Jose Urquidi v. The State of Texas--Appeal from 168th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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JOSE URQUIDI, ) No. 08-05-00080-CR

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Appellant, ) Appeal from

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v. ) 168th District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 20040D04951)

O P I N I O N

Jose Urquidi appeals his conviction of driving while intoxicated, third offense. A jury found Appellant guilty and assessed his punishment at imprisonment for a term of three years. We affirm.

FACTUAL SUMMARY

Raul Moreno, a tow-truck driver, was stopped at a red light while traveling northbound on Cotton Street in central El Paso. When the light turned green, Moreno did not immediately pull into the intersection of Cotton and Missouri because he saw a vehicle traveling westbound on Missouri and the vehicle did not appear as if it would stop at the red light. The vehicle then ran the red light and Moreno turned to follow it. The vehicle occupied both lanes before running into the guardrail and rolling over. Moreno blocked the road with his tow truck to prevent another accident. Moreno assisted the driver, whom he identified as Appellant. Appellant immediately protested to Moreno that he was not drunk, but Moreno observed that Appellant smelled big time of alcohol, he stuttered when he talked, and his balance was poor. Additionally, Moreno saw both empty and full containers of beer in and around the wrecked vehicle. Based upon his observations and experience in being around intoxicated persons, Moreno concluded that Appellant was drunk .

Juan Garcia, who is assigned to the DWI task force, arrived at the scene of the single-vehicle accident and began investigating. Appellant was disoriented, had extremely poor balance, and his eyes were red and bloodshot. His breath had a strong odor of alcohol and his speech was slow, slurred, and hard to comprehend. Garcia also noticed that Appellant had a wet spot around his groin. Appellant refused to perform the horizontal gaze nystagmus test or any of the field sobriety tests and he also refused to submit a specimen of his breath for testing. Based upon his observations, Garcia determined that Appellant was intoxicated because he had lost the normal use of his mental and physical faculties due to the introduction of alcohol into his body. Consequently, Garcia arrested Appellant for driving while intoxicated. While transporting Appellant to the Central Regional Command Center, Garcia could smell the odor of alcohol and urine emanating from Appellant s person.

Garcia later transported Appellant to an emergency room based on a complaint of abdominal pain. Dr. Alan L. Carpenter, an emergency room physician, examined Appellant and ordered a number of tests, including x-rays, a drug screen and a blood alcohol test. Dr. Carpenter based his conclusion on his observations of Appellant but he noted that the blood tests supported his conclusion. Initially, the trial court admitted Appellant s medical records into evidence as State s Exhibit 5, but indicated it would not allow the jury to view the records until after the court had considered Appellant s objections that the chain of custody had not been established and the blood test had not been shown to be reliable. The trial court s ruling on these objections is not found in the record but the court ultimately admitted the medical records (State s Exhibit 6) with the blood alcohol results redacted.

Although the indictment alleged both definitions of intoxication, namely, that Appellant had lost the normal use of his mental and physical faculties, and that his alcohol concentration was .08 or more, the trial court submitted only the loss of normal use definition to the jury. The jury found Appellant guilty under the loss of normal use definition of intoxication.

ADMISSION OF BLOOD TEST RESULTS

In Issues One through Seven, Appellant raises the following challenges to the alleged admission of the blood test results: (1) no Daubert // finding; (2) no chain of custody; (3) hearsay; (4) denial of right to cross-examination under Texas Constitution; (5) denial of right to confront under Texas Constitution; (6) denial of right to cross-examine under U.S. Constitution; and (7) denial of right of confrontation under U.S. Constitution. We understand Appellant s complaint to be directed at the admission of Appellant s medical records and a statement made by the prosecutor during his opening statement. In its reply, the State asserts that the blood test results were never admitted into evidence, and consequently, there is nothing to review on appeal. Additionally, the State argues that Appellant failed to preserve error because the record does not reflect that he raised these arguments in the trial court or that he obtained an adverse ruling on each complaint.

In order to present a complaint on appeal, the record must show that Appellant made a timely and specific objection and the trial court made an adverse ruling. See Tex.R.App.P. 33.1(a). While Appellant raised certain objections to the admission of the medical records insofar as they contained the blood test results, the trial court apparently sustained at least one of those objections and did not admit the blood test results into evidence. Thus, the State is correct that the trial court excluded the blood test results from the jury s consideration. Additionally, Appellant did not object during the State s opening argument when the prosecutor informed the jury that he believed the evidence would show Appellant s blood alcohol to be .196 based on a blood alcohol test. We conclude that Appellant failed to preserve error with respect to the issues raised on appeal. Issues One through Seven are overruled.

BACK DOOR HEARSAY

In Issues Eight through Thirteen, Appellant contends that the trial court abused its discretion by admitting back door hearsay when Dr. Carpenter testified that the blood tests supported his conclusion that Appellant was intoxicated. Appellant raised only a bolstering objection when the State asked Dr. Carpenter whether the blood test results supported his conclusion that Appellant was intoxicated. Appellant s bolstering objection is insufficient to preserve his complaint that Dr. Carpenter s testimony constituted hearsay. See Williams v. State, 927 S.W.2d 752, 763 (Tex.App.--El Paso 1996, pet. ref d)( bolstering objection does not preserve for review a contention that evidence is inadmissible as a prior consistent statement). When the complaint on appeal differs from that made at trial, the error is waived. See Cook v. State, 858 S.W.2d 467, 474 (Tex.Crim.App. 1993). Because Appellant has waived any argument that Dr. Carpenter s testimony constituted inadmissible hearsay, we overrule Issues Eight through Thirteen. Having overruled all thirteen issues, we affirm the judgment of the trial court.

August 29, 2006

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)