IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS

Transcription

1 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS TIMI YVETTE HERRING, APPELLANT No CR THE STATE OF TEXAS, APPELLEE APPEALED FROM CAUSE NUMBER IN COUNTY COURT AT LAW NUMBER FIVE OF COLLIN COUNTY, TEXAS, THE HONORABLE DONALD JARVIS, VISITING JUDGE PRESIDING. STATE S BRIEF JOHN R. ROACH Criminal District Attorney Collin County, Texas Oral argument is requested, but only if Appellant is also requesting argument. JOHN R. ROLATER, JR. Assistant Criminal District Attorney Chief of the Appellate Division JEFFREY GARON Assistant Criminal District Attorney 2100 Bloomdale Road, Ste McKinney, Texas State Bar No (972) FAX (972) SHANNON EDWARDS & BLAKE GLOVER Assistant Criminal District Attorneys

2 TABLE OF CONTENTS TABLE OF CONTENTS... i INDEX OF AUTHORITIES...ii STATEMENT OF THE CASE... 1 STATEMENT OF FACTS... 1 SUMMARY OF THE STATTE S ARGUMENTS... 3 State s Reply to Appellants Point of Error Number One... 3 Appellant waived any objection to the admissibility of the laboratory results by failing to object to the State s timely chain of custody and certificate of analysis affidavit. Further, because the trial court did not admit an out-of-court statement from the nurse who drew Appellant s blood, Crawford does not provide a basis for Appellant s claim that the trial court denied her right to confrontation. State s Reply to Appellant s Point of Error Number Two... 3 As in the first point of error, Appellant waived any objection to the admissibility of the laboratory results by failing to object to the State s timely chain of custody and certificate of analysis affidavit. Further, the manner in which Officer Tyler obtained a nurse to draw Appellant s blood and his observation of the procedures provided the trial court with a sufficient basis to conclude that the laboratory analyzed a properly administered blood draw. Lastly, considering all of the evidence establishing that Appellant had lost the normal use of her faculties, any error was harmless. STATE S REPLY TO APPELLANT S POINTS OF ERROR NUMBERS ONE & TWO (CONFRONTATION & PREDICATE FOR ADMISSION)... 6 Procedural Facts... 4 Standard of Review... 6 Argument and Authorities... 6 Waiver... 6 i

3 Crawford was not implicated in the admission of evidence (point of error 1)... 9 The trial court had discretion to admit the blood test results (point of error 2) CONCLUSION AND PRAYER CERTIFICATE OF SERVICE ii

4 INDEX OF AUTHORITIES Statutes, Codes, and Rules TEXAS CODE OF CRIMINAL PROCEDURE Art , 8 Art Art Arts Art Arts TEXAS TRANSPORTATION CODE Art (a)...11 Art (a)...11, 13 Art TEXAS RULE OF APPELLATE PROCEDURE 25.2(g) (b)...14 TEXAS RULE OF EVIDENCE Cases 801(a)...10 Bagheri v. State, 87 S.W.3d 657 (Tex. App.-San Antonio 2002), aff'd, 119 S.W.3d 755 (Tex. Crim. App. 2003)...14 iii

5 Burden v. State, 55 S.W.3d 608 (Tex. Crim. App. 2001)...6 Cavazos v. State, 969 S.W.2d 454 (Tex. App. Corpus Christi 1998, pet. ref d)...9, 13 Crawford v. Washington, 541 U.S. 36 (2004)...9, 10 Cuadros-Fernandez v. State, No CR, 2009 WL (Tex. App. Dallas Aug. 28, 2009, no pet. h.) (not designated for publication)...9 Deener v. State, 214 S.W.3d 522 (Tex. App. Dallas 2006, pet. ref d)...7, 8 Douthitt v. State, 127 S.W.3d 327 (Tex. App. - Austin 2004, no pet.)...14 Durrett v. State, 36 S.W.3d 205 (Tex. App. - Houston [14th Dist.] 2001, no pet.)...11 Garcia v. State, 112 S.W.3d 839 (Tex. App. - Houston [14th Dist.] 2003, no pet.)...9 Hines v. State, 515 S.W.2d 670 (Tex. Crim. App. 1974)...11, 12 Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997)...13 Meier v. State, No CR, 2009 WL (Tex. App. Dallas Mar. 25, 2009, no pet.) (not designated for publication)...11 Melendez-Diaz v. Massachusetts, 129 S.Ct (2009)...9 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990)...6 Salazar v. State, 38 S.W.3d 141 (Tex. Crim. App. 2001)...6 iv

6 Shelvin v. State, 884 S.W.2d 874 (Tex. App. Austin 1994, pet. ref d)...10 Solomon v. State, 49 S.W.3d 356 (Tex. Crim. App. 2001)...14 State v. Bingham, 921 S.W.2d 494 (Tex. App. Waco 1996, pet. ref d)...13 State v. Laird, 38 S.W.3d 707 (Tex. App. Austin 2000, pet. ref d)...13 State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000)...6 Torres v. State, 2009 WL (Tex. App. San Antonio Jan. 14, 2009, pet. ref d) (not designated for publication)...12 Wall v. State, 184 S.W.3d 730 (Tex. Crim. App. 2006)...6 v

7 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS TIMI YVETTE HERRING, APPELLANT No CR THE STATE OF TEXAS, APPELLEE APPEALED FROM CAUSE NUMBER IN COUNTY COURT AT LAW NUMBER FIVE OF COLLIN COUNTY, TEXAS, THE HONORABLE DONALD JARVIS, VISITING JUDGE PRESIDING. TO THE HONORABLE COURT OF APPEALS: STATEMENT OF THE CASE Timi Yvette Herring ( Appellant ) pleaded not guilty to an information alleging she committed the offense of driving while intoxicated. CR 2; 1 RR 5. Appellant waived her right to a jury, and the trial court found her guilty. 2 RR 4. The trial court assessed punishment and ordered Appellant to serve twelve months in the county jail, probated for a period of six months, and pay a fine of $500. STATEMENT OF FACTS After watching a red Chevrolet pickup truck run a stop sign, Plano Police Officer Kris Tyler pulled the driver over in the parking lot of Joe s Crab Shack. 1 RR 7. Officer Tyler contacted the driver, whom he identified as Appellant, and noted that her breath smelled strongly of alcohol and her eyes appeared bloodshot and watery. 1 RR 7-8. Appellant mentioned that she had consumed two beers. 1 RR 9. 1

8 Officer Tyler requested that Appellant perform field sobriety tests, which she did. 1 RR 9. She could not successfully complete the standardized sobriety tests and ultimately admitted to having consumed no more than six beers, stopping forty-five minutes earlier. 1 RR 9-12; State s Exhibit No. 1. Officer Tyler placed Appellant under arrest, and in her truck, he found two empty and two unopened cans of Coors light, a bottle of Crown Royal, and a water bottle containing Crown Royal. 1 RR He believed she had lost the normal use of her physical faculties due to the consumption of alcohol. 1 RR At the police station, Appellant consented to providing a specimen of her breath or blood. 1 RR 13; Defendant s Exhibit No. 1. The intoxilyzer could not return a result due to interference, so Officer Tyler took Appellant and a collection kit to the hospital to obtain a blood sample. 1 RR 13-14; State s Exhibit No. 1. At the hospital, Officer Tyler requested a registered nurse to draw Appellant s blood pursuant to hospital protocol, observed the nurse draw Appellant s blood into a tube, and sealed the sample into an evidence container. 1 RR 14-15, After Officer Tyler testified, the State introduced the blood test results through a certificate of analysis and chain of custody affidavit, previously filed with the clerk of the court without subsequent pre-trial objection. 1 RR 17-28; 2 RR 4; State s Exhibit No. 2. At the time of the blood draw, Appellant s blood contained.12 grams of alcohol per 100 milliliters. See State s Exhibit No. 2. The trial court found Appellant guilty of driving while intoxicated without specifying the manner and means it relied on. 2 RR 4. 2

9 SUMMARY OF THE STATE S ARGUMENTS State s Reply to Appellant s Point of Error Number One: Appellant waived any objection to the admissibility of the laboratory results by failing to object to the State s timely chain of custody and certificate of analysis affidavit. Further, because the trial court did not admit an out-of-court statement from the nurse who drew Appellant s blood, Crawford does not provide a basis for Appellant s claim that the trial court denied her right to confrontation. State s Reply to Appellant s Point of Error Number Two: As in the first point of error, Appellant waived any objection to the admissibility of the laboratory results by failing to object to the State s timely chain of custody and certificate of analysis affidavit. Further, the manner in which Officer Tyler obtained a nurse to draw Appellant s blood and his observation of the procedures provided the trial court with a sufficient basis to conclude that the laboratory analyzed a properly administered blood draw. Lastly, considering all of the evidence establishing that Appellant had lost the normal use of her faculties, any error was harmless. 3

10 STATE S REPLY TO APPELLANT S POINTS OF ERROR NUMBERS ONE & TWO: (CONFRONTATION & PREDICATE FOR ADMISSION) Appellant claims that the trial court erroneously admitted the chain of custody and certificate of analysis affidavit over her confrontation objection and challenge to its predicate for admission. However, Appellant admittedly waived objections to the admission of the certificate of analysis and the chain of custody affidavit by not raising an objection to either before trial. Further, Officer Tyler established the beginning of the chain of custody through his personal knowledge, about which Appellant not only had the opportunity to cross-examine, did cross-examine. Similarly, neither Officer Tyler s testimony nor the certificate of analysis referenced the nurse s testimonial statements, out-of-court or otherwise, that would have required her presence for cross-examination. Thus, the trial court had sufficient justification to admit the chain of custody and certificate of analysis affidavit. Finally, in consideration of all of the evidence of Appellant s intoxication, any error in the admission of the blood test results did not substantially affect the trial court s determination and was thus harmless. Procedural Facts After Officer Tyler determined that the intoxilyzer was not working properly, he explained that he transported Appellant to the hospital for a blood test. 1 RR At trial, Appellant made several objections to the admission of the blood test results, including objections based upon hearsay and Crawford, that the trial court took under advisement. 1 RR 14. After Appellant s objections, Officer Tyler offered additional 4

11 information regarding how he obtained a nurse for the blood draw and testified about his observations of the blood draw. 1 RR After Office Tyler testified, Appellant made a peremptory objection to any attempt by the State to introduce the results of the blood test. 1 RR Appellant objected to the introduction of the chain of custody and certificate of analysis affidavit without the ability to cross-examine the nurse, and she challenged the predicate to establish a legal blood draw and the voluntariness of her consent to the procedure. 1 RR 18, 23. Appellant agreed that the chain of custody and certificate of analysis affidavit was timely filed and that she had no objection to its content; instead, she objected to the lack of information about the nurse, her qualifications, and the procedures she used to perform the blood draw. 1 RR 20, 23, 25. The trial court ratified its decision to take the matter under advisement and requested briefing by the parties. 1 RR 26-28, 35. It also considered additional testimony from Officer Tyler in which he explained how he obtained a registered nurse to do the blood draw and discussed the protocol she employed. 1 RR Appellant also inquired further about Officer Tyler s basis for believing that the nurse was qualified and in good standing with the hospital. 1 RR Thereafter, the parties rested. 1 RR 35. They submitted the requested supplemental briefs. CR 51-53, Upon reconvening, the trial court found the chain 5

12 of custody and certificate of analysis admissible. 1 The blood test revealed that Appellant s blood contained.12 grams of alcohol per 100 milliliters. See State s Exhibit No. 2. The trial court found Appellant guilty. 2 RR 4. Standard of Review The standard for reviewing a trial court s ruling on the admission or exclusion of evidence is abuse of discretion. See Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). As long as the trial court s ruling is within the zone of reasonable disagreement, there is not an abuse of discretion. See Salazar v. State, 38 S.W.3d 141, (Tex. Crim. App. 2001); see also Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh g). Moreover, if the trial court s decision is correct on any theory of law applicable to the case, it will be upheld. See State v. Ross, 32 S.W.3d 853, (Tex. Crim. App. 2000). A trial court s constitutional legal rulings, however, are reviewed de novo. See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). Argument and Authorities Waiver By failing to lodge any objection to the certificate of analysis and chain of custody affidavit within the required time, Appellant waived any challenge to their admission. 1 At Appellant s request, the regular presiding judge of the trial court entered findings of fact and conclusions of law regarding the visiting judge s ruling the previous year. See Supplemental Clerk s Record. However, these findings were entered long after the trial court had lost jurisdiction over the case and cannot be considered a proper part of the record. See TEX. R. APP. P. 25.2(g). 6

13 Chain of custody affidavits permit a party to establish a proper chain of custody of physical evidence without the necessity of any person in that chain personally appearing in court. See TEX. CODE CRIM. PROC. art Similarly, a certificate of analysis permits the result of laboratory analyses to be admitted without requiring the analyst to appear in court. See TEX. CODE CRIM. PROC. art Upon timely filing of either document, it will be admissible unless the opposing party files written objections no later than ten days before trial commences. See TEX. CODE CRIM. PROC. arts ; Neither article limits the opposing party from introducing evidence or calling witnesses to challenge the results or the chain of custody. See TEX. CODE CRIM. PROC. arts ; In this case, the State filed the chain of custody and certificate of analysis affidavit on July 30, CR 19; 1 RR 24. Trial commenced the following year, on September 18, RR 1. As this Court has held, when a defendant waits until the State offers a chain of custody or certificate of analysis affidavit to object, even on constitutional grounds, his objections are untimely. See Deener v. State, 214 S.W.3d 522, 528 (Tex. App. Dallas 2006, pet. ref d). Thus, had Appellant desired to contest admission of the blood test result, either on chain-of-custody issues or laboratory analyses, it was incumbent on him to lodge an objection to the document s admissibility no later than ten days of trial commencing. See TEX. CODE CRIM. PROC. art At trial and on appeal, Appellant attempts to justify his failure to lodge a timely objection to the admissibility of the blood test results by directing his complaint to the nurse rather than the forensic scientist who tested the blood and certified the tests and 7

14 procedures used to reach the result. See CR 51-52; 1 RR 25; Appellant s Brief at 8-9. Nonetheless, nothing in article suggests that the requirement to object to the use of a certificate of analysis is limited only to its content and does not include notification of perceived omissions. See TEX. CODE CRIM. PROC. art Had Appellant desired to require the State to prove each and every step necessary to admit the blood test result, including the manner in which the blood was drawn, she should objected to the lack of that information in the certificate of analysis before trial. Absent any pretrial objection, whether it have been on Crawford grounds or to the predicate, the certificate of analysis was admissible to establish that Appellant s blood contained.12 grams of alcohol per 100 ml. This result is not unfair. Appellant s waiver of her ability to contest the procedures used to obtain the blood test result does not require her to cede to the accuracy of a result based on an improperly drawn sample. A certificate of analysis in no way prevents the introduction of evidence to rebut the accuracy of the analysis. See TEX. CODE CRIM. PROC. art Rather, the burden to establish defects impacting the laboratory results shifts, and the issue of how much credence to accord them becomes one of weight and not admissibility. See e.g., Deener, 214 S.W.3d at 525 (noting that Deener testified himself about breaks in the chain of custody that contradicted the affidavit). As applied to this case, Appellant s lack of objection allowed the admission of the test results, and had she wanted to challenge those results, nothing prevented her from seeking to show that the sample was improperly drawn by an unqualified person or that the procedures impacted the test result. 8

15 Appellant s reliance on cases that establish the predicate for admitting blood test results when the results were contested and the defendant did not waive the right to require the appearance of witnesses to sponsor the evidence are inapposite, since certificates of analysis were not utilized or at issue. See Cavazos v. State, 969 S.W.2d 454, 456 (Tex. App. Corpus Christi 1998, pet. ref d); Garcia v. State, 112 S.W.3d 839, 848 (Tex. App. Houston [14 th Dist.] 2003, no pet.). Crawford was not implicated in the admission of evidence (point of error 1) Because the trial court did not admit any statement, testimonial or not, by the nurse who drew Appellant s blood, Appellant s reliance on Crawford and Melendez-Diaz is misplaced. See Melendez-Diaz v. Massachusetts, 129 S.Ct (2009); Crawford v. Washington, 541 U.S. 36 (2004). The Confrontation Clause ensures a defendant s right to confront those testifying against her. See Crawford, 541 U.S. at 51. The Supreme Court of the United States has recently clarified that affidavits submitted in the form of a business record or in a certificate of analysis contain testimonial information that is not exempt from the right to cross-examination. 2 See Melendez-Diaz, 129 S.Ct. at 2531; Cuadros-Fernandez v. State, No CR, 2009 WL , 8 (Tex. App. Dallas Aug. 28, 2009, no pet. h.). 2 The arguments in the trial court occurred before the Supreme Court decided Melendez- Diaz, which rejected one of the State s arguments that the affidavits were not testimonial and were admissible as business records. RR While pertinent to the content of the affidavit of Andrew Macey, whose out-of-court statements were admitted, neither Melendez-Diaz nor Crawford are relevant to Applicant s complaint about the nurse who made no statements in the certificate of analysis. 9

16 Crawford applies to statements, specifically testimonial statements. A statement is (1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression. See TEX. R. EVID. 801(a). Here, nothing offered into evidence contained any statement attributed to the nurse. The statements in the certificate of analysis and chain of custody affidavit do not reference anything the nurse said or did. See State s Exhibit No. 2. Similarly, everything Officer Tyler said about the nurse, her qualifications, and how she drew the blood sample were based on his own personal knowledge and observations. 1 RR The nurse did not testify against Appellant. The right to confrontation of witnesses directs itself to a defendant s right to confront witnesses who testify against her. See U.S. CONST. amend. VI. It does not require the State to produce every conceivable witness with knowledge of the case, and a defendant does not have the right to direct either the method or the manner of proof the State employs. See Shelvin v. State, 884 S.W.2d 874, 877 (Tex. App. Austin 1994, pet. ref d). Crawford and its progeny prevent the admission of the hearsay statements of a declarant not present for cross-examination and do not purport to address predicates for admission under state laws. See Crawford, 541 U.S. at 51. Crawford is simply not applicable where the nurse did not testify in any manner, and to the extent that Appellant s claim could involve any other aspect of a constitutional confrontation claim, she neither briefed the issue nor urged it before the trial court. As nothing precluded Appellant from obtaining compulsory process or presenting evidence of any perceived lack of the nurse s qualifications, this Court should deny Appellant s first point of error. 10

17 The trial court had discretion to admit the blood test results (point of error 2) The manner in which Officer Tyler obtained a nurse to draw Appellant s blood and his observation of the procedures she employed provided the trial court a sufficient basis to conclude that the laboratory analyzed a properly administered blood draw. 3 A peace officer is permitted to request a blood or breath specimen when he has reasonable suspicion that a driving while intoxicated offense occurred. See TEX. TRANSP. CODE art (a). When obtaining a blood sample, only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may draw the blood and must do so in a sanitary place. See TEX. TRANSP. CODE art (a). The blood alcohol concentration established in an analysis of the specimen is admissible in a driving while intoxicated trial. See TEX. TRANSP. CODE art (providing that evidence of alcohol concentration in a driving while intoxicated case is admissible after laboratory analysis of the blood sample). The law does not require the person who actually performed a blood draw to testify in order to establish the blood was properly drawn. See Hines v. State, 515 S.W.2d 670, 672 (Tex. Crim. App. 1974); Meier v. State, No CR, 2009 WL (Tex. App. Dallas Mar. 25, 2009, no pet.) (not designated for publication). 3 While Appellant references both the chain of custody and certificate of analysis in his point of error, it appears clear that his challenge is only to the certificate of analysis. In any event, because Officer Tyler observed the entire blood draw, no gaps in the chain of custody occurred before he submitted it for laboratory analysis. See Durrett v. State, 36 S.W.3d 205, 208 (Tex. App. Houston [14 th Dist.] 2001, no pet.) (holding proof of the beginning and end sufficiently shows chain of custody when no evidence of tampering is evident). 11

18 In this case, the nurse who drew Appellant s blood was not a witness at trial, either through appearance or by statement. After Officer Tyler could not obtain a result from the breath test, he drove Appellant to the hospital to get the blood test that she had originally requested. 1 RR 14; State s Exhibit No. 1. He requested that a nurse take a blood sample, and they went to a sanitary room to obtain the sample. 1 RR 14. Officer Tyler brought a sample kit from the police station, handed the nurse the tube in which to collect the sample, and sealed it back up. 1 RR Baylor Hospital has a procedure by which an officer can obtain a blood draw that complies with Department of Public Safety instructions for collecting a blood sample to test for intoxication. 1 RR 29. The policy includes precautions such as utilizing Benadine rather than alcohol swabs for sterilization and ensuring that a registered nurse or certified phlebotomist performs the blood draw. 1 RR 29. Officer Tyler s inability to recall the details of the nurse s qualifications or the pedigree of her license the previous year does not vitiate his testimony that he requested the hospital to provide him a qualified technician to perform an intoxication blood draw. 1 RR Rather, Officer Tyler described witnessing a proper blood draw, and Appellant s cross-examination raised questions relevant to the weight and credibility of his assurances that he obtained a proper blood draw. See Hines, 515 S.W.2d at ; Torres v. State, 2009 WL 89695, 4 (Tex. App. San Antonio Jan. 14, 2009, pet. ref d) (not designated for publication). The trial court s decision to admit the test results and overrule Appellant s objection to its introduction was not outside of the zone of reasonable disagreement. See Durrett, 36 S.W.3d at

19 Appellant relies solely on a case where the primary issue involved the adequacy of a phlebotomist who was not a per se qualified technician to make an intoxication blood draw. See Cavazos, 969 S.W.2d at 456. In Cavazos, the Corpus Christi Court of Appeals noted that a phlebotomist may be a qualified technician under Transportation Code section (a), but because not all are, evidence is necessary to establish whether a particular phlebotomist is qualified. Id. at , citing State v. Bingham, 921 S.W.2d 494, 496 (Tex. App. Waco 1996, pet. ref d). Because no evidence in Cavazos allowed the trial court any basis to determine the phlebotomist was indeed qualified, such as the hospital requirements in place in Bingham, the trial court did not have a sufficient basis to find the phlebotomist was a qualified technician. Cavazos, 969 S.W.2d at ; see also State v. Laird, 38 S.W.3d 707, (Tex. App. Austin 2000, pet. ref d) (upholding suppression of a blood sample where a paramedic, not a qualified technician, drew the blood). In contrast, Officer Tyler s request for a nurse to perform an intoxication blood draw in accord with hospital protocol constituted some evidence of the admissibility of the laboratory results, and Appellant s inquiries about Officer Tyler s knowledge of the nurse s background were relevant to the weight of the evidence, not its admissibility. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997). Considering that no evidence suggested the nurse was actually unauthorized or unqualified to perform the blood draw, the trial court acted within its discretion to deny Appellant s objection. Finally, considering all of the evidence presented to the trial court to establish that Appellant had lost normal use of her faculties due to the introduction of alcohol, 13

20 admitting the evidence did not impact Appellant s substantial rights. Errors in the admission of evidence that do not affect a defendant s substantial rights should be disregarded. See TEX. R. APP. P. 44.2(b). An appellate court must disregard the error if, after examining the record as a whole, it has fair assurance that the error did not influence the factfinder, or had but a slight effect. See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). Considerations include whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert. Id. Where, as here, the laboratory result was relevant to prove intoxication per se, the sufficiency of the evidence to support a finding of intoxication by impairment does not alone determine whether the error was harmless. See Bagheri v. State, 87 S.W.3d 657, (Tex. App. San Antonio 2002), aff d, 119 S.W.3d 755 (Tex. Crim. App. 2003) (Bagheri II). Instead, the issue is whether the erroneously admitted testimony might have prejudiced the consideration of the other evidence or substantially affected the factfinder s determination. See Bagheri II, 119 S.W.3d at 763; Douthitt v. State, 127 S.W.3d 327, 337 (Tex. App. Austin 2004, no pet.). Here, the strength of all of the evidence, as documented in State s Exhibit No. 1, provided the trial court support for its verdict without needing to turn to Appellant s blood alcohol concentration. As soon as Officer Tyler spoke to Appellant about running the red light, he could smell alcohol on her breath and noticed how bloodshot and watery her eyes were. 1 RR 7-8. Appellant immediately acknowledged having consumed alcohol, and she amended the amount until after being unable to successfully complete field sobriety tests. 1 RR 9-14

21 12. Further, Appellant had a veritable mini-bar of full, empty, and partially consumed containers of alcohol in her vehicle, and she was accompanied by a passenger who had also consumed too much alcohol to drive safely. 1 RR 12-13; State s Exhibit No. 1. Just as Officer Tyler ascertained that Appellant lost the normal use of her faculties due to her alcohol consumption without blood test results, so too, the trial court would have determined. 1 RR Appellant s substantial rights were not impacted even if this Court determines the trial court erroneously admitted the blood test result. Appellant s second point of error should be overruled. 15

22 CONCLUSION AND PRAYER Appellant s trial was without prejudicial error. The State prays that Appellant s conviction and sentence be affirmed. Respectfully submitted, JOHN R. ROACH Criminal District Attorney Collin County, Texas JOHN R. ROLATER, JR. Assistant Criminal District Attorney Chief of the Appellate Division /s/ Jeffrey Garon JEFFREY GARON Assistant Criminal District Attorney 2100 Bloomdale Road, Ste McKinney, Texas State Bar No (972) FAX (972) CERTIFICATE OF SERVICE A true copy of the State s Brief has been mailed to counsel for Appellant, Michael D. Curran, 207 E. Davis, Suite B, McKinney, Texas, 75069, on this, the 5 th day of November /s/ Jeffrey Garon JEFFREY GARON Assistant Criminal District Attorney 16