviction for intoxication manslaughter, for which he was sentenced to imprisonment for ninety-nine years.  In two issues, Appellant argues that the trial court improperly refused to submit the lesser included offense of driving while intoxicated and improperly admitted hospital records containing the results of Appellant’s blood test taken during the course of Appellant’s emergency medical treatment following the collision at issue.  We affirm.

Background

            On the afternoon of November 29, 2004, Appellant was driving northbound on Loop 304 in Houston County, Texas.  It had been raining that day, and traffic was heavy.

            Danny Lamb was also driving northbound on Loop 304. Lamb testified that as he was driving, he noticed a 4x4 long bed pickup truck traveling at a high rate of speed to his right on the shoulder of the road.  Lamb braked his vehicle because the truck was only inches from his vehicle and he believed the truck would hit the oncoming speed limit sign if it did not return to the roadway.  As Lamb braked, the other truck immediately turned sharply in front of him.  As the other truck returned to the paved roadway,¹ its driver tried to steer the truck straight away.  The truck then fishtailed and careened into a southbound lane of oncoming traffic, colliding with a smaller truck driven by Meridith Anderson.  Anderson was killed in the collision.  The northbound truck’s driver, later determined to be Appellant, was ejected from his vehicle.

            When Crockett Police Corporal Mike Harrell arrived on the scene, he saw Appellant lying face down on the ground.  Appellant was breathing.  Harrell further saw that Anderson was pinned in his truck.  The steering wheel of Anderson’s truck had struck his chest and his head had struck the truck’s windshield.  Harrell testified that based on his investigation, Anderson died as a result of his vehicle being struck by Appellant’s vehicle, and that Appellant was responsible for the collision.  Harrell found twenty-one sixteen ounce cans of Busch® beer and three quarters of a fifth of Wild Turkey® whiskey within two or three yards of Appellant’s truck.  Harrell further testified that from witnesses’ accounts, he determined that the collision occurred after Appellant veered around other vehicles onto the shoulder, lost control, overcorrected, and crossed into the southbound lane of oncoming traffic.  Harrell stated that although a driver can overcorrect a vehicle without alcohol necessarily being involved, drivers are more likely to overcorrect when intoxicated.

            Appellant was taken by ambulance to the emergency room at East Texas Medical Center-Crockett.²   Eric Adams, a paramedic who treated Appellant en route to the hospital, testified that Appellant smelled strongly of alcohol.

            ETMC emergency room nurse Tami Millican testified that when Appellant arrived, he had a life threatening condition, was intubated, and was being assisted in his breathing.  Millican further testified with regard to the hospital records pertaining to Appellant’s treatment at ETMC.  These hospital records were received into evidence subject to later admission pending the trial court’s ruling on Appellant’s objections. Millican testified that the notes in the records indicated that Appellant was unresponsive and smelled of alcohol upon his arrival.  She further testified that various lab tests were administered to Appellant.

            Emergency room manager Helen Dise responded to the emergency room to assist with Appellant’s care.  Dise started the IV and stated that she was ninety percent certain that she would have drawn the blood sample from Appellant when she started the IV.  Dise further stated that she could not recall if she actually drew blood from Appellant, but if she did not, then another emergency room employee would have done so. Dise testified that in a rare case, she would not draw blood from a patient when establishing the IV line, because there was already a central line being placed by a physician, through which the blood would be drawn.³  Dise explained that occasionally a registered nurse or lab technician might draw a blood sample.  Dise testified that, in any event, the blood sample is labeled on the tube while at the patient’s bedside with the patient’s name or a unique account number assigned to the patient.

            Medical technologist Julie Doon testified that she was assigned to run blood and urine testing at ETMC and was on duty on the day in question.  Doon testified that she ran lab tests on Appellant’s blood that day.  Doon further testified that there are four different types of tubes used in the ETMC emergency room to hold blood drawn for different tests, but that none of the preservatives contained in the various tubes would interfere with the testing performed.  Doon stated that in her experience, using alcohol swabs to clean a patient’s arm before testing has no effect on the results obtained from blood tests for alcohol.  Doon further stated that she could not recall which sort of tube was used to gather Appellant’s blood sample, but that the blood tests would not be altered by use of one tube versus another.  Doon testified that she believed Appellant’s blood sample came from the emergency room because in a trauma case, the sample is needed right away and one of the emergency room nurses would have drawn it.  Doon further testified that she was the person who handled the sample when it reached the lab.

            Treating physician Mark Spencer testified about his care of Appellant.  Spencer further testified concerning his handwriting contained in the previously received medical records.⁴  Spencer described Appellant’s condition upon examination and further testified that Appellant’s blood alcohol level was more than three times the legal limit.

            Following Spencer’s testimony, both parties rested. Thereafter, the trial court conducted a charge conference.  Appellant requested the inclusion of an instruction concerning the lesser included offense of misdemeanor driving while intoxicated.  The trial court refused to include Appellant’s requested instruction.

            Ultimately, the jury found Appellant guilty of intoxication manslaughter and, following a trial on punishment, assessed his punishment at imprisonment for ninety-nine years and a five thousand dollar fine. The trial court sentenced Appellant accordingly, and this appeal followed.

Lesser Included Offense

            In his first issue, Appellant argues that the trial court erred in refusing to submit an instruction on the lesser included offense of misdemeanor driving while intoxicated.  An offense is a lesser included offense if (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense.  Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).  Furthermore, a charge on a lesser included offense should be given only when there is some evidence that would permit a rational jury to find that the defendant is guilty of the lesser offense but not guilty of the greater.  See Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993).  Driving while intoxicated is a lesser included offense of intoxication manslaughter. See Henry v. State, No. 01-05-00845-CR, 2007 WL 79449, at *2 (Tex. App.–Houston [1st Dist.] Jan. 11, 2007, no pet.).  Thus, our analysis will focus on whether there is any evidence of record that would permit a rational jury to find that the defendant is guilty of only driving while intoxicated. 

            To support a conviction for intoxication manslaughter, the evidence must show that the defendant (1) operated a motor vehicle in a public place, (2) was intoxicated, and (3) by reason of that intoxication, caused the death of another by accident or mistake.  See Tex. Pen. Code Ann. § 49.08(a) (Vernon 2003).  To support a conviction for driving while intoxicated, the evidence must show that the defendant is intoxicated while operating a motor vehicle in a public place.  See Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003).  The elements of manslaughter differ from criminally negligent homicide in that a required element of intoxication manslaughter is that the defendant caused the death of another by reason of the intoxication, which is not required in the lesser offense of driving while intoxicated.  Compare Tex. Pen. Code Ann. § 49.08(a) with Tex. Pen. Code Ann. § 49.04(a).  It is not enough that operation of a vehicle, even by an intoxicated person, causes the death; rather, the “death must be the result of the intoxication and proof must be made  . . .  of that thing which worked a causal connection between the intoxication and the death.”  Daniel v. State, 577 S.W.2d 231, 233 (Tex. Crim. App. 1979); see also Glauser v. State, 66 S.W.3d 307, 313 (Tex. App.–Houston [1st Dist.] 2000, pet. ref’d); Henry, 2007 WL 79449, at *3.

            In the case at hand, Appellant argues that Harrell’s testimony that a driver can overcorrect a vehicle without alcohol necessarily being involved was sufficient to permit a rational juror to find that he was guilty only of the lesser offense of driving while intoxicated.  We disagree.  Harrell’s testimony was a general statement in response to a general question that steering overcorrection does not always involve alcohol. Neither the question nor Harrell’s response related to Appellant.  Furthermore, Harrell was never asked whether Appellant’s overcorrection was the result of his intoxication.  Thus, Harrell’s testimony that  a driver can overcorrect a vehicle without alcohol necessarily being involved does not amount to sufficient evidence that Appellant’s overcorrection was the result of some factor other than intoxication.  Therefore, we hold that the trial court was not required to submit an instruction on the lesser included offense of misdemeanor driving while intoxicated.  Appellant’s first issue is overruled.

Admissibility of Blood Test

            In his second issue, Appellant argues that the trial court erred in admitting the results of his blood test.  Specifically, Appellant contends that the results of the blood sample were not trustworthy because (1) it is unknown who drew the blood, (2) it is unknown what type of container was used to hold the blood, (3) the evidence is lacking as to chain of custody, and (4) the evidence did not support the test’s reliability.⁵

            In order for the results of a blood test to be admitted into evidence, a proper chain of custody of the blood sample that was drawn from the accused and later tested must be established. Durrett v. State, 36 S.W.3d 205, 208 (Tex. App.–Houston [14th Dist.] 2001, no pet. (citing Moone v. State, 728 S.W.2d 928, 930 (Tex. App.–Houston [14th Dist.] 1987, no pet.)).  Proof of the beginning and the end of the chain will support admission of the evidence barring any showing of tampering or alteration.  See Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App.1989); Durrett, 36 S.W.3d at 208.  Any gaps in the chain go to the weight of the evidence rather than to its admissibility.  Durrett, 36 S.W.3d at 208; see Penley v. State, 2 S.W.3d 534, 537 (Tex. App.–Texarkana 1999, pet. ref’d).

            In the case at hand, the blood sample was taken from Appellant for purposes of medical treatment when he arrived unconscious in the emergency room following the accident in question.  Dise started Appellant’s IV and stated that she was ninety percent certain that she would have drawn the blood sample from Appellant when she started the IV.  Dise further stated that she could not recall if she actually drew blood from Appellant, but if she did not, then another emergency room employee would have done so. Dise explained that occasionally a registered nurse or lab technician might draw a blood sample.  Dise testified that, in any event, the blood sample is labeled on the tube while at the patient’s bedside with the patient’s name or a unique account number assigned to the patient.

            Doon testified that she was assigned to run blood and urine testing at ETMC and was on duty on the day in question.  Doon testified that she ran lab tests on Appellant’s blood that day.  Doon further testified that there are four different types of tubes used in the ETMC emergency room to hold blood drawn for different tests, but that none of the preservatives contained in the various tubes would interfere with the testing performed.  Doon stated that in her experience, using alcohol swabs to clean a patient’s arm before testing has no effect on the results obtained from blood tests for alcohol. Doon further stated that she could not recall which sort of tube was used to gather Appellant’s blood sample, but that the blood tests would not be altered by use of one tube versus another. Doon testified that she believed Appellant’s blood sample came from the emergency room because in a trauma case, the sample is needed right away and one of the emergency room nurses would have drawn it.  Doon further testified that she was the person who handled the sample when it reached the lab.

            Appellant does not argue that there was tampering with or alteration of the blood sample in question.  Therefore, because there is proof of the beginning and the end of the chain of custody, the admission of Appellant’s blood test results is supported. The fact that Dice could not recall with total certainty who actually took Appellant’s blood sample goes to the weight of the evidence rather than its admissibility.  See Durrett, 36 S.W.3d at 210–11.  Moreover, there was ample testimony regarding the procedures utilized to take and test blood samples so as to remove doubt about the link between the blood alcohol level reflected in the medical records to Appellant. Appellant’s second issue is overruled.

Disposition

            Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered March 14, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹ The record reflects that the shoulder had ended and the other truck was driving in the grass before it turned in front of Lamb’s vehicle.

² East Texas Medical Center-Crockett is hereinafter referred to as “ETMC.”

³ Appellant had not had a central line inserted on the day in question.

⁴ Appellant objected to the records because, among other reasons, the State failed to demonstrate the reliability of the records in that the testimony regarding chain of custody of the blood sample was insufficient.  The trial court overruled Appellant’s objection and admitted the records.

⁵ At trial, while Appellant raised an objection to the “reliability of the document,” he did not challenge the reliability of the test procedure itself.  Our analysis is limited to Appellant’s objections based on improper chain of custody, which comport with his argument on appeal.