                                                                                        PD-1125-15
                                                                      COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN, TEXAS
September 3, 2015
                                                                      Transmitted 9/2/2015 10:00:00 AM
                                                                         Accepted 9/3/2015 2:07:29 PM
                                                                                        ABEL ACOSTA
                                  NO._________________
                                                                                                CLERK

                                         IN THE

                            COURT OF CRIMINAL APPEALS

                                        OF TEXAS



                              GEOFFREY KEVIN PITCOCK
                                     Petitioner

                                            v.

                                 THE STATE OF TEXAS
                                      Respondent



                       Petition is in Cause No. 1170491 from County
                    Criminal Court No. Three of Tarrant County, Texas,
                           and Cause No. 11-13-00213-CR in the
                    Court of Appeals for the Eleventh District of Texas



                      PETITION FOR DISCRETIONARY REVIEW



                                                 Abe Factor
                                                 TBN: 06768500
                                                 Factor, Campbell & Collins
                                                 Attorneys at Law
                                                 5719 Airport Freeway
                                                 Phone: (817) 222-3333
                                                 Fax: (817) 222-3330
                                                 Email: lawfactor@yahoo.com
                                                 Attorneys for Petitioner
                                                 Geoffrey Kevin Pitcock
              IDENTITY OF PARTIES AND COUNSEL

The following is a list of all parties to the trial court’s final judgment,
and the names and addresses of all trial and appellate counsel.

Trial Court Judge:                Hon. Billy Mills, judge, County
                                  Criminal Court No. 3, Tarrant County

Petitioner:                       Geoffrey Kevin Pitcock

Petitioner’s Trial Counsel:       Abe Factor
                                  TBN: 06768500
                                  Factor, Campbell & Collins
                                  Attorneys at Law
                                  5719 Airport Freeway
                                  Fort Worth, Texas 76117

Petitioner’s Counsel              Abe Factor
on Appeal:                        TBN: 06768500
                                  Factor, Campbell & Collins
                                  Attorneys at Law
                                  5719 Airport Freeway
                                  Fort Worth, Texas 76117

                                         –and–

                                  Tim Robinson
                                  TBN: 24069040
                                  Robinson & Kardonsky, PC
                                  210 N. Park Blvd. #112
                                  Grapevine, TX 76051

Appellee:                         The State of Texas

Appellee’s Trial Counsel:         Nathan Martin
                                  TBN: 24085118
                                  District Attorney’s Office
                                  401 W. Belknap
                                  Fort Worth, Texas 76196




                                    ii
Appellee’s Counsel   Debra Windsor
on Appeal:           TBN: 00788692
                     Colby Rideout
                     TBN: 24073106
                     District Attorney’s Office
                     401 W. Belknap Street
                     Fort Worth, Texas 76196




                       iii
                                   TABLE OF CONTENTS
                                                                                                           page

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vi

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . .1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 1

GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

I.       The Court of Appeals erred when it held that the trial court’s
         admission of the blood test report over hearsay objection was
         harmless. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

         A.        Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         B.        The Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

         C.        Harm Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


                                                       iv
                          INDEX OF AUTHORITIES

Cases                                                                               page

Bagheri v. State,
      119 S.W.3d 755 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . 7, 8

Johnson v. State,
      967 S.W.2d 410 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . 5

Johnson v. State,
      43 S.W.3d 1 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . . . . 5, 6, 8

King v. State,
      953 S.W.2d 266 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . 5

Kotteakos v. United States,
      328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). . . . . . . . . .5, 6, 8

Motilla v. State,
       78 S.W.3d 352 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . 5, 6-7, 8

O’Neal v. McAninch,
     513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). . . . . . . .5-6, 8

Pitcock v. State,
       11-13-00213-CR, 2015 WL 4722213 (Tex. App.–
              Eastland, July 30, 2015, no. pet. h.)
                    (mem. op., not designated for publication). . .1 , 4, 7

Webb v. State,
      36 S.W.3d 164 (Tex. App.-
             Houston [14th Dist.] 2000, pet. ref’d). . . . . . . . . . . . . . . 6, 8

Statutes

T EX. P ENAL C ODE § 49.01(2)(A) (West 2011). . . . . . . . . . . . . . . . . . . . . . .7

T EX. P ENAL C ODE § 49.01(2)(B) (West 2011). . . . . . . . . . . . . . . . . . . . . . . 7

                                            v
Court Rules

T EX. R. A PP. P. 44.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

T EX. R. A PP. P. 44.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5




                                                     vi
         STATEMENT REGARDING ORAL ARGUMENT

      Because Petitioner does not believe that oral argument will

materially assist the Court in its evaluation of matters raised by this

pleading, Petitioner respectfully waives oral argument.

                    STATEMENT OF THE CASE

      Geoffrey Kevin Pitcock (“Mr. Pitcock” or “Petitioner”) was

charged with driving while intoxicated on August 26, 2009. (C.R. 6).

Mr. Pitcock pled not guilty and a trial on the merits was had on June 18,

2013, in County Criminal Court Number Three of Tarrant County,

Texas before the Honorable Billy Mills. (CR 6.7.). On June 19, 2013,

Appellant was found guilty and sentenced to 60 days in the Tarrant

County Jail, probated for 15 months and a $1000 fine. (CR 67). A timely

notice of appeal was filed on June 19, 2013. (CR 51).

            STATEMENT OF PROCEDURAL HISTORY

      The opinion of the Eleventh Court of Appeals affirming Mr.

Pitcock’s conviction was handed down on July 30, 2015. See Pitcock v.

State, 11-13-00213-CR, 2015 WL 4722213 (Tex. App.–Eastland, July 30,

2015, no. pet. h.) (mem. op., not designated for publication).




                                    1
                     GROUNDS FOR REVIEW

                    GROUND FOR REVIEW ONE

I.    The Court of Appeals erred when it held that the trial court’s
      admission of the blood test report over hearsay objection was
      harmless.

                     REASONS FOR REVIEW

1.    The Eleventh Court of Appeals has decided an important

      question of state or federal law in a way that conflicts with the

      applicable decisions of the Court of Criminal Appeals or the

      Supreme Court of the United States.

2.    The decision of the Eleventh Court of Appeals is in conflict with

      another court of appeals’ decision on the same issue.

                            ARGUMENT

             GROUND FOR REVIEW ONE (Restated)

I.    The Court of Appeals erred when it held that the trial court’s
      admission of the blood test report over hearsay objection was
      harmless.

      A.    Facts

      In the early morning hours of August 29, 2009, Mr. Pitcock was

driving his 2009 Yukon eastbound on Fifth Street in downtown Fort

Worth. (IV R.R. 69). At the same time, Officer Oscar Flores was on bike

patrol at the corner of Fifth Street and Houston Street. (III R.R. 14).

                                  2
Officer Flores would later testify that he saw a 2009 Yukon not stop

completely as it turned right at the red light onto southbound Houston

Street. (III R.R. 15). Officer Flores initiated a traffic stop. (III R.R. 18).

Officer Flores testified that he believed Mr. Pitcock had watery,

bloodshot eyes and noticed a smell of alcohol. (III R.R. 19). Based on

this, he contacted DWI enforcement. (III R.R. 21). Officer Shiderly

arrived on scene. (III R.R. 47). Officer Shiderly requested that Mr.

Pitcock perform a field sobriety test, (III R.R. 51) which Mr. Pitcock

refused. (III R.R. 52). Officer Shiderly then arrested Mr. Pitcock on

suspicion of driving while intoxicated. (III R.R. 53).

       At the police station, Mr. Pitcock refused Officer Shiderly’s

request for a specimen of Mr. Pitcock’s blood. (III R.R. 63). Officer

Shiderly then obtained a warrant for a blood draw. (III R.R. 64).

       At trial, the State called Jason Allison, a blood analyst from the

Fort Worth Crime Lab. (IV R.R. 35). Mr. Allison analyzed the blood

sample taken from the Appellant. (IV R.R. 37). Mr. Allison testified he

received the blood samples from the property technician but did not

identify a third signature on the chain of custody sheet. (IV R.R. 40).

The trial court admitted the blood sample test report over Mr.



                                      3
Pitcock’s objection to the blood sample’s chain of custody. (IV R.R. 41).

The trial court then admitted Mr. Allison’s lab report documenting the

blood test results, over Mr. Pitcock’s hearsay and confrontation

objections. (IV R.R. 50-51).

      After deliberation, the jury returned a verdict of guilty. (IV R.R.

110). After brief arguments, the Court set punishment at 60 days in jail

probated for 15 months and a $1000 fine. (IV R.R. 112).

      B.     The Opinion Below

      Apparently assuming error, the Eleventh Court of Appeals

addressed only whether the admission of the blood test result was

harmful under the non-constitutional standard of Rule 44.2(b) of the

Texas Rules of Appellate Procedure. See Pitcock, 2015 WL 4722213 at *4.

(citing T EX. R. A PP. P. 44.2(b)). However, the court then went on to hold

that the trial court’s erroneous admission of the blood test report was

harmless. Id. at *5.

      C.     Harm Analysis

      Once a reviewing court determines that the trial court erred in

the admission of evidence, the Court must determine whether the

accused was harmed by the error. See T EX. R. A PP. P. 44.2. Error under

the rules of evidence in the admission of evidence normally constitutes

                                     4
nonconstitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.

Crim. App. 1998). A reviewing court is to disregard a nonconstitutional

error that does not affect the substantial rights of the defendant. T EX. R.

A PP. P. 44.2(b). A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury’s

verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing

Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed.

1557 (1946)). In Kotteakos, the United States Supreme Court explained:

      [I]f one cannot say, with fair assurance, after pondering all that
      happened without stripping the erroneous action from the
      whole, that the judgment was not substantially swayed by the
      error, it is impossible to conclude that substantial rights were not
      affected. The inquiry cannot be merely whether there was
      enough to support the result, apart from the phase affected by
      the error. It is rather, even so, whether the error itself had
      substantial influence. If so, or if one is left in grave doubt, the
      conviction cannot stand.

328 U.S. at 765, 66 S.Ct. at 1248 (emphasis added); see Motilla v. State, 78

S.W.3d 352, 355–58 (Tex. Crim. App. 2002); Johnson v. State, 43 S.W.3d

1, 4 (Tex. Crim. App. 2001). The Supreme Court has defined “grave

doubt” to mean “in the judge’s mind, the matter is so evenly balanced

that he feels himself in virtual equipoise as to the harmlessness of the

error.” O’Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 994, 130



                                     5
L.Ed.2d 947 (1995); Webb v. State, 36 S.W.3d 164, 182–83 (Tex.

App.-Houston [14th Dist.] 2000, pet. ref’d). If the reviewing court is

unsure whether the error affected the outcome, the court should treat

the error as harmful, i.e., as having a substantial and injurious effect or

influence in determining the jury’s verdict. O’Neal, 513 U.S. at 435, 115

S.Ct. at 994; Webb, 36 S.W.3d at 182–83.

      The defendant is not required to prove harm from an error.

Johnson, 43 S.W.3d at 4. Indeed, there ordinarily is no way to prove

“actual” harm. Id. It is instead the duty of the reviewing court to assess

harm from the context of the error. Id. Thus, the proper inquiry is

whether the trial court’s error in allowing the State to admit the blood

test report substantially swayed or influenced the jury’s verdict, or

whether the appellate court is left in grave doubt as to whether this

erroneously admitted evidence substantially swayed or influenced the

jury’s verdict. Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248; Johnson, 43

S.W.3d at 4. In making this determination, an appellate court must

consider the trial court’s erroneous admission of the report in the

context of the entire record and not just whether there was sufficient or

overwhelming evidence of the defendant’s guilt. Motilla, 78 S.W.3d at



                                     6
355–56.

       The court of appeals also held that Mr. Pitcock himself “cured”

any error in the admission of the blood test report when on cross

examination the prosecutor asked, “[w]hat did those blood results

come back on you?” To which Mr. Pitcock answered, without objection

from his counsel, “[t]he sheet says .15.” See Pitcock, 2015 WL 4722213 at

*5.   The court of appeals is mistaken, however, as Mr. Pitcock’s

response sets forth only the alleged result of the blood sample analysis,

and does not in any way address the scientific lab report compiled by

the lab technician to substantiate that alleged result.

       Here, the erroneously admitted breath tests lab report authorized

the jury to convict Mr. Pitcock solely on the results of those tests. Mr.

Pitcock was charged under both the “per se” and “impairment”

theories of intoxication. See T EX. P ENAL C ODE § 49.01(2)(A) & (B) (West

2011). The Court of Criminal Appeals has declared that the two

theories are merely alternate means of proving intoxication. Bagheri v.

State, 119 S.W.3d 755, 762 (Tex. Crim. App. 2003). The Court further

noted that where a general verdict is returned in a DWI prosecution, it

is impossible to determine which theory the jury convicted on. Id. at



                                    7
763. Though the contested issue in Bagheri was the admissibility of

“retrograde extrapolation” evidence in conjunction with breath test

results, the portion of the opinion detailing the harm associated with

improperly admitted “per se” evidence and its relationship to an

“impairment” theory of conviction provides controlling guidance. The

Court identified the main concern in such a situation when it stated

that “[t]he issue [is] whether the erroneously admitted testimony might

have prejudiced the jury’s consideration of the other evidence or

substantially affected their deliberations.” Id. at 763. At the very least,

the court of appeals should have been unsure whether the error

affected the outcome here. See O’Neal, 513 U.S. at 435, 115 S.Ct. at 994;

Webb, 36 S.W.3d at 182–83. The trial court’s error was harmful.

Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248, Motilla, 78 S.W.3d at 355–58;

Johnson, 43 S.W.3d at 4.

                           PRAYER FOR RELIEF

      WHEREFORE,            PREMISES       CONSIDERED,          Petitioner

respectfully prays that this Court grant discretionary review and allow

each party to fully brief and argue the issues before the Court of

Criminal Appeals, and that upon reviewing the judgment entered



                                     8
below, that this Court reverse the opinion of the Second Court of

Appeals and reverse the conviction entered below.

                                        Respectfully submitted,

                                        /s/Abe Factor
                                        Abe Factor
                                        TBN: 06768500
                                        Factor, Campbell & Collins
                                        Attorneys at Law
                                        5719 Airport Freeway
                                        Fort Worth, Texas 76117
                                        Phone: (817) 222-3333
                                        Fax: (817) 222-3330
                                        Email: lawfactor@yahoo.com
                                        Attorney for Petitioner
                                        Geoffrey Kevin Pitcock

                 CERTIFICATE OF COMPLIANCE

       I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
1,614.

                                        /s/Abe Factor
                                        Abe Factor

                     CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the State’s Prosecuting
Attorney and the Tarrant County District Attorney by a manner
compliant with the Texas Rules of Appellate Procedure, on this 2nd
day of September , 2015.

                                        /s/Abe Factor
                                        Abe Factor


                                    9
                          APPENDIX

1.   Opinion of the Eleventh Court of Appeals.




                               10
Opinion filed July 30, 2015




                                              In The


           Eleventh Court of Appeals
                                            __________

                                   No. 11-13-00213-CR
                                           __________

                  GEOFFREY KEVIN PITCOCK, Appellant
                                                 V.
                        THE STATE OF TEXAS, Appellee

                 On Appeal from the County Criminal Court No. 3
                                   Tarrant County, Texas
                              Trial Court Cause No. 1170491

                         MEMORANDUM OPINION
        The jury convicted Geoffrey Kevin Pitcock of driving while intoxicated. The
trial court assessed Appellant’s punishment at confinement in jail for sixty days and
a $1,000 fine. The trial court suspended the imposition of Appellant’s sentence and
placed him on community supervision for a term of fifteen months. Appellant filed
a timely notice of appeal and raised three issues for review.1 We affirm.



       1
        Under a docket equalization order, the Supreme Court of Texas transferred this appeal from the
Second Court of Appeals to the Eleventh Court of Appeals.
      Corporal Oscar Flores with the Fort Worth Police Department testified that on
the date of the offense, at approximately 2:14 a.m., he was on bike patrol in
downtown Fort Worth, and he saw Appellant fail to stop at a red traffic light prior
to making a right turn at an intersection. Pedestrians were in the crosswalk at the
intersection. When Corporal Flores saw Appellant run the red light, he initiated a
traffic stop. While Corporal Flores interacted with Appellant, he saw several signs
of intoxication including watery, bloodshot eyes; slurred speech; and a strong smell
of alcohol. Corporal Flores requested the assistance of an officer from a DWI unit,
and Officer James Shiderly came to the scene. Upon his arrival, Officer Shiderly
took control of the investigation, and after Appellant refused to perform field
sobriety tests, Officer Shiderly took him to jail.
      In Appellant’s first issue, he argues that the trial court erred when it admitted
what Appellant claims to be certain speculative testimony of Officer Shiderly. In
his second issue, Appellant complains that the trial court erred when it admitted the
blood kit because the State did not properly prove the chain of custody. Finally, in
Appellant’s third issue, he argues that the lab report admitted into evidence was
inadmissible hearsay.
      Each of Appellant’s issues concern the admissibility of evidence. We review
a trial court’s decision to admit or exclude evidence under an abuse of discretion
standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op.
on reh’g). We will reverse a trial court’s ruling only if it is outside the “zone of
reasonable disagreement.” Id.
      We will first address Appellant’s first issue in which he argues that the trial
court erred when it admitted speculative testimony from Officer Shiderly. In
Officer Shiderly’s testimony, he stated that in response to his request for Appellant
to complete field sobriety tests, Appellant told him to “take me to jail for what I did.”
During the State’s direct examination of Officer Shiderly, the prosecutor asked
                                           2
Officer Shiderly, “So when he said ‘take me to jail for what I did,’ what did that
mean to you?” (emphasis added). Appellant’s counsel objected and argued that the
question called for speculation. The trial court overruled the objection and permitted
Officer Shiderly to answer. Officer Shiderly answered, “It would make me believe
that the individual was committing another crime other than just the minor traffic
violation.” (emphasis added).         The prosecutor tailored the question to
Officer Shiderly so that the answer was limited to what Appellant’s statement meant
to Officer Shiderly.    Nevertheless, Appellant argues that the question invited
testimony outside the officer’s personal knowledge—only Appellant could know
what he truly meant.
      Texas Rules of Evidence 602 and 701 apply when a party objects on the
grounds that testimony is speculative. See TEX. R. EVID. 602, 701; Solomon v.
State, 49 S.W.3d 356, 364–65 (Tex. Crim. App. 2001); Turro v. State, 950 S.W.2d
390, 403 (Tex. App.—Fort Worth 1997, pet. ref’d). Rule 602 requires that a witness
have personal knowledge of the matter on which he or she is testifying. TEX. R.
EVID. 602. Rule 701 concerns lay witness opinion testimony. TEX. R. EVID. 701.
The first prong of Rule 701 requires that a witness rationally base his or her
testimony on what he or she perceives. See TEX. R. EVID. 602, 701; Solomon, 49
S.W.3d at 364–65; see also Fairow v. State, 943 S.W.2d 895, 897 (Tex. Crim. App.
1997). An opinion is rationally based on a witness’s perception if “a reasonable
person could draw [the same opinion] under the circumstances.” Fairow, 943
S.W.2d at 900. The second prong of Rule 701 requires that the witness’s opinion be
helpful to the trier of fact. See TEX. R. EVID. 602, 701; Solomon, 49 S.W.3d at 364–
65.
      An individual cannot have personal knowledge of another’s mental state.
Solomon, 49 S.W.3d at 364. But it is quite another thing if the testimony is an
“interpretation of the witness’s objective perception of events (i.e. his own senses or
                                           3
experience).” Fairow, 943 S.W.2d at 899. A person may possess “personal
knowledge of facts from which an opinion regarding mental state may be drawn.”
Id. Officer Shiderly had the opportunity to watch and interact with Appellant and
was also aware of the background of the traffic stop. As a result, through what he
perceived, he could testify as to what he believed Appellant meant by the statement.
See TEX. R. EVID. 602, 701; Solomon, 49 S.W.3d at 364; Fairow, 943 S.W.2d at
898–99. Further, because a reasonable person could believe that Appellant meant
that he had committed more than a minor traffic violation by telling the officer to
take him to jail for what he did, Officer Shiderly’s opinion was rationally based on
what he perceived. See Fairow, 943 S.W.2d at 898–900.
       Next, under Rule 701, the witness’s testimony must be helpful to the jury.
Solomon, 49 S.W.3d at 364. Testimony is helpful when it either assists the jury to
understand the witness’s testimony or to understand a fact issue. Fairow, 943
S.W.2d at 900. The decision regarding admissibility is committed to the sound
discretion of the trial court. Id. It is likely that the trial court found that Officer
Shiderly’s testimony helped the jury understand why he did what he did and why
Appellant acted as he did. Officer Shiderly’s testimony meets both prongs of Rule
701. See TEX. R. EVID. 701; Solomon, 49 S.W.3d at 364; Fairow, 943 S.W.2d at
900.
       Further, a witness may testify to what he or she believes. See Trapp v. State,
Nos. 2-09-382-CR & 2-09-383-CR, 2010 WL 3834595, at *2 (Tex. App.—Fort
Worth Sept. 30, 2010, pet. ref’d) (mem. op., not designated for publication) (“The
question that the witness answered asked only what the witness believed; it did not
ask her to speculate about what others believe.”). In a question very similar to the
question before this court, the Fourteenth Court of Appeals permitted such
testimony. Jones v. State, No. 14-06-00307-CR, 2007 WL 1086990, at *8 (Tex.
App.—Houston [14th Dist.] Apr. 12, 2007, no pet.) (mem. op., not designated for
                                          4
publication). In Jones, the prosecutor asked the witness what he believed the
defendant meant by a statement made to the witness. Id. Defense counsel objected
and claimed that any answer to the question would be based on speculation. Id. The
court held that asking the witness his opinion as to what the defendant meant was
not speculation because it met both prongs of Rule 701. Id. Similarly, because here
neither the question that the prosecutor asked Officer Shiderly nor the answer
Officer Shiderly provided called for or resulted in speculative testimony, the trial
court did not err when it allowed this testimony. We cannot say that the trial court
abused its discretion when it admitted Officer Shiderly’s testimony. We overrule
Appellant’s first issue.
      Over Appellant’s objection, the trial court admitted into evidence three vials
of Appellant’s blood. Nurse Mary Jozwiak took the blood from Appellant on the
morning of the arrest. Jason Allison, a forensic scientist, analyzed Appellant’s blood
sample for alcohol content. In Appellant’s second issue, he argues that the trial court
improperly admitted that evidence because the State failed to provide the proper
foundation for chain of custody.
      Before the results of a blood test may properly be admitted into evidence, the
State must demonstrate a proper chain of custody of the sample drawn from the
accused and later tested. See TEX. R. EVID. 901; Durrett v. State, 36 S.W.3d 205,
208 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Rule 901(a) provides that
“[t]o satisfy the requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is what
the proponent claims it is.” TEX. R. EVID. 901(a).
      Appellant argues that the State did not prove that the chain of custody was
proper because Allison, whose initials appeared on the sample, failed to identify the
last signature on the chain of custody form. Appellant argues that the State failed to
establish the end of the chain of custody; therefore, the court improperly admitted
                                           5
the sample. To admit evidence, the State must provide “[p]roof that validates the
beginning and the end of the chain of custody.” Patel v. State, No. 2-08-032-CR,
2009 WL 1425219, at *2 (Tex. App.—Fort Worth May 21, 2009, no pet.) (mem.
op., not designated for publication) (citing Stoker v. State, 788 S.W.2d 1, 10 (Tex.
Crim. App. 1989), disapproved on other grounds by Leday v. State, 983 S.W.2d 713
(Tex. Crim. App. 1993)). Allison testified to the end of the chain of custody in the
lab. His testimony, even without knowledge of any signatures entered after his
analysis, provides the necessary elements for the trial court to admit the evidence.
See Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. [Panel Op.] 1981)
(“The chain of custody was completed to inside the laboratory, thus any further
objection goes to the weight of the evidence, rather than to its admissibility.”).
Additionally, Officer Shiderly testified that he was present when Appellant’s blood
was drawn, that he placed his initials on the evidence after he obtained it, that he
took the evidence to a secure refrigerator for the property technicians to collect, that
the samples that he later retrieved from evidence storage and brought to court still
had his initials on them, and that he “sign[ed] it out” of the property room to bring
it to court. Officer Shiderly identified the blood draw kit as the same blood draw kit
that was used in this case for this Appellant. This added testimony established the
beginning and the end of the chain of custody outside of the lab. See Elliott v. State,
450 S.W.2d 863, 864 (Tex. Crim. App. 1970) (holding that the chain of custody was
properly established when the officer testified that he placed the evidence in an
envelope and sealed it, that he marked the envelope with his identification
information, that he placed the envelope in the police property room, and that he
retrieved the same envelope the day of trial and brought it to court with him.). We
cannot say that the trial court abused its discretion when it admitted the vials.
Appellant’s second issue on appeal is overruled.


                                           6
      In Appellant’s third issue, he complains that the trial court erred when it
admitted a lab report that contained information regarding his blood alcohol content.
At trial, Appellant objected on both hearsay and confrontation grounds. However,
as the State correctly points out, Appellant does not argue confrontation issues on
appeal. Therefore, we will consider only Appellant’s hearsay complaint.
      Appellant argues that the trial court improperly admitted State’s Exhibit No. 5,
the lab report that contained the results of the blood alcohol test, in violation of Rule
801. Rule 801 provides that a court may not admit an out-of-court statement offered
for the truth of the matter asserted unless it meets a recognized exception to the
hearsay rule. TEX. R. EVID. 801. Here, however, even if we were to hold that the
trial court erred when it admitted the report, any such error was harmless. Brooks v.
State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Anderson v. State, 717 S.W.2d
622, 628 (Tex. Crim. App. 1986); Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim.
App. 1984); Davis v. State, 516 S.W.2d 157, 162 (Tex. Crim. App. 1974).
      Improperly admitted hearsay is non-constitutional error; therefore, Texas Rule
of Appellate Procedure 44.2(b) applies. Derichsweiler v. State, 359 S.W.3d 342,
346 (Tex. App.––Fort Worth 2012, pet. ref’d) (“Because the erroneous admission of
inadmissible hearsay is not constitutional error, we apply rule 44.2(b) and disregard
the error if it did not affect Derichsweiler’s substantial rights.”). Pursuant to
Rule 44.2(b), an error is not reversible error unless it affects a substantial right of the
appellant. TEX. R. APP. P. 44.2(b). An error affects a substantial right when the
error has a substantial and injurious effect or influence in determining the jury’s
verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001); King v. State, 953
S.W.2d 266, 271 (Tex. Crim. App. 1997). An accused’s substantial rights are not
affected by the erroneous admission of evidence if the court, after examining the
record as a whole, has fair assurance that the error did not influence the jury or had
but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
                                            7
When conducting a Rule 44.2(b) harm analysis based upon the erroneous admission
of evidence, an appellate court should consider the entire record, including:
      [A]ny testimony or physical evidence admitted for the jury’s
      consideration, the nature of the evidence supporting the verdict, the
      character of the alleged error and how it might be considered in
      connection with other evidence in the case, the jury instructions, the
      State’s theory and any defensive theories, closing arguments, voir dire,
      and whether the State emphasized the error.

Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim. App. 2005).
      The State may prove intoxication in either of two ways. Bagheri v. State, 119
S.W.3d 755, 763 (Tex. Crim. App. 2003). The first way in which the State can prove
intoxication is through evidence that the accused has lost the use of his mental or
physical faculties. Derichsweiler, 359 S.W.3d at 347. Alternatively, the State can
prove intoxication by proof that Appellant’s blood alcohol content exceeded the
statutory maximum. Id. These are not separate violations of the law but different
ways the State may prove intoxication. Bagheri, 119 S.W.3d at 762. When we
examine the case as a whole, even if we were to hold that the trial court admitted the
lab report in error, any such error would be harmless if it “did not have a substantial
or injurious effect on the jury’s verdict.” Derichsweiler, 359 S.W.3d at 347. In
Derichsweiler, the appellant complained that the trial court admitted a hearsay
document, the toxicology report, into evidence. Id. The Court held that, in the
context of the entire case, any error that the trial court made when it admitted the
toxicology report was harmless because the evidence included the testimony of
officers that the defendant showed signs of intoxication as well as a video tape of
the defendant. Id.
      Quite like the evidence in Derichsweiler, Officer Shiderly and Corporal Flores
testified to Appellant’s appearance and behavior.        Both officers testified that
Appellant had watery, bloodshot eyes; slurred speech; and alcohol on his breath.
Further, Officer Shiderly testified to Appellant’s refusal to complete field sobriety
                                          8
tests. Finally, Appellant himself testified that he drank several alcoholic beverages
the night of his arrest.
       Further, Appellant cured any error when, after the trial court admitted the lab
report into evidence, he testified to the results of the blood test. Specifically, the
prosecutor asked Appellant, “[w]hat did those blood results come back on you?” To
which Appellant answered, without objection from his counsel, “[t]he sheet says
.15.” The improper admission of evidence is harmless when the same facts are
proved by other properly admitted evidence or evidence that is admitted without
objection. Brooks, 990 S.W.2d at 287; Anderson, 717 S.W.2d at 628. Appellant
cured any error that the trial court might have committed when it admitted the lab
report. Hudson, 675 S.W.2d at 511; Davis, 516 S.W.2d at 162; see also Ford v.
State, 919 S.W.2d 107, 117–18 (Tex. Crim. App. 1996).
       We conclude that even if the trial court erred when it overruled appellant’s
objection and admitted the lab report, Appellant was not harmed because the error
was cured when Appellant himself testified, without objection, to the contents of the
report. Accordingly, error, if any, did not have a substantial or injurious effect on
the jury’s verdict and was harmless. Appellant’s third issue is overruled.
       We affirm the judgment of the trial court.




                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE


July 30, 2015
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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