Affirmed and Memorandum Opinion filed March 10, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00588-CR

                 JENNIFER CHRISTINE WAITE, Appellant

                                        V.
                      THE STATE OF TEXAS, Appellee

             On Appeal from County Criminal Court at Law No. 13
                            Harris County, Texas
                        Trial Court Cause No. 1848166

                 MEMORANDUM                     OPINION


      A jury convicted appellant Jennifer Christine Waite of driving while
intoxicated. The trial court sentenced appellant to confinement for one year in the
Harris County Jail. The trial court suspended appellant’s sentenced and placed her
on community supervision for two years. Appellant filed a timely notice of appeal.
We affirm.
                                 EXCLUSION OF EVIDENCE

      In a single issue, appellant claims the trial court erred in excluding evidence
offered by the defense. The record reflects that defense counsel moved to admit as
Defense Exhibit 1 a copy of the “JAIL HEALTH PROGRAM INTAKE
MEDICAL SCREENING” form utilized by the Houston Department of Health and
Human Services. The State objected on the grounds of relevance, hearsay, and
improper foundation. The trial court sustained the objection, stating his reason to
be relevancy due to the lapse in time between the arrest and when the intake report
was done. Appellant complains question three was relevant:

      3.    Has detainee been arrested for driving under the influence
      (DUI); driving while intoxicated (DWI) and public intoxication AND
      does the detainee exhibit any unusual behavioral or physical signs
      consistent with being under the influence of drugs or alcohol or
      withdrawing from drugs or alcohol? If so, which characteristics are
      present?    No


      Assuming the trial court did err, its decision to exclude this evidence is
subject to a harm analysis for nonconstitutional error. Under this standard, error
must be disregarded unless it affects a defendant’s substantial rights. Tex. R. App.
P. 44.2(b). An error affects a defendant’s substantial rights when the error has a
substantial and injurious effect or influence on the jury’s verdict. King v. State, 953
S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no or only a slight
influence on the verdict, the error is harmless. Johnson v. State, 967 S.W.2d 410,
417 (Tex. Crim. App. 1998). An appellate court should consider “everything in the
record, including any testimony or physical evidence admitted for the jury’s
consideration, the nature of the evidence supporting the verdict, the character of
the alleged error and how it might be considered in connection with other evidence
in the case.” Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

                                          2
                                              THE EVIDENCE

         On the night of August 30, 2012, Officer Enloe stopped appellant after
observing her perform an illegal turn. Appellant initially handed Enloe the wrong
papers when asked for proof of insurance. Enloe testified that appellant smelled of
alcohol and had slurred speech. Enloe conducted three field sobriety tests and the
jury viewed the videotape of those tests. The first was the horizontal gaze
nystagmus test, commonly called HGN. Enloe testified the test can reveal six
possible signs of intoxication and she observed all six when conducting the test on
appellant. The second test was the “one-leg stand” with a possibility of four signs
of intoxication. Appellant showed three of the possible signs. Enloe testified that
a failing score is two possible signs. The third test was the “walk-and-turn.”
There’s a possibility of eight signs on this test and when appellant performed it
Enloe observed six.1 Two possible signs of intoxication is a failing score on this
test. Enloe testified appellant failed the test. Appellant refused to submit to a breath
or a blood test.

         Appellant denied having consumed any alcohol that night. Appellant said
she had been at an “art crawl.” Appellant advised Enloe that she had suffered a
concussion three years earlier and that was why she wore glasses. Appellant said
that she had not eaten since August 28th due to a new diet regimen. According to
appellant, she was not taking any medication but took hormones. During the last
field-sobriety test appellant told Enloe that a surgical “tummy-tuck” affected the
nerves in her legs and she was “concerned that might affect this.”

         Appellant’s mother, Debra Waite, testified that appellant had suffered a head
injury when she was seventeen (appellant was 37 at the time of trial) and that she

         1
             Although Enloe testified to the number seven, she actually only identified six possible
signs.

                                                   3
still has medical issues arising from that incident. Debra testified that appellant has
had problems with her legs for a couple of years. Debra testified that she had
reviewed the video and that appellant’s demeanor was normal for her because of
the prior accident. Debra told the jury that in her opinion appellant was not under
the influence of alcohol.

      A friend of appellant’s, Nigel Williams, testified that appellant was at his
house on the evening of August 29th until 1:30 a.m. Williams testified that she did
not have alcohol while there. Williams also testified that appellant’s demeanor and
speech on the video were normal for her. Williams said that appellant did not look
intoxicated and appeared to have her normal mental and physical faculties.

      Appellant was stopped by Enloe at approximately 2:20 a.m. The medical
screening form reflects that at 5:40 a.m., Examiner 116287 answered “no” to
question three. The qualifications of Examiner 116287 are unknown. Assuming
the examiner was aware appellant had been arrested for DWI, the first part of the
compound question, the “no” answer to the second part demonstrates, at most, that
three hours after Enloe observed appellant and determined that she was intoxicated
someone else found appellant did not exhibit “any unusual behavioral or physical
signs consistent with being under the influence of drugs or alcohol or withdrawing
from drugs or alcohol.”

                                         ANALYSIS

      As a general rule, an officer’s testimony that a person is intoxicated provides
sufficient evidence to establish the element of intoxication. See Kiffe v. State, 361
S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) citing Annis v.
State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979). See also Cotton v. State, 686
S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985) (evidence of intoxication includes
slurred speech, odor of alcohol on the person, and unsteady balance). An accused’s
                                          4
refusal to submit to submit to a blood-alcohol test is also relevant evidence of
intoxication. See Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008).2
In contrast to this evidence and the video is the testimony of Debra Waite and
Nigel Williams that appellant was acting normally for her and did not appear
intoxicated to them. Williams’s testimony that appellant was at his home until 1:30
a.m. was inconsistent with appellant’s statement to Enloe on the video that she had
been at an art crawl.

      We find that in light of the entire record the exclusion of question three on
the medical screening form did not have a substantial and injurious effect or
influence on the jury’s verdict. See Tex. R. App. P. 44.2(b). Accordingly, we
conclude that the trial court’s error, if any, in excluding the evidence was harmless.
We overrule appellant’s sole issue and affirm the trial court’s judgment.




                                        /s/       Marc W. Brown
                                                  Justice



Panel consists of Justices Boyce. Jamison, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).




      2
        See also Lovett v. State, 14-12-00556-CR, 2013 WL 3243363, at *3 (Tex. App.—
Houston [14th Dist.] June 25, 2013, no pet.) (mem. op., not designated for publication).

                                              5
