                                  NUMBER 13-12-00220-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

GRAVIEL MOLINA,                                                                     Appellant,

                                                    v.

THE STATE OF TEXAS,                                                                 Appellee.


                  On appeal from the County Court at Law No. 2
                           of Victoria County, Texas.


                               MEMORANDUM OPINION
                  Before Justices Garza, Benavides, and Perkes
                    Memorandum Opinion by Justice Perkes
        Appellant Graviel Molina appeals his conviction for the offense of driving while

intoxicated – second offense1, a Class A Misdemeanor. See TEX. PENAL. CODE ANN.

§§ 49.01–.09 (West 2011). The jury found appellant guilty and assessed punishment at


        1
          Appellant stipulated to two prior offenses: a 1978 conviction for the offense of operating a motor
vehicle while intoxicated, and a 1985 conviction for the offense of driving while intoxicated.
one year imprisonment in the county jail and a $2,000 fine. Appellant’s sole issue

asserts that the trial court erred by denying appellant’s jury charge instruction request

regarding who is a “qualified technician.” TEX. TRANSP. CODE ANN. § 724.017 (West

2011). We affirm.

                                   I.       BACKGROUND2

        Appellant drove his truck out of a restaurant parking lot and into a drainage ditch.

Victoria, Texas police officers responded. According to the police officers, appellant

smelled of alcohol, had bloodshot eyes with a glassy film over them, was swaying, and

was having difficulty maintaining his balance. Appellant admitted he was drinking, but

refused to perform field sobriety tests. The police officer arrested appellant for driving

while intoxicated, and determined he qualified for a mandatory blood draw. 3                            TEX.

TRANSP. CODE ANN. § 724.011 (West 2011).

        Deborah Orsak was the Citizens Medical Center phlebotomist who collected

appellant’s blood sample. She testified that she had been a phlebotomist for over thirty

years, working for the South Texas Blood Bank for ten years and for Citizens Medical

Center for twenty years. She did not have a formal certification, but learned her practice

through on–the–job training. Orsak stated she performed over thirty blood draws a night

while she was working at Citizens Medical Center. She described the process she used

to take the blood sample and identified appellant’s blood sample kit.


        2
          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.
        3
            The police officer’s patrol car had an in-car video recorder. A portion of the video of the police
officer’s interaction with appellant was played to the jury.
                                                      2
       On cross-examination, Orsak was asked about a blood preservative.                She

answered, “I don’t know for sure, I am not a tech.” When appellant’s trial counsel further

inquired about the process of analyzing blood, she again said, “I am not a tech so I am not

really sure on all the specifics.” Orsak later explained that the “techs” are the people who

“run all the tests on the blood.”

       During the jury charge conference, appellant’s counsel objected that the jury

charge did not include an instruction tracking the language of section 724.017(a) of the

Texas Transportation Code, and argued “that only certain people are qualified to take this

blood under the direction of an order of a peace officer. And that includes only — only a

physician, a qualified technician, a chemist, registered professional nurse or licensed

vocational nurse may take a blood sample. . . .” Appellant desired an instruction that in

the event the jury did not find Orsak to be a “qualified technician,” they could not consider

the blood draw evidence. The trial court overruled the objection.

                          II.       STANDARD OF REVIEW

       “The purpose of the jury charge is to ‘apply the law to the facts raised by the

evidence.’” Benn v. State, 110 S.W.3d 645, 649 (Tex. App.—Corpus Christi 2003, no

pet.) (quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)). “It is clear

that a charge must include an accurate statement of the law.” Abdnor v. State, 871

S.W.2d 726, 731–32 (Tex. Crim. App. 1994); Johnson v. State, 571 S.W.2d 170, 173

(Tex. Crim. App. 1978). “It is not the function of the charge merely to avoid misleading or

confusing the jury; it is the function of the charge to lead and to prevent confusion.”




                                             3
Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996) (quoting Williams v. State

547 S.W.2d 18, 20 (Tex. Crim. App. 1977)).

        When an appellate court is presented with an argument that a trial court committed

jury charge error, the reviewing court must conduct a two-step inquiry:                             “First, the

reviewing court must determine whether the jury charge contains error. Second, the

court must determine whether sufficient harm resulted from the error to require reversal.”

Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998) (en banc); see also Benn,

110 S.W.3d at 648. Once an appellate court finds jury-charge error, it applies one of the

two following standards of review: “Where there has been a timely objection made at

trial, an appellate court will search for only ‘some harm.’ By contrast, where the error is

urged for the first time on appeal, a reviewing court will search for ‘egregious harm.’”

Mann, 964 S.W.2d at 641 (quoting Abdnor, 871 S.W.2d at 731–32).

                                       III.     ANALYSIS4

        Appellant contends the trial court erred “in denying appellant his requested jury

instruction regarding qualified technician.’” Specifically, appellant argues that Orsak

does not fit into one of the statutorily required categories of personnel allowed to draw

blood under section 724.017(a), and that a jury instruction, tracking the language of

section 724.017(a) of the transportation code, was required under article 38.23 of the

Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005).



        4
            A defendant must submit an objection to the court’s jury charge in writing to preserve error. The
writing requirement will be satisfied if any objections are dictated to the court reporter in the presence of the
court and the state’s counsel, before the reading of the court’s charge to the jury. TEX. CODE CRIM. PROC.
ANN. art 36.14 (West 2005). Appellant has properly preserved error by objecting to the jury charge in the
presence of the state’s counsel on the record.
                                                       4
      The determination that a witness qualifies as a qualified technician under the

transportation code is a question of law to be decided by the trial court. See State v.

Bingham, 921 S.W.2d 494, 496 (Tex. Crim. App. 1996).               “The common-sense

interpretation of the term ‘qualified technician’ . . . must include a phlebotomist who a

hospital or other medical facility has determined to be qualified in the technical job of

venesection or phlebotomy, i.e., the drawing of blood.” Id. The Texas Court of Criminal

Appeals recently affirmed a “phlebotomist is a technician who draws blood.” Krause v.

State, No. PD-0819-12, 2013 WL 1890731, at *3 (Tex. Crim. App. May 8, 2013); see

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).

      The trial court is not required to give an instruction if the defendant advances a

legal argument, rather than a factual dispute. Balentine v. State, 71 S.W.3d 763, 773

(Tex. Crim. App. 1971). If the underlying facts are not contested, an instruction need not

be given. Holmes v. State, 962 S.W.2d 663, 673 (Tex. App.—Waco 1998, pet. ref’d).

Here, the undisputed evidence shows Orsak was a qualified phlebotomist.            Orsak

testified that she is a phlebotomist and established her credentials and qualifications as

such during the trial.    No challenge regarding her credentials or qualifications was

brought on appeal.       Accordingly, the trial court did not err by denying appellant’s

requested instruction. See Smith v. State, 65 S.W.3d 332, 342–343 (Tex. App.— Waco

2001, no pet.). The trial court properly overruled the appellant’s request for a jury

instruction including Texas Transportation Code section 724.017. See Krause v. State,




                                             5
No. PD-0819-12, 2013 WL 1890731, at *3 (Tex. Crim. App. May 8, 2013). We overrule

appellant’s sole issue.

                              IV.    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
25th day of July, 2013.




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