                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00185-CR


MELISSA CROCKETT                                                       APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


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       FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

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                         MEMORANDUM OPINION1

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      A jury convicted Appellant Melissa Crockett of driving while intoxicated (DWI),

and the trial court sentenced her to 180 days’ confinement.          The trial court

suspended imposition of the sentence for twenty months, placing Appellant on

community supervision. Appellant brings two points, arguing that the trial court

abused its discretion by excluding her exhibits 7A and 7B. Because the trial court’s

abuse of discretion was harmless, we affirm the trial court’s judgment.
      1
       See Tex. R. App. P. 47.4.
      On December 31, 2009, Lewisville Police Officer Jon Martinez made a traffic

stop of Appellant after another driver called 911 and reported that Appellant was

driving erratically. Martinez asked Appellant if she had any medical conditions, and

Appellant stated that she was undergoing hormonal therapy. After conducting field

sobriety tests, Martinez arrested Appellant for DWI. Appellant agreed to take a

breath test and registered .149 and .142.

      At trial, Appellant testified that she had not been intoxicated. She testified that

she had gone to a restaurant that evening for dinner and that while there, she had

three glasses of wine and a margarita, plus a sip of champagne, over the course of

about four hours.

      Appellant testified that she had hypothyroidism and also testified about her

symptoms and treatment. She stated that she was undergoing hormone therapy as

part of her treatment. She also testified that her hypothyroidism caused her to be

fatigued, unable to concentrate, and to have brain fog. She further testified that she

realized that her medication was not effective on the date of her arrest when she

found that she could not see while driving home on I-35 after leaving the restaurant.

      The trial court sustained the State’s objections to two medical records exhibits

that Appellant sought to admit. The first, Exhibit 7A, includes two pages. The first

page is a copy of a prescription, dated February 19, 2010, for thyroid medication,

and on the page is a handwritten doctor’s note stating, “Please have patient call

office ASAP. She is overdue for thyroid testing.” The second page is a refill request

for Appellant’s thyroid medication, dated January 15, 2010. Exhibit 7B contains


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thirty-five pages of medical records, including refill authorization requests, doctor’s

notes, lab test confirmations, and lab evaluations, although, as the State points out,

only the first page of 7B, a refill authorization request and signed prescription, was

represented by defense counsel as 7B when it was admitted for record purposes.

      The State argues that the exhibits were not admissible because they were not

relevant. The State argues alternatively that even if the records were admissible,

Appellant’s testimony nevertheless essentially encompassed the evidence that she

was attempting to place before the jury in the form of her exhibits, rendering any

error in refusing to admit the records harmless. Appellant argues that the excluded

exhibits were relevant because they explained her apparent intoxication and also

argues that that they supported and lent credibility to her testimony explaining her

physical condition on the night that she was arrested.

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

discretion standard.2 Under this standard, if the trial court’s ruling was within the

zone of reasonable disagreement, we will not disturb the ruling.3 The medical

records were relevant because they to some degree supported Appellant’s

defensive theory.    Appellant’s medical records dealt with the hypothyroidism

diagnosis and treatment and were accompanied by a proper affidavit in compliance



      2
       Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App.), cert. denied, 549
U.S. 1056 (2006).
      3
       Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).


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with rule 803(6).4 The records related directly to her defense. We hold that the trial

court abused its discretion by excluding the medical records.

       Having found error, we must conduct a harm analysis to determine whether

the error calls for reversal of the judgment.5 If the error is constitutional, we apply

rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the

error did not contribute to Appellant=s conviction or punishment.6 Otherwise, we

apply rule 44.2(b) and disregard the error if it did not affect Appellant=s substantial

rights.7

       Generally, the erroneous admission or exclusion of evidence is

nonconstitutional error governed by rule 44.2(b) if the trial court=s ruling merely

offends the rules of evidence.8       But in addition to her evidentiary complaint,

Appellant preserved her complaint that the trial court’s exclusion of the records

violated her right to present a defense under the Due Process Clause of the United

States Constitution. Nevertheless, the Texas Court of Criminal Appeals has held


       4
           See Tex. R. Evid. 803(6), 902(10).
       5
           Tex. R. App. P. 44.2.
       6
           Tex. R. App. P. 44.2(a).
       7
       Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998) (op. on reh=g), cert. denied, 526 U.S. 1070 (1999).
       8
       See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); see also
Walters v. State, 247 S.W.3d 204, 222 (Tex. Crim. App. 2007) (determining that
exclusion of evidence supporting defendant=s defensive theory was
nonconstitutional error).


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that “the exclusion of a defendant’s evidence will be constitutional error only if the

evidence forms such a vital portion of the case that exclusion effectively precludes

the defendant from presenting a defense.”9

      The exclusion of the two exhibits did not prevent Appellant from presenting

her defense. While it is true that her testimony was not corroborated by medical

evidence as she preferred, neither was it truly contested. Additionally, she was able

to testify at trial at length about her diagnosis and condition, generally and on the

night in question. We therefore hold the error harmless, overrule Appellant’s two

points, and affirm the trial court’s judgment.



                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 14, 2012




      9
       Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002).


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