## In the Court of Appeals Second Appellate District of Texas at Fort Worth

_______ ____________________ N o. 02

- 19

- 00246

- CR

__________________ _________

On Appeal from the County Court at Law Hood County, Texas Trial Court No. 51433

Before K err, Bassel, and Womack, JJ. M emorandum Opinion by Justice Ke rr



### P AUL 

### A LLEN 

### W ARD 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
Paul Al len Ward challenges his conviction and sentence for misdemeanor drivi ng w h ile intoxicated 1 on a single ground: that although the State prov ed that

someone with the s ame name drove while i ntoxicated and was involved in a single

vehic le accident o n Septem ber 2, 2017 , it did not es tablish that he was the p erson who di d so

. We affirm.
Standa rd of Review We dispense with a summary o f the background fac ts up f r ont bec ause w e must examine the trial evidence to determine Ward ’ s issue. A familiar stan dard guides

ou r sufficien cy review : w e view all the evidence in th e light most favorable to the verdict to determine whether any rational factfinder could have found the crim e’s

es sential elements beyond a reasonable doubt. Jac kson v. Virginia , 443 U.S. 30 7, 319,
99 S. Ct. 2781, 2 789 (1979); Queeman v. State , 520 S.W .3d 616, 622 (Tex . Crim. App. 2017)

. In doing so, we consider even improperly admitted evidence

. Moff v. State , 131 S. W.3d 485, 489

– 90 (Tex. Crim. App. 2004).
Trial Evi dence The 911 calls
The S tate played for the jury recording s of three 911 call s from the sa me caller

.

1 S ee Te x. Pe nal Code Ann. § § 49.04 , 49.09(a)

.3 In the first recording, the caller told the operator that “ a man ” had wrecked his
car in Pecan Plan tati on and needed help

. T hat call disconnected when t he caller w ent to find an address and did not continue to talk to the opera tor. Th e operator initi ated the second call. The caller gave his name and an address
for his location , told the operator that the ma n who had wrecked appeared t o have

“ hit his he ad ” but was awake , and co nfirmed that one vehicle was involve d and it s f

r o n t e n d and side were “ pretty banged up

. ” The caller also told the operator that the

acc ident victim seeme d drunk or intoxicated , did not know his ow n name , and was bleeding “ pre tty serious [ly]. ” Th e caller thought the man was around eithe r 50 , 40 , o r 30 years old

. The c aller also reported a bottle of vodka near the wreck.
In t he third 911 call, the operator instructed the caller how to car e for the
victim and to make the area secure wh ile w aiting for emergen cy responders.
The accident investigation Casey W ilken, a Hood County S h eriff ’ s Office investigator , responde d to th e accident around 9:30 p.m. on September 2 , 2017

. W hen W ilken arrived, he saw a car

“ maybe 50 y a rds of f the road in the tre es , ” along with a couple of witnesses and seven or eight medic s and volunte er firefighters. Wilken talked to four or five of them. But Wilken was not able to talk to the accident victim , who was already in an ambulance ;4 “ th rough [the man ’ s] driver ’ s license , ” Wi lk en identified him a s “ Paul Allen Ward

. ” A helicopter crew flew the vi ctim to John Pe ter Smith Ho spital (JPS)

. 2 Wilken investigated the wr eck age , finding front

- e nd damage to the car , broken

t ail l i ghts and headlights, and a missing “ door s kin ” from the passenger

- side back do or . He also found tire marks showing whe re the car had gone off the r oad, an empty bottle of vo d ka underneath the car , a n opened but e mp ty vodka b ottle in the
passe nger seat, and an u nopened full bottle of vodka in the center console. Wilken discovered that a heavy

- duty s tone mailbox “ maybe a quarter mile up the road .

. . had been hit and destroyed. ” T he “ door s kin ” from the passenger

- side back door of th e wrecked car was in the driveway of the house with th e destroyed mailbox. The trial court admitte d photograp hs of the car and mailbox damage. The hospital
The S tate called a JPS nurse to tes tify about his review of “ some records perta ining to Paul Ward ” t hat were labeled with War d ’ s full name , birthdate , and a medical

- record number

. The nurse affirmed that t he records show t hat on September 2, 2017, hosp ital staff dre w blood from t he patient

. The n urse testified that he

“ probably supervised ” the blood draw, but he could not say wh ether he was physically present during the draw ; he di d not remember War d or an ything about him.

2 It i s unc lear whether the victim was initiall y placed in an ambulance and then moved to a helicopter o r if Wilken referred to the heli copter as an am bulance.5 N ext, a JPS labor ato ry

- quality man ag er testified tha t Ward ’ s medical records

–– admitte d during the manager ’ s testimony

–– showed that an enzyme

- immunoassay test

w as performed and that the blood

- alcohol result from that tes t was 363 milli grams per dec iliter. No w itness conve rt ed milligrams per deciliter for the jury, bu t Wilken testified that bl ood

- alc ohol level is measured in terms of milligrams per dec iliter and

t hat there are 100 mi lliliters in a deci liter. 3
The medical records confirm the JPS nurs e ’ s and lab m a nager ’ s t estimony about t he bloo d draw and r es ults. 4 I n addition to notes for the September 2,
2017 care, the records also contain an inpatient pain

- manage ment progres s note for September 8, 2017 : Paul Allen Ward [was] seen at t he request of [D]r. [ N ] orris for pain control issues. Pt was involved in a MVC under the influe nce o f alcohol. He states he does not recall the situation too much but remembers that h e was started on [ C ] hantix a couple of weeks back and stopped cold turkey due to ‘psycho tic dreams and visions’. . . . He also admits t o just wanting to sleep so he drank a bo ttle of vodka the day of the accident. Analys is Ward does not a rgue on appeal tha t t he State f ailed to prove the offense charged

. H e contends tha t the State fa iled to prove that he is the same person as the

3 E xpressed in g rams per mill iliter , the test result is thus .3 63. See Tex. Penal Code Ann. § 49.01(1)( B) (d efining “ alcohol concentratio n , ” in part, as “ the number of gra ms of alcohol p er . . . 100 milliliters of blood ” ).

4 Th e birthdate on the rec ords matche s the birthdate on the dri ver ’ s license Wilken use d to ident ify the accident victim.6 driver of the wrecked car and t he person admitted to JPS after the wreck because (1 ) no witness identified him in court, (2) other wi tnesses could have been called to identify the wreck victim , and (3) the re wa s no evidence before the jury of his birth date and full name. Ordinarily , t he State must prove that the accused is th e person who committed the crime charged. High tower v . Stat e , 389 S.W.2 d 674, 676 (Tex. Crim. App. 1965) ; S mith v. St at

e , 56 S.W.3d 739, 744 (Tex. App.

— Houston [14t h Dist.] 2001, pet. ref ’ d) ; see als o Balderas v. State , 517 S.W. 3d 756, 766 (Tex. Crim. App. 2016) (e xplaining that State may provide such proof with d irect or ci rcumstantial evidence and that jury m ay make re as onable inferences from that evidence) ; Bin Fa ng v. State , 544 S.W.3d 923,
927

– 28 (Tex. App.

— Houston [14th Dist.] 2018 , no pet.) (same)

. 5 But here , W ard ’ s attorney conceded to the jury that the med ical records and blood

- alcohol

- test results

were Ward ’ s. Ward called only one wi tness, a blood

- alcohol

- testing expert, to testify about the unrelia bility of the enzyme

- immunoassay te st as opposed to a gas
5 Ward waived ar raignmen t
. The S tate contends that no further proof of i dentity is required when a defendant waives arraignm ent or fails to object that the name in the charging instrume nt is not hi s own. See Tex. Code Crim. Proc. Ann. art. 26.02 ( “ An arrai gnment takes pla ce for the purpose of fix ing his identity and hearing his plea. ” ). But facts alleged in a charging instrument are not proof th at a person committed an offense. Id. art. 38.03 ; Morey v. State , 744 S.W.2d 66 8, 670 (Tex. App.

— San Antonio 1988, no pet.) ; cf. J ackson v. State , Nos. 05

- 01

- 01840

- CR, 05

- 01

- 01841

- CR, 2002 WL 31656102, at *2

– 4 (Tex. App

. –– Dallas Nov. 26, 2002, no pet.) (no t designated for publica tion) (hol ding that appellant could not claim on appeal that evidence was insufficie nt to prove he committ ed offense because his name was “ Raul David J a ckson, ” rather than “ Bryan Gene Jackson ” as alleged in indictment)

.7 chromatography test. W ard ’ s apparent trial strategy was to try to cast r easonable doubt on the sufficiency o f the State ’ s proof that he was in to xicated at the time he was driving rather than at some later time after the wreck. In light of counsel ’ s express conces sion that the medical records were W ard ’ s,

w e conc lude that the eviden ce was sufficien t to support the conviction. See U.S. v.
Ben tson , 947 F.2d 1353, 1356 (9t h Cir. 1991) (holding that de fense counsel ’ s

co ncession in closing argument was judicial a dmissio n tha t dispensed with government ’ s burden to prove conceded f act) ; see also Bryant v

. State , 187 S.W.3d 397,
4 00

– 01 (Tex. Crim. App. 2005) ( explaining effect of stipulation to facts as jud icial admission); cf. Hitchery v. State , Nos. 05

- 04

- 00032

- CR, 05

- 04

- 00033

- CR , 2005 WL 237230, at * 4

– 5 (Tex. App.

–– Dall as Feb. 2, 2005, no pet.) ( not desig nated for p ublication) ( holding, in context o f now

- defunct crimin al

- factual

- sufficiency standard of re view, that appellant was estopped from challenging evidence ’ s suffic iency based on his attorney ’ s concession ).
W e the refore overrule Ward ’ s sole issue.
C onclusion Having overruled W ard ’ s sole issue, we affirm the trial cou rt ’ s judgment.8 /s/ Elizabeth Kerr Elizabeth Kerr Jus tice Do Not Publish Tex. R. App. P . 47.2(b) Delivered : February 4, 2021