Opinion filed October 9, 2014




                                          In The


          Eleventh Court of Appeals
                                      __________

                                No. 11-12-00293-CR
                                    __________

                    BLAS HERNANDEZ, JR., Appellant
                                             V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 40th District Court
                               Ellis County, Texas
                         Trial Court Cause No. 36567CR

                      MEMORANDUM OPINION
      The jury convicted Blas Hernandez, Jr. of driving while intoxicated, third or
more offense.1 The jury assessed his punishment at confinement for life. The trial
court ordered the life sentence in this case to run consecutively to the life sentence
that Appellant was on parole for at the time of trial. Appellant asserts, in three
points of error on appeal, that the trial court erred when it excused a juror, denied

      1
       See TEX. PENAL CODE ANN. §§ 49.04, 49.09 (West Supp. 2014).
his motion to suppress evidence, and sentenced him to serve consecutive sentences.
We affirm.
                                I. Evidence at Trial
      Kathleen Hoggatt testified that, around 4:00 a.m. on November 1, 2011, she
was asleep in her home in Waxahachie, when she was awakened by a loud noise.
Hoggatt went to the window and saw that someone driving a red pickup had
crashed into her vehicle and was leaving the scene. After she called the police,
Hoggatt went outside and found a case of beer in the front yard. Hoggatt also saw
that her mailbox had been turned over, and she noticed that the impact of the crash
had moved both her vehicle and her husband’s vehicle.
      Chris Eadler, an officer with the Waxahachie Police Department, testified
that he was dispatched to the hit-and-run accident at Hoggatt’s home on
November 1, 2011. After Officer Eadler arrived at the scene, he noticed that
Hoggatt’s vehicle was badly damaged and that her husband’s vehicle had been
struck so hard that it had been pushed into the yard. Officer Eadler also observed
that a brick mailbox had been knocked off its pedestal.
      Officer Eadler immediately began searching for the hit-and-run driver in the
area surrounding Hoggatt’s home. Because Hoggatt reported that the driver left
the scene traveling north, Officer Eadler searched for a vehicle with damage to its
front and left side. Officer Eadler quickly encountered a red pickup with a broken
headlight and a crushed front bumper. The bumper was pushed so hard into the
pickup’s front left tire that smoke was coming from the tire.
      Officer Eadler caught up to the pickup, activated his overhead lights, and
called for assistance. The pickup came to a stop, and Officer Eadler asked the
driver to step out of his vehicle. Officer Eadler then identified the driver as
Appellant and placed him under arrest. As Officer Eadler handcuffed Appellant,
Officer Eadler noticed that Appellant’s breath had a strong odor of alcohol, that his
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eyes were bloodshot, that his speech was slurred, and that he had an unsteady
balance.
      Ron Turbeville, a sergeant with the Waxahachie Police Department, testified
that he responded to Officer Eadler’s call for assistance on November 1, 2011.
Sergeant Turbeville stated that he recognized Appellant when he arrived at the
scene and that, at that time, he was aware of Appellant’s two previous driving
while intoxicated (DWI) convictions. Based on Appellant’s previous convictions,
Sergeant Turbeville asked another officer to transport Appellant to the hospital for
a mandatory blood draw.
      Sergeant Turbeville took pictures of Appellant’s pickup, and he noted that
its condition indicated that it had recently been in a collision with another vehicle.
The pickup’s front left side was crumpled, and its left headlight was broken. The
pickup’s bumper was crushed into its left front tire, and it had a distinct smell of
burning rubber. Sergeant Turbeville also noted that he found a partially consumed
twelve-pack of beer inside the pickup.
      Abe Partington, an officer with the Waxahachie Police Department, testified
that he assisted Officer Eadler with Appellant’s arrest. Officer Partington noticed
that Appellant’s breath had a strong odor of alcohol, that his eyes were bloodshot,
and that his speech was slurred. Officer Partington was aware of Appellant’s two
previous DWI convictions, and based on those convictions, Officer Partington
realized that a mandatory blood draw was required in this case. Officer Partington
then transported Appellant to Baylor Medical Center. The camera in Officer
Partington’s patrol car recorded Appellant while he was inside the vehicle. On the
recording, Appellant’s speech is clearly slurred, and he admitted that he had
consumed five beers.
      After Officer Partington arrived at Baylor Medical Center, Appellant
submitted to field sobriety tests in the hospital’s parking lot. During the horizontal
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gaze nystagmus test, Appellant displayed the maximum number of intoxication
clues. Appellant also underwent the walk-and-turn test and the one-leg stand test.
At the conclusion of the tests, Officer Partington determined that Appellant was
“very intoxicated.”
         Officer Partington could not recall if Appellant agreed to or refused to
provide a breath sample. On the police dash-cam video, Appellant initially appears
to consent to a breathalyzer test, but later in the video, Appellant refuses to consent
to take a breathalyzer test or consent to provide a blood sample. Officer Partington
advised Appellant of the statutory warnings related to a refusal to provide samples
and filled out form TLE-51.2 The forms do not reflect that Appellant voluntarily
provided a sample of his blood.
        Ryan Smith, a phlebotomist at Baylor Medical Center, testified that she drew
a sample of Appellant’s blood on November 1, 2011. Smith noted that she signed
the affidavit the police gave her at that time. Although the affidavit includes a
section for notarization, that section was never completed. Chris Youngkin, a
forensic scientist with the Texas Department of Public Safety, testified that he
analyzed the blood sample taken from Appellant on November 1, 2011. Youngkin
explained that the sample contained 0.205 grams of alcohol per 100 milliliters of
blood, more than 2.5 times the legal limit.
        The grand jury indicted Appellant with the offense of driving while
intoxicated, third or more offense. Appellant pleaded “not guilty” to the charged
offense, and the case proceeded to trial. At the start of the second day of trial,


        2
         The TLE-51 form is an outdated form that was previously used to document a mandatory blood
draw in accordance with Section 724.012(b)(1) of the Texas Transportation Code. TEX. TRANSP. CODE
ANN. § 724.012(b)(1) (West 2011) (applicable to situations where the person arrested for DWI was
involved in an accident and the arresting officer reasonably believes that, as a direct result of that
accident, another individual has died, has suffered serious bodily injury, or has suffered bodily injury and
been transported to a medical facility for treatment).


                                                     4
Appellant moved to suppress the results of his blood draw based on Officer
Partington’s use of the wrong form and Smith’s incomplete affidavit. The State
argued that the errors in the forms did not negate Officer Partington’s statutory
authority and duty to obtain a sample of Appellant’s blood. The trial court denied
Appellant’s motion.
                                   II. Issues Presented
         Appellant contends in three points of error that the trial court erred (1) when
it excused Juror Eva Sauceda, (2) when it denied his motion to suppress evidence
related to his blood alcohol level, and (3) when it ordered his life sentence in this
case to run consecutively to the life sentence he was on parole for at the time of
trial.
                                 III. Standard of Review
         We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.
2000). We give great deference to the trial court’s determination of the historical
facts that are supported by the record. Guzman v. State, 955 S.W.2d 85, 87 (Tex.
Crim. App. 1997). We also give deference to the trial court’s rulings on mixed
questions of law and fact when those rulings turn on an evaluation of credibility
and demeanor. Id. We review de novo the trial court’s rulings that do not turn on
an evaluation of credibility and demeanor. Id.
                                       IV. Analysis
         A. Excused Juror
         Appellant contends in his first point of error that the trial court erred when it
excused Eva Sauceda from the jury. We hold that Appellant waived this issue on
appeal because he failed to object to the trial court’s decision at the time it was
made. See TEX. R. APP. P. 33.1(a)(1) (stating that “[a]s a prerequisite to presenting
a complaint for appellate review, the record must show that . . . the complaint was
                                             5
made to the trial court by a timely request, objection, or motion”).           Even if
Appellant had preserved this issue, we would hold that the trial court did not abuse
its discretion when it dismissed the juror.
      Article 35.03 of the Texas Code of Criminal Procedure provides that the
court shall hear and determine excuses offered for not serving as a juror and that,
“if the court considers the excuse sufficient,” the court shall discharge the
prospective juror. TEX. CODE CRIM. PROC. ANN. art. 35.03, § 1 (West 2006). The
Court of Criminal Appeals has repeatedly held that a trial court has broad
discretion over the process of selecting a jury and may excuse prospective jurors
for good reasons. Jasper v. State, 61 S.W.3d 413, 423 (Tex. Crim. App. 2001);
Wright v. State, 28 S.W.3d 526, 533 (Tex. Crim. App. 2000); Black v. State, 26
S.W.3d 895, 899 (Tex. Crim. App. 2000). This authority continues even after an
individual juror has been sworn and exists until the entire jury is empaneled and
sworn. Wright, 28 S.W.3d at 533.
      After the jury had been selected but before it had been sworn, Sauceda
informed the court that, around 7:30 or 8:00 p.m. the night before, a young woman
knocked on the front door of Sauceda’s home. The woman asked to speak with
Sauceda, and after Sauceda arrived at the door, the woman said, “[M]y brother
wants me to tell you to make sure you’re there tomorrow.” The woman identified
her brother by name, and Sauceda and her husband realized that the woman was
Appellant’s sister.   Sauceda’s husband immediately told the woman that her
behavior was illegal and asked her to leave.
      When the trial court asked Sauceda if she felt any type of expectation,
concern, fear, pressure, or intimidation, the following exchange took place:

              [SAUCEDA]: Yesterday, I was scared. Today, I woke up with
      a little bit more ease about the situation. But, I mean, I just don’t
      understand how they could, you know, other than him looking over

                                          6
      the shoulder get my address and then - - I don’t know if he was locked
      up, but I assume because he came in with the bailiff now. But - - and
      then relay that to someone that would come to my house. I have two
      children. That to me is - -
             THE COURT: I understand. Ms. Sauceda, we don’t want to
      put you or any juror in this county on any case, whether it’s a criminal
      case, a civil case, a family law matter, in any form of fear or concern
      or intimidation. Do you think this is the kind of case where it might
      be best if we excused you from it?
             [SAUCEDA]: Maybe so. I mean, I don’t mind serving on it if
      that’s what y’all need, but either way, I mean, I don’t know.
              THE COURT: Do you think it might alleviate some of your
      fear, frankly?
            [SAUCEDA]: Yes, but I would like - - I would hope that it
      would be investigated, you know, to what he - - or what happened
      yesterday to someone to get away with - -
            THE COURT: No, I assure you that it will be investigated.
      You mentioned you were scared yesterday in part because you have
      two children, in part because she came to your house and made
      contact, and there’s a belief that she was related to the defendant in
      some form or fashion, correct?
            [SAUCEDA]: Uh-huh.
             THE COURT: And you mentioned you woke up this morning
      feeling a little bit better, but if you tell me you still possess a concern,
      if you possess some fear, I’m going to go ahead and excuse you.
            [SAUCEDA]: Okay.
            THE COURT: You just tell me.
            [SAUCEDA]: Yes.
Sauceda clearly expressed some fear or concern to serving as a juror in this case,
and the trial court reasonably believed that her apprehension could affect the



                                           7
integrity of the trial. We hold that the trial court acted within its discretion when it
released Sauceda from jury service. We overrule Appellant’s first point of error.
        B. Compliance with Chapter 724 of the Texas Transportation Code
        Appellant argues in his second point of error that the trial court erred when it
denied his motion to suppress evidence of his blood alcohol level. Appellant
suggests that Officer Partington’s use of the wrong form and the phlebotomist’s
incomplete affidavit show that the evidence should have been excluded.3
        Section 724.012(b)(3)(B) of the Texas Transportation Code requires a peace
officer to take a blood or breath specimen from a driver arrested for DWI who
refuses to consent to the specimen if, “at the time of the arrest, the officer
possesses or receives reliable information from a credible source that the person”
has, on two or more occasions, been convicted or put on community supervision
for DWI. TRANSP. § 724.012(b)(3)(B). Form THP-51, now used to document a
mandatory blood draw, allows an officer to specify that he is acting in accordance
with Section 724.012(b)(3)(B) of the Texas Transportation Code.
        Officer Partington used form TLE-51, which was an earlier version of form
THP-51. By signing form TLE-51, Officer Partington agreed to the following
statement:
               Acting in my capacity as a peace officer, I have arrested the
        above-named person for an offense under Chapter 49 of the Texas
        Penal Code, such person was the operator of a motor vehicle or
        watercraft, involved in an accident that I reasonably believed occurred
        as a result of the offense. When I arrested the above-named person, I
        reasonably believed that a person had died or would die as a result of
        the accident, and the above-named person has prior to the issuance of
        this order refused my request to voluntarily give an appropriate
        specimen or specimens under the authority of Tex. Transp. Code Ann.
        Ch. 724.

        3
        We note that Appellant does not challenge the constitutionality of the statute that authorized his
blood draw. See TRANSP. § 724.012(b)(3)(B).
                                                    8
At trial, Officer Partington admitted that the form’s statement was factually
incorrect and that he did not read the form before he signed it.
        Although Appellant argues that Officer Partington’s use of form TLE-51
requires exclusion of any evidence related to his blood alcohol level, he cites no
authority for his proposition. We have found no case law that directly addresses
Appellant’s contention, but we note that Chapter 724 does not require
documentation of an officer’s decision to order a mandatory blood draw.
Section 724.031 requires a defendant who refuses to submit to a blood draw to sign
a written statement indicating that the request was made, that warnings were given,
and that the defendant refused to provide a blood specimen. Section 724.032
requires the police officer to file an accompanying written refusal report. See
TRANSP. ch. 724 (West 2011 & Supp. 2014); see also TRANSP. §§ 724.031,
724.032.
        Officer Partington testified that, at the time of Appellant’s arrest, he was
aware of Appellant’s previous DWI convictions and aware that those convictions
authorized a mandatory blood draw. 4 Officer Partington also stated that, upon
Appellant’s refusal to provide a blood or breath sample, 5 he gave Appellant the
warnings contained in Section 724.015. See TRANSP. § 724.015. According to
Officer Partington, he gave the warnings to Appellant while they were inside the
hospital, and after Appellant received the warnings, Appellant voluntarily provided
the blood sample.


        4
        Additional evidence presented at trial confirmed that Appellant has been convicted of the offense
of DWI on three prior occasions. Appellant does not challenge the existence of the convictions on appeal.
        5
          The State argues that Appellant voluntarily provided a blood sample in this case. The video
from Officer Partington’s patrol car shows that Appellant originally consented to provide a breath sample
but later withdrew that consent and refused to voluntarily provide a breath or blood sample. As of the
time that Appellant and the officer exited the car, the blood draw was being referred to as a mandatory
blood draw.
                                                   9
      We hold that any error caused by Officer Partington’s use of the TLE-51
form was cured by the officer’s testimony. We also reject Appellant’s claim that
Smith’s affidavit was required to be notarized in order for evidence of his blood
alcohol level to be admissible. Appellant has cited no authority for his position,
and we have found none. We hold that the affidavit’s lack of notarization did not
require the exclusion of evidence relating to Appellant’s blood alcohol level.
      Furthermore, even if we were to hold that the trial court erred in admitting
the evidence, which we do not, the State adduced additional evidence that clearly
established Appellant’s intoxication. A vehicle similar to Appellant’s was seen
leaving the scene of a hit-and-run accident, and Appellant’s vehicle was quickly
located in the immediate area. Appellant’s vehicle had significant damage that
indicated a recent collision, and an open twelve-pack of beer was found inside the
vehicle.
      At the time of Appellant’s arrest, several officers noticed that Appellant
smelled strongly of alcohol, that his speech was slurred, and that his balance was
unsteady. On the video taken from Officer Partington’s patrol vehicle, Appellant
admits to drinking five beers, and his speech is clearly slurred. Finally, Appellant
showed signs of intoxication on all three standardized field sobriety tests. In light
of the overwhelming evidence that Appellant was driving while intoxicated on the
night of his arrest, any error in the admission of evidence related to his blood
alcohol level did not influence the jury or had but a slight effect and should be
disregarded. See TEX. R. APP. P. 44.2.
       We hold that the trial court did not err when it denied Appellant’s motion
to suppress evidence of his blood alcohol level given that any errors in the
documentation of Appellant’s blood draw were cured by the testimony of those
involved. We overrule Appellant’s second point of error.


                                         10
      C. Consecutive Sentences
      Appellant argues in his final point of error that the trial court erred when it
ordered his life sentence in this case to run consecutively to the life sentence he
was on parole for at the time of trial. Appellant claims that the punishment is cruel
and unusual because the trial court decided to stack his sentences without any
argument or discussion. We find that Appellant has waived this issue on appeal by
failing to object to his sentence at the time it was pronounced. See TEX. R.
APP. P. 33.1(a); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th
Dist.] 2001, pet. ref’d) (“The constitutional right to be free from cruel and unusual
punishment may be waived.”).
      Even if Appellant had preserved error, we would find that his sentence was
within the trial court’s authority.   Stacking otherwise valid and proportionate
sentences for separate crimes does not make them disproportionate. CRIM. PROC.
art. 42.08(a) (stating that, when the same defendant has been convicted in two or
more cases, “in the discretion of the court, the judgment in the second and
subsequent convictions may either be that the sentence imposed or suspended shall
begin when the judgment and the sentence imposed or suspended in the preceding
conviction has ceased to operate, or that the sentence imposed or suspended shall
run concurrently with the other case or cases”); Smith v. State, 575 S.W.2d 41, 41
(Tex. Crim. App. 1979) (“Normally, the trial judge has absolute discretion to
cumulate sentences.”). Moreover, the act of cumulating sentences so that they run
consecutively has been held not to constitute cruel and unusual punishment. See,
e.g., Stevens v. State, 667 S.W.2d 534, 538 (Tex. Crim. App. 1984); Baird v. State,
455 S.W.2d 259 (Tex. Crim. App. 1970); Quintana v. State, 777 S.W.2d 474, 480
(Tex. App.—Corpus Christi 1989, pet. ref’d).


                                         11
      We hold that the trial court did not err when it ordered Appellant’s life
sentence in this case to run consecutively to the life sentence he was on parole for
at the time of trial, as the action was within the court’s discretion. We also reject
Appellant’s claim that his punishment is cruel and unusual because the trial court
denied him the opportunity to present argument or discussion on the matter. A trial
court is not required to explain its decision to impose a sentence that is within the
statutory guidelines and is supported by the evidence. Furthermore, Appellant was
not entitled to argue against the court’s decision after it was announced. And,
although he was free to file a motion for new trial urging such a complaint, he
failed to do so. We overrule Appellant’s final point of error.
                               V. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                           MIKE WILLSON
                                                           JUSTICE


October 9, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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