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                                  MEMORANDUM OPINION

                                         No. 04-07-00251-CR

                                         Gregory LINDSEY,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                        From the County Court at Law No. 8, Bexar County, Texas
                                        Trial Court No. 856829
                               Honorable Olin B. Strauss, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: December 10, 2008

AFFIRMED

           A jury found defendant, Gregory Lindsey, guilty of driving while intoxicated and the trial

court assessed punishment at 180 days’ confinement, probated for one year. We affirm.

                                           BACKGROUND

           Sometime past midnight on March 21, 2003, defendant drove his vehicle into another vehicle

that was parked in front of the residence of Steven Sutton. At trial, Sutton testified he saw

defendant’s vehicle, a Four Runner, hit his wife’s car, a Sunfire, with sufficient impact to send the
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Sunfire into the front yard of a neighbor’s house, and cause the Four Runner to hit the curb, swerve,

land on its side and spin around before finally coming to a rest on its side about three houses down

from Sutton’s house. As Sutton ran towards the Four Runner, he saw defendant attempting to crawl

out through a gap underneath the passenger-side window. When defendant tried to push his vehicle

right-side up, Sutton told him to sit down on the curb. Defendant sat down and put his hands behind

his head. Sutton described defendant as “confused.”

       One of the paramedics who treated defendant at the scene, Mark Lerma, testified defendant

was alert and oriented, and defendant told him “he really had a lot to drink that night.” Officer

Nancy Olguin, who arrived at the scene after the ambulance, testified defendant swayed when he

stood up, smelled strongly of intoxicants, slurred his speech, had red eyes, and was uncooperative.

Although Olguin suspected defendant was intoxicated, she conducted no field sobriety tests because

defendant was swaying and could not stand on his own. After defendant’s Four Runner was flipped

right-side up, Olguin found an empty bottle of rum and a one-quarter-full bottle of rum in the

vehicle. After paramedics treated defendant, he was placed inside Olguin’s patrol car for transport

to the magistrate’s office. However, because defendant’s head started to bleed, Olguin took him to

the hospital. Olguin concluded defendant was intoxicated based on his swaying, the smell of his

breath, his red eyes, and his slurred speech.

                                  ADMISSION OF EVIDENCE

       In his second issue, defendant asserts the trial court erred by admitting into evidence the

results of his medical blood draw, which indicated he was intoxicated, because the State did not

establish the chain of custody for the hospital lab results. The Texas Rules of Evidence do not define


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the term “chain of custody”; however, Rule 901(a) provides that the “requirement of authentication

or identification as a condition precedent to admissibility is satisfied by evidence sufficient to

support a finding that the matter in question is what its proponent claims.” TEX . R. EVID . 901(a).

The court properly admits evidence when a reasonable juror could find that the evidence was

authenticated. Pondexter v. State, 942 S.W.2d 577, 586 (Tex. Crim. App. 1996).

       Here, William Herrera, an emergency room nurse, testified he was at defendant’s bedside

when defendant’s blood was drawn, but he could not remember who drew the blood. Herrera stated

that a patient’s blood is drawn into a vial and the vial is labeled with the patient’s name,

identification number, and date of birth. Kathy Hurd, a medical technologist at the hospital, testified

that when the vial of blood arrives in the lab, it is accompanied by a lab request, which indicates the

tests to be run on the blood. Hurd stated that defendant’s identification information written on the

vial’s label matched the identification information on the lab request, which, in turn, matched the

same information contained in the lab results report.

       On appeal, defendant contends it is mere speculation that the blood tested was his. However,

the record contains no evidence suggesting that the blood drawn was tampered, confused or

comingled with that of another patient. “Without evidence of tampering, most questions concerning

care and custody of a substance go to the weight attached, not the admissibility, of the evidence.”

Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997); see also Silva v. State, 989 S.W.2d

64, 68 (Tex. App.—San Antonio 1998, pet. ref’d) (explaining that chain of custody goes to the

weight, not admissibility). On this record, we conclude the trial court did not abuse its discretion

in allowing the results of defendant’s medical blood draw into evidence.


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        In his first issue, defendant asserts the trial court erred in admitting into evidence Lerma’s

testimony regarding the statements defendant made to Lerma. Defendant argues federal law

prohibits the disclosure of personal information obtained by a health care worker that relates to a

person’s past, present, or future medical condition. Although defendant does not specify the

statements to which he objects, we assume it is Lerma’s testimony that defendant said “he really had

a lot to drink that night.”

        Even if we assumed arguendo that admission of Lerma’s testimony was error, we cannot say

it affected defendant’s substantial rights. See TEX . R. APP . P. 44.2(b). Substantial rights are not

affected by the erroneous admission of evidence if, after examining the record as a whole, we have

a fair assurance that the error did not influence the jury, or had but a slight effect. Motilla v. State,

78 S.W.3d 352, 355 (Tex. Crim. App. 2002). To assess the likelihood the jury’s decision was

adversely affected by the error, we 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. Id. Overwhelming evidence of guilt is a factor in any thorough harm analysis.

Id. at 357-58.

        The State did not dwell on Lerma’s testimony, although the prosecutor referred to his

testimony in its closing argument. Instead, the State relied on other overwhelming evidence of guilt.

Officer Olguin testified she believed defendant was intoxicated because he swayed when he stood

up, smelled strongly of intoxicants, slurred his speech, and had red eyes. Herrera testified he made

a note in defendant’s medical records that stated: “Patient apologizing to mother for drinking and


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driving.” Hurd testified defendant’s blood alcohol level was three times the legal limit and she

agreed his blood alcohol level was “within the stupor range.” After examining the record as a whole,

we conclude defendant’s substantial rights were not affected by the admission of Lerma’s testimony

into evidence.

                                       JURY ARGUMENT

       In his final issue, defendant asserts the trial court erred by denying his motion for a mistrial

based on his objection to the following remarks made by the prosecutor, Ms. Kristina Escalona,

during closing arguments:

               Now I can only anticipate what Defense counsel will get up here and say. But
       I have a feeling that he’s going to remind you that the burden lies at this [the State’s]
       table.
                                                      ...

               The Defense has taken every witness on that stand and the Defense has tried
       with all veracity he can, with every scrap of energy that a - - that a cornered animal
       might have that he knows - -

                                       [defense objection overruled]

             With every ounce of energy he can when he knows he has no place to go.
       Example just shown. What we have here - -

                                       [defense objection]

               [Trial court:] Overruled. And, Ladies and Gentlemen, this is argument of trial.
       This is not evidence. . . . .

       On appeal, the State agrees the prosecutor’s statement “arguably became objectionable” when

she made this “mildly inappropriate” comment. Defendant argues the prosecutor improperly struck

at him over the shoulders of his attorney. We agree with defendant that the prosecutor’s comments



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were improper. Ms. Escalona’s characterization of defense counsel as a “cornered animal” and then

using counsel’s objection to her remark as an example “just shown” was improper. Therefore, the

trial court erred by not sustaining defendant’s objection to Ms. Escalona’s remarks.

        Improper jury argument is non-constitutional error, which must be disregarded if the error

“does not affect substantial rights.” TEX . R. APP . P. 44.2(b). In determining whether the defendant’s

substantial rights have been affected, we balance the following factors: (1) the severity of the

misconduct; (2) curative measures; and (3) the certainty of the punishment assessed absent the

misconduct (likelihood of the same punishment being assessed). Hawkins v. State, 135 S.W.3d

72, 77 (Tex. Crim. App. 2004); Burkett v. State, 179 S.W.3d 18, 29 (Tex. App.—San Antonio 2005,

no pet.).

        We believe the first and second factors weigh in favor of defendant. Disparaging remarks

about opposing counsel prejudice the rights of all litigants and trial courts must do more than merely

remind jurors that counsel’s argument does not amount to evidence. See Bray v. State, 478 S.W.2d

89, 90 (Tex. Crim. App. 1972) (“Trial judges should assume the responsibility of preventing this

type of argument. A rebuke by the trial judge in the presence of the jury may do more to end the

practice of intemperate and improper argument than repeated admonitions or even reversals by this

court.”). However, because the prosecutor moved on, after her remarks, to a discussion of the

evidence presented at trial and in view of the evidence supporting a finding that defendant was

intoxicated, we conclude the outcome of the trial absent the prosecutor’s conduct would not have

been different. Therefore, the trial court’s error did not affect defendant’s substantial rights.




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                                     CONCLUSION

     We overrule defendant’s issues on appeal and affirm the trial court’s judgment.



                                                  Sandee Bryan Marion, Justice

DO NOT PUBLISH




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