Thursday, March 31, 2011

DWI Appeal - Objecting to Records using HIPPA and Preserving Error

In Maldonado v. State of Texas, --- S.W.3d ----, 2011 WL 924352 (Tex.App.-Dallas), the defendant filed a pretrial motion to suppress the dental records subpoenaed by the State, arguing the State failed to comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) On the day he was arrested, according to his dentist Garay who testified at trial, Maldonado had three wisdom teeth extracted and had received twenty milligrams of diazepam and one half milligram of Halcion. He was charged with DWI drugs, involving the diazepam and Halcion. Garay then testified that diazepam is a muscle relaxant and can cause drowsiness and dizziness. Halcion can also cause drowsiness and dizziness. Garay stated the dangers of driving under the influence of diazepam and Halcyon included the driver having vertigo, disoriented vision, and “just not [being] sure what [he is] doing.” According to Garay, both Maldonado and his wife were instructed that Maldonado could not drive a car after taking the medications and was required to have someone available to drive him home. Garay testified Maldonado signed an informed consent indicating he understood these instructions. The informed consent was contained in Maldonado's dental records.

First, the court held that the defendant had waived his challenge on appeal:
When the State offered the dental records into evidence at trial, Maldonado affirmatively stated that he had no objection. When a motion to suppress evidence is denied, the defendant does not need to object at trial to the same evidence in order to preserve error on appeal. Garza v. State, 126 S.W.3d 79, 84 (Tex.Crim.App.2004); Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App.1986). However, when a defendant affirmatively states during trial that he has “no objection” to the admission of the complained-of evidence, he waives any error in the admission of the evidence despite the pretrial ruling. Estrada v. State, 313 S.W.3d 274, 302 (Tex.Crim.App.2010), cert. denied, 131 S.Ct. 905 (2011); Swain v. State, 181 S.W.3d 359, 368 (Tex.Crim.App.2005); Jones v. State, 833 S.W.2d 118, 126 (Tex.Crim.App.1992); Moraguez, 701 S.W.2d at 904.
Second, the court found that even if the challenge was ripe for review, they held that even assuming the records were improperly subpoenaed, Maldonado was not harmed by the admission of the dental records:

"It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App.1999); see also Lane v. State, 151 S.W.3d 188, 193 (Tex.Crim.App.2004) (“An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.”) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App.2003)). Garay testified, without objection, about the drugs Maldonado received at the dental office, the potential effects of those drugs on Maldonado, and that both Maldonado and his wife were instructed that Maldonado should not drive a motor vehicle. Because the dental records were cumulative of Garay's testimony, Maldonado was not harmed by the admission of the records. We overrule Maldonado's two points of error and affirm the trial court's judgment."

NOTE: Apparently, the defense did not seek to exclude the dentist's testimony as 'the fruit of the poisonous tree' involving the unlawful subpoena (but perhaps should have). Thus, the issue involving HIPPA was left to die on the vine. Texas courts seem to have a way of finding waiver, forfeiture, and harmless error in every case where a defendant has possibly been wronged.

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