                        NUMBER 13-11-00694-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

WILLIAM SMITH A/K/A
BILL SMITH,                                                         Appellant,

                                          v.

THE STATE OF TEXAS,                                                 Appellee.


                   On appeal from the 94th District Court
                        of Nueces County, Texas.


            MEMORANDUM OPINION ON REHEARING
            Before Justices Garza, Benavides, and Perkes
         Memorandum Opinion on Rehearing by Justice Perkes
      On July 29, 2013, this Court issued a memorandum opinion affirming appellant’s

conviction for driving while intoxicated. See Smith v. Texas, No. 13-11-00694-CR, slip

op. (Tex. App.—Corpus Christi July 29, 2013, no pet. h.) (mem. op., not designated for

publication), http://www.13thcoa.courts.state.tx.us/opinions/pdfOpinion.asp?OpinionID=
21170. On August 28, 2013, after being granted an extension, appellant filed a motion

for rehearing. After due consideration, we deny the motion for rehearing but sua sponte

withdraw our previous opinion and judgment and substitute the following opinion and

accompanying judgment in their place. See TEX. R. APP. P. 19.1.

        Appellant William Smith a/k/a Bill Smith appeals his conviction for driving while

intoxicated—third offense,1 a third-degree felony enhanced to a habitual felony offender.

See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2011). The trial court

found appellant guilty and, on finding two prior felony conviction enhancements to be

true,2 assessed punishment at twenty-five years imprisonment. See id. § 12.42(d). By

four issues, appellant complains the trial court erred by: (1) refusing to appoint a new

attorney on the day of trial; (2) admitting blood sample evidence; (3) allowing fingerprint

expert testimony and admitting prior judgments authenticated thereby; and (4) finding that

the evidence was sufficient to show two prior felony convictions. We affirm.

                                           I. BACKGROUND3

        State trooper David Anguiano stopped appellant’s vehicle because appellant was

driving without wearing a seat belt.             Upon approaching appellant’s vehicle, Officer

Anguiano “smelled the strong odor of some sort of alcoholic beverage coming from him”
        1
           Appellant was previously convicted of two offenses relating to the operation of a motor vehicle
while intoxicated: (1) On March 10, 2006, in Cause No. 63519, in the County Court at Law of San Patricio
County, Texas; and (2) On March 28, 2008 in Cause No. 2007-9764-3 in the County Court at Law No. 3 of
Nueces County, Texas.
        2
          Appellant was also previously convicted of two felony offenses for burglary of a habitation:
(1) On June 7, 1989, in Cause No. 88-CR-1586-A, in the 28th District Court of Nueces County, Texas; and
(2) On February 19, 1992, in Cause No. 2870-1, in the 156th District Court of Live Oak County, Texas.
        3
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4. We have reordered appellant’s issues on appeal for clarity.

                                                     2
and saw “alcohol containers spread out throughout the vehicle.”          Officer Anguiano

observed that appellant’s movements were slow and that he had glassy, blood-shot eyes.

Officer Anguiano administered five field sobriety tests; appellant failed three of them.

Officer Anguiano arrested appellant for driving while intoxicated.

       Officer Anguiano testified that appellant made “a statement to the fact that it was a

felony D.W.I. for him.” Officer Anguiano “ran [appellant’s] information” with his in-car

computer and verified appellant’s criminal history with the communications operator.

Upon learning appellant had two previous D.W.I. convictions, Officer Anguiano believed

he was authorized by law to obtain a mandatory blood draw. Appellant did not give his

consent, and no warrant was obtained. The blood draw was taken about one hour after

appellant was stopped.

       Anna Marie Quintanilla testified that she worked as a medical technologist at

Northwest Regional Hospital and that part of her duties include collecting blood and

testing specimens. She stated that she is a licensed medical technologist with twenty

years of experience, and that she is qualified to draw blood specimens. She explained

the standard procedures. She testified that she collected appellant’s blood sample and

that the blood sample was taken using reliable hospital procedures recognized by the

scientific community and as required by State regulations.

       Emily Bonvino, a Department of Public Safety forensic scientist, testified regarding

the blood test results. Appellant’s blood sample contained .21 grams of alcohol per 100

milliliters of blood.




                                             3
                  II. FAILURE TO APPOINT NEW TRIAL COUNSEL

       By his fourth issue, appellant contends the trial court erred “by forcing appellant to

trial with appointed counsel to whom appellant objected.” Appellant’s issue inquires

whether appointed counsel had a duty to timely relay appellant’s request for new counsel

to the court and whether appellant is entitled to rely on appointed counsel in discharging

his duties. Appellant, however, does not cite any authority that supports his argument for

reversal based upon defense counsel’s alleged duty to notify the trial court concerning

appellant’s desire for the appointment of other counsel.

       We review a trial court’s ruling on a motion for withdrawal and replacement of

appointed counsel under an abuse of discretion standard. King v. State, 29 S.W.3d 556,

566 (Tex. Crim. App. 2000) (en banc). As expressed in King:

       [T]he right to counsel may not be manipulated so as to obstruct the judicial
       process or interfere with the administration of justice. Further, personality
       conflicts and disagreements concerning trial strategy are typically not valid
       grounds for withdrawal. A trial court has no duty to search for counsel
       agreeable to the defendant.

Id. (citations omitted).

       Once a trial court appoints an attorney to represent an indigent defendant, the

defendant has been accorded the protections provided under the Sixth and Fourteenth

Amendments to the United States Constitution and Article 26.04 of the Texas Code of

Criminal Procedure, and the defendant then carries the burden of proving entitlement to a

change of counsel. See U.S. CONST. amend. VI, XIV; TEX. CODE CRIM. PROC. ANN. art.

26.04 (West 2011); Barnett v. State, 344 S.W.3d 6, 24 (Tex. App.—Texarkana 2011, pet.

ref’d) (citing Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976)); see also Hill v.


                                             4
State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985); Watkins v. State, 333 S.W.3d 771,

775 (Tex. App.—Waco 2010, pet. ref’d); Maes v. State, 275 S.W.3d 68, 71 (Tex.

App.—San Antonio 2008, no pet.) (noting that defendant is responsible for “making the

trial court aware of his dissatisfaction with counsel, stating his grounds for his

dissatisfaction, and offering evidence in support of his complaint”). A defendant may not

wait until the day of trial to demand different counsel or to request counsel be dismissed

so he may retain other counsel. Webb, 533 S.W.2d at 784; Gilmore v. State, 323 S.W.3d

250, 264 (Tex. App.—Texarkana 2010, pet. ref’d).

       During a break in the State’s first witness’s testimony, appellant informed the trial

court that “everything has happened so fast lately, and I really—I didn’t feel that I was

being represented in the way that I need to be.” Appellant stated he was present under

duress because he was not being represented in the manner he preferred and that his

attorney refused to “relieve himself” despite appellant’s persistent requests. The record

is otherwise silent in that regard. The trial court denied appellant’s motion to dismiss his

attorney and to appoint a new one, noting that the case was “seven months old” and that

appellant had never written the trial court or in any other manner communicated his

alleged duress prior to that moment.

       We hold that appellant’s conclusory and untimely claim that his attorney was not

satisfactorily representing him did not show appellant was entitled to a change of counsel.

See Hill, 686 S.W.2d at 187; Watkins, 333 S.W.3d at 775; Maes, 275 S.W.3d at 71. The

trial court did not abuse its discretion by denying his day-of-trial request. See Webb, 533

S.W.2d at 784; Gilmore, 323 S.W.3d at 264. We overrule appellant’s fourth issue.


                                             5
                                   III. BLOOD SAMPLE EVIDENCE

        By his first issue, appellant argues the trial court erred by admitting a blood sample

that was allegedly taken in violation of the Fourth Amendment of the United States

Constitution and section 724 of the Texas Transportation Code.                       See U.S. CONST.

amend. IV; TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011).

A.      Constitutionality of Blood Draw

        Appellant challenges the constitutionality of the Texas implied consent statute,

under which the officer seized a specimen of appellant’s blood. See TEX. TRANSP. CODE

ANN.        § 724.012(b)(3)(B) (West 2011).             Appellant argues that the United States

Supreme Court’s recent holding in Missouri v. McNeely, which was decided while this

appeal was pending,4 invalidates his blood draw because “the State did not meet its

burden of demonstrating an exigent circumstance existed . . . .” See 133 S.Ct. 1552,

1567–68 (2013) (McNeely addressed exigency, holding that the dissipation of alcohol,

without more, does not constitute exigent circumstances). See id. at 1563, 1568. We

disagree.

        The withdrawal of a blood specimen is a search and seizure under the Fourth

Amendment.         Schmerber v. California, 384 U.S. 757, 767 (1966).                       The Fourth

Amendment to the United States Constitution protects the right to be free from

unreasonable searches. U.S. CONST. amend. IV. A warrantless search or seizure is

per se unreasonable, unless it falls under a recognized exception to a warrant. Katz v.

United States, 389 U.S. 347, 357 (1967); Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim.

        4
          After the United States Supreme Court’s holding in Missouri v. McNeely, 133 S. Ct. 1552 (2013),
we granted appellant’s requested leave to amend or supplement his brief to include the issue of whether the
blood seizure violated the Fourth Amendment, which appellant did not argue in his original brief.
                                                    6
App. 2000).    It is well settled that one of the established exceptions to a warrant

requirement is a search conducted pursuant to consent.                See Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973).

       The Texas Court of Criminal Appeals has noted, “The implied consent law does

just that—it implies a suspect’s consent to a search in certain instances.           This is

important when there is no search warrant, since it is another method of conducting a

constitutionally valid search.” Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App.

2002) (en banc).

       The implied consent law expands on the State’s search capabilities by
       providing a framework for drawing DWI suspects’ blood in the absence of a
       search warrant. It gives officers an additional weapon in their investigative
       arsenal, enabling them to draw blood in certain limited circumstances even
       without a search warrant.

Id. at 616; see Aviles v. State, 385 S.W.3d 110, 115 (Tex. App.—San Antonio, pet. ref’d)

(holding warrantless blood draw pursuant to section 724.012(b)(3)(B) of the Texas

Transportation Code does not violate the Fourth Amendment).

       McNeely clarified exigency; it did not invalidate Texas’ implied consent statute. It

is noteworthy that in Section III of McNeely, Justice Sotomayor, although writing for a

four-person minority in that section of the opinion, implicitly characterized implied consent

statutes, including a specific reference to section 724.012(b) of the Texas Transportation

Code, see 133 S.Ct. 1566 n.9, as collateral to the exigency concerns underlying the issue

before the Supreme Court. See id. at 1566–67.

       We overrule appellant’s first subissue to the extent he contends that McNeely

rendered 724.012(b) of the Texas Transportation Code unconstitutional.


                                             7
B.      Compliance With Blood Draw Statute

        Appellant contends the trial court erred by admitting the blood sample evidence

because the sample was allegedly not taken by a qualified technician as required by the

Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 724.017 (West 2011).5

This issue was not preserved for our review. See TEX. R. APP. P. 33.1. Quintanilla, the

medical technologist who collected appellant’s blood sample, testified, without objection,

regarding her qualifications and the collection of appellant’s blood.6 Appellant thus failed

to preserve his issue by failing to object to Quintanilla’s qualifications at trial.7 See TEX.

R. APP. P. 33.1. Even if we were to consider this issue, however, the Texas Court of

Criminal Appeals recently affirmed that a medical technologist such as a phlebotomist is a

technician who draws blood. See Krause v. State, No. PD-0819-12, 2013 WL 1890731,

at *3 (Tex. Crim. App. May 8, 2013); see also State v. Bingham, 921 S.W.2d 494, 496

(Tex. Crim. App. 1996); Torres v. State, 109 S.W.3d 602, 606 (Tex. App.—Fort Worth

2003, no pet.); Cavazos v. State, 969 S.W.2d 454, 456 (Tex. App.—Corpus Christi 1998,

pet. ref'd). We overrule appellant’s second subissue.

        5
            “Only a physician, qualified technician, chemist, registered professional nurse, or licensed
vocational nurse may take a blood specimen . . . .” TEX. TRANSP. CODE ANN. § 724.017(a) (West 2011).
“‘[Q]ualified technician’ does not include emergency services personnel.” Id. § 724.017(c).
        6
           The day before Quintanilla testified, appellant objected to the admission of the sample because,
in part, “There’s no evidence that a qualified technician drew this blood.” The State responded that
Quintanilla was going to testify the next day, and the court carried the objection. The court later admitted
the specimen, and overruled appellant’s repeated objection to the extent that appellant argued “the
phlebotomist or whoever drew this blood is not at this time here to testify . . . .” These objections focused
on the absence of testimony and not Quintanilla’s personal qualifications, which appellant now challenges.
        7
            Appellant did later challenge Quintanilla’s qualifications in his directed verdict and closing
argument but only on the grounds that Quintanilla did not satisfy the standards for an expert witness
established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In addition to being
untimely, this contention does not comport with the issue on appeal—that Quintanilla did not qualify under
the Texas Transportation Code. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004)
(“The legal basis of a complaint raised on appeal cannot vary from that raised at trial.”).
                                                     8
       Having overruled appellant’s two subissues, we overrule appellant’s first issue.

                         IV. ADMISSIBILITY OF EXPERT OPINION

       By his second issue, appellant argues the trial court erred by allowing the

fingerprint expert’s testimony and admitting prior judgments into evidence based thereon.

Specifically, appellant asserts that an expert in fingerprint identification must testify (1)

regarding his particular techniques and their acceptance in the community to establish

reliability; and (2) regarding specific matching markings he finds to identify fingerprints

rather than summarily state he found matching characteristics. Appellant specifically

complains the trial court erred by: (1) overruling appellant’s objection to and allowing the

fingerprint expert’s testimony during the guilt-innocence phase of trial; and (2) admitting

two prior judgments, which the fingerprint expert linked to appellant by comparing the

prints on the two prior judgments to appellant’s fingerprints, during the sentencing phase.

       The admission of expert testimony is reviewed on appeal for an abuse of

discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010) (citing Lagrone

v. State, 942 S.W.2d 602, 616 (Tex. Crim. App. 1997)). The proponent of scientific

evidence must persuade the trial court through clear and convincing evidence that the

proposed evidence is reliable by establishing: (1) the underlying scientific theory is valid;

(2) the technique applying the theory is valid; and (3) the technique was properly applied

on the occasion in question. Somers v. State, 368 S.W.3d 528, 536 (Tex. Crim. App.

2012); Kelley v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992); see also Russeau v.

State, 171 S.W.3d 871, 883 (Tex. Crim. App. 2005) (stating that fingerprint comparison

theory is reliable and admissible). On appeal, appellant does not challenge the first


                                             9
element, but asserts “there is no evidence from which the trial court could determine the

technique or methodology applying the theory was valid or the technique was properly

applied in this case.” Appellant, however, did not raise these concerns in the trial court.

       During the guilt-innocence phase, appellant objected to the expert’s testimony on

the grounds that “I don’t believe that the expert’s opinion is rationally based upon human

perception . . . .” During the sentencing phase, appellant objected to the admission of

the two prior judgments because “the [expert’s] testimony wasn’t specific enough

regarding the comparison points, plus there’s no written reports.”       Neither objection

comports with appellant’s argument on appeal. Appellant’s issues therefore have not

been preserved for review on appeal. See TEX. R. APP. P. 33.1; Heidelberg v. State, 144

S.W.3d 535, 537 (Tex. Crim. App. 2004) (“The legal basis of a complaint raised on appeal

cannot vary from that raised at trial.”). Even if we were to consider such arguments,

however, we do not find the trial court abused its discretion. The record reflects that

Deputy Flores established the reliability of his techniques and comparisons and that he

sufficiently testified concerning the commonality of features and physical characteristics

he found in his fingerprint comparisons. We overrule appellant’s second issue.

            V. SUFFICIENCY OF EVIDENCE TO PROVE PRIOR FELONIES

       By his third issue, appellant argues the evidence is insufficient to show that he

committed the two prior felonies alleged in the indictment.

       We review the evidence in the light most favorable to the prosecution to determine

whether any rational trier of fact could have found the essential elements of the

enhancement paragraphs to be true beyond a reasonable doubt. Jaynes v. State, 216


                                            10
S.W.3d 839, 845 (Tex. App.—Corpus Christi 2006, no pet.); see Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)). The factfinder is the sole judge of the credibility of the witnesses

and the weight to be given their testimony. Jaynes, 216 S.W.3d at 845 (citing Westbrook

v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7

(Tex. Crim. App. 2000)). We give deference to the factfinder’s decisions about the

weight and credibility of the evidence. Id. Although appellant contests the admissibility

of some of the evidence, we must consider all the evidence in conducting our review. Id.

       To establish that a defendant has been convicted of a prior offense, the State must

prove beyond a reasonable doubt (1) a prior conviction exists, and (2) the defendant is

linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).

No specific document or mode of proof is required to prove these two elements. Id. A

certified copy of a final judgment and sentence is one method of proving them. See id.

The factfinder “fits the pieces of the jigsaw puzzle together and weighs the credibility of

each piece,” looking to the totality of the evidence to determine whether both elements

are proven beyond a reasonable doubt. See id. at 923.

       The State alleged in the indictment that appellant had two prior convictions:

(1) “Burglary of a Habitation, on June 7, 1989, in Cause No. 88-CR-1586-A,” from the 28th

District Court of Nueces County; and (2) “Burglary of a Habitation, on February 19, 1992,

in Cause No. 2870-1” from the 156th District Court of Live Oak County, Texas. During

the sentencing phase, the trial court admitted State’s Exhibit Numbers 3, 5, and 6.

State’s Exhibit 3 was a fingerprint card with appellant’s prints that Fred Flores, a Nueces


                                            11
County deputy sheriff and fingerprint identification expert, took from appellant. State’s

Exhibits 5 and 6 were the earlier judgments’ “pen packs.”

       State’s Exhibit 5 contained a certified copy of a felony conviction and sentence for

burglary of a habitation in cause number 2870-1, rendered by the 156th District Court of

Live Oak County, Texas on February 19, 1992. The defendant’s name on the judgment

is “William Perry Smith,” and the exhibit included pictures of the defendant and

fingerprints. State’s Exhibit 6 contained certified copies of two judgments, including a

felony conviction and a sentence for burglary of a habitation in cause number

88-CR-1586-A, rendered by the 28th District Court of Nueces County, Texas on June 7,

1989. The defendant in the judgment is “William Smith,” and the exhibit included the

defendant’s picture and fingerprints. Flores testified that “[a]fter comparing the known

fingerprints of the Defendant William Bill Smith [appellant] to the pen packets in Exhibits 6

and 5, it was determined based on . . . that comparison, that they’re one in the same

individual, William Bill Smith.”

       Texas law has long recognized that matching an accused’s fingerprints to a set of

fingerprints in a “pen packet” is sufficient to prove that the accused is the person

convicted in the prior conviction. See Littles v. State, 726 S.W.2d 26, 32 (Tex. Crim.

App. 1984) (en banc); Cole v. State, 484 S.W.2d 779, 784 (Tex. Crim. App. 1972); Allen v.

State, 451 S.W.2d 484, 484 (Tex. Crim. App. 1970); Williams v. State, 356 S.W.3d 508,

517 (Tex. App.—Texarkana 2011, pet. ref’d); Cleveland v. State, 814 S.W.2d 140, 142

(Tex. App.—Houston [14th Dist.] 1991, no pet.); Lancaster v. State, 734 S.W.2d 161, 165

(Tex. App.—Fort Worth 1987, pet. ref’d). Additionally, allowing the factfinder to compare


                                             12
photographs included in pen packets with the defendant can alone be sufficient to prove

the defendant is the same person as the one in the photograph. Forward v. State, No.

11-11-00060-CR, 2013 WL 1248287, at *4 (Tex. App.—Eastland Mar. 28, 2013, no

pet.) (citing Littles, 726 S.W.2d at 31–32).

       After viewing the evidence in the light most favorable to the prosecution, we hold

that a rational factfinder could have found that two prior convictions existed and that

appellant was the person convicted. See Jaynes, 216 S.W.3d at 845. We overrule

appellant’s third issue.

                                      VI. CONCLUSION

       We affirm the trial court’s judgment.



                                                    GREGORY T. PERKES
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
31st day of October, 2013.




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