                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                 NO. 02-09-00332-CR


JOSE PALACIOS                                                               APPELLANT

                                             V.

THE STATE OF TEXAS                                                                 STATE


                                         ------------

             FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

                                         ------------

                           MEMORANDUM OPINION1

                                         ------------

       A jury convicted Appellant Jose Palacios of felony driving while intoxicated

(DW I) and assessed his punishment at three years’ confinement. The trial court

sentenced him accordingly. In his sole issue, Appellant contends that the evidence

is insufficient to prove intoxication and therefore insufficient to sustain his conviction.

He also complains within his sole issue that his hospital records were admitted in



       1
            See Tex. R. App. P. 47.4.
violation of his right of confrontation under the United States Constitution. Because

we hold that the evidence is sufficient to support his conviction and that his hospital

records were properly admitted, we affirm the trial court’s judgment.

I. Sufficiency of the Evidence

       A. Standard of Review

       After the parties briefed this case on appeal, the Texas Court of Criminal

Appeals held “that there is no meaningful distinction between a Clewis

factual-sufficiency standard and a Jackson v. Virginia legal-sufficiency standard” and

that

       the Jackson v. Virginia standard is the only standard that a reviewing
       court should apply in determining whether the evidence is sufficient to
       support each element of a criminal offense that the State is required to
       prove beyond a reasonable doubt. All other cases to the contrary,
       including Clewis, are overruled.2

       Accordingly, we apply the Jackson standard of review to Appellant’s

sufficiency complaint. In reviewing the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the prosecution

in order to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.3          “Our review of ‘all of the




       2
       Brooks v. State, No. PD-0210-09, 2010 W L 3894613, at *14 (Tex. Crim.
App. Oct. 6, 2010).
       3
        Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App. 2007).

                                          2
evidence’ includes evidence that was properly and improperly admitted.”4

      The sufficiency of the evidence should be measured by the elements of the

offense as defined by the hypothetically correct jury charge for the case, not the

charge actually given.5 Such a charge is one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant was

tried.6 The law as authorized by the indictment means the statutory elements of the

charged offense as modified by the factual details and legal theories contained in the

charging instrument.7

      B. The Indictment and Alternative Means of Proof

      The indictment charged that Appellant “did then and there drive or operate a

motor vehicle in a public place, while [he] was then and there intoxicated, by reason

of the introduction of alcohol, a controlled substance, a drug, or a combination of two

or more of those substances in the body.” The indictment did not allege a means of

proof. Consequently, as the Texas Court of Criminal Appeals has explained,




      4
           Clayton, 235 S.W .3d at 778.
      5
        Hardy v. State, 281 S.W .3d 414, 421 (Tex. Crim. App. 2009); Malik v.
State, 953 S.W .2d 234, 240 (Tex. Crim. App. 1997).
      6
        Gollihar v. State, 46 S.W .3d 243, 253 (Tex. Crim. App. 2001); Malik, 953
S.W .2d at 240.
      7
           See Curry v. State, 30 S.W .3d 394, 404–05 (Tex. Crim. App. 2000).

                                           3
      Under the Texas DW I statute, intoxication may be proven in either of
      two ways: (1) loss of normal use of mental or physical faculties or (2)
      alcohol concentration in the blood, breath, or urine of 0.08 or more.
      The first definition is the “impairment” theory, while the second is the
      “per se” theory. They are not mutually exclusive, and, as long as there
      is evidence that would support both definitions, both theories are
      submitted in the jury charge.8

Here, both theories were submitted in the jury charge.

      C. Application to the Facts

      The jury heard the following evidence. On a sunny, dry Friday before Labor

Day 2008 at about 1:30 p.m., witnesses observed a Ford F-150 pickup being driven

erratically on the southbound service road of State Highway 121. Traffic was

moderate to heavy. The driver, later determined to be Appellant, wove in and out

of traffic with jerky movements, tailgated, used his brakes in an extreme manner, and

drove at inconsistent speeds. The pickup veered from the right lane in front of

middle-lane driver Cara W elsh, cutting her off, and hit a Toyota Camry in the left lane

“almost at a T.” The Camry had been trying to enter Highway 121 via an on-ramp

just past the highway's intersection with Main Street. The car and pickup spun and

flew off the road to rest on the left embankment of the overpass. The crash scene

was in Lewisville, Texas. The pickup was immobilized on a retaining wall with the

rear wheels suspended in the air. W hen Appellant could not free the pickup by

alternately putting it in forward and reverse gears, he exited the pickup. W itnesses



      8
        Kirsch v. State, 306 S.W .3d 738, 743 (Tex. Crim. App. 2010) (citations
omitted).

                                           4
testified that he was bleeding profusely from his face or head. Appellant never

responded to the attempts at conversation by either the driver of the car he hit or the

witnesses to the crash.

      After he left his pickup, Appellant crossed the busy feeder road, walked

approximately three hundred yards away from the accident, and entered a liquor

store and then, apparently, a convenience store. He wore a bloody shirt when he

entered the store. After he left the store, Appellant crossed a service road in traffic.

Drivers had to make “hard stop[s]” to avoid hitting him. A witness to the crash

stopped traffic as Appellant then crossed the busy northbound service road. About

150 yards away from the service road was a construction site.                 Appellant

disappeared briefly behind some portable toilets at the construction site. W hen he

reappeared, Appellant was no longer wearing his bloody shirt.

      City of Lewisville Officer Jeremy Reyna testified that at 1:29 p.m. on August

29, 2008, he received a radio dispatch that a crash had occurred. He also received

information that one of the parties was leaving the scene. Reyna arrived at the

scene about six minutes after he received the dispatch. He was driving on Highway

121 “northbound or eastbound, however you look at it, going towards The Colony”

when somebody using a cell phone and standing at the entrance to a construction

site on the right side of the road waved him down. He drove into the site, and

another person using a cell phone pointed him toward Appellant. The construction

site was in The Colony, Texas.


                                           5
      Reyna testified that Appellant “had blood on him” and appeared disoriented.

Reyna asked Appellant if he was “okay” because of the lacerations on his face and

called EMS. Appellant told the officer that he had hurt his head and “that he got

scared.” Reyna also asked how the accident had happened. Appellant told him that

he had “passed through the light.” Reyna then asked Appellant if he had been

drinking any alcohol because, Reyna testified, he “could obviously smell the alcohol

on [Appellant] and . . . his demeanor, the way he was standing and walking, led

[Reyna] to believe [Appellant] may have been drinking.” Reyna explained to the jury

that Appellant was swaying as he stood in front of the portable toilet. At first,

Appellant denied drinking, but Reyna told him to tell the truth, so then Appellant

stated that he had consumed two beers.9

      W hen paramedics arrived, Appellant fell asleep as he was being placed in an

ambulance. Reyna testified that he believed that Appellant’s falling asleep was due

to intoxication rather than injuries because the paramedic did not “sound too

concerned” when he was telling Appellant to wake up and because of the other

factors—the way Appellant was acting and his swaying. Even though Reyna did not

ask Appellant to perform field sobriety tests, Reyna believed, based on the accident,

Appellant’s location away from the accident site, their interactions, Appellant’s falling

asleep, and his admission to drinking two beers, that Appellant was legally



      9
         The record does not reveal that Appellant’s motion to suppress regarding
his statements and other evidence was ever presented or ruled on.

                                           6
intoxicated.

       W itnesses told Reyna that Appellant had left his shirt in a portable toilet.

Reyna retrieved it. W hen Reyna went to the crash site, he discovered that there was

no traffic light near the scene.

       Officer Kyle Koiner of The Colony Police Department was dispatched to the

accident scene. An inventory of the pickup revealed a “strong odor of alcoholic

beverage.” Six 12-ounce beer bottles were on the front floorboard; one had a small

amount of beer left in it. Either all or “[p]robably all” of them were “kind of cold to the

touch.” Two unopened beer bottles, also “cold to the touch,” were in a six-pack

container in the back seat of the extended cab.

       W hen Koiner left the accident site, he went to Trinity Medical Center in

Carrollton, Texas to check on Appellant, whom the ambulance had transported

there. Koiner spoke to registered nurse Mary Hyland, who, he testified, informed him

that Appellant’s blood had been drawn at approximately 2:25 p.m. Koiner then went

to Appellant’s room. The first thing Koiner noticed was “[t]he smell of a lot of alcohol,

of a big alcoholic beverage coming through the room, a strong odor.” The smell

became stronger as Koiner moved closer to Appellant, who was lying in the bed.

Appellant slurred his words and grunted when Koiner tried to converse with him.

Koiner smelled alcohol on Appellant’s breath and believed, based on that

observation, that Appellant “maybe” had been drinking. Koiner gave the nurses what

little information he had on Appellant and left the hospital.


                                            7
      Hyland, who was employed by Trinity Medical Center as an emergency room

nurse when Appellant was admitted, testified that upon his arrival, Appellant smelled

heavily of alcohol and bowel movement. His initial injuries were listed by EMS as

lacerations to the nose and left cheek.

      W hen asked whether she had drawn Appellant’s blood, Hyland explained,

      Usually, we do draw a toxic panel to see what their chemistry is, what
      their blood counts are, what drugs might be in their system, especially
      if they’re not able to state their own complaints; and it looks like he was
      not able to state his own complaint.

She also testified that a “tox screen” for a nonresponsive patient would be a normal

procedure at the hospital. Hyland testified that Appellant’s medical records showed

that she supervised Dave Bills, an EMT she was training, who actually performed the

“vena puncture . . . using sterile technique under [Hyland’s] supervision.” Hyland

testified that the blood was taken from the inside of Appellant’s elbow at 2:15 p.m.

before intravenous fluids were given to him using the same site.

      Hyland admitted on cross-examination that it appeared that pages in

Appellant’s medical records indicated that blood was drawn at the same time as

urine, 3:23 p.m., but also that for the serum alcohol test, blood was drawn at 3:31

p.m. She explained that she put her collection time, 2:15 p.m. in this case, on the

label, but that she did not enter that time in the computer; another hospital employee

generated the printed results. On cross-examination, Hyland answered, “Yes, sir,”

when asked, “This test was done for clinical purposes only, correct?” She did not



                                          8
know whether the puncture site was cleaned with isopropyl alcohol or if it was

instead cleaned with chlorhexidine.

      Appellant’s discharge summary contains the following diagnoses: “Nasal

bone fracture, alcohol, ATOH intoxication, mild facial strain, lumbar, facial laceration,

face, scalp, neck contusion.” Hyland testified that Appellant’s serum alcohol number

was high.

      Emily Kuriakose, a laboratory technologist at the hospital, testified that she

analyzed Appellant’s blood sample for the presence of serum alcohol, specifically,

ethanol, otherwise known as drinking alcohol. To test the blood, “a chemistry

analyzer that is QC and calibrated regularly” was used. Serum blood rather than

whole blood was used because the manufacturer of the chemistry analyzer

recommended using serum blood. Kuriakose testified that the technique used is

valid and generally accepted in the scientific community and has been the subject

of different peer reviews. She said that Appellant’s sample contained 287 milligrams

per deciliter of ethanol alcohol.

      Investigator Brent Robbins of the Denton County Criminal District Attorney’s

Office testified that 287 milligrams of alcohol per deciliter of serum is .247 grams per

100 milliliters of ethyl alcohol in the whole blood, “an extremely high level,” and

slightly higher than three times the legal limit. Robbins testified that the conversion

formula he used is the generally accepted way in Texas for converting from a serum

result to a result that corresponds to the DW I statute. Robbins admitted that he


                                           9
could not say what Appellant’s alcohol content was at the time he was driving.

      In complaining that the evidence is insufficient, Appellant contends that there

is no basis for Reyna’s opinion of Appellant’s intoxication because no field sobriety

tests were conducted, that the trial court improperly admitted Appellant’s hospital

records over his confrontation objection, that the State’s investigator, Robbins, relied

on those records to form his opinion regarding Appellant’s intoxication, and that even

Robbins’s opinion did not address Appellant’s alleged intoxication at the time of

driving.

      In performing a sufficiency review, we consider all evidence, whether properly

or improperly admitted.10 Considering the testimony from the witnesses and police

officers about Appellant’s actions before and after the wreck, his demeanor, and his

odor, as well as his medical records, the testimony about his blood alcohol

concentration (BAC), and the evidence of the beer and beer bottles in his pickup,

and viewing all the evidence in the light most favorable to the prosecution, we must

conclude that any rational trier of fact could have found the essential elements of

DW I beyond a reasonable doubt. W e therefore hold that the evidence is sufficient

to support Appellant’s conviction.




      10
        See Clayton, 235 S.W .3d at 778 (providing that we consider even
improperly admitted evidence in performing legal sufficiency review).

                                          10
II. Admission of Medical Records

      Appellant also argues that his medical records were admitted in violation of

his right to confrontation. The lab technologist who determined his BAC results

testified. Thus, no violation of his right to confrontation occurred with regard to his

BAC results.11 Further, considering Appellant’s global challenge to the medical

records, the only evidence indicated that the medical records were created solely for

treatment purposes. They were therefore not testimonial, and their admission did

not violate Appellant’s right to confrontation. 12 Accordingly, the trial court did not

abuse its discretion by admitting Appellant’s medical records.           W e overrule

Appellant’s sole issue.

III. Conclusion

      Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.




                                                     LEE ANN DAUPHINOT
                                                     JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and W ALKER, JJ.

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

DELIVERED: November 4, 2010


      11
         See Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1354, 1369
n.9 (2004).
      12
        See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2533 n.2 (2009);
Crawford, 541 U.S. at 42, 56, 124 S. Ct. at 1359, 1367.

                                          11
