                                            NO. 07-05-0286-CR

                                     IN THE COURT OF APPEALS

                             FOR THE SEVENTH DISTRICT OF TEXAS

                                               AT AMARILLO

                                                  PANEL D

                                       SEPTEMBER 11, 2006
                                 ______________________________

                                           ALEX BALDOMINO,

                                                                Appellant

                                                       v.

                                        THE STATE OF TEXAS,

                                                            Appellee
                              _________________________________

                FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

                 NO. 2004-405,890; HON. BRAD UNDERWOOD, PRESIDING
                           _______________________________

                                      Memorandum Opinion
                                _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Alex Baldomino (appellant) appeals his conviction for aggravated assault with a

deadly weapon, i.e. a motor vehicle. His three issues concern 1) the legal sufficiency of

the evidence showing that his intoxication caused the accident, 2) the factual sufficiency

of the evidence showing he was the driver of the vehicle when the accident occurred, and

3) the admissibility of results of a blood test requested by the investigating officer.1 We

affirm the judgment of the trial court.


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           W e will consider the issues in reverse order.
                                        Background

       The case involves appellant and Oscar Pena riding in appellant’s truck during the

wee hours of the morning after spending a night drinking multiple intoxicating beverages.

As the truck proceeded adjacent to the local interstate at a high rate of speed, it flipped and

rolled several times. Appellant suffered visible injuries to his hand. Though Pena

purportedly suffered no visible external injuries, he broke his neck and suffered significant

paralysis.

               Issue Three – Admissibility of the Blood Test Results

       Appellant contends in his third point that the trial court erred in refusing to suppress

the evidence of his “pre-arrest blood test.” The results purportedly were inadmissible

because his consent to undergo the test was involuntary. And, his consent supposedly

was involuntary because he was allegedly too drunk and confused to give effective

consent. We overrule the issue.

       The record illustrates that two blood specimens were drawn from appellant. One

was done at the behest of the investigating officer, and this was the test forming the basis

of appellant’s motion to suppress. The other specimen was taken by hospital personnel

prior to the officer’s request. Moreover, its results were admitted into evidence without

objection and illustrated a higher blood alcohol level than the results derived from the

specimen solicited by the officer. Given evidence like that to which appellant objected was

admitted elsewhere without objection, we cannot say that the trial court’s refusal to grant

the motion to suppress was harmful, assuming of course it was erroneous. See Hur v. City

of Mesquite, 893 S.W.2d 227, 230 (Tex. App.–Amarillo 1995, writ denied) (holding that




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error arising from the admission of evidence is deemed harmless when the same or similar

evidence is admitted elsewhere without objection).

                            Issue Two – Factual Sufficiency

       As previously mentioned, appellant complains via his second issue that the

evidence was factually insufficient to illustrate that he was the driver of the truck when it

flipped. We overrule the issue.

       We review the issue under the standard expressed in Zuniga v. State, 144 S.W.3d

477 (Tex. Crim. App. 2004). The litigants are referred to that case for a discussion of the

relevant standard.

       Next, appellant asserts that more is needed to prove he drove the vehicle than

simply his own statement to the officer. Assuming this to be true, the record nonetheless

contains that additional evidence. It comes in the form of 1) appellant’s statement to an

attending nurse that he injured his hand because it was resting on the “window sill on top

of the truck” while he “was driving,” 2) Oscar Pena’s testimony that appellant was driving

because he, Pena, “was too drunk to drive,” 3) an EMS attendant’s testimony that the

driver had injured his left hand, 4) the evidence that appellant, as opposed to Pena, had

sustained injuries to his left hand, 5) the testimony that appellant obtained through artifice

or deceit an affidavit containing Pena’s alleged signature and expressing that Pena drove

the truck at the time of the incident, and 6) the evidence that Pena was paralyzed and

could not move his arms or hands on the date the affidavit was executed.

       Admittedly, others testified that they saw Pena driving the truck at one point or

another before the incident occurred. So too was there testimony that appellant was the

passenger when the two left their last drinking stop and that appellant’s blood appeared


                                              3
adjacent to the passenger area of the cab. But, again, both sightings occurred sometime

before the incident, not immediately before it. Furthermore, appellant’s own expert

eventually conceded that the blood stains could have been caused by the driver while he

was being attended to by medical personnel. Simply put, the evidence cited by appellant

as favoring acquittal was less than indisputable. At best, it merely created issues of fact

regarding the driver’s identity, the resolution of which lay in the province of the jury.

Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995) (stating that

“[r]econciliation of conflicts in the evidence is within the exclusive province of the jury”).

And, simply because the jury resolved those conflicts in a manner favoring conviction does

not mean the evidence was factually insufficient to support the verdict. Herrero v. State,

124 S.W.3d 827, 835 (Tex. App.–Houston [14th Dist.] 2003, no pet.).

       In sum, more than ample evidence illustrated appellant was the driver. That

evidence was neither weak nor outweighed by any contradictory evidence. So, upon

reviewing the entirety of the record in a neutral light, we can say that the jury was rationally

justified in finding guilt beyond reasonable doubt.

                              Issue One – Legal Sufficiency

       Lastly, we address the contention that the evidence was legally insufficient to

establish that appellant’s intoxication caused the accident. We overrule this point as well.

       The applicable standard of review is found in Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979). Furthermore, for purposes of this issue, we assume

that the State had to prove the accident was caused by appellant’s intoxication.

       Next, before us we have evidence that appellant was driving the truck when it

flipped, that he was driving at a high rate of speed, and that he was highly intoxicated at


                                               4
the time (a fact no one disputes). According to our Court of Criminal Appeals, a factfinder

may legitimately infer from the fact of driving while intoxicated that the ensuing accident

was caused by the driver’s intoxication. Ex parte Taylor, 101 S.W.3d 434, 443 n.27 (Tex.

Crim. App. 2002) (stating that from the fact of appellant’s drinking, the jury could infer that

he was intoxicated and that such intoxication was the cause of the accident); accord,

Thomas v. State, 756 S.W.2d 59, 61 (Tex. App.–Texarkana 1988, pet. ref’d) (stating that

evidence of intoxication along with evidence that the defendant drove his van into the lane

in which the other vehicle was traveling was sufficient proof that defendant’s intoxication

caused the accident). Thus, the record contains some evidence upon which a rational

factfinder could conclude beyond reasonable doubt that appellant’s inebriation caused the

truck to flip and injure Pena.

       Having overruled all of appellant’s issues, we affirm the judgment of the trial court.



                                                  Brian Quinn
                                                  Chief Justice

Do not publish.




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