                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00380-CR

TARA CARSON LANE,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 249th District Court
                              Johnson County, Texas
                              Trial Court No. F46516


                          MEMORANDUM OPINION


       In three issues, appellant, Tara Carson Lane, challenges her conviction for driving

while intoxicated with a child passenger. See TEX. PENAL CODE ANN. § 49.045 (West 2011).

Specifically, Lane asserts that the trial court erred by: (1) admitting the results of her

blood test; (2) denying her request for a jury charge under article 38.23 of the Texas Code

of Criminal Procedure, see TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005); and (3)
denying her motion for a direct verdict based on her argument that section 49.045 is

unconstitutionally vague. We affirm.

                                      I.     BACKGROUND

        On May 5, 2012, Lane spent a Sunday evening at her mother’s house in Joshua,

Texas. While there, Lane consumed alcohol. Around 11:00 p.m., Lane got into her white,

Yukon Denali along with her three children—all of whom were under fifteen years of

age—and began driving northbound on SW Wilshire Boulevard toward her house in

Burleson, Texas. Shortly thereafter, a 911 operator for the Burleson Police Department

received a call from Crystal Stewart, who informed police that Lane was driving while

intoxicated with her children in the car.       Stewart purportedly provided additional

identifying characteristics of Lane’s vehicle and path of travel to allow police to intercept

Lane prior to arriving home.

        Officer Charles Garrett, a patrol officer with the Burleson Police Department,

received a dispatch concerning Lane at approximately 11:15 p.m. and moved to respond

to the call. Officer Garrett spotted a white, Yukon Denali traveling on SW Wilshire

Boulevard and began to follow the vehicle. While behind the vehicle, Officer Garrett

observed the driver engage in several Class C traffic violations while trying to negotiate

a right turn onto John Jones Street. At trial, Officer Garrett described the traffic violations

as such:

        Yes. As the vehicle got into the right-hand turn lane to turn south on John
        Jones, or 731, there’s a solid white line that is considered a traffic control
Lane v. State                                                                            Page 2
        device. It’s a marking that directs the flow of traffic. The vehicle put its
        signal on and changed lanes and crossed a solid white line. That is a
        disregard of a traffic control device. The second clue I observed was at the
        same traffic light there’s a designated stopping point. It’s the white line that
        we all see at the intersection that protects the crosswalk. You’re supposed
        to stop behind that line for the safety of pedestrians. Well, the vehicle failed
        to stop at the designated stopping point and went past it. As the vehicle
        turned right onto South John Jones, it did not turn into the first available
        lane of traffic. In Section 545 of the Traffic Code, it says a vehicle will turn
        as close as practical to the right-hand curb, which is the first available lane
        of traffic. The vehicle turned into the left-hand lane of traffic. After we
        turned on to John Jones, it’s two lanes. The vehicle was in the left lane, and
        it failed to maintain a single lane of traffic twice in a very short distance. It
        swerved over within two lanes twice.

        At this point, Officer Garrett activated his overhead lights and initiated a stop of

the vehicle. After approaching the driver of the vehicle, who was later identified as Lane,

and asking Lane for identification and proof of financial responsibility, Officer Garrett

observed that Lane had slurred speech, a moderate odor of alcohol on her breath, and

glassy, watery eyes. When asked if she had been drinking, Lane responded that she had

two glasses of wine earlier. Officer Garrett then asked Lane to step out of the vehicle to

perform field-sobriety tests. Lane complied.

        During the horizontal-gaze-nystagmus test, Lane exhibited all six clues. On the

walk-and-turn test, Lane exhibited four of eight clues. And on the one-leg-stand test,

Lane exhibited three out of four clues. Based on the totality of the circumstances, Officer




Lane v. State                                                                               Page 3
Garrett placed Lane under arrest for driving while intoxicated with a child passenger and

subsequently transported her to an intoxilyzer room at the Burleson Police Department.1

        While in the intoxilyzer room, Officer Garrett read Lane the DIC-24 statutory

warnings and asked for breath and blood samples. Lane refused to provide either.

Thereafter, Officer Garrett transported Lane to the emergency room at the Texas Health

Resource Hospital in Burleson to have her blood drawn. Two vials of blood were

collected from Lane and subsequent testing revealed that Lane had a blood-alcohol level

of 0.16—double the legal limit for driving.

        Lane was charged with driving while intoxicated with a child passenger, a state-

jail felony. See TEX. PENAL CODE ANN. § 49.045. At the conclusion of the evidence, the

jury found Lane guilty of the charged offense and sentenced Lane to two years’

incarceration in the State Jail Division of the Texas Department of Criminal Justice. The

trial court accepted the jury’s verdict, suspended the sentence, and placed Lane on

community supervision for a period of five years with a $3,000 fine. This appeal

followed.

                            II.     ADMISSION OF BLOOD-TEST RESULTS

        In her first issue, Lane complains about the admission of Exhibit 12, the blood-test

results. Lane asserts that the trial court erred in admitting Exhibit 12 because “the




        1Officer Garrett noted that Lane tried to pull away when he was trying to place handcuffs on her.
He also recounted that Lane was agitated and upset at the time of her arrest.

Lane v. State                                                                                     Page 4
warrantless intrusion into [her] body and the extraction of her blood does not fit within

any of the above-mentioned exigent circumstances.”

        In objecting to Exhibit 12, Lane argued the following:

        I would object to this, Your Honor, under the Fourth Amendment of the
        United States Constitution as being a violation of the right to be free from
        unreasonable searches and seizures.

              I would object to it under Article 1, Section 9 of the mirror Texas
        Constitution because of the violation of the right to be free from
        unreasonable searches and seizures.

               I’ll just site [sic] Missouri v. McNeelly [sic] as—and I would also
        object under 38[.]23, or I would object because the proper protocol for
        seizing the blood without a warrant was not followed. There’s no proper
        order under 724.012. And that should be enough.

        However, earlier in the trial, Lane’s trial counsel asked Officer Garrett about

the results of the blood test. Specifically, trial counsel asked the following:

        Q [Trial counsel]:          What was the blood result, do you know?

        A [Officer Garrett]:        Yes, sir, I do.

        Q:                          Would you tell us what it was?

        A:                          I’m sorry. Did you say can I? I can’t hear you.

        Q:                          Will you?

        A:                          Yes, sir, I will. 0.16.

        Q:                          No, you’re playing games with me, I think.

        A:                          No, sir.



Lane v. State                                                                             Page 5
        Q:                          Well, I asked you will you and you said yes. I
                                    couldn’t hear you. I apologize. I apologize
                                    then. What was the results of her test?

        A:                          0.16.

        Q:                          What is that? 0.16 what? 0.16 what? What does
                                    that mean?

        A:                          That means her blood alcohol level was .16.

        Q:                          What does blood alcohol level mean?

        A:                          It’s how much alcohol she had per one hundred
                                    milliliters of blood.

        The Court of Criminal Appeals has held that an appellant is in no position to

complain of evidence that she herself developed. See Garza v. State, 397 S.W.2d 847, 849

(Tex. Crim. App. 1966) (“But appellant cannot introduce the same statement he claims to

be inadmissible, use exculpatory parts of that statement as an affirmative element of his

trial strategy, then when that evidence fails to convince the jury of appellant’s innocence,

re-assert his claim that the evidence should not have been admitted in the first place.”)

(citing Henry v. Miss., 379 U.S. 443, 450-52, 85 S. Ct. 564, 568-69, 13 L. Ed. 2d 408 (1965)).

Thus, because the substance of Exhibit 12—test results showing that Lane had a blood-

alcohol level of 0.16—is the same as the information elicited from Officer Garrett by

Lane’s trial counsel on cross-examination, Lane is in no position to complain of the

admission of Exhibit 12 into evidence. See id.; Henry, 379 U.S. at 450-52, 85 S. Ct. at 568-

69; see also Ohler v. U.S., 529 U.S. 753, 759, 120 S. Ct. 1851, 1855, 146 L. Ed. 2d 826 (2000)


Lane v. State                                                                           Page 6
(concluding that appellant waived his right to complain about evidence that he

preemptively introduced); Johnson v. State, 981 S.W.2d 759, 760 (Tex. App.—Houston [1st

Dist.] 1999, pet. ref’d) (same). Furthermore, we note that any error in admitting evidence

is cured when the same evidence is admitted elsewhere without objection. See Lane v.

State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); see also Leday v. State, 983 S.W.2d 713,

718 (Tex. Crim. App. 1998). Therefore, even if Exhibit 12 was inadmissible, any error in

admitting the exhibit was cured because the substance of the exhibit was admitted

elsewhere without objection. See Lane, 151 S.W.3d at 193; see also Leday, 983 S.W.2d at 718.

We overrule Lane’s first issue.

                                   III.   THE JURY CHARGE

        In her second issue, Lane asserts that the trial court erred by failing to issue an

article 38.23 instruction in the jury charge because the evidence established that the blood

evidence was obtained illegally under the Implied Consent Statute, rather than pursuant

to a warrant. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a).

A.      Applicable Law

        A claim of jury-charge error is reviewed using the procedure set out in Almanza.

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985). The first step is to determine whether there is

error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). “Then, if




Lane v. State                                                                         Page 7
we find error, we analyze that error for harm.” Id. (citing Middleton v. State, 125 S.W.3d

450, 453 (Tex. Crim. App. 2003)).

        Article 38.23 of the Code of Criminal Procedure provides:

        No evidence obtained by an officer or other person in violation of any
        provisions of the Constitution or laws of the State of Texas, or of the
        Constitution or laws of the United States of America, shall be admitted in
        evidence against the accused on the trial of any criminal case.

        In any case where the legal evidence raises an issue hereunder, the jury shall
        be instructed that if it believes, or has reasonable doubt, that the evidence
        was obtained in violation of the provisions of this Article, then and in such
        event, the jury shall disregard any such evidence so obtained.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a). In Madden, the Court of Criminal Appeals

stated that a defendant’s rights to the submission of jury instructions under Article

38.23(a) is limited to disputed issues of fact that are material to his claim of a

constitutional or statutory violation that would render evidence inadmissible. Madden v.

State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007). Specifically, the Madden court

mentioned the following:

        There are three requirements that a defendant must meet before he is
        entitled to the submission of a jury instruction under Article 38.23(a):

            (1) The evidence heard by the jury must raise an issue of fact;

            (2) The evidence on that fact must be affirmatively contested; and

            (3) That contested factual issue must be material to the lawfulness of the
                challenged conduct in obtaining the evidence.

        There must be a genuine dispute about a material fact. If there is no
        disputed factual issue, the legality of the conduct is determined by the trial
Lane v. State                                                                            Page 8
        judge alone, as a question of law. And if other facts, not in dispute, are
        sufficient to support the lawfulness of the challenged conduct, then the
        disputed fact issue is not submitted to the jury because it is not material to
        the ultimate admissibility of the evidence. The disputed fact must be an
        essential one in deciding the lawfulness of the challenged conduct.

Id. at 510-11.

B.      Discussion

        During the charge conference, Lane argued that Officer Garrett used a form that

did not authorize a blood draw for driving while intoxicated with a child passenger and

requested the following instruction:

        Article 38[.]20. Excuse me. I would ask the charge that no evidence
        obtained by an officer or other person in violation of any provisions of the
        constitution or the laws of the State of Texas or the constitution or laws of
        the United States of America shall be admitted into evidence against the
        accused on the trial of any criminal case. There has—Article 1—or the
        Fourth Amendment of the United States Constitution, Article 1, Section 9
        of the state constitution prohibit unreasonable searches and seizures. If you
        believe that the blood drawn was taken in violation of 724.012 of the
        Transportation Code, or if you have a reasonable doubt whether or not it
        was seized in violation of Section 724.012 of the Transportation Code, you
        will not consider the evidence of the blood draw.

The State responded that there was no factual issue that warranted an article 38.23

instruction. The trial court agreed and denied the requested instruction.

        We, too, agree that there was not a disputed fact issue necessitating an article 38.23

instruction. At trial, Officer Garrett acknowledged that he used a form authorizing a

mandatory blood draw under section 724.012 of the Texas Transportation Code that

involved offenses under chapter 49 of the Texas Penal Code where the officer reasonably


Lane v. State                                                                            Page 9
believed that another person had died or would die as a result of the accident. Officer

Garrett later admitted that he did not believe that anyone had died or was going to die in

an accident involving an intoxicated driver. However, Officer Garrett testified that he

believed that the form was applicable to all mandatory blood draws and that he was

unsure whether a form existed for warrantless blood draws specifically tailored for

offenses under section 49.045 of the Texas Penal Code. Given this testimony, there was

not a disputed fact issue, but rather a legal question, regarding whether Lane’s

mandatory blood draw was illegal due to the form that Officer Garrett used. 2

Consequently, we cannot conclude that the jury charge was erroneous or that an article

38.23 instruction was required in this case. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a);

Barrios, 283 S.W.3d at 350; Ngo, 175 S.W.3d at 743; Almanza, 686 S.W.2d at 171; see also

Madden, 242 S.W.3d at 509-11. We overrule Lane’s second issue.

                         IV.    LANE’S MOTION FOR A DIRECTED VERDICT

         In her third issue, Lane asserts that the trial court erred by denying her motion for

directed verdict because section 49.045 of the Texas Penal Code is unconstitutionally

vague.       Specifically, Lane complains that section 49.045 is facially unconstitutional

because it does not contain a culpable mental state, though purportedly required by

section 6.02 of the Texas Penal Code.




         The record does not reflect that Lane filed a pre-trial motion to suppress the results of the
         2

warrantless blood draw based on the form Officer Garrett used.

Lane v. State                                                                                 Page 10
A.      Applicable Law

        A challenge to the trial court’s denial of a motion for an instructed verdict or a

motion for a directed verdict is treated as a challenge to the sufficiency of the evidence.

Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). The Court of Criminal

Appeals has expressed our standard of review of a sufficiency issue as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
        Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
        standard gives full play to the responsibility of the trier of fact fairly to
        resolve conflicts in the testimony, to weigh the evidence, and to draw
        reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
        319. “Each fact need not point directly and independently to the guilt of
        the appellant, as long as the cumulative force of all the incriminating
        circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d
        at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        To prevail on a facial challenge, a party must establish that the statute always

operates unconstitutionally in all possible circumstances. State v. Rousseau, 396 S.W.3d

550, 557 (Tex. Crim. App. 2013). A facial challenge to a statute is the most difficult

challenge to mount successfully because the challenger must establish that no set of

circumstances exists under which the statute will be valid. Santikos v. State, 836 S.W.2d

631, 633 (Tex. Crim. App. 1992).




Lane v. State                                                                                 Page 11
         Whether a statute is facially unconstitutional is a question of law that we review

de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When the constitutionality

of a statute is attacked, we begin with the presumption that the statute is valid and that

the legislature has not acted unreasonably or arbitrarily. Id. at 14-15. The burden

normally rests upon the person challenging the statute to establish its unconstitutionality.

Id. at 15. In the absence of contrary evidence, we will presume the legislature acted in a

constitutionally-sound fashion. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App.

2002).

B.       Discussion

         Section 49.045 of the Texas Penal Code provides that a person commits an offense

if: (1) “the person is intoxicated while operating a motor vehicle in a public place”; and

(2) “the vehicle being operated by the person is occupied by a passenger who is younger

than 15 years of age.” TEX. PENAL CODE ANN. § 49.045. A review of the plain language

of the statute shows that section 49.045 does not specifically prescribe a culpable mental

state. According to Lane, section 49.045 violates section 6.02(b) of the Texas Penal Code

and, thus, is void for failing to prescribe a culpable mental state. Section 6.02(b) provides

the following: “If the definition of an offense does not prescribe a culpable mental state,

a culpable mental state is nevertheless required unless the definition plainly dispenses

with any mental element.” Id. § 6.02(b) (West 2011).




Lane v. State                                                                         Page 12
        An analogous argument was addressed by the Court of Criminal Appeals in Ex

parte Ross, 522 S.W.2d 214 (Tex. Crim. App. 1975). In that case, the defendant challenged

his DWI conviction by arguing that section 6.02 required proof of a culpable mental state.

Id. at 218. The Court of Criminal Appeals held that despite section 6.02, the State was not

required to prove a culpable mental state in obtaining a DWI conviction. Id. at 218-19.

Specifically, the court reasoned that the legislature did not intend to require proof of a

culpable mental state for DWI when section 6.02 was enacted. Id. at 219.

        Several other Texas courts have addressed arguments similar to Lane’s—all

finding it without merit. See Lomax v. State, 233 S.W.3d 302, 304 (Tex. Crim. App. 2007)

(noting that felony DWI does not require proof of a culpable mental state); Lewis v. State,

951 S.W.2d 235, 237 (Tex. App.—Beaumont 1997, no pet.) (“We also find it persuasive and

hold proof of a culpable mental state is not required in DWI convictions.”); Sanders v.

State, 936 S.W.2d 436, 438 (Tex. App.—Austin 1996, pet. ref’d) (“However, like our sister

courts, we believe Ross to be dispositive and join them in holding that the DWI statute

does not require proof of a culpable mental state.”); Aguirre v. State, 928 S.W.2d 759, 759-

60 (Tex. App.—Houston [14th Dist.] 1996, no pet.) (“It has never been necessary to plead

or prove scienter in a prosecution for driving while intoxicated. . . . If the offense of

driving while intoxicated carried with it the burden of establishing a culpable mental

state, the most inebriated and dangerous drivers would escape conviction by virtue of

their diminished capacity to formulate a criminal intent. Because mens rea is inversely


Lane v. State                                                                        Page 13
proportional to the degree of a defendant’s mental impairment, and it would be

oxymoronic to require the State to show that a defendant possessed a criminal intent and,

by virtue of his intoxication, had also lost the use of his mental faculties. . . . The object

of the DWI statute is to prevent men, women, and children from being maimed or killed

by intoxicated drivers. We do not believe the legislature intended to subvert this purpose

by engrafting a culpable mental state onto the statute when it was transferred to Section

49.04 of the Penal Code.” (emphasis in original)); Chunn v. State, 923 S.W.2d 728, 729 (Tex.

App.—Houston [1st Dist.] 1996, pet. ref’d); Reed v. State, 916 S.W.2d 591, 592 (Tex. App.—

Amarillo 1996, pet. ref’d) (concluding that the Legislature “did not intend to require proof

of a culpable mental state for the offense of driving while intoxicated”); see also Bigon v.

State, Nos. 03-05-00692-CR & 03-05-00693-CR, 2006 Tex. App. LEXIS 8756, at *10 (Tex.

App.—Austin 2006) (“In this instance, felony DWI does not require proof of a culpable

mental state. Nor does the felony charge of DWI with a child passenger require proof of

a culpable mental state.” (internal citations omitted)), aff’d, 252 S.W.3d 360 (Tex. Crim.

App. 2008).

        Because numerous Texas courts have concluded that DWI convictions do not

require a culpable mental state, despite the language of section 6.02, we are not persuaded

by Lane’s argument that section 49.045 is void or unconstitutionally vague for failure to

require a culpable mental state. See Ex parte Lo, 424 S.W.3d at 14-15; Lomax, 233 S.W.3d at

304; Lewis, 951 S.W.2d at 237; Sanders, 936 S.W.2d at 438; Aguirre, 928 S.W.2d at 759-60;


Lane v. State                                                                          Page 14
Chunn, 923 S.W.2d at 729; Reed, 916 S.W.2d at 592; see also Bigon, 2006 Tex. App. LEXIS

8756, at *10. As such, we cannot say that the trial court erred in denying Lane’s motion

for a directed verdict. See TEX. PENAL CODE ANN. § 49.045; see also Lucio, 351 S.W.3d at

894; see also Williams, 937 S.W.2d at 482. Accordingly, we overrule Lane’s third issue.

                                    V.     CONCLUSION

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

trial court.




                                                AL SCOGGINS
                                                Justice



Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 27, 2015
Do not publish
[CR25]




Lane v. State                                                                      Page 15
