                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

 ROBERTO RODARTE,                                  §
                                                                    No. 08-10-00241-CR
                    Appellant,                     §
                                                                      Appeal from the
 v.                                                §
                                                            County Court at Law Number Seven
 THE STATE OF TEXAS,                               §
                                                                 of El Paso County, Texas
                    Appellee.                      §
                                                                    (TC# 20090C11902)
                                                   §

                                            OPINION

        A jury convicted Roberto Rodarte, Appellant, of driving while intoxicated and the trial court

sentenced him to seventy-five days’ confinement. Presenting two issues on appeal, Appellant argues

that the trial court erred by permitting evidence of blood-alcohol concentration to be admitted at trial

and that the evidence was legally insufficient to support his conviction.

                                          BACKGROUND

        At approximately 7 a.m. on February 1, 2009, El Paso police officers responded to a motor-

vehicle accident. A westbound vehicle was stopped in the left turn lane at a red light. Appellant,

the driver and sole occupant of an eastbound vehicle, veered his automobile to the left, and struck

the stationary westbound vehicle head-on with sufficient force to spin it around. Appellant and the

occupants of the westbound vehicle suffered injuries and were transported to a hospital. Officer

Carolina Aldaba was instructed to follow Appellant to the hospital, where she requested and obtained

Appellant’s written and verbal consent to submit a blood specimen for blood-alcohol testing. A

nurse then drew Appellant’s blood and provided the blood sample to Officer Aldaba for testing.

Officer Aldaba did not request anyone at the hospital to draw a second sample of Appellant’s blood.
Subsequently, Appellant was charged with the offense of driving while intoxicated.

           During Appellant’s motion-in-limine hearing, the State informed the trial court that it had

subpoenaed and obtained Appellant’s hospital records from the day of the accident. The records,

which were accompanied by a business-records affidavit, contained the results of a second blood-

alcohol test that had been conducted by the hospital as part of Appellant’s consensual medical

treatment. Appellant argued that the State bore the burden of showing that the blood-alcohol test

had been medically necessary and because the State had failed to meet this alleged burden, the results

of the hospital’s blood tests were inadmissible. The State argued that it was not required to subpoena

hospital medical personnel to testify why a blood test had been ordered during Appellant’s medical

treatment at the hospital when the records were accompanied by a properly executed affidavit. The

trial court denied Appellant’s motion to suppress the hospital-initiated blood-test results.

           During his pretrial suppression hearing, Appellant successfully challenged the validity of

Appellant’s verbal and written consent to submit to the police-initiated blood-alcohol test.1

However, Appellant again failed to convince the trial court that the hospital’s business records

containing his blood-alcohol test results, should be suppressed.

           At trial, Officer Cesar Melgoza testified that he smelled the odor of an alcoholic beverage

emanating from Appellant’s vehicle and breath but, due to Appellant’s receipt of medical treatment,

Officer Melgoza was unable to interact sufficiently with Appellant to determine whether additional

signs of intoxication such as bloodshot eyes were present. Officer Melgoza did not observe

Appellant slur his speech.



           1
               Appellant had challenged the voluntariness of the verbal and written consent given while he was in
custody.

                                                             2
         Officer Miller, who had two-months experience as an officer, also responded to the scene of

the collision. He testified that he observed a strong odor of an unknown alcoholic beverage on

Appellant’s breath and body, that Appellant’s speech was slurred and his eyes were red, and that

Appellant informed him that he had been driving from a bar. Upon cross-examination, Officer

Miller admitted that his police report reflected only that he had smelled an alcoholic beverage upon

Appellant’s breath and body.

         Over Appellant’s objection, the hospital-initiated blood-alcohol test results were admitted

into evidence at trial. Dr. Ramaswami Kalamegham, the technical director for the special chemistry

toxicology section of the hospital’s laboratory, testified that the hospital’s test showed that Appellant

had a blood-alcohol concentration of .21 grams of alcohol per 100 milliliters of blood. Upon cross-

examination by Appellant, Dr. Kalamegham testified that the emergency-room physician’s purpose

for ordering certain laboratory tests is not always noted and stated that he knew neither the reason

why Appellant’s blood-alcohol concentration had been ordered nor whether law enforcement

personnel had been present when the order was issued.

                                                 DISCUSSION

                                                          I.

         In Issue One, Appellant contends the trial court erred when it admitted Appellant’s blood-test

results in evidence because the State failed to lay a proper foundation for the admissibility of the

blood-alcohol test results at trial.2 Appellant specifically complains that the State presented no direct

         2
            Although Appellant stated briefly during the suppression hearing that his objection was one of
“foundation,” the State contends that Appellant did not pose a “foundation” challenge to the admission of the
hospital records but instead asserted that the hospital’s second blood draw constituted a warrantless search and
seizure in violation of his constitutional and statutory rights. Consequently, the State argues, Appellant bore the
initial burden of proving that the government, or a private party acting at the behest of the government, had
improperly searched and seized Appellant’s blood-alcohol test results without a warrant. See St. Clair v. State, 26

                                                          3
evidence to show that the hospital-initiated test was medically necessary and was not produced at

the direction of the El Paso Police Department.

        We review a trial court’s decision to admit or exclude evidence under an abuse-of-discretion

standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We will not reverse a trial

court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Id.

        Appellant cites no legal authority, and we are aware of none, which supports or otherwise

espouses Appellant’s contention that the State, as part of its predicate or foundation for admitting

Appellant’s hospital records into evidence, must first demonstrate the medical necessity of drawing

Appellant’s blood for testing before the results thereof may be admitted into evidence. Similarly,

Appellant fails to cite competent, applicable authority to demonstrate under these facts that it was

the State’s burden to prove that the hospital’s second draw of Appellant’s blood was not produced

at the police department’s direction. We are also unpersuaded by Appellant’s analysis and

arguments regarding the State’s alleged burdens.

       The business-record exception provides for the admissibility of a memorandum, report, record,

or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near

the time by, or from information transmitted by, a person with knowledge, if kept in the course of a

regularly conducted business activity, and if it was the regular practice of that business activity to

make the memorandum, report, record, or data compilation, all as shown by the testimony of the

custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the

source of information or the method or circumstances of preparation indicate lack of trustworthiness.


S.W.3d 89, 102 (Tex. App. – Waco 2000, pet. ref’d). We disagree with the State’s characterization of Appellant’s
objection and limit our discussion to the proper admission of the medical records under Rule 803(6). TEX. R. EVID.
803(6).

                                                        4
See TEX. R. EVID. 803(6), 902(10)(a). Rule 902(10)(a) provides that:

       Any record or set of records or photographically reproduced copies of such records,
       which would be admissible under Rule 803(6) or (7) shall be admissible in evidence
       in any court in this state upon the affidavit of the person who would otherwise provide
       the prerequisites of Rule 803(6) or (7), that such records attached to such affidavit
       were in fact so kept as required by Rule 803(6) or (7), provided further, that such
       record or records along with such affidavit are filed with the clerk of the court for
       inclusion with the papers in the cause in which the record or records are sought to be
       used as evidence at least fourteen days prior to the day upon which trial of said cause
       commences, and provided the other parties to said cause are given prompt notice by
       the party filing same of the filing of such record or records and affidavit, which notice
       shall identify the name and employer, if any, of the person making the affidavit and
       such records shall be made available to the counsel for other parties to the action or
       litigation for inspection and copying. See TEX. R. EVID. 902(10)(a).

In deciding whether to admit the records, the trial court was required to determine whether the

business records had sufficient indicia of reliability or trustworthiness as to guarantee the same

protection provided by the constitutional rights of confrontation and cross-examination. See Porter

v. State, 578 S.W.2d 742, 746 (Tex. Crim. App. 1979).

       Here, Appellant’s blood-alcohol test result was part of a group of records produced by the

hospital pursuant to a subpoena. The hospital produced the records accompanied by the affidavit of

the hospital’s custodian of records in which the custodian recites that the records were kept in the

regular course of the hospital’s business, and that it was the regular course of business for a hospital

employee or representative with knowledge of the act, event, condition, opinion, or diagnosis

recorded to make the report or record or transmit information thereof to be included in such report

or record. The custodian’s affidavit also states that the records were made at or near the time of the

act, event, condition, opinion, or diagnosis or reasonably soon thereafter, and identifies that the

attached records to be the originals or exact duplicates of the originals. See TEX. R. EVID. 803(6),

902(10)(b). The hospital’s records and accompanying affidavit comply with the relevant provisions


                                                   5
of the business-record exception to the hearsay rule. We conclude that the trial court did not abuse

its discretion by finding the hospital’s record of Appellant’s blood-alcohol test results to be

sufficiently reliable to be admissible under the business-records exception to the hearsay rule.

Torres, 71 S.W.3d at 760. Because we find that the trial court did not abuse its discretion by

admitting into evidence the results of Appellant’s hospital-initiated blood test, Issue One is overruled.

Id.

                                                        II.

        In Issue Two, Appellant contends that, absent the improperly-admitted blood test results, the

evidence is legally insufficient to support his conviction.3 We disagree.

        When reviewing the legal sufficiency of the evidence to support a conviction, we view the

evidence in the light most favorable to the prosecution and determine whether any rational fact finder

could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2007). We review all of the evidence, including evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). We “determine

whether the necessary inferences are reasonable based upon the combined and cumulative force of

all the evidence when viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d

9, 16–17 (Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume that

the fact finder resolved the conflicts in favor of the prosecution and defer to that determination.



         3
             Appellant argues that “without the blood evidence from the medical records[,] there would have been no
 competent uncontroverted evidence of [his] intoxication,” and “[a]bsent this evidence[,] the only evidence in the
 record of alcohol was an odor of alcohol in the car and possibly . . . on [his] body.” Appellant concludes, “Once
 again, the evidence of intoxication absent the improperly admitted medical records was ‘underwhelming.’”

                                                         6
Jackson, 443 U.S. at 326. Circumstantial evidence alone can be sufficient to establish guilt and is as

probative as direct evidence in establishing the guilt of an actor. Hooper, 214 S.W.3d at 13. While

we consider all evidence presented at trial, we may not re-weigh the evidence and substitute our

judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Because

we consider all the evidence in a legal-sufficiency challenge, here we include Appellant’s blood-test

results in our analysis of the legal sufficiency of the evidence Conner, 67 S.W.3d at 197; Dewberry

v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146

L.Ed.2d 958 (2000).

       A person commits the offense of driving while intoxicated if he is intoxicated while operating

a vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West 2011). The information and

complaint alleged under Paragraph A that Appellant, “while operating a motor vehicle in a public

place, was intoxicated, to wit: by not having the normal use of mental and physical faculties by reason

of the introduction of alcohol into the body.” Paragraph B alleged that Appellant, “while operating

a motor vehicle in a public place, was intoxicated, to wit: by having an alcohol concentration of .08

or more[.]” See TEX. PENAL CODE ANN. § 49.01(2) (West 2011).

       The evidence at trial reveals that Appellant left a bar and drove his vehicle into a turn lane

designated for oncoming traffic where he struck another vehicle head-on, injuring himself and the

other vehicle’s two occupants, thus requiring them to be transported to a hospital. Officer testimony

established that the odor of an alcoholic beverage emanated from Appellant’s vehicle, breath, and

body. Evidence that Officer Miller had observed Appellant to have slurred speech and bloodshot eyes

was impeached upon cross-examination with his report which did not reveal these observations.

According to Dr. Kalamegham, the results of Appellant’s hospital-initiated blood test showed that


                                                  7
Appellant’s blood-alcohol concentration was .21, an amount in excess of .08 as set forth in the

statutory definition of the term “intoxicated.” TEX. PENAL CODE ANN. § 49.01(2) (West 2011).

       The jury is the sole judge of the credibility of the witnesses and the weight to be given their

testimony, and it may choose to believe some testimony and disbelieve other testimony. See Lancon

v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Viewing this evidence in the light most

favorable to the verdict, we find that any rational fact finder could have found beyond a reasonable

doubt that Appellant was guilty of driving while intoxicated. Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979); Clayton, 235 S.W.3d at 778. Because the evidence is legally

sufficient to support his conviction, Appellant’s second issue is overruled.

                                          CONCLUSION

       The trial court’s judgment is affirmed.



                                              GUADALUPE RIVERA, Justice
November 16, 2011

Before McClure, C.J., Rivera, J., and Antcliff, J.

(Do Not Publish)




                                                     8
