Opinion filed May 6, 2016




                                      In The


        Eleventh Court of Appeals
                                   ___________

                             No. 11-14-00136-CR
                                   ___________

        BRENDA KAY HOLLAND A/K/A BRENDA KAY
      CARPENTER A/K/A BRENDA KAY GREEN, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 35th District Court
                             Brown County, Texas
                        Trial Court Cause No. CR22196

                     MEMORANDUM OPINION
      The jury convicted Brenda Kay Holland a/k/a Brenda Kay Carpenter a/k/a
Brenda Kay Green of felony driving while intoxicated. The trial court assessed her
punishment at confinement for thirty years in the Institutional Division of the Texas
Department of Criminal Justice. In one issue, Appellant asserts that the trial court
erred when it did not allow Appellant’s daughter to testify about Appellant’s
postarrest diagnosis of and treatment for diabetes. We affirm.
                                 Background Facts
      On July 19, 2012, Officer Amanda Benson of the Early Police Department
observed Appellant driving the wrong way on a divided highway. Upon stopping
Appellant, Officer Benson observed that Appellant was barefoot and had a hard time
holding herself upright while attempting to walk toward Officer Benson’s patrol car.
Officer Benson testified that Appellant was unsteady on her feet and had very slurred
speech. Appellant failed a field sobriety test administered by Officer Benson, at
which point Officer Benson arrested Appellant for driving while intoxicated.
Appellant subsequently consented to a blood draw. The analysis of the blood
specimen drawn from Appellant showed that her blood alcohol concentration was
0.198 grams of alcohol per 100 milliliters of blood.
      Appellant called her daughter, Mary Kay Downing, as a defense witness.
Downing testified that Appellant would sometimes appear to act like someone who
was intoxicated when she spent too much time outside in the heat and became
dehydrated. On multiple occasions, however, the trial court sustained the State’s
objections to Downing’s attempts to testify about Appellant’s postarrest diagnosis
of diabetes and to Downing’s attempts to testify that diabetes may have made
Appellant appear to be intoxicated when she was arrested.
                                       Analysis
      In her sole issue, Appellant asserts that the trial court erred when it refused to
allow Downing to present evidence of Appellant’s postarrest diagnosis of and
treatment for diabetes and how the symptoms of diabetes may have made Appellant
appear intoxicated on the date of her arrest. We review the trial court’s decision to
admit or exclude evidence under an abuse of discretion standard. Shuffield v. State,
189 S.W.3d 782, 793 (Tex. Crim. App. 2006). A trial court abuses its discretion
when it acts outside the zone of reasonable disagreement. Zuliani v. State, 97 S.W.3d
589, 595 (Tex. Crim. App. 2003). If the trial court’s evidentiary ruling is correct on
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any theory of law applicable to that ruling, it will not be disturbed on appeal even if
the trial judge gave the wrong reason for his right ruling. De La Paz v. State, 279
S.W.3d 336, 344 (Tex. Crim. App. 2009).
      We note at the outset that Downing testified that Appellant was “pre-
diabetic.” She also testified that, on several occasions prior to Appellant’s arrest,
“[Appellant] would just be knocked out like she was just -- like she was drunk.”
Downing testified that Appellant had problems with walking and balance. She also
testified that, “[w]hen [Appellant] works in heat and gets real exhausted, she gets
slurred speech. It’s almost -- it almost sounds like she is going to have a stroke.”
Downing stated that Appellant had occasions when she suffered dehydration and
that “[s]he seemed like she was drunk to me” on those occasions.
      The State made a relevancy objection when Downing attempted to testify that
Appellant had been diagnosed with diabetes after her arrest. The trial court asked
defense counsel if he had “some medical testimony [he was] going to offer that
[would] show she had diabetes on the date in question.” When defense counsel
answered “no,” the trial court ruled that it would sustain the State’s objection. The
trial court sustained additional objections made by the State to Downing’s attempt
to testify about Appellant’s medical diagnosis. As previously noted, the trial court
permitted Downing to testify about her observations of Appellant’s physical
condition at various times. Thus, Appellant’s postarrest diagnosis of diabetes is the
only matter that the trial court precluded Downing from testifying about.
      “Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence
in determining the action.” TEX. R. EVID. 401. Relevant evidence is generally
admissible while irrelevant evidence is inadmissible. TEX. R. EVID. 402. When
determining whether evidence is relevant, courts must examine the purpose for
which the evidence is being introduced. Layton v. State, 280 S.W.3d 235, 240
                                          3
(Tex. Crim. App. 2009). It is critical that there is a direct or logical connection
between the actual evidence and the proposition sought to be proved. Id. Defense
counsel informed the trial court that he wanted to introduce evidence of Appellant’s
postarrest diagnosis of diabetes through Downing to show the condition that
Appellant was in at the time of Appellant’s arrest.
      The Fourteenth Court of Appeals addressed a similar situation in Sneed v.
State, 955 S.W.2d 451 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d). The DWI
defendant in Sneed sought to offer postarrest medical records to show that he
suffered from a head injury at the time of his arrest for DWI. 955 S.W.2d at 455.
The court determined that the defendant’s postarrest medical records were not
relevant to proving that he was suffering from the head injury or taking medication
for it at the time he was arrested. Id. The rationale in Sneed is applicable to the
facts in this case. We conclude that the trial court did not abuse its discretion in
determining that Appellant’s postarrest diagnosis of diabetes was not relevant to
show that she was suffering from the effects of diabetes at the time of her arrest.
      Furthermore, there was an additional basis that the trial court relied upon in
sustaining the State’s objection to Downing’s testimony about medical matters. The
trial court determined that Downing did not have the requisite medical expertise to
testify that Appellant was suffering from diabetes at the time of her arrest. This
ruling by the trial court served as another basis for excluding Downing’s testimony
about Appellant’s medical condition. Appellant has not challenged the trial court’s
ruling on this basis. Appellant’s failure to challenge this independent ground relied
upon by the trial court for the exclusion of the evidence results in waiver. See
Marsh v. State, 343 S.W.3d 158, 161–62 (Tex. App.—Texarkana 2011, pet. ref’d).
Moreover, we have noted that the trial court permitted Downing to testify that
Appellant was “pre-diabetic” at the time of her arrest and to testify extensively about
the possibility that Appellant’s condition at the time of arrest was attributable to her
                                           4
physical problems. Accordingly, we conclude that any error in precluding Downing
from testifying that Appellant was diagnosed as being diabetic after her arrest was
harmless. See TEX. R. APP. P. 44.2(b).1 We overrule Appellant’s sole issue.
                                        This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                 JOHN M. BAILEY
                                                                 JUSTICE


May 6, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




        1
         Appellant contends that the trial court’s exclusion of evidence amounted to a constitutional
violation and that TEX. R. APP. P. 44.2(a) sets out the applicable harm analysis. We disagree. The Texas
Court of Criminal Appeals has provided 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.” Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002).
Downing testified extensively about other factors that made Appellant appear to be intoxicated when she
was sober, such as Appellant’s poor balance and slurred speech, and about how she is violent when she is
intoxicated and listless when she is merely dehydrated. Accordingly, Appellant was not precluded from
presenting her defense.

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