









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-02-00010-CV
______________________________


DARCUS LOUISE EDGEWORTH, ET VIR., Appellants

V.

THOMAS L. WILSON, M.D., Appellee



On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 99C0794-202





Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Chief Justice Morriss

O P I N I O N

	On March 27, 1997, Darcus Louise Edgeworth underwent surgery to repair her bladder and
to remove her ovaries.  Dr. Thomas Wilson removed her ovaries, and Dr. Glen Rountree repaired
her bladder. Approximately one month after the surgery, Edgeworth went to the emergency room
with nausea, high fever, and intense pain in her abdomen. The emergency room physicians
discovered an obstruction in Edgeworth's ureter, and she underwent a second operation to correct
the problem.  Edgeworth initially sued both Wilson and Rountree for causing the obstruction, but
dismissed her suit against Rountree before trial.  Edgeworth alleged Wilson negligently placed a
stitch in her ureter during the first operation, which prevented the flow of urine and caused an
infection.  Wilson emphatically denied placing a stitch in the ureter and contended no such stitch was
found during the second operation.  Rather, Wilson contended the first operation was conducted
properly, and the blockage of Edgeworth's ureter was an unavoidable natural complication associated
with the first operation. 
	During the trial, Edgeworth introduced expert testimony from Dr. Bruce Halbridge. 
Halbridge testified that, based on his review of the operation notes and case file, Wilson negligently
clamped the ureter in the same location the blockage occurred. 
	In response, Wilson introduced a diagram drawn by Rountree depicting Edgeworth's kidneys,
bladder, and ureter at the time of the second operation and containing a darkened area on a portion
of the ureter.  Wilson testified that, in his interpretation, the darkened area of the diagram would
represent where the blockage occurred.  Wilson further testified he did not operate near the location
of the ureter blockage.  
	Because Wilson introduced the diagram to show where he operated in comparison to where
the blockage occurred, Edgeworth claimed the door had been opened to introduce a conversation
Edgeworth and her daughter, Nancy Lynch, had with Rountree concerning the diagram.  After the
second operation, Rountree drew the diagram in the presence of Edgeworth and Lynch.  Further,
Edgeworth contends that Rountree told the two women the darkened area represented a stitch he
found in the ureter and in his opinion, that stitch was the cause of the obstruction and subsequent
infection.  Edgeworth attempted to introduce this hearsay evidence on three separate occasions:  (1)
during cross-examination of Wilson, (2) during Edgeworth's testimony, and (3) during Lynch's
testimony.  The trial court excluded the conversation in each instance, and Edgeworth made three
separate bills of exception to preserve appellate review.
	From a final judgment in favor of Wilson, Edgeworth asserts on appeal the trial court erred
by (1) excluding the Rountree conversation and (2) allowing defense counsel, on cross-examination
of Edgeworth, to elicit testimony that she criticized her former physicians.
Rountree's Conversation
	We turn first to the Rountree conversation.  Edgeworth contends the conversation should
have been admitted under Rule 107 of the Texas Rules of Evidence, because Wilson opened the door
to its admission by submitting the Rountree diagram and interpreting it during his direct
examination.  See Tex. R. Evid. 107.  Rule 107 provides, in pertinent part: 
	When part of an act, declaration, conversation, writing or recorded statement is given
in evidence by one party, the whole on the same subject may be inquired into by the
other, and any other act, declaration, writing or recorded statement which is necessary
to  make  it  fully  understood  or  to  explain  the  same  may  also  be  given  in
evidence . . . . 

Tex. R. Evid. 107 (emphasis added).  We conclude the trial court was within its discretion in
excluding the Rountree conversation for two reasons:  (1) all of the Rountree diagram and none of
the Rountree conversation was put into evidence by Wilson, and (2) Wilson's submission and
interpretation of the diagram was not "on the same subject" as the portions of the Rountree
conversation Edgeworth wanted in evidence.
	Before Rule 107 applies, "part of an act, declaration, conversation, writing or recorded
statement" must have been given in evidence.  Here, the full diagram was admitted, by stipulation
of the parties.  None of the Rountree conversation was offered. (1) 
	Rountree's diagram and Wilson's interpretation of it were offered by Wilson to demonstrate
that the ureter blockage was not near where Wilson operated on Edgeworth and that, therefore, he
could not have damaged Edgeworth's ureter with a clamp.  On the other hand, Edgeworth wanted
to have the contents of the Rountree conversation admitted into evidence to introduce new
information, the purported location of an errant stitch in the ureter.  We conclude those two purposes
constitute different subjects.  See Patel v. State, 856 S.W.2d 486, 490 (Tex. App.-Houston [1st
Dist.] 1993, pet. ref'd) (memorandum first used to establish why appellant's credit card rejected;
appellant tendered other memorandum contents to explain how he obtained vehicle; not on same
subject).
	The admission and exclusion of evidence is committed to the trial court's sound discretion.
Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).  A trial court abuses its
discretion when it rules "without regard for any guiding rules or principles." City of Brownsville v.
Alvarado, 897 S.W.2d 750, 754 (Tex. 1995).  An appellate court must uphold the trial court's
evidentiary ruling if there is any legitimate basis for the ruling.  State Bar of Tex. v. Evans, 774
S.W.2d 656, 658 n.5 (Tex. 1989).  Moreover, we will not reverse a trial court for an erroneous
evidentiary ruling unless the error probably caused the rendition of an improper judgment.  See Tex.
R. App. P. 44.1; Gee, 765 S.W.2d at 396.
	Edgeworth failed to meet both the "part of" and the "same subject" requirements of Rule 107. 
Thus, the trial court did not abuse its discretion by excluding the evidence. (2)
Prior Complaints
	Edgeworth also contends the trial court abused its discretion by allowing Wilson's attorney
to question her about past complaints she had made about other physicians.  To preserve a complaint
for appellate review, a party must have presented to the trial court a timely request, objection, or
motion that states the specific grounds for the desired ruling, if they are not apparent from the
context of the request, objection, or motion.  Tex. R. App. P. 33.1(a).  If a party fails to do this, error
is not preserved and the complaint is waived.  Williamson v. New Times, Inc., 980 S.W.2d 706, 711
(Tex. App.-Fort Worth 1998, no pet.).  Further, a party should object every time inadmissible
evidence is offered; otherwise, any error in overruling a previous objection is cured.  Id. 
	Edgeworth objected, on the basis of relevancy, to the first attempt by Wilson to elicit
testimony of Edgeworth's prior complaints, and the trial court overruled the objection.  Subsequently,
without objection, Wilson elicited additional testimony about prior complaints by Edgeworth against
a doctor.  Any error caused by overruling Edgeworth's initial objection was cured by the additional
testimony, and Edgeworth has failed to preserve error for appellate review. (3) 


	For the reasons stated, we affirm the judgment.

							Josh R. Morriss, III
							Chief Justice

Date Submitted:	July 10, 2003
Date Decided:		July 30, 2003

1. Certainly, the Rountree diagram, by its nature, invites one to guess about the contents of the
Rountree conversation.  Though it might be argued that the diagram's admission into evidence also
gives in evidence "part of" the conversation, we find no authority applying Rule 107 to these or
analogous facts, nor any reason to extend Rule 107 to them.  See Tex. R. Evid. 107.  During Wilson's
interpretation of the Rountree diagram, Wilson and his counsel came close to the Rountree
conversation, but stopped short of reporting any "part of" what Rountree supposedly said on that
occasion.
2. Arguing it was error to exclude the testimony, Edgeworth relies on Evans v. Covington, 795
S.W.2d 806, 809 (Tex. App.-Texarkana 1990, no writ).  In Covington, Evans complained the trial
court erred by admitting evidence of a settlement offer.  Evans, however, introduced testimony from
Covington, who was called as an adverse witness, concerning a settlement letter Evans had written,
expressing a desire to offer her land in settlement of the dispute.  Id.  Subsequently, Covington
introduced the details of the offer.  This Court reasoned Evans could not complain of improper
evidence produced by Covington when Evans introduced the same evidence for the same purpose. 
Id.  The present case, however, is distinguishable from Covington.  In Covington, both the "part of"
and the "same subject" parts of Rule 107 were met.
3. Even if Edgeworth had preserved error, this Court does not find from a review of the record
that the admission of the complained-of testimony probably caused an erroneous judgment.


e trial court made implicit findings of fact
that support its ruling as long as those findings are supported by the record.  Id.  Finally, we must
afford almost total deference to the trial court's rulings on credibility questions.  Id.
	Here, the record reflects that Trooper Kendall Belt testified that while he was with Strickland
at the hospital, he requested and received Strickland's verbal consent to draw blood.  Belt had filled
out a consent form for Strickland's signature, but he testified that it was never signed because
Strickland told him that he was then physically unable to sign the form.  Strickland points out that
Belt also testified that he had told Strickland that if he refused his consent, Belt would obtain the
blood sample as a mandatory blood specimen; he continues that Belt admitted that Strickland was
not, at that point, under arrest (had he been under arrest, this would bring into play the mandatory
blood specimen section of the Texas Transportation Code (2)).  The record shows that Strickland was
arrested later that night upon his release from the hospital. 
	Strickland argues that by the officer's representation to him that he would obtain the blood
sample as a mandatory specimen, the officer unlawfully coerced him to provide a consent that was
not voluntarily given.  At trial, the State did not respond in any fashion to Strickland's argument on
coercion but, rather, simply argued its conclusion:  that the taking was consensual.  The trial court
then overruled Strickland's objection.  Based on this state of the record, the sole question is as
follows:  If a law officer informs a person that if they do not give consent to a search, the officer will
be able to perform one anyway, does that representation constitute improper coercion which renders
the verbal consent involuntary?  
	Unlike most of the cases reviewing coercion which precipitates consent, this situation does
not involve multiple witnesses whose testimony is conflicting.  Instead, we have a single witness (the
officer) who provided all of the evidence about the events leading up to the verbal consent.  Thus,
the trial court's exercise of weighing the credibility of multiple witnesses is not at issue in this case.
	The drawing of a blood sample is a search.  Aliff v. Staten, 627 S.W.2d 166, 169 (Tex. Crim.
App. 1982).  Under Texas statutory law, a person is deemed to have given consent to the taking of
blood upon his arrest if driving while intoxicated (DWI) has been alleged.  Tex. Transp. Code
Ann. § 724.011.  It applies, however, only to those who have been placed under arrest.  Aliff, 627
S.W.2d at 169.  In this case, Officer Belt testified that he had not formally arrested Strickland at the
time Belt presented the consent form to him.  Never having been signed, the consent form itself is
not in the record.  Belt testified that he smelled the odor of alcohol on Strickland and that Strickland
was arrested later that night.  He also testified that he conducted a DWI interview with Strickland,
following a form that is found in the record.  The basic warnings that must be constitutionally and
statutorily provided to an arrested person are set out in writing and are fully in the form; the form
was initialed by Strickland.  
	On cross-examination, Officer Belt testified that he conducted field sobriety tests on
Strickland and decided to take a blood sample; that Trooper Adam Bell arrived and arrested
Strickland on three counts of intoxication assault. 
	This Court has held in the context of an automobile search that when an officer incorrectly
informed a defendant that he has the right to search--in a situation where he does not--the
defendant's consent is coerced. 
	[the officer's] statement (if sanctioned by this Court), would, without more, allow the
automobile exception to swallow the rule against unreasonable searches and seizures
by allowing officers to suggest--falsely--that people lack the right to resist an
automobile search.  [The officer's] statement is coercive, in much the same way as
the assertion in Bumper was held by the United States Supreme Court to violate the
defendant's constitutional rights.  See Bumper, 391 U.S. at 546, 88 S.Ct. 1788;  see
also Erdman v. State, 861 S.W.2d 890, 894 (Tex. Crim. App. 1993) (officer's
misinformation asserted "considerable psychological pressure" on accused;  refusal
to suppress evidence was abuse of discretion).  Accordingly, Cisneros' consent was
coerced, and [the officer's] search could not be justified on that basis.
Cisneros v. State, 165 S.W.3d 853, 858 (Tex. App.--Texarkana 2005, no pet.). 
	This case, however, provides a different scenario.  In Cisneros, we were careful to point out
that the officer's statement that he did not need a search warrant to search a vehicle was true only
under limited conditions "that are not present here."  Id. at 857.  Thus, the officer effectively lied to
the defendant in order to obtain the consent to search.  In contrast to that, in the present case, the
statement given by Officer Belt was true under an already existent condition which, at minimum,
came to completion only shortly after Belt made the statement.  
	Under these facts (and assuming, as maintained by Strickland that Strickland was not under
arrest at that time), Belt had not created and communicated a fiction in order to coerce the consent
for a search; rather, he was instead warning Strickland about the reality of his situation.  Strickland
was subject to immediate arrest based on the information which was in Belt's possession at the time
that representation was made--and was, in fact, arrested immediately thereafter--and without
reference to the eventual results of the blood test.  Cf. Erdman v. State, 861 S.W.2d 890, 894 (Tex.
Crim. App. 1993). (3)
	We find this situation distinguishable from Cisneros and conclude that because Officer Belt's
comment was effectively a truthful statement, the consent was not coerced.
	We also recognize that there is some authority which could support a conclusion that due to
the nature of the written interview form and the warnings given to Strickland when he was
interviewed, he was effectively arrested at that time.  In Texas Department of Public Safety v.
Latimer, 939 S.W.2d 240 (Tex. App.--Austin 1997, no pet.), the court pointed out that the accused,
having been given the statutory warnings, including a statement that "You are under arrest for the
offense of Driving While Intoxicated," was effectively under arrest at that point in time.  Id. at 244. 
In this case, there is no "you are under arrest" statement but he was given the statutory warnings that
are appropriate for an arrested individual.  Although not conclusive, it is a further indication that the
officers did not consider Strickland as being free to leave, a circumstance which could suggest that
he was actually under arrest at the time.
	Based on these factors, we conclude that the comment of the officer was not coercive as that
concept exists in the law and that the trial court thus did not err by concluding that Strickland's oral
consent was voluntary.
	We affirm the judgment.


						Bailey C. Moseley
						Justice

Date Submitted:	August 20, 2007
Date Decided:		September 11, 2007

Do Not Publish

1. The photographs in our record are black and white photocopies of the original pictures.  The
record does not indicate whether the originals were in black and white or in color.  The detail is that
of any close, focused picture, and the body was sufficiently exposed to reveal the injured portions. 
We find none of these other considerations to be controlling.
2. See Tex. Transp. Code Ann. § 724.011 (Vernon 1999), § 724.012 (Vernon Supp. 2006).
3. This case contrasts with Washburn v. State, No. 06-07-00041-CR, recently issued by this
Court, in which we determined, under the particular circumstances which existed there, that
Washburn was actually under arrest.

