Paul Allen Ward v. State ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00246-CR
___________________________
PAUL ALLEN WARD, Appellant
V.
THE STATE OF TEXAS
On Appeal from the County Court at Law
Hood County, Texas
Trial Court No. 51433
Before Kerr, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Paul Allen Ward challenges his conviction and sentence for misdemeanor
driving while intoxicated1 on a single ground: that although the State proved that
someone with the same name drove while intoxicated and was involved in a single-
vehicle accident on September 2, 2017, it did not establish that he was the person who
did so. We affirm.
Standard of Review
We dispense with a summary of the background facts up front because we
must examine the trial evidence to determine Ward’s issue. A familiar standard guides
our sufficiency review: we view all the evidence in the light most favorable to the
verdict to determine whether any rational factfinder could have found the crime’s
essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App.
2017). In doing so, we consider even improperly admitted evidence. Moff v. State,
131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004).
Trial Evidence
The 911 calls
The State played for the jury recordings of three 911 calls from the same caller.
1
See Tex. Penal Code Ann. §§ 49.04, 49.09(a).
2
In the first recording, the caller told the operator that “a man” had wrecked his
car in Pecan Plantation and needed help. That call disconnected when the caller went
to find an address and did not continue to talk to the operator.
The operator initiated the second call. The caller gave his name and an address
for his location, told the operator that the man who had wrecked appeared to have
“hit his head” but was awake, and confirmed that one vehicle was involved and its
front end and side were “pretty banged up.” The caller also told the operator that the
accident victim seemed drunk or intoxicated, did not know his own name, and was
bleeding “pretty serious[ly].” The caller thought the man was around either 50, 40, or
30 years old. The caller also reported a bottle of vodka near the wreck.
In the third 911 call, the operator instructed the caller how to care for the
victim and to make the area secure while waiting for emergency responders.
The accident investigation
Casey Wilken, a Hood County Sheriff’s Office investigator, responded to the
accident around 9:30 p.m. on September 2, 2017. When Wilken arrived, he saw a car
“maybe 50 yards off the road in the trees,” along with a couple of witnesses and seven
or eight medics and volunteer firefighters. Wilken talked to four or five of them. But
Wilken was not able to talk to the accident victim, who was already in an ambulance;
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“through [the man’s] driver’s license,” Wilken identified him as “Paul Allen Ward.” A
helicopter crew flew the victim to John Peter Smith Hospital (JPS). 2
Wilken investigated the wreckage, finding front-end damage to the car, broken
taillights and headlights, and a missing “door skin” from the passenger-side back
door. He also found tire marks showing where the car had gone off the road, an
empty bottle of vodka underneath the car, an opened but empty vodka bottle in the
passenger seat, and an unopened full bottle of vodka in the center console. Wilken
discovered that a heavy-duty stone mailbox “maybe a quarter mile up the road . . . had
been hit and destroyed.” The “door skin” from the passenger-side back door of the
wrecked car was in the driveway of the house with the destroyed mailbox. The trial
court admitted photographs of the car and mailbox damage.
The hospital
The State called a JPS nurse to testify about his review of “some records
pertaining to Paul Ward” that were labeled with Ward’s full name, birthdate, and a
medical-record number. The nurse affirmed that the records show that on September
2, 2017, hospital staff drew blood from the patient. The nurse testified that he
“probably supervised” the blood draw, but he could not say whether he was physically
present during the draw; he did not remember Ward or anything about him.
It is unclear whether the victim was initially placed in an ambulance and then
2
moved to a helicopter or if Wilken referred to the helicopter as an ambulance.
4
Next, a JPS laboratory-quality manager testified that Ward’s medical records––
admitted during the manager’s testimony––showed that an enzyme-immunoassay test
was performed and that the blood-alcohol result from that test was 363 milligrams per
deciliter. No witness converted milligrams per deciliter for the jury, but Wilken
testified that blood-alcohol level is measured in terms of milligrams per deciliter and
that there are 100 milliliters in a deciliter. 3
The medical records confirm the JPS nurse’s and lab manager’s testimony
about the blood draw and results.4 In addition to notes for the September 2,
2017 care, the records also contain an inpatient pain-management progress note for
September 8, 2017:
Paul Allen Ward [was] seen at the request of [D]r. [N]orris for pain
control issues. Pt was involved in a MVC under the influence of alcohol.
He states he does not recall the situation too much but remembers that
he was started on [C]hantix a couple of weeks back and stopped cold
turkey due to ‘psychotic dreams and visions’. . . . He also admits to just
wanting to sleep so he drank a bottle of vodka the day of the accident.
Analysis
Ward does not argue on appeal that the State failed to prove the offense
charged. He contends that the State failed to prove that he is the same person as the
Expressed in grams per milliliter, the test result is thus .363. See Tex. Penal
3
Code Ann. § 49.01(1)(B) (defining “alcohol concentration,” in part, as “the number of
grams of alcohol per . . . 100 milliliters of blood”).
The birthdate on the records matches the birthdate on the driver’s license
4
Wilken used to identify the accident victim.
5
driver of the wrecked car and the person admitted to JPS after the wreck because
(1) no witness identified him in court, (2) other witnesses could have been called to
identify the wreck victim, and (3) there was no evidence before the jury of his
birthdate and full name.
Ordinarily, the State must prove that the accused is the person who committed
the crime charged. Hightower v. State, 389 S.W.2d 674, 676 (Tex. Crim. App. 1965);
Smith v. State, 56 S.W.3d 739, 744 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d);
see also Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016) (explaining that
State may provide such proof with direct or circumstantial evidence and that jury may
make reasonable inferences from that evidence); Bin Fang v. State, 544 S.W.3d 923,
927–28 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (same). 5 But here, Ward’s
attorney conceded to the jury that the medical records and blood-alcohol-test results
were Ward’s. Ward called only one witness, a blood-alcohol-testing expert, to testify
about the unreliability of the enzyme-immunoassay test as opposed to a gas-
5
Ward waived arraignment. The State contends that no further proof of identity
is required when a defendant waives arraignment or fails to object that the name in
the charging instrument is not his own. See Tex. Code Crim. Proc. Ann. art.
26.02 (“An arraignment takes place for the purpose of fixing his identity and hearing
his plea.”). But facts alleged in a charging instrument are not proof that a person
committed an offense. Id. art. 38.03; Morey v. State, 744 S.W.2d 668, 670 (Tex. App.—
San Antonio 1988, no pet.); cf. Jackson v. State, Nos. 05-01-01840-CR, 05-01-01841-CR,
2002 WL 31656102, at *2–4 (Tex. App.––Dallas Nov. 26, 2002, no pet.) (not
designated for publication) (holding that appellant could not claim on appeal that
evidence was insufficient to prove he committed offense because his name was “Raul
David Jackson,” rather than “Bryan Gene Jackson” as alleged in indictment).
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chromatography test. Ward’s apparent trial strategy was to try to cast reasonable
doubt on the sufficiency of the State’s proof that he was intoxicated at the time he
was driving rather than at some later time after the wreck.
In light of counsel’s express concession that the medical records were Ward’s,
we conclude that the evidence was sufficient to support the conviction. See U.S. v.
Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991) (holding that defense counsel’s
concession in closing argument was judicial admission that dispensed with
government’s burden to prove conceded fact); see also Bryant v. State, 187 S.W.3d 397,
400–01 (Tex. Crim. App. 2005) (explaining effect of stipulation to facts as judicial
admission); cf. Hitchery v. State, Nos. 05-04-00032-CR, 05-04-00033-CR,
2005 WL 237230, at *4–5 (Tex. App.––Dallas Feb. 2, 2005, no pet.) (not designated
for publication) (holding, in context of now-defunct criminal-factual-sufficiency
standard of review, that appellant was estopped from challenging evidence’s
sufficiency based on his attorney’s concession).
We therefore overrule Ward’s sole issue.
Conclusion
Having overruled Ward’s sole issue, we affirm the trial court’s judgment.
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/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: February 4, 2021
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