James Glenn Jacobs v. The State of Texas--Appeal from 124th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00204-CR

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JAMES GLENN JACOBS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 30641-B

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

During an investigation of a one-car accident, James Glenn Jacobs was discovered face down, intoxicated, and unconscious in a ditch about 200 to 400 yards from the wrecked vehicle. Jacobs appeals his conviction of felony driving while intoxicated (DWI). A jury found Jacobs guilty and assessed punishment at nine years' imprisonment. Jacobs alleges that the trial court erred in admitting into evidence medical records containing double hearsay and that the evidence was both legally and factually insufficient to support the verdict. We affirm the judgment of the trial court.

Admission of Medical Records

In his first point of error, Jacobs contends the trial court erred in admitting the medical records. Medical records concerning the accident were introduced under the "business records" exception to the hearsay rule. The custodian of medical records testified that she was the legal custodian of the business records in question, that the records were kept in the regular course of business, and that the information contained in the records was recorded by an employee of the hospital at or near the time of the stated events. Because Jacobs was the only person found at the scene, Jerry Cobb, an emergency medical technician with the Longview Fire Department, assumed Jacobs was the driver and informed hospital personnel that Jacobs was the driver. The medical reports, consisting of more than forty pages, provide, among numerous other entries, that "[t]he patient is a 30 year-old intoxicated white male who is status post motor vehicle accident, driver."

A trial court's decision on the admissibility of evidence is reviewed for an abuse of discretion. Bee v. State, 974 S.W.2d 184, 187 (Tex. App. San Antonio 1998, no pet.). A trial court abuses its discretion when its decision falls outside "the zone of reasonable disagreement." Salazar v. State, 38 S.W.3d 141, 153 54 (Tex. Crim. App. 2001). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

The general rule is that hearsay statements are inadmissible. See Tex. R. Evid. 802. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." See Tex. R. Evid. 801(d); Huff v. State, 897 S.W.2d 829, 838 39 (Tex. App. Dallas 1995, pet. ref'd). However, there are numerous exceptions to the hearsay rule. See Tex. R. Evid. 803. Rule 803(6), commonly known as the "business records exception" provides that

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

Tex. R. Evid. 803(6) (emphasis added). The purpose of the "business records" exception is to "dispense with the necessity of proving each and every book entry by the person actually making such entry." Crane v. State, 786 S.W.2d 338, 353 (Tex. Crim. App. 1990).

Even if the formal requirements of the exception are shown, the indispensable, fundamental trustworthiness of the proffered record must be evident, including the requirement that the records have the "'indicia of reliability.'" Id. Even if a record qualifies as a business record, not all of the contents of that record may be admissible. See Garcia v. State, 126 S.W.3d 921, 926 (Tex. Crim. App. 2004) (a comment made by a person who does not have a business duty to report must independently qualify for admission under another hearsay exception).

Before we examine the substance of Jacobs' point of error, we must determine whether error has been preserved. Any error in admitting evidence must have been preserved by a proper objection and ruling. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Skeen v. State, 96 S.W.3d 567, 575 (Tex. App. Texarkana 2002, pet. ref'd). The objection must have been timely and include the basis for the objection unless the particular ground was apparent from the context. Lankston v. State, 827 S.W.2d 907, 908 09 (Tex. Crim. App. 1992); Skeen, 96 S.W.3d at 575.

Specific objections are required to preserve error in order to afford the trial court the opportunity to rule and allow the opposing counsel an opportunity to remedy the defect or supply other testimony. Johnson v. State, 901 S.W.2d 525, 533 (Tex. App. El Paso 1995, pet. ref'd). Rule 33.1(a)(1)(A) requires that an objection state the grounds for the ruling being sought "with sufficient specificity to make the trial court aware of the complaint." Tex. R. App. P. 33.1. Such specificity is not required, though, if "the specific grounds were apparent from the context." Id.; see Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994). In Lankston, the Texas Court of Criminal Appeals held that, under the predecessor to Rule 33.1, "no technical considerations or form of words" are necessary and that all that is required is to "let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Lankston, 827 S.W.2d at 909. Making the trial court aware of the complaint requires that both the grounds and what is being objected to be apparent. See Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim. App. [Panel Op.] 1980) (op. on reh'g).

"[W]hen an exhibit contains both admissible and inadmissible material the objection must specifically refer to the material deemed objectionable." Beltran v. State, 728 S.W.2d 382, 387 (Tex. Crim. App. 1987); Gilbert v. State, 840 S.W.2d 138, 145 (Tex. App. Houston [1st Dist.] 1992, no pet.); see Hernandez, 599 S.W.2d at 617 (op. on reh'g). In Gilbert, the First Court of Appeals held that the failure to make an objection that specifically referred to the inadmissible parts of a letter failed to preserve error, even though parts of the letter may have been inadmissible. Gilbert, 840 S.W.2d at 145. In Hernandez, the Texas Court of Criminal Appeals held that failure to specifically refer to the inadmissible parts of a "pen packet" introduced at the punishment phase failed to preserve the error in admitting the entire "pen packet." Hernandez, 599 S.W.2d at 617 (op. on reh'g).

Jacobs was required to make an objection with sufficient specificity that the trial court could be aware of what he was complaining about. The record in pertinent part is as follows:

[Prosecutor]: Your Honor, at this time I'm going to move to offer into evidence State's Exhibit 1, which had been previously copied for defense counsel prior to trial today.

(State's Exhibit 1 offered)

[Defense Counsel]: Your Honor, I believe that I'm going to object to the records to the extent that they contain hearsay within hearsay. I understand that they've been proved up as business records, but the hearsay in evidence, what's contained within them, I object to.

THE COURT: No. It's a business record, it comes in, so I admit the exhibit.

Jacobs' counsel's objection did not make the trial court aware of where in the records the objectionable material is. There is no specific reference to the inadmissible parts of the medical records. This is not an objection specific enough to make the trial court aware of what is being objected to. Nor can we say that the inadmissible material which forms the basis of the objection is apparent from the context. The medical records contained approximately forty pages of entries properly authenticated as business records, and the complained-of evidence consists of a single word. Therefore, we conclude the error was not preserved.

Sufficiency of the Evidence

In his second and third points of error, Jacobs contends there is legally and factually insufficient evidence for a jury to conclude beyond a reasonable doubt that he operated the vehicle in question. In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991).

When reviewing a challenge to the factual sufficiency of the evidence to support the conviction, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, slip op. at 8, 2004 Tex. Crim. App. LEXIS 668, *20 (Tex. Crim. App. Apr. 21, 2004). There are two ways in which we may find the evidence to be factually insufficient. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if when we weigh the evidence supporting and contravening the conviction we conclude the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. "Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

The elements necessary to prove that a person committed the offense of DWI are 1) a person, (2) is intoxicated, (3) at the time of, (4) operating, (5) a motor vehicle, (6) in a public place. // Jacobs contends there is insufficient evidence that he was the person operating the vehicle.

On November 9, 2002, emergency medical personnel responded to the report of a wrecked pickup truck. The truck was stuck in a ditch with substantial damage. The pickup truck was running, in gear, and the driver's side door was open. Jacobs was discovered face down, intoxicated, and unconscious in a ditch about 200 to 400 yards from the wrecked vehicle. No other occupants were found at the scene. Trooper Jay Alexander testified that the steering wheel had been damaged. Jacobs was diagnosed with bilateral lung contusion, bruising of the lungs, or atelectasis, collapse of the alveoli in the lungs. The medical records indicate that pneumonia could have been a possible cause of Jacob's injuries, but the injuries were also consistent with injury caused by a person's chest striking a steering wheel during an accident. Cobb testified that medical tests indicated Jacobs had a blood alcohol concentration in excess of three times the legal limit. As a result of the incident, Jacobs was charged, in addition to the DWI, with operation of a motor vehicle in violation of the financial responsibility law. Before the trial for DWI, Jacobs pled guilty to operation of a motor vehicle in violation of the motor vehicle liability insurance requirement. See Tex. Transp. Code 601.051, 601.191 (Vernon 1999). One of the elements of this offense is that one must operate a vehicle without one of the enumerated financial responsibility measures including motor vehicle insurance. Id. A copy of Jacobs' plea concerning the lack of insurance was introduced into evidence. A guilty plea is an admission of all elements of a formal criminal charge. Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986). Thus, Jacobs had previously admitted his guilt to an offense which required him to be the driver on the occasion in question.

Jacobs argues that there are numerous scenarios which would explain why only the driver's side door was open and that Jacobs was the only person found at the scene. Jacobs contends the driver could have pulled Jacobs out of the vehicle from the driver's side or that Jacobs could have exited the passenger side and closed the door. The driver could have fled the scene before the emergency medical personnel arrived. However, the State is no longer obligated to exclude every reasonable hypothesis other than guilt in circumstantial evidence cases. See Purvis v. State, 4 S.W.3d 118, 120 (Tex. App. Waco 1999, no pet.); see also Geesa v. State, 820 S.W.2d 154, 160 61 (Tex. Crim. App. 1991), overruled in part on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000).

The evidence contains circumstantial evidence that Jacobs was the driver. Furthermore, by entering a plea of guilty to driving without insurance, he admitted operating the vehicle at the time of this accident. When viewed in a light most favorable to the verdict, a rational person could have found Jacobs guilty beyond a reasonable doubt. The evidence supporting the verdict, considered alone, is strong enough that a rational juror could have found Jacobs guilty beyond a reasonable doubt. After weighing the evidence supporting and contravening the conviction, we conclude that the contrary evidence is not strong enough that the State could not have proven guilt beyond a reasonable doubt. Viewed in a neutral light, a rational juror could have found Jacobs guilty beyond a reasonable doubt. Therefore, the evidence was both factually and legally sufficient.

For the reasons stated, we affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: April 9, 2004

Date Decided: May 20, 2004

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