                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-08-00117-CR


MARK DERICHSWEILER                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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         FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

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                          OPINION ON REMAND
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                                I. INTRODUCTION

      Appellant Mark Derichsweiler perfected an appeal of his conviction and

forty-seven-year sentence for felony driving while intoxicated (DWI). In our prior

opinion in this case, we sustained Derichsweiler‘s first point, in which he argued

that the trial court erred by denying his motion to suppress because the arresting

officer lacked reasonable suspicion to stop him. See Derichsweiler v. State, 301

S.W.3d 803, 812–13 (Tex. App.—Fort Worth 2009), rev’d, 348 S.W.3d 906 (Tex.
Crim. App. 2011), cert. denied, 132 S. Ct. 150 (2011). However, the court of

criminal appeals reversed our decision and remanded the case for us to consider

Derichsweiler‘s remaining points that we did not address in our original opinion.

See Derichsweiler, 348 S.W.3d at 917–18. For the reasons stated below, we

overrule those points and affirm the trial court‘s judgment.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      A grand jury indicted Derichsweiler for felony DWI. The indictment alleged

two prior DWI convictions and two enhancement convictions. After a hearing on

Derichsweiler‘s motion to suppress, the trial court denied the motion.

      The case was tried to a jury. At trial, the arresting officer, Lewisville Police

Officer Wardel Carraby testified that when he approached Derichsweiler‘s car, he

smelled a strong odor of alcoholic beverages coming from the vehicle and began

to investigate a possible DWI. Officer Carraby testified that he attempted to

administer field sobriety tests on Derichsweiler and that Derichsweiler Ajust stood

there and looked at [Officer Carraby] as if he was confused.@ Officer Carraby

testified that he arrested Derichsweiler for DWI, obtained a warrant to have

Derichsweiler=s blood drawn, and drove Derichsweiler to the hospital, where

phlebotomist Amy Alderman drew his blood. Alderman testified that she drew

Derichsweiler=s blood and sealed the blood vials.

      The State called Angela Springfield, the chief toxicologist with the Tarrant

County Medical Examiner=s Office.       On voir dire outside the jury=s presence,

Derichsweiler established that Springfield did not personally conduct the blood

                                          2
exam analysis in this case. Derichsweiler objected to her testimony Aunder Coit

. . . unless she actually conducted the test,@ and the trial court overruled the

objection. Derichsweiler also objected to Springfield=s retrograde extrapolation

testimony, and the trial court overruled that objection as well. Before the jury,

Springfield testified that Derichsweiler=s blood alcohol level when his blood was

drawn was .09.          Applying retrograde extrapolation, she testified that

Derichsweiler=s blood alcohol level would have been around .15 to .19 when he

was driving, or about two to two and a half times the legal limit.

      The jury found Derichsweiler guilty of DWI, found the sentencing

enhancement allegations true, and assessed punishment of forty-seven years in

prison. The trial court sentenced him accordingly.

     III. ADMISSION OF TOXICOLOGIST=S TESTIMONY AND TOXICOLOGY REPORT

      In his second point, Derichsweiler argues that the trial court erred by

allowing Dr. Springfield, the toxicologist, to testify concerning the results of her

office=s toxicology test because she did not personally conduct the test.

Derichsweiler argues that her testimony about the report was inadmissible

hearsay and that it violated his right to confrontation.

                A. Hearsay: Assuming Error, It Was Harmless

      When the State offered Dr. Springfield=s testimony, Derichsweiler made the

following objection:

      [DEFENSE COUNSEL]: Your Honor, we would object under Coit
      that she didn=t perform these tests; and, therefore, they=re not
      admissible.

                                          3
      THE COURT: I understand your objection. It=s overruled.

On appeal, Derichsweiler argues that although trial counsel said ACoit,@ he was

referring to the well-known case Cole v. State, 839 S.W.2d 798 (Tex. Crim. App.

1990), in which the court of criminal appeals held that the report of a

nontestifying Texas Department of Public Safety (DPS) chemist was inadmissible

hearsay to which the hearsay exceptions of rule 803(8)(B) and 803(6) did not

apply.1

      Rule of evidence 803(8)(B) provides that records of public offices are not

hearsay when they set forth ―matters observed pursuant to duty imposed by law

as to which matters there was a duty to report, excluding in criminal cases

matters observed by police officers and other law enforcement personnel.‖ Tex.

R. Evid. 803(8)(B).    The Cole court held that the DPS chemist was Alaw

enforcement personnel@; thus, his report did not fall within rule 803(8)(B)=s

hearsay exception. 839 S.W.2d at 809–10. In reaching its conclusion, the court

employed a two-prong test, asking (1) whether the reports were objective,

routine, scientific determinations of an unambiguous factual nature prepared by


      1
        The State argues that by citing Coit instead of Cole in his trial court
objection, Derichsweiler failed to preserve his argument based on Cole for
appeal. We disagree. His complaint to the trial court was sufficiently specific to
apprise the judge of its basis—that Dr. Springfield did not perform the lab tests—
even if he misstated the name of the case that he relied on, the trial judge
understood his complaint, and his complaint on appeal is essentially the same.
A>Straightforward communication in plain English will always suffice=@ to preserve
error. Clarke v. State, 270 S.W.3d 573, 580 (Tex. Crim. App. 2008) (quoting
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).


                                        4
officials with no inherent motivation to distort the results and (2) whether the

relevant tests were conducted in an adversarial context. See id. at 808–09.

      In Garcia v. State, the court of criminal appeals held that unlike the DPS

chemist in Cole, Aas a general rule, medical examiners are not considered >other

law enforcement personnel= under rule 803(8)(B) as far as their duties relate to

the preparation of autopsy reports.@    868 S.W.2d 337, 342 (Tex. Crim. App.

1993). The court employed the two-prong Cole test and concluded that while a

medical examiner=s reports may be used in a criminal prosecution, they are

generally prepared by officials with no motive to fabricate the results of the

reports. Id. The court explained that ―a medical examiner‘s office is not, as a

general rule, such a uniquely litigious and prosecution-oriented environment as to

create an adversarial context.‖ Id.

      Here, we need not decide whether rule 803(8)(B)‘s hearsay exception for

public records applies to a medical examiner‘s office when it prepares a

toxicology report because, even assuming the exception does not apply and that

the trial court abused its discretion in admitting the report or Dr. Springfield=s

testimony over Derichsweiler‘s hearsay objection, any error was harmless.

      Because the erroneous admission of inadmissible hearsay is not

constitutional error, we apply rule 44.2(b) and disregard the error if it did not

affect Derichsweiler=s substantial rights. Tex. R. App. P. 44.2(b); see Mosley v.

State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh=g), cert. denied,

526 U.S. 1070 (1999); Moon v. State, 44 S.W.3d 589, 594 (Tex. App.—Fort

                                        5
Worth 2001, pet. ref‘d). A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury=s verdict. King

v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United

States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error

does not affect a substantial right if we have Afair assurance that the error did not

influence the jury, or had but a slight effect.@ Solomon v. State, 49 S.W.3d 356,

365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.

App. 1998).

      In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury=s consideration, the

nature of the evidence supporting the verdict, and the character of the alleged

error and how it might be considered in connection with other evidence in the

case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also

consider the jury instructions, the State=s theory and any defensive theories,

whether the State emphasized the error, closing arguments, and even voir dire, if

applicable. Id. at 355–56.

      Derichsweiler was charged with driving while intoxicated by not having the

normal use of mental or physical faculties (the impairment definition) or by having

an alcohol concentration of 0.08 or more (the per se definition). See Tex. Penal

Code Ann. § 49.01(2) (West 2011) (defining intoxication); Stewart v. State, 129

S.W.3d 93, 97 (Tex. Crim. App. 2004). The State was required to prove only one

of these definitions of intoxication. See Bagheri v. State, 119 S.W.3d 755, 762

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(Tex. Crim. App. 2003). The jury charge contained both definitions, and the

State relied on both definitions at trial.

      Officer Carraby testified that he smelled a strong odor of alcoholic

beverages coming from Derichsweiler‘s vehicle; that Derichsweiler had a difficult

time answering simple questions such as where he was coming from, whether he

had anything to eat or drink, and whether he was taking medication; that

Derichsweiler ―just stood there‖ and looked confused when Officer Carraby

attempted to administer field sobriety tests on him; that his speech was slurred

and his eyes were heavy, red, and glassy; that he told Officer Carraby that he

could not safely drive home; and that Officer Carraby saw a bag containing

approximately four beer cans in the back of Derichsweiler‘s vehicle.          Officer

Carraby testified that he was of the opinion that Derichsweiler had lost the normal

use of his mental and physical faculties due to the introduction of alcohol into the

body. The jury watched a videotape of the stop. Derichsweiler‘s girlfriend Mary

Bowers testified that she had viewed the videotape of Derichsweiler‘s stop and

that she believed he was intoxicated; she further testified that he had told her that

he had consumed fifteen alcoholic drinks that day.

      During closing arguments, the State mentioned the breath test results but

also said that they were ―just icing on the cake‖ because ―[t]he videotape is

enough. . . . You‘ve all seen intoxicated people before, and that‘s what you see

on [the videotape].‖




                                             7
      We conclude that, in the context of the entire case against Derichsweiler,

any error in admitting, over Derichsweiler‘s hearsay objection, the toxicology

report or Dr. Springfield=s testimony regarding it did not have a substantial or

injurious effect on the jury=s verdict and did not affect Derichsweiler=s substantial

rights. See King, 953 S.W.2d at 271. Thus, even assuming error, we disregard

it. See Tex. R. App. P. 44.2(b). We overrule this portion of of Derichsweiler‘s

second point.

             B. Confrontation Clause: Objection Not Preserved

      In the last paragraph of his second point, Derichsweiler argues that if ADr.

Springfield didn‘t perform the tests, then the person who did was not subject to

cross[-]examination@ in violation of the Confrontation Clause under Crawford v.

Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). Derichsweiler=s trial objection

mentioned neither the Confrontation Clause nor Crawford, and we cannot infer a

Confrontation Clause complaint from his ACoit@ objection at trial. We therefore

hold that Derichsweiler failed to preserve this complaint for our review. See Tex.

R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App.

2009); Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005).                 We

overrule the remainder of Derichsweiler‘s second point.

                         IV. PUNISHMENT ENHANCEMENTS

      In his third, fourth, and fifth points, Derichsweiler argues that the trial court

erred by refusing his request for a punishment charge that tracked the

indictment=s enhancement paragraphs; that the State failed to prove that he

                                          8
committed the offense alleged in the second enhancement paragraph after the

conviction alleged in the first enhancement paragraph became final; and that the

trial court erred by submitting a charge that failed to instruct on an allegation in

the indictment required to be proved in accordance with penal code section

12.42(d). See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2011).

                A. The Indictment, the Charge, and the Verdict

      Derichsweiler‘s arguments arise from a defect in the indictment=s

enhancement paragraphs.        The first enhancement paragraph alleged that

Derichsweiler had been convicted of felony DWI in October 2003. The second

enhancement paragraph alleged that Aafter the [2003] conviction . . . was final,@

Derichsweiler committed the felony offense of aggravated assault of a peace

officer and was convicted in October 1998.2 Obviously, the 2003 conviction was

not final before Derichsweiler committed the 1998 offense.

      The punishment charge omitted any reference to either enhancement

conviction having become final before Derichsweiler committed the offense

underlying the other enhancement conviction. Instead, the charge=s application

paragraphs instructed the jury to find the enhancement allegations true if it found

beyond a reasonable doubt that the enhancement conviction in question became

final before Derichsweiler committed the offense for which he was on trial—the

      2
       Derichsweiler pleaded guilty to this offense in 1991 and received a ten
year sentence probated for ten years; a judgment revoking his probation was
signed in 1998 (hereinafter referred to as the 1998 assault on a peace officer
offense).


                                         9
2006 felony DWI. The charge further instructed the jury that if it found both

enhancement paragraphs true, it was to assess a punishment of twenty-five to

ninety-nine years= or life confinement.

      The verdict form signed by the presiding juror introduced another wrinkle.

The form states that the jury found both enhancements true, found that

Derichsweiler had been convicted of the 2003 DWI before he committed the

2006 DWI, and found that Derichsweiler had been convicted of the 1998 assault

on a peace officer before he committed the 2003 DWI. Thus, the verdict form

recited the enhancement convictions in the correct sequence, but it failed to

recite that the 1998 conviction was final before the commission of the 2003 DWI.

      At trial, Derichsweiler objected that the charge did not track the indictment,

i.e., that the charge did not require the jury to find that the 2003 conviction

became final before Derichsweiler committed the 1998 assault on a peace

officer, the impossibility alleged by the indictment.      The trial court at first

appeared to sustain the objection, saying, AWhy don=t we go ahead and fix that,@

but the court later explicitly overruled the objection.

      The punishment-phase evidence shows that the 1998 conviction was final

before Derichsweiler committed the 2003 DWI and that the 2003 DWI conviction

was final before Derichsweiler committed the 2006 felony DWI, and

Derichsweiler does not argue otherwise.

                          B. The Law of Enhancements

      Penal code section 12.42(d) provides as follows:

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      [I]f it is shown on the trial of a felony offense other than a state jail
      felony punishable under Section 12.35(a) that the defendant has
      previously been finally convicted of two felony offenses, and the
      second previous felony conviction is for an offense that occurred
      subsequent to the first previous conviction having become final, on
      conviction the defendant shall be punished by imprisonment in the
      Texas Department of Criminal Justice for life, or for any term of not
      more than 99 years or less than 25 years.

Tex. Penal Code Ann. § 12.42(d). The State must give a defendant notice in the

indictment or other pleading that it will seek the enhanced range of punishment.

Brooks v. State, 957 S.W.2d 30, 33–34 (Tex. Crim. App. 1997). ―The purpose of

an enhancement allegation is to provide the accused with notice of the prior

conviction relied upon by the State.‖ Coleman v. State, 577 S.W.2d 486, 488

(Tex. Crim. App. 1979); Bevins v. State, 422 S.W.2d 180, 181 (Tex. Crim. App.

1967).

      Because the purpose of the enhancement paragraphs is to provide notice,

―‗it is not necessary to allege prior convictions for the purpose of enhancement

with the same particularity which must be used in charging on the primary

offense.‘‖ Williams v. State, 980 S.W.2d 222, 226 (Tex. App.—Houston [14th

Dist.] 1998, pet. ref=d) (quoting Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim.

App. 1986)). For example, the date on which the prior convictions became final

need not be alleged. Hollins v. State, 571 S.W.2d 873, 876 n.1 (Tex. Crim. App.

1978). Nor is it necessary to allege the sequence of the prior convictions. See

Jingles v. State, 752 S.W.2d 126, 129 (Tex. App.—Houston [14th Dist.] 1987,

pet. ref=d). Rather, the notice must enable the accused Ato find the record and



                                         11
make preparation for a trial of the question whether he is the convict named

therein.@ Brown v. State, 636 S.W.2d 867, 868 (Tex. App.—Fort Worth 1982, no

pet.).

         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. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App.

2011); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see Gollihar

v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001). This principle applies

equally to the affirmative findings necessary to sustain the imposition of an

enhanced punishment; the sufficiency of the evidence of the enhancements

should be measured by the hypothetically correct jury charge for the

enhancement.       Young v. State, 14 S.W.3d 748, 750 (Tex. Crim. App. 2000)

(applying hypothetically correct jury charge to drug-free zone enhancement); see

Sims v. State, 84 S.W.3d 768, 779 (Tex. App.—Dallas 2002, pet. ref=d).

         Generally, the State must prove enhancement allegations as alleged in the

indictment. Ex parte Augusta, 639 S.W.2d 481, 485 (Tex. Crim. App. 1982),

overruled on other grounds by Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim.

App. 1999). But in Gollihar, the court of criminal appeals—relying on Malik‘s

hypothetically-correct-jury-charge rule, which the court extended to punishment-

phase enhancement allegations in Young—held that a hypothetically correct jury

charge need not incorporate allegations that give rise to immaterial variances

between the indictment and the evidence.         46 S.W.3d at 256.     A variance

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between the wording of an indictment and the evidence presented at trial is fatal

only if it is material and prejudices the defendant=s substantial rights. Id. at 257.

When reviewing such a variance, we must determine whether the indictment, as

written, informed the defendant of the charge against him sufficiently to allow him

to prepare an adequate defense at trial. Id.3

           C. No Error in Refusing to Track Indictment’s Language

      Because it was not necessary for the State to allege the dates on which

the enhancing convictions became final or the sequence of the enhancing

convictions, the indictment=s nonsequitur allegation that the 2003 DWI conviction

was final before the commission of the 1998 assault is immaterial.               The

enhancement allegations recited the counties, courts, cause numbers, and dates

of conviction for both enhancements; this was sufficient to enable Derichsweiler

to find the record and prepare for trial regarding whether he is the convict named

in the convictions. See Brown, 636 S.W.2d at 868. Because the State was not

required to allege the sequence of convictions in the indictment, the trial court did

not err by refusing to track the indictment=s unnecessary and defective sequence

allegation in the jury charge. We note that Derichsweiler does not argue that the

trial court erred by failing to instruct the jury that it could find the enhancements

      3
        The Gollihar court stated a second element of the fatal variance test:
whether prosecution under the deficiently drafted indictment would subject the
defendant to the risk of being prosecuted later for the same crime. Id. Because
enhancement allegations do not implicate jeopardy—that is, allegations used to
enhance a current prosecution may also enhance a later prosecution for a
different offense—this second element is inapplicable to our analysis.


                                         13
true only if it found that the 1998 conviction was final before Derichsweiler

committed the 2003 DWI, as required by penal code section 12.42(d); he argues

only that the trial court erred by failing to conform the charge and verdict form to

the sequence of convictions alleged in the indictment. We therefore overrule

Derichsweiler=s third and fifth points.

           D. Sufficiency of the Evidence to Prove Enhancements

       We turn now to Derichsweiler=s contention that the State failed to prove

that the 2003 conviction was final before he committed the 1998 offense. The

hypothetically correct punishment charge would have alleged that the 1998

conviction was final before Derichsweiler committed the 2003 offense.          See

Young, 14 S.W.3d at 750; see also Tex. Penal Code Ann. § 12.42(d); Byrd, 336

S.W.3d at 246; Malik, 953 S.W.2d at 240.         The punishment-phase evidence

shows that the 1998 conviction was final before Derichsweiler committed the

2003 offense, and Derichsweiler does not argue otherwise. To the extent that

the sequence of convictions proved at trial varied from the impossible sequence

alleged in the indictment, the variance was immaterial because the State was not

required to allege the sequence in the first place. See Gollihar, 46 S.W.3d at

257.

       Weighing the evidence against the hypothetically correct jury charge and in

the light most favorable to the prosecution, we hold that a rational trier of fact

could have concluded beyond a reasonable doubt that Derichsweiler had

previously been finally convicted of two felony offenses and that the second

                                          14
previous felony conviction was for an offense that occurred subsequent to the

first previous conviction having become final.       See Tex. Penal Code Ann.

§ 12.42(d); 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).         Thus, the

evidence was sufficient to support the enhancement of Derichsweiler=s

punishment under section 12.42(d). We overrule Derichsweiler=s fourth point.

                                     V. CONCLUSION

      Having overruled all of Derichsweiler‘s remaining points on remand, we

affirm the trial court‘s judgment.




                                                     SUE WALKER
                                                     JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DAUPHINOT, J. concurs without opinion.

PUBLISH

DELIVERED: January 19, 2012




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