                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00455-CR

JEFF ALAN ROLLINS,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 249th District Court
                              Johnson County, Texas
                              Trial Court No. F44686


                          MEMORANDUM OPINION


      In three issues, appellant, Jeff Alan Rollins, challenges his conviction for driving

while intoxicated (“DWI”), third offense, with punishment enhanced to a second-degree

felony. See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West Supp. 2011); see also id. §

12.42(a) (West Supp. 2011). We affirm.

                                    I.     BACKGROUND

      Rollins’s conviction in this case stems from the same events that resulted in the

revocation of his probation from a separate conviction in appellate cause number 10-11-
00098-CR. See Rollins v. State, No. 10-11-00098-CR, 2011 Tex. App. LEXIS 8974, at **6-10

(Tex. App.—Waco Nov. 9, 2011, no pet.) (mem. op., not designated for publication). As

such, we need not detail all of the facts that led to appellant’s arrest for DWI. See TEX. R.

APP. P. 47.1.

        Rollins was arrested for DWI after crashing his motorcycle near the driveway of

a residence at 816 Forgotten Road, which is located between Burleson and Alvarado,

Texas. After seeing that Rollins had crashed his motorcycle, the owner of the residence,

Cal Renick, came out to assist. See Rollins, 2011 Tex. App. LEXIS 8974, at *7. As stated

in our previous opinion,

        Renick noticed that Rollins “was in bad shape.” Rollins had lacerations all
        over his body and a fractured leg. Renick recounted that Rollins was
        drifting in and out of consciousness and that Rollins had urinated on
        himself. Renick smelled a strong odor of alcohol on Rollins’s breath and
        concluded that Rollins was intoxicated. Renick provided blankets and
        towels to combat the bleeding . . . .

               Shortly thereafter, Wesley Williams, a paramedic for CareFlite,
        arrived. Williams noticed that Rollins “had no helmet. He had a severely
        broken leg; had some injuries to his face, his left eye, [and] a lot of
        lacerations . . . .” Williams testified that a lot of people were present at the
        scene of the accident and that many of them were talking about alcohol.
        Like Renick, Williams also detected a strong odor of alcohol on Rollins’s
        breath. Williams then asked Rollins how much alcohol he had consumed,
        and Rollins responded, “a lot.” Rollins was then transported to Harris
        Methodist Hospital in Fort Worth, Texas, for treatment.

               Richard Zaborowski, a trooper with the Texas Department of
        Public Safety, testified that he also responded to the 911 call. When he
        arrived, Trooper Zaborowski observed medical personnel treating Rollins.
        As he stood near Rollins, Trooper Zaborowski also “could smell the odor
        of an alcoholic beverage emitting from his [Rollins’s] person.” Trooper
        Zaborowski recalled that Rollins had soiled his pants . . . and that Rollins’s
        speech was slurred. Based on his investigation, Trooper Zaborowski


Rollins v. State                                                                           Page 2
        concluded that, at the time of the accident, Rollins was “intoxicated due to
        the introduction of alcohol.”

Id. at **7-9.

        Trooper Zaborowski testified that he spoke with Rollins while Rollins was being

attended to at the hospital.       After asking Rollins about the accident, Trooper

Zaborowski suspected that Rollins had committed the offense of DWI and subsequently

read him his DIC 24 Statutory Warning. Trooper Zaborowski then requested a blood

sample from Rollins, which Rollins verbally refused. However, a sample of Rollins’s

blood was ordered by emergency-room doctor Herschel L. Brown for the purpose of

medical treatment. Dr. Brown explained that he usually orders a blood test after he sees

a patient.      The sample was drawn by paramedic intern John Morrison under the

supervision of Alberto Saucedo, R.N. and was sent to the hospital’s lab for analysis.

The lab results revealed that Rollins had a blood-alcohol level of 197 milligrams per

deciliter. Dr. Brown stated that a person is intoxicated at a blood-alcohol level of 100

milligrams per deciliter.

        Thereafter, Rollins was discharged from the hospital and later met with Brandy

Nelson, his probation officer. Nelson testified that, at a July 2010 office visit, Rollins

signed “an admission for drinking alcohol on the day of the accident.” Id. at *9. As a

result of Rollins’s admission, the State moved to revoke Rollins’s probation. After a




Rollins v. State                                                                       Page 3
hearing, Rollins’s probation was revoked, and he was sentenced to ten years’

incarceration in the Institutional Division of the Texas Department of Criminal Justice. 1

        Rollins was subsequently indicted for felony driving while intoxicated, third

offense, with respect to the accident. The indictment contained two DWI enhancement

paragraphs alleging that Rollins had been previously convicted of DWI on December

16, 2002 in Johnson County, Texas, and October 10, 2001 in Wichita County, Texas. The

indictment also contained a felony-enhancement paragraph asserting that Rollins had

been previously convicted of felony possession of a controlled substance, cocaine, on

March 10, 2000.

        Trial in this matter began on November 9, 2011. Rollins pleaded “not guilty” to

the charged offense and “not true” to the enhancement paragraphs contained in the

indictment. After hearing all of the evidence, the jury found Rollins guilty of the

charged offense, found the felony-enhancement paragraph to be true, and sentenced

him to seventeen years’ confinement in the Institutional Division of the Texas

Department of Criminal Justice with no fine. Rollins’s sentence in this case was ordered

to run concurrently with his sentence in the December 16, 2002 case.

             II.    SUFFICIENCY OF THE EVIDENCE REGARDING PRIOR CONVICTIONS

        In his first issue, appellant contends that the State did not proffer sufficient

evidence to support his conviction. Specifically, appellant argues that the State did not



        1 Rollins’s probation revocation pertained to a guilty plea he entered on December 16, 2002 for
felony driving while intoxicated, third offense, in Johnson County. See Rollins v. State, No. 10-11-00098-
CR, 2011 Tex. App. LEXIS 8974, at *1 (Tex. App.—Waco Nov. 9, 2011, no pet.) (mem. op., not designated
for publication) (citing TEX. PENAL CODE ANN. § 49.04 (West 2011)).

Rollins v. State                                                                                   Page 4
tender properly-authenticated records demonstrating that he has two prior convictions

for DWI.

A.      Applicable Law

        To prove that a defendant has been convicted of a prior offense, the Texas Court

of Criminal Appeals has recently stated the following:

        To establish that a defendant has been convicted of a prior offense, the
        State must prove beyond a reasonable doubt that (1) a prior conviction
        exists, and (2) the defendant is linked to that conviction. No specific
        document or mode of proof is required to prove these two elements.
        There is no “best evidence” rule in Texas that requires that the fact of a
        prior conviction be proven with any document, much less any specific
        document. While evidence of a certified copy of a final judgment and
        sentence may be a preferred and convenient means, the State may prove
        both of these elements in a number of ways, including (1) the defendant’s
        [a]dmission or stipulation, (2) testimony by a person who was present
        when the person was convicted of the specified crime and can identify the
        defendant as that person, or (3) documentary proof (such as a judgment)
        that contains sufficient information to establish both the existence of a
        prior conviction and the defendant’s identity as the person convicted. Just
        as there is more than one way to skin a cat, there is more than one way to
        prove a prior conviction.

               Texas substantive law does not require that the fact of a prior
        conviction be proven in any specific manner. Article 37.07 of the Code of
        Criminal Procedure permits proof of a defendant’s “prior criminal
        record,” but it does not require the production of a certified judgment to
        prove that prior criminal record. Any type of evidence, documentary or
        testimonial, might suffice. Similarly, Chapter 12 of the Penal Code deals
        with enhanced penalties for repeat or habitual offenders, but it does not
        require that the fact of a prior conviction be established in any particular
        manner or with any specific document.

Flowers v. State, 220 S.W.3d 919, 921-22 (Tex. Crim. App. 2007) (internal footnotes

omitted). The Flowers court also referenced the San Antonio Court of Appeals’ decision

in Blanks v. State regarding the many ways that the State can prove a prior conviction:


Rollins v. State                                                                       Page 5
          “A prior conviction may be proven by certified copies of a judgment and
          sentence and authenticated copies of records from the Texas Department
          of Corrections or other correctional institution, including fingerprints,
          supported by expert testimony matching them to the defendant.
          However, this is not the only method by which the State may prove a
          prior conviction. The State may also offer: (1) testimony from a witness
          who personally knows the defendant and the fact of his prior conviction;
          (2) the defendant’s stipulations or judicial admissions; or (3) the
          defendant’s photograph in a penitentiary packet or other official record.”

Id. at 924 (quoting Blanks v. State, 172 S.W.3d 673, 675 (Tex. App.—San Antonio 2005, no

pet.)).

          In general, “the proof that is adduced to establish that the defendant on trial is

one and the same person that is named in an alleged prior criminal conviction or

convictions closely resembles a jigsaw puzzle.” Id. at 923. “The pieces standing alone

usually have little meaning.” Id. “However, when the pieces are fitted together, they

usually form the picture of the person who committed that alleged prior conviction or

convictions.” Id. The trier of fact is required to fit the pieces of the jigsaw puzzle

together and weigh the credibility of each piece.          Id.   “Regardless of the type of

evidentiary puzzle pieces the State offers to establish the existence of a prior conviction

and its link to a specific defendant, the trier of fact determines if these pieces fit together

sufficiently to complete the puzzle.” Id. If the existence of the conviction and its link to

the defendant can be found beyond a reasonable doubt, “then the various pieces used to

complete the puzzle are necessarily legally sufficient to prove a prior conviction.” Id.

Since this is a legal-sufficiency review, we consider all the evidence in the light most

favorable to the trier of fact’s finding. Prihoda v. State, 352 S.W.3d 796, 805 (Tex. App.—



Rollins v. State                                                                         Page 6
San Antonio 2011, pet. ref’d) (citing Isassi v. State, 330 S.W.3d 633, 639 (Tex. Crim. App.

2010); Littles v. State, 726 S.W.2d 26, 30 (Tex. Crim. App. 1984)).

        Section 49.09(b)(2) of the Texas Penal Code provides that “[a]n offense under

Section 49.04, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the

trial of the offense that the person has previously been convicted . . . two times of any

other offense relating to the operating of a motor vehicle while intoxicated . . . .” TEX.

PENAL CODE ANN. § 49.02(b)(2). Further, section 49.04 of the Texas Penal Code states

that a person commits the offense of DWI if he is intoxicated while operating a motor

vehicle in a public place. Id. § 49.04(a) (West Supp. 2011). And finally, section 12.42(a)

of the Texas Penal Code provides that “if it is shown on the trial of a felony of the third

degree that the defendant has previously been finally convicted of a felony other than a

state jail felony punishable under Section 12.35(a), on conviction the defendant shall be

punished for a felony of the second degree.” Id. § 12.42(a) (West Supp. 2011). Here,

Rollins was charged under section 49.09(b) and was punished in accordance with the

punishment range for second degree felonies; thus, sections 12.42(a), 49.04(a), and

49.09(b) are relevant in this issue.

B.      Discussion

        At the outset, we note that Rollins does not challenge the finding on the felony-

enhancement paragraph pertaining to his prior conviction for unlawful possession of

cocaine, which elevated the punishment from a third-degree to a second-degree felony.

See id. §§ 12.42(a), 49.04(a), 49.09(b). Instead, Rollins focuses his appellate issue on the

DWI paragraphs contained in the indictment.

Rollins v. State                                                                      Page 7
        At trial, the State introduced into evidence a certified copy of the indictment,

guilty plea memorandum, and original judgment in trial court cause number F35919,

which corresponded with Rollins’s felony DWI conviction on December 16, 2002 in

Johnson County. The State’s fingerprint expert, Michael Gaudet, a lieutenant with the

Johnson County Sheriff’s Office, testified that, on the first morning of the trial, he

obtained fingerprints from Rollins. He was then asked to compare the fingerprints

taken from Rollins on the first morning of trial to fingerprints taken in trial court cause

number F35919.      After reviewing the two sets of fingerprints, Lieutenant Gaudet

confirmed that the fingerprints in trial court cause number F35919 were indeed

Rollins’s.

        Additionally, the indictment in trial court cause number F35919 referenced—in

“DWI Enhancement Paragraph One”—a felony DWI conviction in trial court cause

number 07-3676-9064-E on October 10, 2001 in Wichita County, which is the same

conviction that the State referenced in the second DWI enhancement paragraph in the

indictment in this matter. The State introduced a certified copy of the judgment in trial

court cause number 07-3676-9064-E. However, the fingerprints in this judgment are of

poor quality, and as result, Lieutenant Gaudet was unable to make a comparison with

Rollins’s known fingerprints.     In addition, a photograph was not attached to the

judgment in trial court cause number 07-3676-9064-E. However, the State successfully

argued to the trial court that the judgment in trial court cause number 07-3676-9064-E

referred to Rollins based on Rollins’s guilty plea in trial court cause number F35919,

wherein he pleaded “true” to the DWI enhancement paragraphs—one of which

Rollins v. State                                                                     Page 8
referenced trial court cause number 07-3676-9064-E—as part of a plea bargain with the

State.

         On appeal, Rollins’s first issue focuses on the judgment in trial court cause

number 07-3676-9064-E. Specifically, Rollins argues that the State failed to sufficiently

establish a link between him and the prior DWI conviction because: (1) the fingerprints

on the certified copy of the judgment were of such a poor quality that Lieutenant

Gaudet could not match them to fingerprints taken on the first morning of trial; (2)

there was no photograph attached to the judgment for comparison purposes; and (3) the

guilty plea memorandum in trial court cause number F35919 is a pre-printed form,

which is insufficient to establish the necessary link between Rollins and the Wichita

County DWI conviction.

         However, in viewing the totality of the evidence in the light most favorable to

the trial court’s finding, we conclude that the State sufficiently linked Rollins to the

felony DWI conviction in trial court cause number 07-3676-9064-E. Our conclusion is

premised on several things. First, in trial court cause number F35919, Rollins pleaded

“true” to the enhancement paragraphs contained in the indictment—one of which

referenced the felony DWI conviction in trial court cause number 07-3676-9064-E.

Second, the name listed on the judgment in trial court cause number 07-3676-9064-E is

Jeff Alan Rollins, which is the same name and spelling as the appellant in this case.

And, as the Court of Criminal Appeals has stated, “[t]he pieces standing alone usually

have little meaning. . . . However, when the pieces are fitted together, they usually

form the picture of the person who committed that alleged prior conviction or

Rollins v. State                                                                   Page 9
convictions.” Flowers, 220 S.W.3d at 974. Despite the fact that Lieutenant Gaudet could

not compare the fingerprints in trial court cause number 07-3676-9064-E to the

fingerprints taken on the first morning of trial, we believe that, based on the foregoing

evidence, a reasonable factfinder could conclude that Rollins was previously convicted

of felony DWI in trial court cause number 07-3676-9064-E.

        Furthermore, we do not believe that the State’s use of a pre-printed form—the

plea-bargain memorandum in trial court cause number F35919—somehow renders

Rollins’s plea of “true” in trial court cause number F35919 meaningless or eliminates

any linkage between Rollins and the felony DWI conviction in trial court cause number

07-3676-9064-E. Specifically, in trial court cause number F35919, Rollins admitted that

he had “read the charging instrument against me in this case and understand

everything it contains; that I committed each and every element alleged therein; and

that I am guilty of all offenses charged therein and all lesser included offenses . . . .”

Moreover, included in the plea-bargain paperwork that Rollins signed is the following

acknowledgement:        “[B]oth sides will waive jury trial in this case, the Defendant

[Rollins] will enter his plea of GUILTY and True to Enhancement Paragraph(s) 1, 2

before the Court . . . .”

        Also, we find Rollins’s reliance on Dinnery v. State to be misplaced. See 592

S.W.2d 343, 349-52 (Tex. Crim. App. 1979) (op on reh’g) (noting that a written

confession in the guilty-plea printed forms was insufficient to support the guilty plea

because the confession—for entry into a habitation with intent to commit theft—did not

correspond with the allegations contained in the indictment—burglary of a habitation

Rollins v. State                                                                   Page 10
by entering and thereafter committing theft). The Dinnery Court did not specifically

hold that pre-printed forms are insufficient to prove a prior conviction. See generally id.

Accordingly, based on the foregoing, we overrule Rollins’s first issue.

                       III.   LESSER-INCLUDED-OFFENSE INSTRUCTION

        In his second issue, Rollins argues that the trial court erred in refusing to include

an instruction in the jury charge with respect to the lesser-included offense of DWI, a

second offense. Essentially, Rollins’s second issue hinges upon a finding that there is

insufficient evidence to link Rollins to the DWI conviction in trial court cause number

07-3676-9064-E.

A.      Applicable Law

        The determination of whether a lesser-included-offense instruction requested by

a defendant must be given requires a two-step analysis. Rousseau v. State, 855 S.W.2d

666, 672-73 (Tex. Crim. App. 1993). The first step asks whether the lesser-included

offense is included within the proof necessary to establish the offense charged.

McKithan v. State, 324 S.W.3d 582, 587 (Tex. Crim. App. 2010). We must compare the

statutory elements and any descriptive averments in the indictment for the greater

offense with the statutory elements of the lesser offense. See Ex parte Amador, 326

S.W.3d 202, 206 n.5 (Tex. Crim. App. 2010); Hall v. State, 225 S.W.3d 524, 535-36 (Tex.

Crim. App. 2007); see also TEX CODE CRIM. PROC. ANN. art. 37.09 (West 2006). This step is

a question of law. Hall, 225 S.W.3d at 535.

        The second step of the lesser-included-offense analysis is to determine if there is

some evidence from which a rational jury could acquit the defendant of the greater

Rollins v. State                                                                      Page 11
offense while convicting him of the lesser-included offense. Guzman v. State, 188 S.W.3d

185, 188-89 (Tex. Crim. App. 2006). The evidence must establish the lesser-included

offense as “a valid rational alternative to the charged offense.” Segundo v. State, 270

S.W.3d 79, 90-91 (Tex. Crim. App. 2008). We review all of the evidence presented at

trial. Hayward v. State, 158 S.W.3d 476, 478-79 (Tex. Crim. App. 2005); Rousseau, 855

S.W.2d at 673.

B.      Discussion

        Assuming without deciding that Rollins met the first prong in the lesser-

included-offense analysis, we focus our analysis on the second prong. Here, the record

contains certified copies of Rollins’s two prior felony DWI convictions—one in Johnson

County and the other in Wichita County.           Therefore, the indictment in this case

accurately reflected that Rollins was charged with a third, not a second, felony DWI

offense. Moreover, Rollins admits that he did not present any evidence to rebut the

State’s allegation about either prior felony DWI conviction, and the record shows that

Rollins did not present any evidence demonstrating that he is only guilty of felony

DWI, a second offense. Furthermore, we are not persuaded by Rollins’s argument that

he was entitled to an instruction on lesser-included offenses because the State’s

evidence regarding his two prior felony DWI convictions was allegedly weak. See

Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994); see also Stallworth v. State, No.

07-10-00137-CR, 2012 Tex. App. LEXIS 1538, at *3 (Tex. App.—Amarillo Feb. 28, 2012,

pet. ref’d) (mem. op., not designated for publication) (“However, it is not enough that

the evidence supporting the greater charged offense is weak, the evidence supporting

Rollins v. State                                                                      Page 12
the greater charge is discredited or weakened during cross-examination, or the jury

disbelieves crucial evidence pertaining to the greater offense. There must be some

evidence directly germane to a lesser included offense for the factfinder to consider

before an instruction on a lesser included offense is warranted.”) (internal citations and

quotations omitted).

        Accordingly, we do not believe that, based on the evidence presented, a rational

juror could find that if Rollins was guilty, he was only guilty of felony DWI, a second

offense. See Segundo, 270 S.W.3d at 90-91; Guzman, 188 S.W.3d at 188-89. Thus, we

cannot say that Rollins has satisfied the second prong of the lesser-included-offense

analysis. See Segundo, 270 S.W.3d at 90-91; Guzman, 188 S.W.3d at 188-89; see also Hall,

225 S.W.3d at 536; Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003). As

such, we cannot conclude that the trial court abused its discretion in failing to include a

lesser-included-offense instruction in the jury charge. See Jackson v. State, 160 S.W.3d

568, 574 (Tex. Crim. App. 2005) (stating that we review a trial court’s decision not to

submit a lesser-included-offense instruction for abuse of discretion); see also Stallworth,

2012 Tex. App. LEXIS 1538, at *2 (same). We overrule Rollins’s second issue.

                         IV.    APPELLANT’S BLOOD-TEST RESULTS

        In his third issue, Rollins contends that his conviction must be reversed because

his blood-test results were obtained illegally and, thus, were inadmissible at trial. In

particular, Rollins argues that evidence of the blood draw should have been excluded

because the blood draw was done at the direction of Trooper Zaborowski, even though



Rollins v. State                                                                    Page 13
Rollins had refused to consent to the blood draw, and because the blood draw was

conducted by an unqualified person.

A.       Applicable Law

         “An appellate court reviews a trial court’s decision to admit or exclude evidence

under an abuse of discretion standard.” Shuffield v. State, 189 S.W.3d 782, 793 (Tex.

Crim. App. 2006). “The trial court abuses its discretion when the decision lies outside

the zone of reasonable disagreement.” McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim.

App. 2008). “[I]f the trial court’s evidentiary ruling is correct on any theory of law

applicable to that ruling, it will not be disturbed even if the trial judge gave the wrong

reason for his right ruling.” De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App.

2009).

B.       Discussion

         In support of his first argument that the blood draw was done at the direction of

Trooper Zaborowski, Rollins directs us to State’s Exhibit 12, which includes notes made

regarding the blood draw.         In one note, Nurse Saucedo stated the following:

“Paramedic student [Morrison] prepped left hand of patient [Rollins] with betadine and

drew blood sample under the direction and supervision of Trooper Richard Zaborowski

of the Texas [H]ighway [P]atrol. Per Officer[,] blood draw mandatory for felony DWI.

Pt. rights read and explained by Officer to patient.” After referencing this note in his

brief, Rollins asserts that: “This is a clear violation of Appellant’s right to refuse to

submit to the taking of a specimen designated by a peace officer under Texas



Rollins v. State                                                                   Page 14
Transportation Code Section 724.013.”2 The State responds by arguing that Rollins did

not preserve his first argument for appellate review and that the blood draw was

conducted for purposes of medical diagnosis; thus, the Transportation Code is

inapplicable to this issue.

        A review of the reporter’s record shows that Rollins objected to the admission of

the results from the blood draw based on his assertion that the blood draw was not

conducted by a person qualified under the Transportation Code. Rollins did not object

in the trial court that the blood draw violated section 724.013 because it was allegedly

taken at the direction of Trooper Zaborowski. The Texas Court of Criminal Appeals has

held that a “point of error on appeal must comport with the objection made at trial.”

Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see Thomas v. State, 723 S.W.2d


        2Section 724.013 of the Texas Transportation Code provides that: “Except as provided by Section
724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen
designated by a peace officer.” TEX. TRANSP. CODE ANN. § 724.013 (West 2011). Section 724.012(b), on the
other hand, states that:

                (b) A peace officer shall require the taking of a specimen of the person’s breath or
        blood under any of the following circumstances if the officer arrests the person for an
        offense under Chapter 49, Penal Code, involving the operation of a motor vehicle . . . and
        the person refuses the officer’s request to submit to the taking of a specimen voluntarily:

                   ....

                   (3) at the time of the arrest, the officer possesses or receives reliable information
                   from a credible source that the person:

                   ....

                           (B) on two or more occasions, has been previously convicted of or placed
                           on community supervision for an offense under Section 49.04, 49.05,
                           49.06, 49.065, Penal Code, or an offense under the laws of another state
                           containing elements substantially similar to the elements of an offense
                           under those sections.

Id. § 724.012(b)(3)(B) (West 2011).

Rollins v. State                                                                                           Page 15
696, 700 (Tex. Crim. App. 1986) (“In addition, if an objection made in the trial court

differs from the complaint made on appeal, a defendant has not preserved any error for

review.”); see also Blount v. State, No. 10-10-00198-CR, 2012 Tex. App. LEXIS 4534, at *8

(Tex. App.—Waco June 6, 2012, no pet.) (mem. op., not designated for publication).

Because Rollins’s complaint on appeal does not comport with his objection in the trial

court, we conclude that this argument has not been preserved for appellate review.

        Nevertheless, even if Rollins had preserved this argument for appellate review,

the State directs us to the testimony of Dr. Brown, who stated that he ordered the blood

draw for medical diagnosis. This testimony contradicts the notes of Nurse Saucedo and

undermines Rollins’s argument that the blood draw was done at the direction of

Trooper Zaborowski. And, we also note that any conflicts in the evidence are resolved

by the factfinder, to which we must defer. See Isassi, 330 S.W.3d at 638 (stating that

appellate courts defer to the factfinder to fairly resolve conflicts in testimony, weigh the

evidence, and draw reasonable inferences from basic facts to ultimate facts); see also

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (noting that, when the

record supports conflicting inferences, we presume that the factfinder resolved the

conflicts in favor of the prosecution and therefore defer to that determination).

        With regard to Rollins’s second complaint, the record contains a “Universal

Consent for Treatment” form, wherein Rollins verbally consented to “authorize testing,

treatment and hospital care by Hospital nurses, employees and others as ordered by my

doctor and his/her consultants, associates and assistants, or as directed pursuant to

standing medical orders or protocols.”       The evidence demonstrates that Morrison

Rollins v. State                                                                     Page 16
conducted the blood draw as an intern under the supervision of Nurse Saucedo and at

the direction of Dr. Brown. And, as noted earlier, Dr. Brown testified that he ordered

the blood draw for medical diagnosis. Thus, the blood draw appears to fall within the

purview of the “Universal Consent for Treatment” to which Rollins consented. See

Bennett v. State, 723 S.W.2d 359, 361 (Tex. App.—Fort Worth 1987, no pet.) (concluding

that, whether the defendant was under arrest when the blood sample was taken is

immaterial because there was no need to compel the defendant’s submission to the test

because the defendant consented to giving a blood sample); see also King v. State, No. 05-

10-00610-CR, 2012 Tex. App. LEXIS 1133, at **9-10 (Tex. App.—Dallas Feb. 10, 2012, no

pet.) (mem. op., not designated for publication) (stating that Chapter 724 of the Texas

Transportation Code does not apply when a person consents to having his blood

drawn) (citing State v. Neesley, 239 S.W.3d 780, 786 (Tex. Crim. App. 2007); Subirias v.

State, 278 S.W.3d 406, 408 (Tex. App.—San Antonio 2008, pet. ref’d)). Rollins does not

argue that his verbal consent to treatment was done unknowingly, unintelligently, or

involuntarily.

        In    addition, Rollins acknowledges in his appellant’s brief “that the

Transportation Code does not apply to a case where such a specimen is take[n] purely

for medical diagnosis or medical treatment and Appellant’s doctor did order a blood

sample.” See Goodman v. State, 302 S.W.3d 462, 470 (Tex. App.—Texarkana 2009, pet.

ref’d) (affirming the trial court’s admission of the results of a blood draw into evidence

because “the trial court could reasonably find both that the blood was not drawn at the

request of law enforcement and that it was tested for medical purposes,” among other

Rollins v. State                                                                   Page 17
things); see also Desilets v. State, No. 09-09-00375, 2010 Tex. App. LEXIS 8097, at **9-11

(Tex. App.—Beaumont Oct. 6, 2010, no pet.) (mem. op., not designated for publication)

(same); Bohrer v. State, No. 13-06-356-CR, 2007 Tex. App. LEXIS 5358, at *2 (Tex. App.—

Corpus Christi July 5, 2007, no pet.) (mem. op., not designated for publication) (“The

limitations on medical personnel who may take [blood] samples apply only when the

samples are taken at the request or order of a peace officer. These limitations do not

apply when the tests are conducted by medical personnel solely for medical purposes.”

(internal quotations omitted)) (citing TEX. TRANSP. CODE ANN. § 724.017(a); State v.

Hardy, 963 S.W.2d 516, 527 (Tex. Crim. App. 1997)).

        Therefore, based on the foregoing, we cannot say that the trial court abused its

discretion in admitting the results of Rollins’s blood draw into evidence. See McCarty,

257 S.W.3d at 239; see also Shuffield, 189 S.W.3d at 793. Accordingly, we overrule his

third issue.

                                    V.     CONCLUSION

        Having overruled all of appellant’s issues on appeal, we affirm the judgment of

the trial court.



                                                AL SCOGGINS
                                                Justice




Rollins v. State                                                                   Page 18
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 30, 2012
Do not publish
[CR25]




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