David James Gallagher v. State

NUMBER 13-12-00047-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DAVID JAMES GALLAGHER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 3
of Montgomery County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
Appellant, David James Gallagher, appeals his conviction for driving while
intoxicated. See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2011). By three issues,
which we renumber as two, Gallagher asserts that: (1) the trial court erroneously
admitted his hospital medical records showing his blood alcohol and drug test results;
and (2) insufficient evidence establishes (a) the corpus delicti of driving while intoxicated;
and (b) that Gallagher was the operator of the motor vehicle at the time of the car
accident. For reasons stated below, we affirm.
I. BACKGROUND1
Gallagher was charged by information in Montgomery County, Texas for driving
while intoxicated, a Class B misdemeanor. See TEX. PENAL CODE ANN. § 49.04. The
State presented the following evidence during Gallagher’s jury trial.
In the early morning hours of May 14, 2011, Megan McDougald traveled down
Walden Road in Montogmery County as the passenger of her friend’s pickup. At that
point, McDougald stated that she heard a car accelerate behind her driving around a
curve in the road and witnessed that car “go off the road” and flip over. McDougald’s
friend stopped and McDougald called 9-1-1. She observed two males standing outside
the wrecked vehicle.
Texas Department of Public Safety trooper Charles Williams responded to the
scene shortly thereafter. Upon his arrival, he observed two males “standing . . . and
walking around” the vehicle, which had sustained heavy front-end damage, heavy
top-side damage, and appeared to “have been rolled over a couple of times.” Trooper
Williams later identified the two males as Gallagher and Nicholas Craig Williams.
According to Trooper Williams, Gallagher stated that he was the driver of the vehicle.
An initial check of the vehicle’s license plate revealed Gallagher as the car’s registered
1
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §
73.001 (West 2005).
2
owner. Additionally, a certified copy of the vehicle’s state registration was admitted into
evidence that listed Gallagher as the owner of the damaged vehicle.
Trooper Williams testified that Gallagher “had a strong odor of an alcohol[ic]
beverage coming from his breath.” Trooper Williams described Gallagher’s eyes that
night as “very glassy and red” with “droopy eyelids” and that Gallagher was “swaying
while standing.” According to Trooper Williams, Gallagher admitted to drinking “some
beer” and “a little bit of everything” over the previous four hours. Trooper Williams also
testified that Gallagher told him that he was driving down Walden Road and “failed to
negotiate the curve” and “drove off the roadway and his vehicle rolled.”
Trooper Williams administered three different field sobriety tests to Gallagher:
(1) a horizontal gaze nystagmus (HGN) test, (2) a walk-and-turn test, and (3) a one-leg
stand test.2 According to Trooper Williams’s assessment, Gallagher exhibited all six
clues that indicate intoxication under the HGN test, four out of the eight clues under the
walk-and-turn test, and two out of the four clues under the one-leg stand test. Trooper
Williams admitted that Gallagher gave concise answers to his questions and did not
remember Gallagher slurring his words. Nevertheless, Trooper Williams placed
Gallagher under arrest for suspicion of driving while intoxicated. After reading
Gallagher his statutory warnings, Trooper Williams requested a breath specimen.
Gallagher initially agreed to provide a breath sample. However, en route to the
jail—where the Intoxilyzer 50003 was located to collect Gallagher’s breath sample—
2
More than an hour’s worth of video footage taken from Trooper Williams’s patrol car depicted all
of the events described in the above-referenced paragraph. The video was played for the jury and was
admitted into evidence as State’s Exhibit 4.
3
According to Trooper Williams, the Intoxilyzer 5000 is an instrument used to collect breath
samples from individuals who are suspected of driving while intoxicated. He described it as a “large
instrument” that “looks kind of like the old Atari [game] console . . . only larger” and is located inside of a
3
Gallagher began to complain of neck and back pain. Consequently, Trooper Williams
transported Gallagher directly to Conroe Regional Medical Center.
While at the hospital, Gallagher refused Trooper Williams’s request to obtain a
blood specimen. Gallagher’s hospital records, however, were admitted into evidence,
including Gallagher’s medical blood test results. The blood test results demonstrated a
positive finding of alcohol consumption. Gallagher did not testify.
The jury ultimately found him guilty of the offense as charged. The trial court
assessed punishment at a fine of $750.00 and 180 days’ confinement in the Montgomery
County Jail. The trial court then suspended Gallagher’s sentence and placed him on
community supervision for 18 months with certain terms and conditions. This appeal
ensued.
II. ADMISSIBILITY OF BLOOD TEST RESULTS
By his first issue, Gallagher asserts that the trial court erroneously admitted his
blood test results included in his hospital records following the crash.
A. Standard of Review
Admissibility of evidence is within the discretion of the trial court and will not be
overturned absent an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex.
Crim. App. 2003) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1990) (en banc)). Thus, we will affirm a trial court’s ruling, so long as the ruling was
within the zone of reasonable disagreement. Moses, 105 S.W.3d at 627; see
Montgomery, 810 S.W.2d at 391 (“a trial court judge is given a ‘limited right to be wrong,’
large cabinet inside the jail.
4
so long as the result is not reached in an arbitrary or capricious manner.”) (internal
citation omitted).
B. Discussion
Gallagher argues that the State failed to properly authenticate his blood test
results and establish a proper chain of custody to support its admission.4 We disagree.
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 end of the chain will support
admission, and any gaps in the chain go to the weight of the evidence rather than to its
admissibility. See Penley v. State, 2 S.W.3d 534, 537 (Tex. App.—Texarkana 1999,
pet. ref’d).
Over his trial counsel’s strenuous objections to its admissibility, Gallagher’s
medical records, including blood test results, were admitted as State’s Exhibit 1. Marcy
Baxter, a registered nurse on duty at Conroe Regional Medical Center the morning that
Gallagher was admitted, testified that she drew Gallagher’s blood that day pursuant to
the treating physician’s orders. Baxter admitted that she did not specifically remember
drawing Gallagher’s blood, but she testified as to the policies and procedures in place to
ensure that blood samples match a particular patient prior to sending it to the laboratory
4
The State elicited testimony from Texas Department of Public Safety technician Glenn Merkford,
who reviewed Gallagher’s blood test results. Using a mathematical equation explained to the jury,
Merkford opined from his review of the test results that Gallagher’s blood alcohol content (BAC) was above
the legal limit.
5
for testing. Baxter’s testimony thus established the “beginning” of Gallagher’s blood
test’s chain of custody.
The State then called Junnius Pollard, custodian of records at Conroe Regional
Medical Center. Through Pollard’s testimony, the State established that the records
were made at the time of the event, by a person with knowledge, and that they were kept
in the regular course of business by the hospital. See TEX. R. EVID. 902(10). Pollard’s
testimony thus proved the “end” of the blood test’s chain of custody.
Therefore, in light of the State establishing both the “beginning” and “end” of the
chain of custody, the trial court did not abuse its discretion in admitting Gallagher’s blood
test results. Moreover, any gaps in the chain go to the weight of the evidence rather
than to its admissibility. See Penley, 2 S.W.3d at 537. Accordingly, we overrule
Gallagher’s first issue.5
III. SUFFICIENCY CHALLENGES
By his second issue, Gallagher asserts that the evidence insufficiently establishes
(1) the corpus delicti of the offense and (2) that he operated the vehicle as charged.
A. Standard of Review
When reviewing a defendant’s sufficiency challenge, we view the evidence in the
light most favorable to the verdict to determine whether “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (citing Brooks v.
State, 323 S.W.3d 893, 902 (plurality op.)); see Jackson v. Virginia, 443 U.S. 307, 319
5
During the submission of this appeal, the United States Supreme Court issued its opinion in
Missouri v. McNeely, No. 11-1425, 2013 WL 1628934, —U.S.— (2013). Nevertheless, we find the
McNeely decision inapplicable to the case at bar.
6
(1979). The jury is the sole judge of the credibility of witnesses and the weight to be
given to their testimonies, and the reviewing court must not usurp this role by substituting
its own judgment for that of the jury. Montgomery, 369 S.W.3d at 192. Thus, our duty
is “simply to ensure that the evidence presented supports the jury's verdict and that the
State has presented a legally sufficient case of the offense charged.” Id. (internal
citations omitted). When faced with a record supporting contradicting inferences, we
must presume that the jury resolved such conflicts in favor of the verdict, even if not
explicitly stated in the record. Id. (citing Brooks, 323 S.W.3d at 899 n.13).
The elements of the offense are measured as defined by a hypothetically correct
jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge [is] one
that accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State's burden of proof or unnecessarily restrict the State's theories of
liability, and adequately describes the particular offense for which the defendant was
tried. Id.
B. Discussion
1. Corpus Delicti
The common law corpus deliciti rule requires that some independent evidence,
outside of a defendant’s extrajudicial confession, corroborates the occurrence of a
specific kind of injury or loss6 and a criminal agent. See Salazar v. State, 86 S.W.3d
640, 644 (Tex. Crim. App. 2002). “The rule was not intended, however, to ensure that
6
Some examples include a deceased person in the case of homicide, a house burnt in the case of
arson, or missing property in the case of larceny. See Salazar v. State, 86 S.W.3d 640, 644 (Tex. Crim.
App. 2002) (citing 7 JOHN W IGMORE, EVIDENCE § 2072 (Chadbourne rev. 1978)).
7
all confessions are corroborated in specific details or to ensure that the suspect does not
falsely confess to a crime that did occur but for which he had no culpability.” Id. at
644–45. Thus, the corpus delicti rule is satisfied if some evidence outside of the
extra-judicial confession, considered alone or in connection with the confession, shows
that the crime actually occurred. Id. at 645.
Our inquiry in this case turns to whether any independent evidence proved that
someone committed the crime of driving while intoxicated. In this case, a combination
of the following evidence shows that the crime occurred, including:
(1) McDougald’s testimony that she heard a car accelerate behind her on Walden
Road, driving around a curve, and then witnessed that car “go off the road”
and flip over;
(2) McDougald’s observation that two males stood outside of the vehicle after the
crash;
(3) Trooper Williams’s observation that Gallagher and Williams stood outside of
the heavily-damaged vehicle;
(4) Trooper Williams’s testimony that Gallagher emitted a strong odor of alcohol
and his eyes were red and glassy;
(5) the car registration listed Gallagher as the owner of the vehicle; and
(6) Gallagher’s complaints of neck and back pain following the injury.
Therefore, in light of the foregoing independent evidence outside of Gallagher’s
extrajudicial confession(s), we conclude that sufficient evidence satisfies the corpus
deliciti rule in this case to prove that someone committed the crime of driving while
intoxicated. See id. at 645–46.
2. Operation of the Vehicle
Under Texas law, one is guilty of driving while intoxicated if the person (1) is
intoxicated (2) while operating a motor vehicle (3) in a public place. See TEX. PENAL
8
CODE ANN. § 49.04.
Here, Gallagher admitted to Trooper Williams that he was the driver of the flipped
vehicle. Gallagher was also present standing and walking around the damaged vehicle
when Trooper Williams arrived, and the vehicle’s state registration listed Gallagher as
the vehicle’s owner. Trooper Williams also testified that Gallagher told him that he was
driving down Walden Road and “failed to negotiate the curve” and “drove off the roadway
and his vehicle rolled.” McDougald also testified that she witnessed two males standing
outside of the vehicle shortly after the crash.
After viewing this evidence in the light most favorable to the verdict, we conclude
that a rational jury could have found beyond a reasonable doubt that Gallagher operated
the motor vehicle as charged. Appellant’s second issue is overruled.
IV. CONCLUSION
We affirm the trial court’s judgment.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
25th day of April, 2013.
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