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Fleming v. State2/17/1999
1992); Kelly v. State, 824 S.W.2d 568, 574 (Tex. Crim. App. 1992). Thus, we will not disturb the court's decision as long as it lies within the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996) (citing Montgomery, 810 S.W.2d at 391). In the instant case, appellant contends that Clifford Howard's blood test results were relevant to show that the hospital somehow switched blood specimens taken from Howard and appellant. Howard's results, which were admitted by the trial court as part of a bill of exception, indicate that his blood alcohol content was .079 while appellant's, as testified to by Dianne Schultz, the medical lab technician at the hospital who analyzed the blood specimens, was .29.
Appellant appears to contend that because he elicited testimony that Howard ingested a great deal more alcohol than appellant on the day in question the blood specimens must have been switched at the hospital. However, appellant's questioning of Alice Aills, the hospital phlebotomist who took the specimens from both appellant and Howard, did not attempt to raise an issue regarding a mistake or switch of blood samples.
Appellant's questioning of Ms. Aills does not even attempt to call into question her handling of the specimens or attempt to raise a chain of custody issue. We reiterate the observation that relevance is not an inherent characteristic of any item of evidence but exists as a relation between an item of evidence and a matter properly provable in the case. The point at which appellant tendered Howard's blood test results for admission into evidence appellant had not yet attempted to raise, through the hospital witnesses, a mishandling of the blood specimens. It appears reasonable to us that the trial court might have wanted to hear evidence from the phlebotomist and the lab technician attempting to call into question their handling of the specimens. Because the trial court's decision was "within the zone of reasonable disagreement" we decline to disturb it. Appellate point five is overruled.
Appellant's final issue contends that he was unfairly deprived of indigent status on his appeal when he was not provided with a reporter's record free of charge after proving indigency status. However, a reporter's record was filed with this Court which we have before us. The issue is moot as appellant has caused a reporter's record to be filed in this cause. See Reyna v. State, 797 S.W.2d 189, 194 (Tex. App.--Corpus Christi 1990, no pet.); Jannise v. State, 789 S.W.2d 623, 630 (Tex. App.--Beaumont 1990, pet. ref'd). Point six is overruled. The judgments and sentences as to counts one and three are affirmed; the judgment as to count two is reversed and that count remanded to the trial court for entry of an order of acquittal on count two.
AFFIRMED IN PART; REVERSED AND REMANDED FOR ENTRY OF ACQUITTAL ORDER IN PART.
RONALD L. WALKER Chief Justice
Submitted on December 17, 1998
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