


 
 

 



NUMBER 13-07-302-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

JOSE GUADALUPE 								 Appellant,
VASQUEZ GARCES, 	                  

v.


THE STATE OF TEXAS,						           Appellee.
 

On appeal from the 398th District Court 
of Hidalgo County, Texas
 

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Vela


 
	A jury convicted appellant, Jose Guadalupe Garces, of intoxication manslaughter (1)
and assessed his punishment at twelve years' imprisonment.  By two issues, appellant
argues the trial court erred in admitting:  (1) his blood results into evidence; and (2) his
drug-test results into evidence.  We affirm.
	Appellant does not challenge the legal or factual sufficiency of the evidence to
sustain his conviction.  As this is a memorandum opinion, and the parties are familiar with
the facts, we will not recite them here except as necessary to explain the Court's decision
and the basic reasons for it.  See Tex. R. App. P. 47.4.
A. Admission of Appellant's Blood Results
	In his first issue, appellant contends the trial court erred in admitting his blood
results into evidence because his blood was taken in violation of section 724.012 of the
Texas Transportation Code.  See Tex. Transp. Code Ann. § 724.012 (Vernon Supp.
2008).
1. Standard of Review
	A trial court's ruling admitting or excluding evidence is reviewed on appeal for abuse
of discretion.  Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008).  We will
uphold the trial court's ruling if the record reasonably supports the ruling, and the ruling is
correct under any theory of law applicable to the case.  Id. at 418.  The appellate court
must review the trial court's ruling in light of what was before the trial court at the time it
made the ruling.  Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
2. Can Law-Enforcement Officers Take a Specimen of a Motorist's Blood Following His or
Her Involvement in an Auto Accident?

	Generally, law-enforcement officers may not take a specimen of a suspect's blood
without that person's consent.  Tex. Transp. Code Ann. § 724.013 (Vernon 1999).  There
are, however, exceptions to this general prohibition.  One exception arises when the
suspect has been involved in a motor-vehicle accident in which another person has died
or might die.  More specifically, the law provides:
	(a) One or more specimens of a person's breath or blood may be taken if the
person is arrested and at the request of a peace officer having reasonable
grounds to believe the person:

		(1) while intoxicated was operating a motor vehicle in a public place,
or a watercraft; or

		(2) was in violation of Section 106.041, Alcoholic Beverage Code.

			(b) A peace officer shall require the taking of a specimen of the
person's breath or blood if:

		(1) the officer arrests the person for an offense under Chapter 49,
Penal Code, involving the operation of a motor vehicle or a watercraft;

		(2) the person was the operator of a motor vehicle or a watercraft
involved in an accident that the officer reasonably believes occurred
as a result of the offense;

		(3) at the time of the arrest the officer reasonably believes that as a
direct result of the accident:

			(A) any individual has died or will die; or

			(B) an individual other than the person has suffered serious
bodily injury; and

		(4) the person refuses the officer's request to submit to the taking of
a specimen voluntarily.

			(c) The peace officer shall designate the type of specimen to
be taken.

			(d) In this section, "serious bodily injury" has the meaning
assigned by Section 1.07, Penal Code.  
Tex. Transp. Code Ann. § 724.012 (Vernon Supp. 2008).
	The appellate record in this case shows that during the guilt-innocence phase, the
prosecutor offered into evidence "the contents of State's exhibit 7."  State's exhibit 7 is the
blood vial containing appellant's blood.  Defense counsel objected to State's exhibit 7 on
the basis that "[t]he chain of custody ha[d] not been properly established."  The trial court
overruled the objection and admitted the exhibit into evidence.  Vanessa Walters, a
forensic scientist for the Texas Department of Public Safety, identified State's exhibit 7
because the vial showed her unique laboratory number, her initials, and the date of the
analysis.  When she received the vial, the box it arrived in was sealed, and the blood tube
was sealed.  Walters analyzed the contents of the vial to determine its alcohol content and
testified that the results "were .19 grams of alcohol per 100 milliliters."  She further testified
that the legal limit for blood-alcohol content in Texas is "0.08 grams of alcohol per 100
milliliters."
	We note that when the prosecutor offered State's exhibit 7 into evidence, defense
counsel did not object on the basis that appellant's blood was taken in violation of section
724.012 of the transportation code.  A "court of appeals may not overturn a trial court's
decision on a legal theory not presented to the trial court."  Vasquez v. State, 225 S.W.3d
541, 543 (Tex. Crim. App. 2007); see Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App.
2002); see also Tex. R. App. P. 33.1(a).  Because appellant did not present this argument
to the trial court, he has failed to preserve it for review.
	Even if the trial court erred in admitting the evidence, any error was cured.  David
Baker, M.D., an emergency medical doctor at Knapp Medical Center in Weslaco, Texas,
examined appellant in the emergency room.  Dr. Baker testified that appellant was brought
to the emergency room following a motor-vehicle accident. (2)  Appellant reported having
neck pain, and he had an injury to his forehead.  When the prosecutor asked Dr. Baker,
"[W]hat information is necessary in order for you to make a medical diagnosis with patients
dealing--having head trauma,?" he replied, "Well, you need to know, are they on
medications, are they on drugs, is there alcohol involved, do they have a past medical
history of central nervous system injury, are they from the seizures, things like that."  When
the prosecutor asked Dr. Baker whether he was able to determine if there was alcohol in
appellant's blood, he testified, without objection, that "[t]he lab reported a blood level" of
".21."
	In Valle v. State, the court of criminal appeals stated that "[a]n error in the admission
of evidence is cured where the same evidence comes in elsewhere without objection."  109
S.W.3d 500, 509 (Tex. Crim. App. 2003) (footnotes omitted); see Willis v. State, 785
S.W.2d 378, 383 (Tex. Crim. App. 1989) (noting that admission of inadmissible evidence
is rendered harmless if the same or similar evidence is introduced without objection
elsewhere during trial).  Thus, any error in the admission of this evidence was cured
because the same or similar evidence came in elsewhere without objection.  Issue one is
overruled.
B. Admission of Appellant's Drug Test Results

	In his second issue, appellant contends the trial court erred in admitting his drug test
results because the laboratory that conducted the test was not a certified forensic
laboratory.  Specifically, appellant argues that his drug screen, which tested positive for
cocaine, was conducted at a hospital laboratory, which was not certified at the time his
drug screen was performed.

1. Applicable Law
	Article 38.35 of the code of criminal procedure provides, in relevant part, that:
	Except as provided by Subsection (e), a forensic analysis of physical
evidence under this article and expert testimony relating to the evidence are
not admissible in a criminal action if, at the time of the analysis, the crime
laboratory conducting the analysis was not accredited by the director under
Section 411.0205, Government Code.

Tex. Code Crim. Proc. Ann. art. 38.35(d)(1) (Vernon Supp. 2008).
2. Analysis 
	During the guilt-innocence phase, the prosecutor questioned Dr. Baker as follows: 
	Prosecutor:	And what did--what type of lab work was done on this--on this
patient, Jose Garces [appellant]?

	Defense	Judge, I'm going to object under article 38.35 as--well, as
	Counsel:	this--as to any further questions on this laboratory because it
isn't certified by the State.

The trial court overruled the objection, and the prosecutor continued questioning Dr. Baker
as follows:
	Prosecutor:	What type--what type of lab work was done on this patient
[appellant]?

	Dr. Baker:  	Knapp Medical Center has as its protocol a trauma--what's
called a trauma protocol, which are labs that are required
in--in traumas, such as motor vehicle accidents, and it's
what's called a CBC, which is a complete clinical blood count,
a full chemistry count, urinalysis test for drugs of abuse,
alcohol and appropriate other tests.

	Prosecutor:  	Is your laboratory, does it undergo certification by the State?

	Dr. Baker:  	I--I cannot answer that question.  I don't know.

	Prosecutor:  	You cannot?

	Dr. Baker:  	Correct.  I cannot answer.  I don't know.  

	Prosecutor:  	Okay.

	Dr. Baker:  	I can only assume, but I don't know.

	Prosecutor:  	Okay.

	Defense	Judge, I'm going to object to any assumptions.  And it's
	Counsel:	speculative, Your Honor.

The trial court sustained the objection.  Afterwards, the prosecutor asked Dr. Baker:
	Prosecutor: 	Dr. Baker, do your medical diagnoses, are they based in part
on--based on laboratory reports or lab work done at Knapp
Medical Center?

	Dr. Baker:  	Yes, ma'am.

	Prosecutor:  	And in this particular case, was there urine--a urinalysis done?

	Dr. Baker:  	Yes, ma'am.  There was a urinalysis and a urine drug test.

		* * * *

	Prosecutor: 	And in this case what was the result of the drug screen?

	Dr. Baker:  	The drug screen was positive for cocaine only.

Defense counsel did not object to this testimony.
	To preserve a complaint for appellate review, a party must make a specific and
timely objection, motion, or request to the trial court.  Neal v. State, 256 S.W.3d 264, 279
(Tex. Crim. App. 2008).  "The complaint is timely only if the party makes the complaint 'as
soon as the grounds for it become apparent.'"  Id.  Here, the grounds for the complaint
became apparent when Dr. Baker testified that appellant's drug screen tested positive for
cocaine.  However, defense counsel did not object to the complained-of testimony, and he
did not obtain a running objection.  Accordingly, the issue is not preserved for review.  See
Tex. R. App. P. 33.1(a); see also Martinez v. State, 91 S.W.3d 331, 336-37 (Tex. Crim.
App. 2002) (holding that party forfeits an argument by failing to bring it to the trial court's
attention); Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) ("A defendant
must make a timely objection in order to preserve an error in the admission of evidence."). 
Issue two is overruled.
	We affirm the trial court's judgment.

 


							ROSE VELA	
							Justice


Do not publish.
Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and
filed this 18th day of December, 2008.
1. See Tex. Penal Code Ann. § 49.08 (Vernon Supp. 2008).
2. This was the accident that led to appellant's indictment for intoxication manslaughter in this case.
