                            NUMBER 13-12-00047-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

DAVID JAMES GALLAGHER,                                                   Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


                On appeal from the County Court at Law No. 3
                      of Montgomery County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
            Memorandum Opinion by Justice Benavides

       Appellant, David James Gallagher, appeals his conviction for driving while

intoxicated.   See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2011).    By three issues,

which we renumber as two, Gallagher asserts that:      (1) the trial court erroneously

admitted his hospital medical records showing his blood alcohol and drug test results;
and (2) insufficient evidence establishes (a) the corpus delicti of driving while intoxicated;

and (b) that Gallagher was the operator of the motor vehicle at the time of the car

accident.    For reasons stated below, we affirm.

                                     I.      BACKGROUND1

       Gallagher was charged by information in Montgomery County, Texas for driving

while intoxicated, a Class B misdemeanor.              See TEX. PENAL CODE ANN. § 49.04.           The

State presented the following evidence during Gallagher’s jury trial.

       In the early morning hours of May 14, 2011, Megan McDougald traveled down

Walden Road in Montogmery County as the passenger of her friend’s pickup.                       At that

point, McDougald stated that she heard a car accelerate behind her driving around a

curve in the road and witnessed that car “go off the road” and flip over.               McDougald’s

friend stopped and McDougald called 9-1-1. She observed two males standing outside

the wrecked vehicle.

       Texas Department of Public Safety trooper Charles Williams responded to the

scene shortly thereafter.      Upon his arrival, he observed two males “standing . . . and

walking around” the vehicle, which had sustained heavy front-end damage, heavy

top-side damage, and appeared to “have been rolled over a couple of times.” Trooper

Williams later identified the two males as Gallagher and Nicholas Craig Williams.

According to Trooper Williams, Gallagher stated that he was the driver of the vehicle.

An initial check of the vehicle’s license plate revealed Gallagher as the car’s registered




       1
         This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §
73.001 (West 2005).


                                                   2
owner. Additionally, a certified copy of the vehicle’s state registration was admitted into

evidence that listed Gallagher as the owner of the damaged vehicle.

        Trooper Williams testified that Gallagher “had a strong odor of an alcohol[ic]

beverage coming from his breath.” Trooper Williams described Gallagher’s eyes that

night as “very glassy and red” with “droopy eyelids” and that Gallagher was “swaying

while standing.” According to Trooper Williams, Gallagher admitted to drinking “some

beer” and “a little bit of everything” over the previous four hours.               Trooper Williams also

testified that Gallagher told him that he was driving down Walden Road and “failed to

negotiate the curve” and “drove off the roadway and his vehicle rolled.”

        Trooper Williams administered three different field sobriety tests to Gallagher:

(1) a horizontal gaze nystagmus (HGN) test, (2) a walk-and-turn test, and (3) a one-leg

stand test.2 According to Trooper Williams’s assessment, Gallagher exhibited all six

clues that indicate intoxication under the HGN test, four out of the eight clues under the

walk-and-turn test, and two out of the four clues under the one-leg stand test. Trooper

Williams admitted that Gallagher gave concise answers to his questions and did not

remember Gallagher slurring his words.                    Nevertheless, Trooper Williams placed

Gallagher under arrest for suspicion of driving while intoxicated.                           After reading

Gallagher his statutory warnings, Trooper Williams requested a breath specimen.

Gallagher initially agreed to provide a breath sample.                      However, en route to the

jail—where the Intoxilyzer 50003 was located to collect Gallagher’s breath sample—


        2
          More than an hour’s worth of video footage taken from Trooper Williams’s patrol car depicted all
of the events described in the above-referenced paragraph. The video was played for the jury and was
admitted into evidence as State’s Exhibit 4.
        3
          According to Trooper Williams, the Intoxilyzer 5000 is an instrument used to collect breath
samples from individuals who are suspected of driving while intoxicated. He described it as a “large
instrument” that “looks kind of like the old Atari [game] console . . . only larger” and is located inside of a

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Gallagher began to complain of neck and back pain.           Consequently, Trooper Williams

transported Gallagher directly to Conroe Regional Medical Center.

          While at the hospital, Gallagher refused Trooper Williams’s request to obtain a

blood specimen.          Gallagher’s hospital records, however, were admitted into evidence,

including Gallagher’s medical blood test results.      The blood test results demonstrated a

positive finding of alcohol consumption.      Gallagher did not testify.

        The jury ultimately found him guilty of the offense as charged. The trial court

assessed punishment at a fine of $750.00 and 180 days’ confinement in the Montgomery

County Jail.      The trial court then suspended Gallagher’s sentence and placed him on

community supervision for 18 months with certain terms and conditions. This appeal

ensued.

                      II.        ADMISSIBILITY OF BLOOD TEST RESULTS

        By his first issue, Gallagher asserts that the trial court erroneously admitted his

blood test results included in his hospital records following the crash.

        A.       Standard of Review

        Admissibility of evidence is within the discretion of the trial court and will not be

overturned absent an abuse of discretion.        Moses v. State, 105 S.W.3d 622, 627 (Tex.

Crim. App. 2003) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1990) (en banc)). Thus, we will affirm a trial court’s ruling, so long as the ruling was

within the zone of reasonable disagreement.              Moses, 105 S.W.3d at 627; see

Montgomery, 810 S.W.2d at 391 (“a trial court judge is given a ‘limited right to be wrong,’




large cabinet inside the jail.


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so long as the result is not reached in an arbitrary or capricious manner.”) (internal

citation omitted).

        B.       Discussion

        Gallagher argues that the State failed to properly authenticate his blood test

results and establish a proper chain of custody to support its admission.4 We disagree.

        In order for the results of a blood test to be admitted into evidence, a proper chain

of custody of the blood sample that was drawn from the accused and later tested must

be established.      Durrett v. State, 36 S.W.3d 205, 208 (Tex. App.—Houston [14th Dist.]

2001, no pet.) (citing Moone v. State, 728 S.W.2d 928, 930 (Tex. App.—Houston [14th

Dist.] 1987, no pet.)).        Proof of the beginning and end of the chain will support

admission, and any gaps in the chain go to the weight of the evidence rather than to its

admissibility.    See Penley v. State, 2 S.W.3d 534, 537 (Tex. App.—Texarkana 1999,

pet. ref’d).

        Over his trial counsel’s strenuous objections to its admissibility, Gallagher’s

medical records, including blood test results, were admitted as State’s Exhibit 1.                Marcy

Baxter, a registered nurse on duty at Conroe Regional Medical Center the morning that

Gallagher was admitted, testified that she drew Gallagher’s blood that day pursuant to

the treating physician’s orders. Baxter admitted that she did not specifically remember

drawing Gallagher’s blood, but she testified as to the policies and procedures in place to

ensure that blood samples match a particular patient prior to sending it to the laboratory




        4
            The State elicited testimony from Texas Department of Public Safety technician Glenn Merkford,
who reviewed Gallagher’s blood test results. Using a mathematical equation explained to the jury,
Merkford opined from his review of the test results that Gallagher’s blood alcohol content (BAC) was above
the legal limit.

                                                    5
for testing.    Baxter’s testimony thus established the “beginning” of Gallagher’s blood

test’s chain of custody.

       The State then called Junnius Pollard, custodian of records at Conroe Regional

Medical Center. Through Pollard’s testimony, the State established that the records

were made at the time of the event, by a person with knowledge, and that they were kept

in the regular course of business by the hospital.       See TEX. R. EVID. 902(10).       Pollard’s

testimony thus proved the “end” of the blood test’s chain of custody.

       Therefore, in light of the State establishing both the “beginning” and “end” of the

chain of custody, the trial court did not abuse its discretion in admitting Gallagher’s blood

test results.   Moreover, any gaps in the chain go to the weight of the evidence rather

than to its admissibility.      See Penley, 2 S.W.3d at 537.          Accordingly, we overrule

Gallagher’s first issue.5

                             III.   SUFFICIENCY CHALLENGES

       By his second issue, Gallagher asserts that the evidence insufficiently establishes

(1) the corpus delicti of the offense and (2) that he operated the vehicle as charged.

       A. Standard of Review

       When reviewing a defendant’s sufficiency challenge, we view the evidence in the

light most favorable to the verdict to determine whether “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.”

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (citing Brooks v.

State, 323 S.W.3d 893, 902 (plurality op.)); see Jackson v. Virginia, 443 U.S. 307, 319


       5
         During the submission of this appeal, the United States Supreme Court issued its opinion in
Missouri v. McNeely, No. 11-1425, 2013 WL 1628934, —U.S.— (2013). Nevertheless, we find the
McNeely decision inapplicable to the case at bar.

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(1979). The jury is the sole judge of the credibility of witnesses and the weight to be

given to their testimonies, and the reviewing court must not usurp this role by substituting

its own judgment for that of the jury.      Montgomery, 369 S.W.3d at 192. Thus, our duty

is “simply to ensure that the evidence presented supports the jury's verdict and that the

State has presented a legally sufficient case of the offense charged.”                   Id. (internal

citations omitted). When faced with a record supporting contradicting inferences, we

must presume that the jury resolved such conflicts in favor of the verdict, even if not

explicitly stated in the record.    Id. (citing Brooks, 323 S.W.3d at 899 n.13).

         The elements of the offense are measured as defined by a hypothetically correct

jury charge.    Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).               Such a charge [is] one

that accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of

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

tried.   Id.

         B. Discussion

         1. Corpus Delicti

         The common law corpus deliciti rule requires that some independent evidence,

outside of a defendant’s extrajudicial confession, corroborates the occurrence of a

specific kind of injury or loss6 and a criminal agent.          See Salazar v. State, 86 S.W.3d

640, 644 (Tex. Crim. App. 2002). “The rule was not intended, however, to ensure that


         6
          Some examples include a deceased person in the case of homicide, a house burnt in the case of
arson, or missing property in the case of larceny. See Salazar v. State, 86 S.W.3d 640, 644 (Tex. Crim.
App. 2002) (citing 7 JOHN W IGMORE, EVIDENCE § 2072 (Chadbourne rev. 1978)).

                                                  7
all confessions are corroborated in specific details or to ensure that the suspect does not

falsely confess to a crime that did occur but for which he had no culpability.”      Id. at

644–45.    Thus, the corpus delicti rule is satisfied if some evidence outside of the

extra-judicial confession, considered alone or in connection with the confession, shows

that the crime actually occurred.   Id. at 645.

       Our inquiry in this case turns to whether any independent evidence proved that

someone committed the crime of driving while intoxicated.      In this case, a combination

of the following evidence shows that the crime occurred, including:

       (1) McDougald’s testimony that she heard a car accelerate behind her on Walden
           Road, driving around a curve, and then witnessed that car “go off the road”
           and flip over;

       (2) McDougald’s observation that two males stood outside of the vehicle after the
           crash;

       (3) Trooper Williams’s observation that Gallagher and Williams stood outside of
           the heavily-damaged vehicle;

       (4) Trooper Williams’s testimony that Gallagher emitted a strong odor of alcohol
           and his eyes were red and glassy;

       (5) the car registration listed Gallagher as the owner of the vehicle; and

       (6) Gallagher’s complaints of neck and back pain following the injury.

       Therefore, in light of the foregoing independent evidence outside of Gallagher’s

extrajudicial confession(s), we conclude that sufficient evidence satisfies the corpus

deliciti rule in this case to prove that someone committed the crime of driving while

intoxicated.   See id. at 645–46.

       2. Operation of the Vehicle

       Under Texas law, one is guilty of driving while intoxicated if the person (1) is

intoxicated (2) while operating a motor vehicle (3) in a public place.     See TEX. PENAL

                                             8
CODE ANN. § 49.04.

       Here, Gallagher admitted to Trooper Williams that he was the driver of the flipped

vehicle.   Gallagher was also present standing and walking around the damaged vehicle

when Trooper Williams arrived, and the vehicle’s state registration listed Gallagher as

the vehicle’s owner. Trooper Williams also testified that Gallagher told him that he was

driving down Walden Road and “failed to negotiate the curve” and “drove off the roadway

and his vehicle rolled.” McDougald also testified that she witnessed two males standing

outside of the vehicle shortly after the crash.

       After viewing this evidence in the light most favorable to the verdict, we conclude

that a rational jury could have found beyond a reasonable doubt that Gallagher operated

the motor vehicle as charged.    Appellant’s second issue is overruled.

                                   IV.    CONCLUSION

       We affirm the trial court’s judgment.



                                                       __________________________
                                                       GINA M. BENAVIDES,
                                                       Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
25th day of April, 2013.




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