




02-12-054-CR





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
 
NO. 02-12-00054-CR
 
 



Antonio
  Grimaldo, Jr.
 
 
 
v.
 
 
 
The
  State of Texas


§
 
§
 
§
 
§
 
§


From County Criminal
  Court No. 2
 
of Denton County (CR-2011-00365-B)
 
November 21, 2012
 
Opinion
  by Justice Dauphinot
 
(nfp)



 
JUDGMENT
 
This
court has considered the record on appeal in this case and holds that there was
no error in the trial court’s judgment.  It is ordered that the judgment of the
trial court is affirmed.
 
SECOND DISTRICT COURT OF APPEALS 




 
 
 
 
By_________________________________
   
Justice Lee Ann Dauphinot
 
 
 
 














COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
 
NO. 02-12-00054-CR
 
 



Antonio Grimaldo, Jr.


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
----------
FROM County
Criminal Court No. 2 OF Denton COUNTY
----------
MEMORANDUM
OPINION[1]
----------
A jury
found Appellant Antonio Grimaldo Jr. guilty of driving while intoxicated (DWI)
and assessed his punishment at 180 days’ confinement and a fine of $2,500.  The
trial court sentenced him accordingly, and he now appeals.  In two issues,
Appellant argues that the trial court reversibly erred by admitting
evidence concerning the results of a laboratory test of a blood specimen during
the guilt phase of the trial in violation of the Confrontation Clause of the
Sixth Amendment to the Constitution of the United States.  Because we hold that
the trial court committed no reversible error, we affirm the trial court’s
judgment.
On
October 30, 2010, Denton police officer Daryn Briggs observed Appellant’s
vehicle cross over the fog line on the highway, exit the highway, cross over
two lanes on the service road, and enter a parking lot.  At trial, Briggs
testified that he stopped the vehicle and, upon speaking with Appellant,
noticed an odor of alcohol on Appellant’s breath.  Briggs also noticed that
Appellant had glassy and dilated eyes.  Briggs asked Appellant where he had
been traveling from, and Appellant answered that he had given some friends a
ride home from a bar at which he had consumed four or five sixteen-ounce beers
over the course of the evening.
Briggs
attempted to administer field sobriety tests, but Appellant refused them,
including the horizontal gaze nystagmus test, on the ground that he was unable
to perform them due to back, leg, and shoulder injuries that he had sustained
during military service.  Briggs arrested Appellant for DWI.
Another
officer, Brandon Harrison, transported Appellant to the jail.  At the jail,
Appellant refused to give a breath sample for the intoxilyzer machine.  Briggs
obtained a warrant for Appellant’s blood, and Appellant was taken to the hospital
by Officer Gary Craig.  Craig testified that at the hospital, he opened the
blood kit, gave the vial to the phlebotomist, filled out the paperwork, sealed
the blood sample, and returned it to Briggs.  Briggs testified that he placed
the blood vial in the evidence locker at the police department.
Heather
Carpenter, the lab assistant at the hospital who drew Appellant’s blood on the
morning of his arrest, testified that she drew Appellant’s blood, gave the vial
back to the officer, and watched him seal the box.
Chris
Youngkin, the forensic scientist who analyzed the blood sample, testified that
when evidence is received at the lab, one of the evidence technicians assigns
it a case number and checks the box to make sure that it is sealed.  Youngkin
stated that before he tests a sample, an evidence technician or manager gives
him access to the storage vault, and when he retrieves a sample, he checks that
he has the right case number and whether the kit is sealed.
Appellant
objected to further testimony from Youngkin on the ground that he had not had
the opportunity to cross-examine the lab technician who received the evidence. 
Paperwork showed that technician Lisa Perry received the sample at issue. 
Perry was not called to testify at trial.  The trial court overruled
Appellant’s objection to the admission of the blood test results.
Youngkin
then testified that the analysis of Appellant’s sample showed a blood alcohol
concentration of 0.15.  The State moved to admit the blood kit box.  Appellant
objected that there was writing on the box’s seal and that Youngkin did not
know who made the writing.  Appellant objected “on confrontation grounds, to
the writing on the outside of that box especially the part that has the date of
November 1st of 2010.”  Appellant stated that “the problem is that somebody
wrote ‘November 1st, 2010,’ on that seal.  That is inconsistent,” and that
“[w]e’ve got testimony from other people saying . . . [Craig] sealed the box on
October 31st.”  Appellant argued that the writing was testimonial and that he
was entitled to cross-examine whoever wrote that date on the box.  The trial
court overruled Appellant’s objection and admitted the box.
On
cross-examination, Appellant asked Youngkin about the additional writing. 
Youngkin read the initials as “MGM,” and he stated that he “believe[d] that
it’s Gabriella Moore with the Denton Police Department.”  Youngkin acknowledged
that from the initials, it appeared that someone had resealed the box on
November 1.  He did not know why the box had been unsealed and resealed.
Appellant’s
complaint refers only to the denial of his right to confront and cross-examine
nontestifying declarants’ out-of-court testimonial factual statements at his
criminal trial without a showing that the declarants were unavailable or that he
had a prior opportunity to cross-examine them.  Regarding the notations on the
box, he argues,
The
various written out-of-court statements that appeared on the exterior of the
blood specimen box (State’s Exhibit 5), which were inscribed by a person whom
Youngkin conceded he could not identify, were likewise “testimonial” for
purposes of Confrontation Clause analysis.  Specifically, the seal was
inscribed with an assertion that the blood specimen box had been sealed on
“November 1, 2010.”  Such a statement of fact constituted “the precise
testimony that the [Declarant] would be expected to provide if called at
trial.”  This inscription on the exterior of the blood specimen box, as well as
others that appeared on the box, are no different from Craig’s in-court
testimony that he personally sealed, and inscribed his own initials over, the
seal he placed on the blood specimen box, on October 31, 2010.
In a footnote, Appellant states,
It is notable that Craig’s testimony,
wherein he stated that he sealed and initialed the box on October 31, 2010, and
that the box was not re-opened prior to its arrival at the laboratory, directly
conflicts with the inscription on the exterior of the box, which discloses that
the box was later sealed (by an unknown individual) on November 1, 2010, long
before its arrival at any laboratory.
Appellant then states,
The fact that the written out-of-court
statements which appeared on the exterior of the blood specimen box (State’s
Exhibit 5) may have been intended to prove a “chain of custody” does not render
the statements any less “testimonial” for purposes of Confrontation Clause
analysis.  The same is true to the extent that other statements about which [Appellant]
complains might be fairly characterized as only “chain of custody” statements.
Appellant
does not appear to complain that anyone tampered with the blood sample or that
the notations indicated any tampering.  Appellant argues, though, that the notations
are testimonial and that, because the scrivener of the notations did not
testify in court, Appellant was denied the opportunity to confront and
cross-examine the witness in violation of Crawford v. Washington.[2]
Regarding
the alleged testimonial statements of Lisa Perry, Appellant argues that he was
denied the right to confront her because
Youngkin’s testimony
at trial, which vouched for the veracity of and reiterated the factual
statements attributed to non-testifying Declarant Lisa Perry (and about which
he had no personal knowledge), w[as] “testimonial” for the purposes of
Confrontation Clause analysis.  Youngkin testified that . . . “Lisa Perry”
personally received the blood specimen box at his laboratory; that “Lisa Perry”
placed the blood specimen box in a refrigerator; and that the blood specimen box
was “sealed” at the time “Lisa Perry” received it at the laboratory.  The same
is true of the statements contained in State’s Exhibit 6, a laboratory report
wherein Youngkin stated in writing as fact (but without personal knowledge)
that his laboratory had received “blood from [Appellant]” . . . ;
and that [Appellant’s] blood specimen had been “submitted” on “November 12,
2010.”
As
Appellant concedes, the notations and references to receipt of the blood and
the source of the sample establish the chain of custody of the blood.[3]  Appellant also
candidly concedes that the Melendez-Diaz court stated that, although the
prosecution is obligated to establish the chain of custody, “this does not mean
that everyone who laid hands on the evidence must be called. . . .”[4]
But
Appellant argues that because the State offered the notations and references to
what nontestifying witnesses would have testified to, the State must have
considered the notations and testimony crucial to establishing the chain of
custody.  The record reflects that Craig, a police officer, testified that he
took Appellant to the hospital for the lab draw.  Carpenter, a lab assistant,
testified that she performed the blood draw on Appellant.  Craig testified that
he sealed the box containing Appellant’s blood, returned Appellant to the jail,
and took the sealed box containing the blood to Briggs to be placed in the
evidence locker.  Craig also identified his seal in court.  Briggs testified that
he received the blood vial from Craig and placed it in the locked evidence
locker.
Youngkin
testified that he removed the blood from the refrigerator in the vault in his
laboratory, checked the unique number assigned to the sample, and tested the
blood sample.  He was unable to testify from personal knowledge to the name of
the person who transported the sample from the police department to the
laboratory.  Nor could he testify from personal knowledge who actually received
the blood sample at the lab and placed it in the refrigerator.  He was able to
testify about normal procedures in the lab and signatures and initials on
transmittal sheets and other documentation.
Appellant
points out that although the blood draw took place on October 31, 2010, the
blood was not transported to the Texas Department of Public Safety lab in
Garland until November 12, 2010.  Yet, the seal on the blood specimen box was
inscribed with an assertion that the blood specimen box had been sealed on
November 1, 2010, although Officer Craig testified that he personally sealed
and inscribed his own initials over the seal he placed on the blood specimen
box on October 31, 2010.  The November 1 date raises the question of whether
the box was opened between the time Craig sealed the box and the time it was
opened in the lab on November 12.  Nevertheless, the State argues that the
unexplained date on the blood kit box had no testimonial purpose pertaining to Appellant’s
blood test results.
Regarding
Perry, Appellant argues that her statements were testimonial because they were
clearly intended for use in court.  The State argues that the responsibilities
of nontestifying lab technicians are stenographic and procedural in nature and
not analytical in any sense.  The State argues that the information recorded by
the technician served a purpose in the chain of custody but that it served no role
in how the evidence was tested or how the test results were interpreted.
While
common sense might tell us that it is important to know who handled the
evidence in question and how it was handled because it was subjected to
scientific tests, the Supreme Court of the United States has held that every
person who handles the evidence does not have to appear in court.[5]  We hold that the
same is true about the presence of an additional date and set of initials placed
on a container of the vial of blood when there is no accusation of tampering
with the evidence and both ends of the chain of custody are established—not
every link in the chain of custody must be identified in court.
We
agree with Appellant that the notations and the statements of what
nontestifying witnesses would have testified to are testimonial in nature.  But
the erroneous admission of testimonial statements of non-testifying witnesses
does not always require reversal.  The Sixth Amendment to the Constitution of
the United States provides,
In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have
been committed, which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his defence.[6]
At
play for Appellant, then, is the interrelationship between the Sixth Amendment
right to confront witnesses against him, the right to compulsory process
for obtaining witnesses in his favor, the right to effective assistance of
counsel, and the rules of evidence dealing with hearsay.  Appellant has not
shown that whoever made the November 1 notation on the box containing the blood
sample was a witness against him, as opposed to a witness reporting a mere
clerical act.  Nor has he shown that Lisa Perry was a witness against him, as
opposed to a witness reporting an objective fact that was not evidence
“against” him.  Instead, Appellant appears to complain of gaps in the chain of
custody that were filled by hearsay statements.  We cannot agree that these
gaps and hearsay statements triggered the Sixth Amendment right to confront
witnesses against Appellant.  He does not argue that he was denied compulsory
process or effective representation, nor does he show how the admission of the
hearsay statements or notations requires reversal.
Based
on the record before this court and arguments in the trial court and on appeal,
we hold that Appellant has not shown that he was denied the right to confront
witnesses against him as contemplated by the Sixth Amendment to the
Constitution of the United States.  We therefore overrule Appellant’s two
issues and affirm the trial court’s judgment.
 
 
LEE ANN DAUPHINOT
JUSTICE
 
PANEL: 
LIVINGSTON,
C.J.; DAUPHINOT and GARDNER, JJ.
 
DO
NOT PUBLISH
Tex.
R. App. P. 47.2(b)
 
DELIVERED:  November 21,
2012




[1]See Tex. R. App. P. 47.4.


[2]541 U.S. 36, 59, 124 S.
Ct. 1354, 1369 (2004).


[3]See Tex. R. Evid.
901(a); Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989), cert.
denied, 498 U.S. 951 (1990), disapproved of on other grounds, Leday
v. State, 983 S.W.2d 713, 716 n.2 (Tex. Crim. App. 1998).


[4]Melendez–Diaz v.
Massachusetts, 557 U.S. 305, 311 n.1, 129 S. Ct. 2527, 2532 n.1 (2009).


[5]Id.


[6]U.S. Const. amend. VI
(emphasis added).


