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Fleming v. State2/17/1999
1997). In his brief, trial counsel's assessment of the merits of his position vis-a-vis the authority he cites is flawed at the outset because he accepts as true appellant's testimony describing the events surrounding the taking of his blood. The trial court was free to completely disregard appellant's version of the events and accept the entirety of Trooper Johnson's testimony. According to Trooper Johnson the hospital's taking of appellant's blood specimen was not done at his request. It was apparently done solely for the purpose of providing appellant medical treatment. Furthermore, the only evidence used at trial which was acquired by Trooper Johnson was the hospital's record of appellant's blood alcohol content secured via a grand jury subpoena.
In State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997), the identical issue raised by appellant in points one and two was decided against him. In Hardy, the Court held that the State's acquisition of a written hospital report containing blood test results from blood drawn by hospital personnel for medical purposes following a traffic accident did not infringe upon societally-recognized expectation of privacy for Fourth Amendment purposes. Id. at 527. As for any alleged violation of Tex. Const. art. I, § 9, the recent case of Hulit v. State, No. 877-97, 1998 WL 870923 (Tex. Crim. App. Dec. 16, 1998), holds that art. I, § 9 contains no requirement that a seizure or search be authorized by a warrant, and that a seizure or search that is otherwise reasonable will not be found to be in violation of that section because it was not authorized by a warrant. From the record before us, we have no problem finding the acquisition of appellant's medical records pursuant to a grand jury subpoena to be quite reasonable. Under the issue as framed in points one and two, and in light of the holdings in Hardy and Hulit, the provisions of Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 1989) are satisfied. As points one and two are without merit, they are overruled.
In his fifth appellate point, appellant complains of the denial of substantive due process and the right of confrontation when he was refused the admittance of relevant blood test results of Clifford Howard in order to show that blood test results were switched. Because appellant provides no authority other than the 14th Amendment for his due process and confrontation complaints we decline to address those issues because of inadequate appellate briefing. See Tex. R. App. P. 38.1(h). We will consider appellant's argument that the trial court's refusal to admit Howard's blood test result violated Tex. R. Evid. 401.
Rule 401 of the Rules of Evidence defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The Rules of Evidence favor the admission of all logically relevant evidence. Montgomery v. State, 810 S.W.2d 372, 375 (Tex. Crim. App. 1990)(opinion on rehearing). 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. Id. The trial court has no discretion to admit irrelevant evidence. Tex. R. Evid. 402; Montgomery, 810 S.W.2d at 387. As long as the trial court operates within the boundaries of its discretion, we will not disturb its decision. Id. at 390.
In reviewing whether a trial court has abused its discretion, we must determine if the "trial Judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App.
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