                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-125-CR


ZACHARY BERNARD SMITH                                                    APPELLANT

                                              V.

THE STATE OF TEXAS                                                            STATE

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           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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      The trial court convicted Appellant Zachary Bernard Smith of felony

driving while intoxicated (DWI), finding the two jurisdictional prior DWI

convictions alleged in the indictment true.              The trial court also granted

Appellant’s motion to quash the repeat offender notice alleging a prior

aggravated robbery conviction out of Nueces County. The trial court, therefore,



      1
          … See T EX. R. A PP. P. 47.4.
did not find the enhancement allegation true.        The trial court sentenced

Appellant to five years’ confinement in the Institutional Division of the Texas

Department of Criminal Justice.

      In his sole point, Appellant challenges the factual sufficiency of the

evidence to support the guilty verdict.        The State brings a crosspoint

challenging the trial court’s order to seal Appellant’s medical records. Because

we hold that the evidence is factually sufficient to support the judgment and

that the trial court had the authority to seal Appellant’s medical records, we

overrule Appellant’s sole point and the State’s crosspoint and affirm the trial

court’s judgment as modified.

                          C LERICAL E RROR IN J UDGMENT

      Initially, upon our review of the record, we discovered that the trial court

granted Appellant’s motion to quash the sole “repeat offender notice” regarding

Appellant’s prior conviction for aggravated robbery. Because the enhancement

count was quashed, we modify the trial court’s judgment to delete the finding

of “ONE PRIOR FELONY CONVICTION” on the line for “Findings on

Enhancement/Habitual Paragraphs(s),” and we insert the word “NONE” in place

of the deleted language. 2 The jurisdictional allegations, however, were proved,


      2
       … See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992)
(holding that appellate court has authority to make the record speak the truth);

                                        2
and the trial court’s judgment correctly reflects the finding that the State

proved beyond a reasonable doubt the jurisdictional prior DWI convictions.

                             F ACTUAL S UFFICIENCY

      The indictment provided in relevant part that Appellant “was intoxicated

by not having the normal use of his mental or physical faculties by reason of

the introduction of alcohol, a controlled substance, a drug, a dangerous drug,

or a combination of two or more of these substances into his body.” In his sole

point, Appellant contends that the evidence is factually insufficient to support

his conviction because there was no evidence that he had any drugs in his body

when he was stopped, or, alternatively, no evidence of the quantity of drugs

in his body at the time of the stop; no evidence that the amount in his body

would have resulted in intoxication; and no evidence of the effect such drugs

would have had on the human body or on Appellant’s in particular.           The

following evidence was admitted at trial.

      Around 3 a.m. on August 28, 2005, Arlington, Texas resident LaDonna

Zepeda saw a compact, beige-colored vehicle hit a telephone pole at the side

of her house. She then called 911. As she was on the telephone with the 911




Bray v. State, 179 S.W.3d 725, 729 (Tex. App.—Fort Worth 2005, no pet.)
(modifying judgment to delete parole condition on court’s own motion).

                                       3
operator, she saw the car back up, drive across her lawn, strike her car, and

drive away.

      A short time later, Arlington police officer Kevin Brown stopped

Appellant’s car about three miles away from Zepeda’s house after observing

him twice swerve into the oncoming traffic lane.      Appellant’s vehicle had

moderate damage to the front left and appeared to have a flat tire.

      Officer Brown noted that Appellant’s eyes were “extremely glassy” and

that his movements were “slow and lethargic.” Appellant told Officer Brown

that he was on “pain pills” or, variously, “painkillers.” Officer Brown did not

smell alcohol on Appellant. Officer Brown conducted a field sobriety test, on

which Appellant performed poorly. Appellant was then arrested. Appellant had

offered to take a breath test and to give a urine sample, but he ultimately

refused to give a blood sample. At trial, the State introduced the in-car video

of the stop as well as the in-station video.    Appellant introduced medical

records showing that he had been prescribed hydrocodone for an infected

insect bite.

      Appellant stated on the in-station video that he “was on” Vicodin and

Lortab and perhaps should not have been driving and told the officers that he

could get the prescriptions and show them what “these things” do to him. He

denied that he had been drinking and blamed his driving on the drugs and his

                                      4
tiredness. He seemed to be under the impression that he had not committed

an offense because he had prescriptions for the drugs.            The trial court

recognized the Controlled Substances Act, which lists hydrocodone as a

Schedule II drug,3 and took judicial notice of the fact that Vicodin and Lortab

both contain hydrocodone. 4

      Applying the appropriate standard of review,5 we hold the evidence

factually sufficient to support Appellant’s conviction and overrule Appellant’s

sole point.

                          S EALING OF THE M EDICAL R ECORDS

      In its crosspoint, the State complains that the trial court had no authority

after the trial ended to seal Appellant’s medical records, introduced into

evidence by Appellant on the subject of his guilt.        The State did not seek

access to the medical records for purposes of appeal or request that they be

included in the record on appeal. After this case was submitted, this court on

its own motion ordered the medical records as well as State’s Exhibits Number


      3
          … See T EX. H EALTH & S AFETY C ODE A NN. § 481.032 (Vernon Supp. 2007).
      4
       … See T EX. R. E VID. 201(b); see also http://www.pdr.net (search terms
lortab and vicodin) (last visited June 25, 2008).
      5
      … See Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006);
Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); Sims v. State,
99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1,
11 (Tex. Crim. App. 2000) (all providing factual sufficiency standard of review).

                                         5
4, 5, and 5A (the video of the stop, its case, and the in-station video) to be

delivered to this court. They were filed on June 3, 2008, and are now part of

the appellate record. We reviewed them in addressing factual sufficiency of the

evidence.

      Should a party likewise need to review the sealed medical records in

preparing or responding to a motion for rehearing or a petition for discretionary

review, we hold, as is our customary policy, that counsel for the State or

Appellant shall be allowed to review the sealed records at the office of the clerk

of this court. We are not, however, prepared to hold that the trial court acted

outside its authority by shielding the medical records from the public eye, nor

are we prepared to reverse the trial court’s decision. We overrule the State’s

crosspoint.

      Having overruled Appellant’s point and the State’s crosspoint, we affirm

the trial court’s judgment as modified.




                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: June 26, 2008

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