Garza v. State

JORGE GARZA, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-19-00472-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

March 4, 2021

On appeal from the 139th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Hinojosa and Silva

Memorandum Opinion by Justice Silva

Appellant Jorge Garza appeals his conviction of driving while intoxicated (DWI), third or more, a second-degree felony.¹ See TEX. PENAL CODE ANN. § 49.09(b)(2). By threeissues, Garza argues (1) the trial court abused its discretion in allowing the State to introduce his medical records, which contained a toxicology report; (2) the trial court committed structural error in permitting the State to re-open its case-in-chief after it had rested; and (3) the cumulative harm caused by these errors necessitates a reversal. We affirm.

I. BACKGROUND

On October 22, 2018, Garza was arrested for DWI and evading arrest with a vehicle. Garza was indicted on November 27, 2018, pleaded not guilty, and proceeded to trial.

At trial, Alfredo Ortiz, a police officer with the Pharr Police Department, testified that Garza failed to make a complete stop at an intersection. Ortiz activated his patrol unit lights, but Garza continued to travel at a "slow speed" for a "block and a half." Ortiz notified Garza the reason for the stop upon first making contact. When Ortiz requested that Garza retrieve his driver's license or identification card, Garza refused to identify himself and claimed he did not have a driver's license. Ortiz "automatically saw" a sixteen-ounce Bud Light can "laying in plain view . . . on the passenger floorboard with alcohol spilling out of it." Garza also had "green leafy residue on his clothing" and a "pipe in the center console in plain view as well." Ortiz testified that Garza was "sweating profusely," had "bloodshot red" eyes, and slurred his words when he spoke. Ortiz asked Garza to exit the vehicle so that he could conduct a field sobriety test, and Garza declined. According to Ortiz, the following ensued:

I asked him two more times. He still refused. Therefore, I had to take the next step which is to physically get him out of the vehicle. . . . I tried to grab him by the arm to pull him out[,] but I couldn't because he ended up putting the vehicle in drive and trying to drive away.. . . .

I had to deliver two—I believe, it was two elbow strikes to his nose to be able to get his hand off the shift stick. And once he removed his hand[,] I was able to put the vehicle in park.

Ortiz stated that, at the time, his body was partially inside Garza's vehicle. "I was basically on top of his lap while we were struggling," said Ortiz, who added that during this encounter, the odor of alcohol was prominent.² Ortiz then attempted to use his radio to request additional assistance and said Garza used the opportunity to "put[] the vehicle in reverse and accelerate[] the vehicle again." Ortiz said he had to once more execute two elbow strikes to Garza's face before he "was able to take out the key and shut off the vehicle."

Additional officers arrived and assisted Ortiz in getting Garza out of the vehicle. Garza was placed in handcuffs. Ortiz read Garza Miranda warnings, and Garza responded by saying, "'[F]-ck you. I don't care. I don't give a sh-t. I'm not going to do anything.'" Officers Juan Contreras and Ricardo Monreal transported Garza to the police station and each described Garza as combative, said Garza screamed profanities, and claimed Garza's breath smelled of alcohol. Ortiz testified that emergency medical services were called to meet officers at the police station because Garza had sustained "some scrapes to the top of his head and nose."

During trial, the State moved to admit Garza's medical records and attached a business records affidavit. Garza objected, arguing the records were "highly prejudicial," contained hearsay, and violated his "ability to confront and cross-examine." The trial courtoverruled Garza's objections and admitted the records. The medical records spanned over 100 pages and contained a toxicology report, which indicated that Garza had tested positive for benzodiazepine and cocaine; the exact levels of which were not present in the report.

Soon after, outside of the presence of the jury, the State moved to rest its case-in-chief. The trial court interjected, asking whether the State was "sure" it "want[ed] to rest." The trial court inquired as to whether Garza had stipulated to his prior DWI convictions listed in the indictment, observing that the State had not presented evidence of any prior convictions. The State argued that defense counsel had stipulated to the prior DWI convictions on Garza's behalf at the start of trial. The court said it was "very concerned" that the State was incorrect that such a stipulation was binding, and the State then requested a quick break to confer with its appellate department before resuming discussions on the record:

THE COURT: Did you check with your appellate department?

[State]: Yes, Your Honor.

THE COURT: And did they say that the attorney can bind the Defendant?

[State]: No, Your Honor. I would like to reopen the case under Article 36—

THE COURT: I thought you said that he—that the appellate department said that he could bind him because you relied on it or something like that. You were saying that, right?

[State]: I can rely on the Defense attorney.

THE COURT: Wow. So when you have a repeater count or a habitual—let's say you're alleging two prior felony convictions in one, how can the attorney bind the Defendant? The Defendant has to make thatdeclaration, okay. And then you read the enhancement anyway. He ple[]d guilty but he didn't plead that they were true, okay. That's where the issue is. So what's your request?

[State]: My request is to reopen the State's case, Your Honor, in the interest of justice under Article 36.02[³] testimony at anytime—the Court shall allow testimony to be introduced at anytime before—

THE COURT: Do you think that [defense counsel] has a competing—that [defense counsel] have a competing interest of justice, do you think?

Garza lodged an unspecific objection,⁴ and the trial court ultimately allowed the State to reopen its case, noting it was "not very happy about it because [it] asked [the State] numerous times" if it was sure it was ready to rest.

The State then called a latent print examiner to examine Garza's prints and compare them to those from booking sheets from Garza's two prior DWI arrests and the corresponding judgments. Exhibits admitted at trial indicate: Garza was booked for DWI on June 3, 2015, and convicted on June 16, 2015; Garza was booked for DWI, third or more, on April 13, 2016, and convicted and sentenced to two years' incarceration on August 8, 2016.

As his sole witness, Garza called his sister, Priscilla Garza, to testify. Pricilla testified that the day before Garza's arrest, the family was celebrating a birthday. Priscilla said although she had been drinking, Garza "never drank that night." During cross-examination, Priscilla testified it would surprise her to learn that Garza was "caught with an open contain[er] of Bud Light" and "drugs" the night of his arrest.

During deliberations, the jury sent back several notes. The last two notes collectively indicated the jury had not reached a unanimous verdict on count one, evading arrest, but had reached a unanimous verdict for count two, DWI. The State proposed proceeding on count two and the trial court declaring a mistrial on count one. Defense counsel was in agreement. The trial court then granted a mistrial as to count one. The jury returned a guilty verdict for count two. Following a trial on punishment, Garza was sentenced to four years' incarceration. This appeal followed.

II. MEDICAL RECORDS

By his first issue, Garza argues that the trial court abused its discretion in admitting his medical records, which included toxicology lab results from his stay at the hospital shortly following his arrest. Specifically, Garza contends the trial court erred in overruling his objections on the following grounds: Rule 404(b), hearsay, and the Confrontation Clause. See U.S. CONST. amend. VI; TEX. R. EVID. 404, 802.

A. Standard of Review

We review a trial court's ruling on the admission of evidence for an abuse of discretion. Wells v. State, 611 S.W.3d 396, 427 (Tex. Crim. App. 2020); Patterson v. State, 606 S.W.3d 3, 33 (Tex. App.—Corpus Christi-Edinburg 2020, pet. ref'd). A trial court abuses its discretion when its decision lies outside the "zone of reasonable disagreement." Wells, 611 S.W.3d at 427; Patterson, 606 S.W.3d at 33.

B. Rule 404(b)

Although Garza asserts a challenge under Rule 404(b) on appeal, Garza made no such objection before the trial court.⁵ See TEX. R. EVID. 404(b) ("Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character"). Even assuming Garza's trial argument that the evidence was "highly prejudicial" was in reference to Rule 403, Garza does not assert a Rule 403 challenge on appeal. See id. R. 403 ("The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice . . . ."). Moreover, each rule serves a different purpose. Compare id. R. 403 with id. R. 404. A Rule 403 objection is not implicitly contained in a Rule 404 objection, and objections under either Rule 403 or Rule 404 would not be interchangeable. See TEX. R. APP. P. 33.1; Berry v. State, 233 S.W.3d 847, 857 (Tex. Crim. App. 2007) (holding a Rule 403 objection was not preserved where only a Rule 404 objection was raised); see generally Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993) (requiring objection specificity for appellate review); see also De La Rosa v. State, No. 13-18-00537-CR, 2020 WL 2610936, at *8 (Tex....