Kathleen Michelle McGee v. The State of Texas--Appeal from 349th District Court of Houston County

NO. 12-06-00247-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KATHLEEN MICHELLE MCGEE, APPEAL FROM THE 349TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

Appellant pleaded guilty to intoxication manslaughter. A jury sentenced her to seventeen years of imprisonment. In two issues, Appellant complains that the trial court erroneously overruled her hearsay objections to evidence which it then admitted and allowed before the jury. We affirm.

Background

On May 23, 2005, Appellant was involved in a one vehicle rollover on FM 2022 in Houston County, Texas. With Appellant in the vehicle were her three year old daughter, Lyndsay Ault, and a friend, Amanda Sparks. Her daughter was killed in the rollover. Appellant pleaded guilty to intoxication manslaughter, a second degree felony, and elected to have a jury assess her punishment. At trial, the State s first witness was Jeff Berry, a trooper with the Texas Department of Public Safety. Trooper Berry testified about what he found at the scene of the wreck and Appellant s reaction to what had occurred, including the death of her daughter. He testified that Appellant admitted to him that she had been drinking before the wreck. He also testified that he found a bottle of Etodolac, which had been prescribed for Kenneth Harvill, the father of passenger Amanda Sparks. Sparks testified that she believed the drug Etodolac was a muscle relaxer. She also testified that Appellant did not take any of the pills in her presence. However, Sparks admitted, after having her memory refreshed, that she could have told Trooper Berry, at the scene, that Appellant had taken some of the Etodolac prior to the rollover. Later, Appellant called Karla Jane Evans, a registered pharmacist from the pharmacy where the prescription had been filled, to testify that Etodolac was an anti-inflammatory drug that has the same properties as Motrin or Aleve.

In addition to Berry and Sparks, the State called four other witnesses who testified about the wreck scene and about the reaction of Appellant to the death of her daughter. In addition to Evans, Appellant called as witnesses a paramedic who responded to the scene, the supervisor of the Houston County Probation Office, Appellant s boyfriend, and Dr. Thomas Allen, a forensic psychologist who had examined Appellant. The paramedic testified about what she found at the scene and Appellant s reaction to what had happened. The other three witnesses testified about Appellant s alcohol and drug addictions, the treatment she had sought, and possible treatment programs she might be able to take advantage of in the future. A toxicology report admitted into evidence showed that, at the time of the rollover, Appellant s blood alcohol concentration was 0.12, fifty percent over the legal limit of 0.08.

During closing arguments, the State emphasized Appellant s lack of remorse at the wreck scene, her continued alcohol dependence, and the risk to the general public if Appellant continued to drink and drive. Appellant emphasized her remorse, her eligibility for probation, and her desire to go through treatment programs while on probation. The jury assessed her punishment at seventeen years of imprisonment, and the court sentenced her accordingly. This appeal was timely filed.

Admissibility of Evidence

In her first issue, Appellant complains that the trial court abused its discretion when it allowed Sparks to testify what the prescription drug Etodolac was prescribed for. In her second issue, Appellant complains that the trial court abused its discretion when it permitted the prosecutor to refresh Sparks s recollection of her prior statement using an unidentified document that Appellant claims was a statement of a third party. In regard to these two issues, Appellant contends that Sparks s testimony and her prior statement were hearsay. Hearsay is 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. Tex. R. Evid. 801(d).

Standard of Review

In reviewing the trial court s rulings on admissibility of the evidence, we apply an abuse of discretion standard of review. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). The test for 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 trial court acted without reference to any guiding rules or principles. Ford v. State, 179 S.W.3d 203, 207 (Tex. App. Houston [14th Dist.] 2005, pet. ref d), cert. denied, ____ U.S. ____, 127 S. Ct. 281, 166 L. Ed. 2d 215 (2006) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)).

The erroneous admission of evidence is nonconstitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Nonconstitutional error that does not affect substantial rights must be disregarded. See Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (citations omitted). In conducting a harm analysis, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered with other evidence in the case, the trial court s instructions to the jury, the State s theories, any defensive theories, closing arguments, and even voir dire, if material to the appellant s claim. Id. at 355-56; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). Whether the State emphasized the error can also be a factor. Motilla, 78 S.W.3d at 356.

Discussion

Because a harmless error would not require reversal, we begin our analysis with the issue of harm. Appellant objected that any information Sparks had about the prescription in question was hearsay and requested permission to take the witness on voir dire to make sure she had personal knowledge of what the prescription was for. The trial court overruled Appellant s objection and allowed Sparks to testify. Sparks responded that Etodolac was a muscle relaxer, I believe.

Later during her testimony, Sparks testified that she and Appellant had not taken any of the Etodolac. At that time, the State asked Sparks to review a statement she had given to Trooper Berry shortly after the wreck. Appellant objected to the use of Sparks s statement to Trooper Berry, alleging that it was hearsay. After this objection was overruled and her memory was refreshed, Sparks admitted that she could have told Trooper Berry that Appellant had taken some of the Etodolac before the wreck.

Because Appellant pleaded guilty, we consider whether Sparks s testimony that she thought Etodolac was a muscle relaxer, and her testimony that she could have told Trooper Berry that Appellant had taken some of the Etodolac, affected the jury s sentence.

The evidence against Appellant was substantial. It was undisputed that Appellant s blood alcohol concentration level at the time of the vehicle rollover that killed her daughter was 0.12, fifty percent above the legal limit in Texas. See Tex. Penal Code Ann. 49.01(2)(B) (Vernon 2003) (definition of intoxicated includes having alcohol concentration of 0.08 or more). Dr. Allen and Appellant s boyfriend testified that Appellant abused alcohol and marijuana. Dr. Allen also testified that he believed Appellant was physically addicted to alcohol, which would cause her to have a high probability of future use. He further testified about her past abuse of various other drugs, both prescription and nonprescription. Appellant s boyfriend testified that Appellant had continued to use alcohol after her daughter s death. Finally, there was extensive testimony as to Appellant s appearing to lack remorse for this death.

Sparks testified that Etodolac was a muscle relaxer, I believe. We note that Sparks s answer was tentative. Further, Appellant called Evans, a registered pharmacist, to testify that Etodolac was a nonsteroidal anti-inflammatory drug and not a muscle relaxer. In addition, the toxicology screen introduced into evidence showed only the presence of alcohol in Appellant s blood at the time of the wreck. Evans testified that Etodolac did not have a propensity for addiction and had the same properties as over the counter pain relievers such as Motrin or Aleve. Following this testimony, Etodolac was not mentioned again. Much more damaging was the undisputed evidence related to Appellant s blood alcohol concentration at the time of the rollover, her history of drug and alcohol abuse, the fact that she continued to drink alcohol following the wreck, and her perceived lack of remorse. The State did not mention Etodolac during its closing argument. Instead, it emphasized Appellant s perceived lack of remorse, her continued alcohol use, her danger to the public, and the administration of justice.

In summary, the evidence against Appellant was overwhelming, and the State emphasized that evidence in its closing argument. Evans corrected Sparks s misstatement about Etodolac, and the subject was not revisited. Further, there was no evidence that Appellant was under the influence of any substance other than alcohol or that she had Etodolac in her system at the time of the rollover. Consequently, we have more than a fair assurance that the testimony complained of did not influence the jury or had but a slight effect on its assessment of punishment. Therefore, Appellant has not established that she was harmed by Sparks s testimony. Appellant s first and second issues are overruled.

Disposition

Having overruled Appellant s two issues, the judgment of the trial court is affirmed.

JAMES T. WORTHEN

Chief Justice

Opinion delivered August 31, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)