                                        In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-15-00433-CR
                             _________________

                  CHRISTOPHER ELIAS SETH, Appellant

                                         V.

                      THE STATE OF TEXAS, Appellee
________________________________________________________________________

                On Appeal from the County Court at Law No. 4
                        Montgomery County, Texas
                         Trial Cause No. 14-301290
________________________________________________________________________

                          MEMORANDUM OPINION

      A jury convicted appellant, Christopher Elias Seth, of the misdemeanor

offense of Driving While Intoxicated (“DWI”). See Tex. Pen. Code Ann. § 49.04(a)

(West Supp. 2016). Seth appeals his conviction, and in his sole appellate issue, he

complains that the trial court improperly admitted a trial subpoena into evidence.

We affirm the trial court’s judgment.




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                                  I. Background

      This case arose out of an incident wherein police were called by the manager

of a fast food restaurant in Conroe, Texas, after she witnessed a man who appeared

to be intoxicated exit the driver’s side of a vehicle that was blocking the drive-thru

lane. The first responding officer arrived and made contact with Seth on the front

patio of the restaurant. Seth provided identification and informed the officer several

times that he was drunk. When the second officer arrived, Seth admitted to her that

he had driven there from The Woodlands. The officers administered field sobriety

tests, then placed Seth under arrest and brought him to jail. The officers obtained a

sample of Seth’s blood after a search warrant was granted by an on-call Judge.

      The State originally charged Seth by information with misdemeanor driving

while intoxicated, alleging that “on or about October 12, 2014, in Montgomery

County, Texas, CHRISTOPHER ELIAS SETH . . .,while operating a motor vehicle

in a public place, was then and there intoxicated[.]” Before the case proceeded to

trial, the State amended the information to add that “at the time of analysis of a

sample of [Seth]’s breath or blood, [Seth] had an alcohol concentration of 0.15 or

more[.]” The addition of an allegation regarding the blood alcohol level has the legal

effect of enhancing the offense from a Class B misdemeanor to a Class A

misdemeanor. See Tex. Pen. Code Ann. § 49.04(b), (d). However, after a

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“scheduling issue” during the trial resulted in the inability of the State to secure the

testimony of its blood analyst, the State ultimately abandoned the enhancement

paragraph and the case proceeded solely on the Class B charge as originally filed.

The jury found Seth guilty of the charge, sentenced him to confinement in the

Montgomery County Jail for a period of 180 days, and assessed a fine of $2,000.

                           II. Admission of the Subpoena

      After it became known to the State during the trial that their analyst would not

be available to testify before the case was ready to be concluded, the State offered

into evidence the subpoena it had issued to the analyst. The State explained to the

trial court that the purpose for its request was so that it would be able to discuss with

the jury in closing arguments why the evidence regarding Seth’s blood alcohol level

was not presented during the trial as the State’s opening statement had suggested it

would be. Seth objected to admission of the subpoena on the ground of relevance.

The trial court overruled the objection, acknowledging that it, too, had made

reference to the analyst in discussing scheduling with the jury, and admitted the

subpoena.

      On appeal, Seth argues that the trial court erred in overruling his objection and

admitting the subpoena into evidence because it was not relevant. See Tex. R. Evid.

401 (“Evidence is relevant if: (a) it has a tendency to make a fact more or less

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probable than it would be without the evidence; and (b) the fact is of consequence

in determining the action.”). More specifically, Seth argues that there is no direct or

logical connection between the subpoena and the proposition that Seth was driving

while intoxicated. Assuming, without deciding, that the trial court erred in admitting

the challenged subpoena as evidence over Seth’s relevance objection, we conclude

that Seth did not show, nor even allege, actual harm resulting from the evidence.

      A violation of evidentiary rules that results in the erroneous admission of

evidence is non-constitutional error that must be disregarded if it “does not affect

substantial rights[.]” Delane v. State, 369 S.W.3d 412, 423 (Tex. App.—Houston

[1st Dist.] 2012, pet. ref’d) (describing the required “harm analysis” as set out in

Texas Rule of Appellate Procedure 44.2(b)) (quoting Taylor v. State, 268 S.W.3d

571, 592 (Tex. Crim. App. 2008). Thus, an evidentiary error only constitutes

reversible error “when it has a substantial and injurious effect or influence in

determining    the   jury’s   verdict.”   Taylor,    268   S.W.3d     at   592.    The

erroneous admission of evidence is deemed harmless when other evidence that has

been properly admitted proves the same fact. Brooks v. State, 990 S.W.2d 278, 287

(Tex. Crim. App. 1999); see also Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim.

App. 1998) (“Our rule . . . is that overruling an objection to evidence will not result



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in reversal when other such evidence was received without objection, either before

or after the complained-of ruling.”)

      In this case, Seth argues that “[t]he only logical conclusion that the jury could

draw from the subpoena was that the analyst was supposed to be there, and if he was,

the evidence would be bad for [Seth].” Logically, the only evidence the analyst could

provide that would be detrimental to Seth was the level of alcohol in Seth’s blood.

However, the precise level of alcohol in the blood ceased to be an issue when the

State abandoned the enhancement provision of a blood alcohol level of over 0.15, as

was made clear to the jury in closing arguments. Further, the record makes clear that

the issue Seth was arguing before the trial court was not whether he was intoxicated,

but whether or not the State had proven that he was driving a motor vehicle. There

was no dispute whatsoever as to whether or not Seth was intoxicated. In the body-

cam video of the first responding officer, which was admitted without objection and

viewed by the jury, Seth advised the officer no less than five separate times in the

first fifteen minutes of their encounter that he had had a lot to drink, and was drunk.

Moreover, Seth’s counsel conceded in his questioning of one of the officers that Seth

was undisputedly and highly intoxicated:

             [SETH’S COUNSEL]: Okay. I think one of the -- something
      we can all agree on is that the person that we see on that video is
      intoxicated, right?

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             [OFFICER]: Yes, sir.

            [SETH’S COUNSEL]:            In fact, would you agree with me that
      person is highly intoxicated?

             [OFFICER]: Yes, sir.

He then reminded the jury in his closing argument, that “you heard me concede it.

As far as the element, was he intoxicated while he was on that screen? Absolutely.”

Accordingly, even if the jury did draw any inference or conclusion about Seth’s

intoxication from the State’s subpoena of the blood analyst, it would merely have

been cumulative of evidence already admitted proving an undisputed fact.

Accordingly, Seth has failed to demonstrate, and we fail to find, any actual harm

from the admission of the subpoena. We therefore overrule Seth’s appellate issue

and affirm the trial court’s judgment.

      AFFIRMED.


                                               ______________________________
                                                      CHARLES KREGER
                                                           Justice

Submitted on June 7, 2017
Opinion Delivered July 19, 2017
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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