NUMBER 13-10-00337-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI–EDINBURG
DANIEL PAUL BONE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Goliad County, Texas
MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes Memorandum Opinion by Justice Perkes
Appellant, Daniel Paul Bone, appeals his conviction for intoxication manslaughter,
a second-degree felony. See TEX. PENAL CODE ANN. § 49.08 (West 2011). After a jury
trial on guilt-innocence, the trial court sentenced appellant to a term of twelve years of
confinement in the Texas Department of Criminal Justice—Institutional Division. By two issues, appellant argues: (1) the trial court erred by admitting the results of a medical
blood test when the State had not demonstrated a proper chain of custody for the blood
sample; and (2) without the blood evidence, the evidence was legally insufficient to
support his conviction. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
At approximately 3:00 a.m. on September 5, 2004, appellant left for work, having
consumed alcohol at a concert the previous night. Appellant’s drive from his home in
Premont, Texas to work was about 121 miles. At approximately 5:15 a.m., while driving
his company’s truck on a two-lane stretch of Highway 59 in Goliad County, in foggy
conditions, appellant strayed from his northbound lane of traffic and hit a southbound
vehicle head-on. The driver of the other vehicle, Juan Ramon Flores, died as a result.
Appellant was transported to Christus Spohn Memorial Hospital in Corpus Christi, Texas
for medical treatment. While at the hospital, his blood was drawn for medical purposes,
and upon testing, it showed he was intoxicated.
During the trial, the State offered evidence of intoxication through lab records and
the testimony of Alan Wells, manager of the hospital’s laboratory. Based on the medical
intoxication evidence and other factors, the State offered expert retrograde extrapolation
testimony that appellant’s blood alcohol content at the time of the accident was 0.011 to
0.144, and thus appellant was intoxicated. The State also presented expert testimony
that the lack of evidence of swerving or braking to avoid the collision was consistent with
intoxication. In addition, appellant’s ex-wife testified she tried to talk appellant out of
2 driving to work that morning because he was too intoxicated to drive. Appellant appeals
his conviction that resulted from the introduction of this and other evidence.
II. DISCUSSION
A. The Sufficiency of the Evidence to Support Appellant’s Conviction
By his second issue, appellant contends the evidence is insufficient to support his
conviction for intoxication manslaughter, arguing that should the medical blood evidence
and subsequent retrograde-extrapolation evidence be excluded, the evidence does not
show appellant’s intoxication caused the fatal traffic accident. We disagree.
1. Standard of Review
Evidence is insufficient if, when viewed in a light most favorable to the verdict, a
rational jury could not have found each element of the offense beyond a reasonable
doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (citing Jackson v.
Virginia, 443 U.S. 307 (1979)). In evaluating a legal-sufficiency challenge, we consider
all of the evidence and view it in the light most favorable to the verdict. Jackson, 443
U.S. at 319. The issue on appeal is not whether we, as a court, believe the State’s
evidence or believe that appellant’s evidence outweighs the State’s evidence. Wicker v.
State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned
unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v.
State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact is the sole judge of
the credibility of the witnesses and of the strength of the evidence. Fuentes v. State, 991
S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or
disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614
3 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of
fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47
(Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v.
State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997) (citing Jackson, 443 U.S. at 319).
2. Analysis of the Evidence in the Record
We measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327
(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular offense for
which defendant was tried. Id.
A person is considered intoxicated if that person does not have the normal use of
his mental or physical faculties by reason of the introduction of alcohol, a controlled
substance, a drug, a dangerous drug, a combination of those substances or any other
substance into the body or by having an alcohol concentration above 0.08 or more in his
breath, blood, or urine. TEX. PENAL CODE ANN. § 49.01(2)(A)–(B) (West 2003). In this
regard, nothing in the indictment in this case required the State to prove a certain
blood-alcohol concentration.
A person commits the offense of intoxication manslaughter if that person (1)
operates a motor vehicle in a public place; (2) while intoxicated; and (3) by reason of that
4 intoxication, causes the death of another person by accident or mistake. Id. § 49.08(a);
Wooten v. State, 267 S.W.3d 289, 294–95 (Tex. App.—Houston [14th Dist.] 2008, pet.
ref’d). It is not enough that operation of a motor vehicle, even when operated by an
intoxicated person, causes death; rather, the State must prove that a defendant's
intoxication caused the fatal result. See Daniel v. State, 577 S.W.2d 231, 233–34
(Tex.Crim.App.1979); Glauser v. State, 66 S.W.3d 307, 313 (Tex. App.—Houston [1st
Dist.] 2000, pet. ref'd). The State may use circumstantial evidence to prove the causal
link between a defendant’s intoxication and the other person’s death. See Sanchez v.
State, 398 S.W.2d 117, 120 (Tex. Crim. App. 1966) (holding evidence of manner and
speed with which defendant operated his automobile before a collision was sufficient to
show a causal connection between defendant’s intoxication and the death of the
deceased); Kennermur v. State, 280 S.W.3d 305, 313–14 (Tex. App.—Amarillo 2008, pet
ref’d) (discussing use of circumstantial evidence to prove causal connection between
intoxication and death in intoxication-manslaughter cases).
Appellant gave two different versions of the fatal auto accident. He gave one
version to law enforcement on the day after the accident, and he later gave another
version in a deposition in a civil lawsuit arising from the accident. Both versions were
presented to the jury in this case.
On the day after the accident, appellant told Trooper Sarlls of the Texas
Department of Public Safety (“DPS”) that he was driving to work when this accident
occurred. Appellant told Trooper Sarlls that he finished working at 11:00 a.m. on the day
before the accident and that he slept for nine hours before waking up to drive to work.
5 Appellant did not inform Trooper Sarlls that he had consumed alcohol. Appellant
explained to Trooper Sarlls that he was familiar with the road, and that as he drove in the
northbound lane, Juan Ramon Flores (“Juan”) entered his lane from the southbound lane.
Appellant said that in an attempt to avoid the accident, he swerved to the left because
there was a ditch to his right. According to appellant, Juan then corrected his path of
travel, but in doing so struck the truck appellant was driving. In this account, appellant
stated the collision occurred in Juan’s lane of travel.
In the portions of the civil deposition which were read into evidence, appellant
testified the collision occurred in his own, northbound lane of travel. Appellant testified
that after crossing over a hill at 65 miles per hour, his visibility completely diminished due
to fog. He saw two headlights “coming at” him in his lane, and he looked down at the
road to see where he was. He saw that he was in his own, northbound lane of travel,
with the passenger-side tires of his truck almost on the white line, marking the shoulder
lane. When he saw two headlights in the center of the hood of his truck, he dropped
speed, although he could not say by how much. Appellant testified he did not remember
swerving. He “just got hit.” Appellant testified he was looking “directly” at the oncoming
vehicle’s headlights when the accident occurred. Appellant could not say whether his
vehicle rolled over. His next memory was someone yelling “fuel leak” and “fire.”
In his deposition, appellant testified about his activities before he left for work. He
testified that on September 4, he woke up at 6:00 o’clock p.m. to get ready to go to an
outdoor concert with his wife and others. Appellant testified that at the concert, between
8:00 p.m. and midnight, he consumed two mixed drinks and four beers. He left the
6 concert at about 1:30 or 2:00 a.m.
Appellant’s ex-wife, Sandra Haywood, who was married to him at the time of the
accident, testified that prior to drinking at the concert, appellant arrived home from work in
the afternoon, and she could see that he had been drinking alcohol. She further testified
appellant was loud and staggering at the concert due to intoxication. Haywood testified
that appellant was intoxicated when he left the concert. She followed behind him in her
truck as appellant drove home from the concert in his personal truck. He was swerving
off the road as he drove home. Haywood testified that prior to appellant leaving home for
work, she tried to persuade him not to drive because he was intoxicated.
The deceased’s brother, Albert Flores, testified at trial that his brother, Juan, was
approximately 31 years old at the time of the accident, was engaged to be married, and
did not drink alcohol. At the time of the accident, Juan was driving to Laredo to meet
Albert who was arriving at a bus station. There was no physical evidence at the scene of
the accident to suggest Juan caused the accident.
Sergio Nieto testified that he was hauling a boat to a family reunion and driving in
the southbound lane when he struck Juan’s truck. This happened after appellant’s
collision with Juan’s truck. Although it was foggy, Nieto could still see the center stripe
on the highway and tried to avoid the accident. Nieto’s testified he believed he
rear-ended Juan’s truck. Nieto’s pick-up truck ended up facing south, but in the middle
of the road, blocking both lanes of traffic. Nieto’s boat and boat trailer became detached
and later a fourth driver, who did not testify at trial, crashed his truck into Nieto’s boat.
Nieto exited his truck and saw that half of Juan’s truck was gone on the driver’s side.
7 Juan’s left arm was severed at the elbow, the torso portion of his body was extended out
from the passenger cab of the truck, and there was a large amount of blood in the cab.
Juan was dead when Nieto saw him. Nieto briefly saw appellant at the scene, and
appellant was taken from the scene by life flight minutes later.
Deputy Virginia Escojido of the Goliad Sherriff’s Department was the first
law-enforcement officer to arrive at the scene. She arrived at about 5:30 a.m. Deputy
Escojido testified that though it was very foggy and dark, one could see the lane in which
he or she was driving. She also testified there was a strong odor of burning oil or
gasoline at the scene. Neither she nor any other witness testified to smelling alcohol at
the scene, but the first priority was to stop traffic, to prevent other collisions, and to look
after those who may have been injured.
Yancy Arrington, a professional engineer, testified that an attorney for Juan’s
family hired him to perform accident reconstruction services. Arrington testified that over
a year after the accident, he collected data at the accident scene, examined photographs
of the scene, and corroborated the DPS scale drawing of the area where the accident
happened. Arrington testified Juan’s Toyota Tacoma truck weighed about 3,200
pounds, whereas appellant’s truck, a loaded heavy-duty truck for working at an oilfield,
weighed about 6,500 pounds. Juan and appellant’s trucks were each approaching a
bridge crossing. About 200 feet back from the point of impact, appellant started drifting
across the center line into Juan’s lane. Appellant struck the front, left driver’s side
portion of Juan’s truck. The maximum force engagement was the moment the front tires
of the two trucks collided, causing the tires to detach. Appellant’s truck then moved
8 along the side of Juan’s truck, removing the bottom half of Juan’s truck. After the impact,
Juan’s vehicle rolled, causing the roof to collapse.
Arrington testified that all of the physical evidence, such as gouge marks in the
pavement and fluids from the trucks, was in the southbound lane. Arrington testified that
had appellant’s deposition version of the accident been correct, appellant’s truck would
have come to rest on the northbound side of the highway. The pictures, however,
showed appellant’s truck landed in an embankment on the southbound side of the
highway. Arrington testified the subsequent collision involving Nieto could not have
caused any of the damage to the “occupant” area of Juan’s truck. Without objection,
Arrington testified that two other engineering firms had performed accident reconstruction
analysis of this accident and reached the same conclusions as he did concerning how the
accident occurred.
The State also presented testimony from two DPS Troopers certified in accident
reconstruction, Trooper Frank Casillas and Trooper C.J. Villarreal. Trooper Casillas was
present at the accident scene the day the accident happened, whereas Trooper Villarreal
examined the scene at a later date and made a scale drawing. Trooper Casillas testified
a gouge mark is where a non-rubber portion of a vehicle leaves a groove in the pavement
during an auto accident. Gouge marks can indicate the direction of vehicular movement
during an accident. Trooper Casillas testified the gouge marks at the scene showed
appellant’s truck entered Flores’s lane of travel and that there was no chance the impact
occurred in appellant’s northbound lane of travel. Trooper Casillas testified appellant
had plenty of room to move to his right out of Juan’s lane to avoid the accident. Trooper
9 Casillas testified there was no evidence, such as skid marks, that either driver took any
action to avoid the accident. Trooper Villarreal testified that all of the gouge marks were
in Juan’s southbound lane, thereby showing the accident occurred in Juan’s lane.
Trooper Villarreal also testified there was no evidence appellant applied his brakes before
the impact.
The defense called Trooper Sarlls as a witness. He was present at the accident
scene and wrote the initial DPS major-accident report. In the report, Trooper Sarlls
attributed the accident to heavy fog and included the description of events appellant
provided him the day after the accident. At that time, Trooper Sarlls believed the
accident occurred in Juan’s lane. However, based on appellant’s account that he slept
nine hours before driving and had moved into Juan’s lane as an evasive action, Trooper
Sarlls concluded the gouge marks in Juan’s lane were consistent with evasive action.
He testified appellant was removed from the accident scene before he arrived and that
had he known of appellant’s intoxication prior to the accident, he would have investigated
differently.
Trooper Sarlls testified there was no evidence that showed the accident occurred
in appellant’s northbound lane of travel; no physical evidence that Juan ever left his lane
of travel; and that the lack of skid marks from appellant’s vehicle at the scene was
consistent with intoxication. Trooper Sarlls testified that after DPS learned of appellant’s
intoxication, DPS created a corrected report which recognized intoxication as the cause
of the accident. On cross examination, Trooper Sarlls agreed with the prosecutor that
because of the heavy fog, appellant’s story that he saw headlights from some distance
10 moving into his lane was “silliness”—the fog was too thick to allow one to see headlights
in the distance.
Appellant states in his brief that he does not dispute the sufficiency of the evidence
in the event the blood evidence and subsequent extrapolation testimony are considered.
However, after reviewing the entire record, we conclude that even without the blood
evidence and subsequent extrapolation testimony, a rational jury could have found
beyond a reasonable doubt that appellant committed the offense of intoxication
manslaughter. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)
(explaining that an appellate court considers admissible and inadmissible evidence in
performing a sufficiency review); Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App.
2006).
A jury may infer a consciousness of guilt from a defendant’s changing story about
the crime and the surrounding circumstances. Couchman v. State, 3 S.W.3d 155,
163–64 (Tex. App.—Fort Worth 1993, pet. ref’d). “A ‘consciousness of guilt’ is perhaps
one of the strongest kinds of evidence of guilt.” Hyde v. State, 846 S.W.2d 503,
505 (Tex. App.—Corpus Christi 1993, pet. ref’d.) (quoting Torres v. State, 794 S.W.2d
596, 598 (Tex. App.—Austin 1990, no pet.)). “It is consequently a well accepted principle
that any conduct on the part of a person accused of a crime subsequent to its
commission, which indicates a ‘consciousness of guilt,’ may be received as a
circumstance tending to prove that he committed the act with which he is
charged.” Torres, 794 S.W.2d at 598 (internal quotations omitted).
The jury could have reasonably inferred from appellant’s changing story that he
11 lied about how the accident happened because he had something to hide. See
Couchman, 3 S.W.3d at 164. In addition, the expert testimony showed appellant was
intoxicated and thereby caused the accident. Multiple witnesses testified that although it
was foggy, one could see the lanes on the ground. Appellant did not brake to avoid the
collision. See Kuciemba v. State, 310 S.W.3d 460, 463 (Tex. Crim. App. 2006) (holding
that the “driver's failure to brake provides some evidence the accident was caused by
intoxication”). We conclude the cumulative force of the circumstantial evidence was
sufficient to find appellant guilty beyond a reasonable doubt, with or without the blood and
extrapolation evidence. See Powell, 194 S.W.3d at 507. Appellant’s second issue is
overruled.
B. The Admissibility of Blood Evidence that Showed Appellant’s Intoxication
By his first issue, appellant argues the trial court erred by admitting into evidence
the results of his medical blood draw which indicated he was intoxicated, because the
State did not establish a proper chain of custody to support admission of the blood-test
results. Appellant further complains the State’s witness, Alan Wells, the Laboratory
Manager of Christus Spohn Memorial Hospital, lacked firsthand knowledge of the chain of
custody for the blood sample, and that the State failed to present testimony from the
person who drew the blood and the person who analyzed the blood.
We review a trial court’s ruling on the admissibility of evidence under an abuse of
discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
Although the Texas Rules of Evidence do not define the term “chain of custody,” Rule
901(a) provides that the “requirement of authentication or identification as a condition
12 precedent to admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” See TEX. R. EVID. 901(a). The court
properly admits evidence when a reasonable juror could find that the evidence was
authenticated. Pondexter v. State, 942 S.W.2d 577, 586 (Tex. Crim. App. 1996).
Proof of the beginning and end of a chain of custody will support the admission of
the evidence in the absence of any evidence of tampering or alteration. Dossett v. State,
216 S.W.3d 7, 17 (Tex. App.—San Antonio 2006, pet. ref’d); Durrett v. State, 36 S.W.3d
205, 208 (Tex. App.—Houston [14th Dist.] 2001, no pet.) Gaps or theoretical breaches
in the chain of custody do not affect the admissibility of the evidence absent affirmative
evidence of tampering or commingling; any gaps go to the weight of the evidence rather
than its admissibility. Dossett, 216 S.W.3d at 17; Durrett, 36 S.W.3d at 208; see also
Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997).
In Durrett, none of the witnesses could recall who actually drew the medical blood
sample from the defendant and a medical technologist admitted on cross examination
that he lacked an independent recollection of testing the blood. See Durrett, 36 S.W.3d
at 209–11. The Fourteenth Court of Appeals held that the beginning and end of the
chain of custody were proved by witnesses who testified that a physician requested the
blood sample, which was identified as Durrett's at the time it was collected for analysis by
an emergency room employee pursuant to hospital policies and procedures, and where
the blood sample was promptly sent by pneumatic tube to the hospital laboratory for
analysis by a medical technologist. Id. at 210. Because Durrett did not claim there was
any tampering with or alteration of the evidence, or suggest that hospital procedures were
13 not followed, proof of the beginning and the end of the chain of custody was sufficient to
support admission of the evidence. Id. at 211. The appeals court held that the fact that
no witness could recall taking the blood and the fact that another witness gave
contradictory testimony on whether he recalled testing Durrett’s blood sample, went to the
weight, not the admissibility, of the evidence. Id.; see also Torres v. State, No.
04–07–00522–CR, 2009 WL 89695, at *4–5 (Tex. App.—San Antonio Jan. 14, 2009, pet.
ref’d) (mem. op., not designated for publication) (holding that evidence of established,
routine procedures for medical blood tests, in the absence of evidence the procedures
were not followed, is sufficient grounds for the trial court to admit the results of a medical
blood test).
Alan Wells, the Laboratory Manager of Christus Spohn Memorial Hospital, testified
he was the custodian of the lab records.1 He testified that the laboratory manager who
was working when appellant’s blood was drawn in 2004, relocated to San Antonio before
Wells started working as the manager. As manager, Wells’s responsibilities included
supervision of personnel and ensuring proper maintenance and performance of lab
equipment. Wells explained that since 1988, he had continuously served as a laboratory
manager in a Christus Spohn or Christus hospital, and that in all hospitals accredited by
the College of American Pathologists (“the College”), the labs follow the same protocols.
Wells testified that from 2004 through the time of trial, Christus Spohn Memorial’s lab was
certified by the College and passed the College’s tests for maintaining certification.
According to Wells’s testimony, the protocols he described concerning the chain of
1 The lab records concerning the testing of appellant’s blood were admitted into evidence as business records and were marked State’s Exhibit 7 and 8. Exhibit 8 shows the results of the blood test and shows appellant was intoxicated when his blood was drawn at the hospital. 14 custody for a blood sample were in place at Christus Spohn Memorial Hospital in 2004,
when appellant’s blood was drawn and tested.
Wells testified the protocols required the lab to periodically test samples the
College sent to the lab, so the College could confirm the accuracy of the lab’s work. The
College performed biannual (i.e., every other year), in-person surveys of the lab, to
ensure it met applicable laboratory standards and also required the lab to regularly
complete and submit self surveys. Wells testified that the hospital performed daily,
weekly, and monthly preventative maintenance on the Roche Cobas 800 machine used
to analyze appellant’s blood, and that the manufacturer of the machine also visited the
hospital periodically to provide upgrades and to perform preventative maintenance. The
lab tested two quality-control samples daily. The lab also subscribed to a
inter-laboratory service which allowed the lab to compare its results to all of the other labs
in the country using the same machine. Wells testified that in 2004, about 300 to 330
hospitals in the country were using the Roche Cobas 800 machine. Wells testified at
considerable length that because seventy to eighty percent of all medical decisions are
based on the results of lab work, it is critical that samples be linked to the correct patient
and that results be correct. Wells described accuracy in the lab work as a matter of
life-and-death importance.
As to the handling of an individual blood sample, Wells testified that each patient
admitted to the hospital from the emergency room was assigned an identification number
and issued a wrist band which showed the patient’s name and unique identification
number. Once a physician ordered a blood test, labels with bar codes and the patient’s
15 identification number and name were automatically generated. The person drawing the
blood then checked the label against the person’s wrist band, confirming the patient’s
name and identification number, before collecting the blood sample and placing the label
on the sample. The person then placed his or her initials and the time of the blood draw
on the label. The blood was then taken to a computer that read the bar code and then
told the machine which tests to run on the blood.
Wells testified that per hospital protocol, isopropyl alcohol was used to clean the
site on the patient when taking a blood sample. Because the Roche Cobas 800 machine
performed an alcohol dehydrogenase test for the presence of ethanol, it did not matter
that isopropyl alcohol was used in taking the blood sample. Wells explained the alcohol
dehydrogenase test involved the machine taking a small sample of the patient’s blood
serum, placing it in a reaction cup, adding a reagent to it, and immediately taking a
‘reading.’ The reading consisted of the machine shining a light through the sample,
measuring the amount of light absorption at two different times, and comparing the
difference in absorption at the two times against a curve. The difference in absorption
correlated to a certain concentration of alcohol in the person’s blood. Wells explained
that alcohol dehydrogenase testing was widely accepted in the scientific community,
used in approximately 1,700 other hospitals in 2004, and that the Food and Drug
Administration approved the Roche Cobas 800.
Based on the records admitted into evidence,2 Wells testified a registered nurse
drew appellant’s blood, and that a competent, trained technologist tested his blood. At
2 On appeal, appellant does not challenge the admission into evidence of any medical records as business records. We also note that in connection with Wells’s testimony, appellant did not obtain a ruling 16 the time of trial, the technologist had worked in the same lab for approximately forty-four
years. Wells testified from State’s Exhibit 8, the lab report showing the results of the
blood test, that appellant was intoxicated when his blood was drawn at the hospital. The
record contains no evidence of tampering with appellant’s blood sample or of any failure
to follow the established protocols to which Wells testified.
On this record, we cannot say the trial court abused its discretion by admitting the
blood evidence because the State presented sufficient evidence to support a finding of
authentication. See TEX. R. EVID. 901(a); Durrett, 36 S.W.3d at 211. Appellant’s first
issue is overruled.
III. CONCLUSION
We affirm the trial court’s judgment.
_____________ _________ Gregory T. Perkes Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 23rd day of February, 2012.
on his initial objection to the admissibility of medical records as business records. In addition, before Wells testified that he was the custodian of the lab records, appellant objected, without obtaining a ruling, that the State had not shown Wells was the custodian of the medical records and lab records. See TEX. R. APP. P. 33.1. 17