The State of Texas v. David James Conway--Appeal from 35th District Court of Mills County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00202-CR
The State of Texas, Appellant
v.
David James Conway, Appellee
FROM THE DISTRICT COURT OF MILLS COUNTY, 35TH JUDICIAL DISTRICT
NO. 2364, HONORABLE STEPHEN ELLIS, JUDGE PRESIDING
PER CURIAM

Appellee David James Conway is under indictment for two counts of intoxication manslaughter arising from a three-car collision. Tex. Penal Code Ann. 49.08 (West 1994). Conway was injured in the collision and taken to Brownwood Regional Hospital, from which he was transferred to Hendrick Hospital in Abilene. Samples of his blood were taken at both hospitals and tested for alcohol. Conway moved to suppress the test results. At the hearing on the motion, the State stipulated that the persons who drew the blood samples are unknown and for that reason a chain of custody for the blood samples cannot be established. Based on this stipulation, which was the only pertinent evidence adduced at the hearing, the court ordered the test results suppressed because the State did not adequately identify the blood tested as that taken from Conway. The State appeals. Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 1997).

The State contends the hospital laboratory reports containing the blood test results are admissible as records of regularly conducted activity. Tex. R. Crim. Evid. 803(6). The State argues that the break in the chain of custody goes to the weight of the evidence, not its admissibility. The State relies on an opinion by the Supreme Court decided under the former business records act, the statutory predecessor of rule 803(6). Missouri-K.-T. R.R. v. May, 600 S.W.2d 755, 756 (Tex. 1980); see Act of May 14, 1951, 52d Leg., R.S., ch. 321, 1951 Tex. Gen. Laws 545 (Tex. Rev. Civ. Stat. Ann. art. 3737e, since repealed). In May, it was contended that a hospital blood alcohol report was erroneously admitted because the report did not identify the person taking the blood sample, and security measures used for the blood sample were absent. The Supreme Court rejected this contention, holding that the objections to the report went to its weight and credibility, but not its admissibility.

Conway relies on another opinion under the business records act. Lynch v. State, 687 S.W.2d 76, 77-78 (Tex. App.--Amarillo 1985, pet. ref'd). In Lynch, a prosecution for driving while intoxicated, the defendant was taken to a hospital following a one-car accident. The treating physician ordered a blood alcohol test. The blood sample was drawn by an unidentified nurse. The doctor did not observe the sample being taken or labeled. The court of appeals held that the blood test result was erroneously admitted because the evidence did not show that the blood sample tested was taken from the defendant or establish a proper chain of custody. The court acknowledged the holding in May, but concluded that a more stringent rule applied in criminal cases.

In a leading opinion under former article 3737e, the Court of Criminal Appeals held that the hearsay exception for business records "should be liberally construed, but not mechanistically applied. Even though the formal requirements for admissibility of such records may be shown, they are not to be admitted automatically; the indispensable fundamental trustworthiness of the proffered record must be evident." Coulter v. State, 494 S.W.2d 876, 883 (Tex. Crim. App. 1973). In Coulter, the court held that a police memorandum summarizing the facts of the drug transaction for which the defendant was on trial was erroneously admitted as a business record. While the predicate for its admission as a business record was laid, the court concluded that the memorandum did not have "the indicia of reliability sufficient to insure the integrity of the fact finding process commensurate with the constitutional right of confrontation and cross-examination." Id. at 882.

In Brown v. State, 240 S.W.2d 310, 311 (Tex. Crim. App. 1951), a prosecution for driving while intoxicated, the Court of Criminal Appeals held that a laboratory report purporting to show the defendant's blood alcohol concentration was erroneously admitted in evidence. The court noted that while the evidence showed that a specimen of the defendant's blood was taken at the hospital, there was no probative evidence that this was the blood sample tested in the laboratory.

We review an order suppressing evidence for an abuse of discretion. State v. Carter , 915 S.W.2d 501, 504 (Tex. Crim. App. 1996). Rule 803(6) provides that a properly authenticated business record is admissible "unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness." On this record, the district court did not abuse its discretion by concluding that the hospital laboratory reports were untrustworthy and therefore inadmissible under rule 803(6).

The district court's order is affirmed.

 

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Affirmed

Filed: September 18, 1997

Do Not Publish

arising from a three-car collision. Tex. Penal Code Ann. 49.08 (West 1994). Conway was injured in the collision and taken to Brownwood Regional Hospital, from which he was transferred to Hendrick Hospital in Abilene. Samples of his blood were taken at both hospitals and tested for alcohol. Conway moved to suppress the test results. At the hearing on the motion, the State stipulated that the persons who drew the blood samples are unknown and for that reason a chain of custody for the blood samples cannot be established. Based on this stipulation, which was the only pertinent evidence adduced at the hearing, the court ordered the test results suppressed because the State did not adequately identify the blood tested as that taken from Conway. The State appeals. Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 1997).

The State contends the hospital laboratory reports containing the blood test results are admissible as records of regularly conducted activity. Tex. R. Crim. Evid. 803(6). The State argues that the break in the chain of custody goes to the weight of the evidence, not its admissibility. The State relies on an opinion by the Supreme Court decided under the former business records act, the statutory predecessor of rule 803(6). Missouri-K.-T. R.R. v. May, 600 S.W.2d 755, 756 (Tex. 1980); see Act of May 14, 1951, 52d Leg., R.S., ch. 321, 1951 Tex. Gen. Laws 545 (Tex. Rev. Civ. Stat. Ann. art. 3737e, since repealed). In May, it was contended that a hospital blood alcohol report was erroneously admitted because the report did not identify the person taking the blood sample, and security measures used for the blood sample were absent. The Supreme Court rejected this contention, holding that the objections to the report went to its weight and credibility, but not its admissibility.

Conway relies on another opinion under the business records act. Lynch v. State, 687 S.W.2d 76, 77-78 (Tex. App.--Amarillo 1985, pet. ref'd). In Lynch, a prosecution for driving while intoxicated, the defendant was taken to a hospital following a one-car accident. The treating physician ordered a blood alcohol test. The blood sample was drawn by an unidentified nurse. The doctor did not observe the sample being taken or labeled. The court of appeals held that the blood test result was erroneously admitted because the evidence did not show that the blood sample tested was taken from the defendant or establish a proper chain of custody. The court acknowledged the holding in May, but concluded that a more stringent rule applied in criminal cases.

In a leading opinion under former article 3737e, the Court of Criminal Appeals held that the hearsay exception for business records "should be liberally construed, but not mechanistically applied. Even though the formal requirements for admissibility of such records may be shown, they are not to be admitted automatically; the indispensable fundamental trustworthiness of the proffered record must be evident." Coulter v. State, 494 S.W.2d 876, 883 (Tex. Crim. App. 1973). In Coulter, the court held that a police memorandum summarizing the facts of the drug transaction for which the defendant was on trial was erroneously admitted as a business record. While the predicate for its admission as a business record was laid, the court concluded that the memorandum did not have "the indicia of relia