                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-128-CR


GRADY LEROY MARTIN                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

                                    ------------

     FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                I. INTRODUCTION

      Appellant Grady Leroy Martin appeals his conviction and sentence for the

offense of driving while intoxicated - misdemeanor repetition.2 In five points,

Martin argues that the trial court abused its discretion by failing to suppress

blood test results, by admitting expert testimony that did not comport with


      1
          … See Tex. R. App. P. 47.4.
      2
     … During the punishment hearing, Martin pleaded true to a prior 2005
DWI conviction.
Texas Rule of Evidence 702 and that violated his rights under the Confrontation

Clause, and by placing him on community supervision and ordering him to serve

five days’ confinement as a condition of his community supervision. We will

affirm.

                               II. B ACKGROUND

      A black truck rear-ended Ronald Williams’s car while he was stopped at

a stoplight. The impact caused Williams’s vehicle to collide with the vehicle in

front of his. Following the accident, Williams saw a man exit the truck and flee

the scene. Officer Christina Hunt located Martin and brought him back to the

scene where a witness to the accident identified Martin as the man who had

exited the truck and fled the scene.

      Officer Vanessa Hansard, who had been dispatched to the scene, testified

at trial that although Martin did not smell of alcohol while in her custody, he

slurred his words and exhibited balance problems. Officer Hansard formed the

opinion that Martin was intoxicated by something other than alcohol. Because

Martin refused to perform any sobriety tests or to take a breath test, Officer

Hansard prepared an affidavit for a blood-draw search warrant, and a judge 3




      3
       … In this case, Judge Billy Mills from County Criminal Court No. 3 issued
the blood draw warrant. Throughout the remainder of the opinion, we refer to
him as “magistrate” to reflect the capacity in which he was serving.

                                       2
subsequently signed a search warrant based on Officer Hansard’s affidavit.

Martin’s blood was then drawn and transported to the Tarrant County Medical

Examiner’s Office for analysis.    At trial, a toxicologist from the medical

examiner’s office testified that Martin’s blood revealed the presence of the

drugs meprobamate, diazepam, nordiazepam, and methadone, the synergistic

effect of which would cause intoxication.

      Martin was charged with failure to stop and render aid and with DWI. For

the failure to stop and render aid charge, Martin was tried, convicted, and

served two years prior to the DWI trial. For the DWI charge, after the jury

convicted Martin, the trial court sentenced him to 365 days in jail and assessed

a $4,000 fine. The trial court then suspended the sentence and placed Martin

on twenty-four months’ community supervision and ordered Martin to spend

five days in jail as a condition of his community supervision. Martin objected

to the five days’ confinement on the ground that this DWI arose out of the

same criminal episode as the failure to stop and render aid charge and that the

sentence would cause him “to serve more than the law allows.” The trial court

implicitly overruled Martin’s objection and imposed the condition. This appeal

followed.




                                       3
           III. A FFIDAVIT A LLEGES F ACTS TO E STABLISH P ROBABLE C AUSE

      In his first and second points, Martin argues that the trial court abused its

discretion by failing to suppress evidence of his blood test results because the

supporting affidavit did not allege facts sufficient to establish probable cause

for the search warrant.      Specifically, Martin argues that the affidavit is

composed of mere conclusions unsupported by other observations, that it

reflects material omissions, that it makes impermissible inferences, and that

probable cause for DWI is not established.

      A.    Standard of Review and Law on Search Warrant Affidavits

      Generally, the appropriate standard for reviewing a trial court’s ruling on

a motion to suppress is a bifurcated standard of review, giving almost total

deference to the trial court’s determination of historical facts and reviewing de

novo the court’s application of the law. Amador v. State, 221 S.W.3d 666,

673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997). But there are no credibility determinations to be made by the trial

court in examining the sufficiency of an affidavit to determine probable cause

because probable cause is determined from the four corners of the affidavit

alone. Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App.), cert. denied,

543 U.S. 944 (2004); Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App.




                                         4
1992), cert. denied, 507 U.S. 921 (1993); Tolentino v. State, 638 S.W.2d

499, 501 (Tex. Crim. App. 1982).

      Thus, when reviewing a magistrate’s decision to issue a warrant, we

apply a highly deferential standard in keeping with the constitutional preference

for a warrant. Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007);

Swearingen v. State, 143 S.W.3d 808, 810–11 (Tex. Crim. App. 2004).

Under this standard, we uphold the magistrate’s probable cause determination

“so long as the magistrate had a ‘substantial basis for . . . conclud[ing]’“ that

probable cause existed. Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317,

2331 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S. Ct.

725, 736 (1960), overruled on other grounds by U.S. v. Salvucci, 448 U.S. 83,

100 S. Ct. 2547 (1980)); see Swearingen, 143 S.W.3d at 810.

      Under the Fourth Amendment, an affidavit is sufficient if, from the totality

of the circumstances reflected in the affidavit, the magistrate was provided

with a substantial basis for concluding that probable cause existed. Gates, 462

U.S. at 238–39, 103 S. Ct. at 2332; see U.S. Const. amend. IV; Ramos v.

State, 934 S.W.2d 358, 362–63 (Tex. Crim. App. 1996), cert. denied, 520

U.S. 1198 (1997).

      Probable cause will be found to exist if the affidavit shows facts and

circumstances within the affiant’s knowledge and of which the affiant has

                                        5
reasonably trustworthy information sufficient to warrant a person of reasonable

caution to believe that the criteria set forth in code of criminal procedure article

18.01(c) have been met. Tolentino, 638 S.W.2d at 501; see Tex. Code Crim.

Proc. Ann. art. 18.01(c) (Vernon Supp. 2008). The affidavit must set forth

facts which establish that (1) a specific offense has been committed, (2) the

property to be searched or items to be seized constitute evidence of the offense

or evidence that a particular person committed the offense, and (3) the property

or items are located at or on the person, place, or thing to be searched. Tex.

Code Crim. Proc. Ann. art. 18.01(c); Tolentino, 638 S.W.2d at 501. Although

a search warrant affidavit may not be based solely on hearsay or conclusory

statements, a search warrant affidavit is not to be deemed insufficient on that

score so long as a substantial basis for crediting the hearsay exists or

corroborating facts within the officer’s knowledge exist, respectively.         See

Gates, 462 U.S. at 241–43, 103 S. Ct. at 2333–35.

      A reviewing court should not invalidate a warrant by interpreting the

affidavit in a hypertechnical manner. See Gates, 462 U.S. at 236, 103 S. Ct.

at 2331; Rodriguez, 232 S.W.3d at 59.          Rather, when a court reviews an

issuing magistrate’s determination, the court should interpret the affidavit in a

commonsense and realistic manner, recognizing that the magistrate may draw




                                         6
reasonable inferences. See Rodriguez, 232 S.W.3d at 61; Davis v. State, 202

S.W.3d 149, 154 (Tex. Crim. App. 2006).

      B.    The Search Warrant for Blood Draw 4

      The facts alleged in Officer Hansard’s affidavit include: that Martin was

involved in a three-vehicle accident, that he fled the scene of the accident, that

he appeared very intoxicated and was very uncooperative, that he was found

in possession of numerous narcotics, that he had a prior DWI arrest, that he

stated that his lawyer had told him that he did not have to do anything the

officers requested, that his speech was slurred and thick, that his eyes were

heavy, that his walk and balance were unsteady, and that he was combative

towards the officers. After reviewing Officer Hansard’s affidavit, a magistrate

issued the search warrant for blood draw. Prior to trial, Martin filed a motion

to suppress all evidence obtained pursuant to the search warrant for blood

draw. The trial court denied the motion to suppress.

      C.    No Conclusory Statements

      On appeal, Martin first argues that the statement in Officer Hansard’s

affidavit that Martin “appeared very intoxicated” is a mere conclusion

unsupported by other observations. To the contrary, Officer Hansard explicitly



      4
        … Because the search warrant at issue bears this title, we use the same
title for ease of reference.

                                        7
provided other facts in her affidavit to support her belief that Martin appeared

intoxicated, namely that he failed to cooperate, was combative with officers,

slurred his speech, and exhibited heavy eyes and unsteady balance. We hold

that from the totality of the circumstances reflected in the affidavit, Officer

Hansard’s statement that Martin “appeared very intoxicated” was not

conclusory and was properly included in her affidavit; the statement was based

on sufficient underlying facts set forth in the affidavit from which the

magistrate could independently determine whether probable cause existed that

Martin was probably intoxicated while driving. Cf. McKissick v. State, 209

S.W.3d 205, 212 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (concluding

that affidavit did not rely on conclusory statements to such an extent that it

was insufficient to show probable cause); Rodriguez v. State, 781 S.W.2d 946,

949 (Tex. App.—Dallas 1989, pet. ref’d) (upholding search warrant when

affidavit contained some conclusory statements regarding information received

from informant because affidavit also recited investigation and activities by

police, which added additional details and corroboration of facts received from

informant).

      D.      Omitted Fact Does Not Vitiate Probable Cause

      Martin next argues that the statement in Officer Hansard’s affidavit

concerning the “numerous narcotics” found in his possession was misleading

                                       8
because, in fact, the narcotics were Martin’s prescription medications. Martin

argues that Officer Hansard’s failure to state in her affidavit that the narcotics

were prescription drugs belonging to Martin was a knowing omission rendering

her affidavit insufficient to support a probable cause finding.

      The United States Supreme Court has held that an affirmative

misrepresentation of a material fact that establishes probable cause, made

knowingly or recklessly in a probable cause affidavit, will render a search

warrant invalid under the Fourth Amendment. See Franks v. Delaware, 438

U.S. 154, 155–56, 98 S. Ct. 2674, 2676 (1978). Although the Texas Court

of Criminal Appeals has never directly decided whether a Franks analysis applies

to omissions, 5 this court, other Texas courts of appeals, and the Fifth Circuit

have held that, when a defendant seeks to suppress evidence lawfully obtained

by a warrant based on an alleged omission in the affidavit supporting the

warrant, he must establish by a preponderance of the evidence that the

omission was made knowingly, intentionally, or with reckless disregard for the

truth in an attempt to mislead the magistrate. See Darby v. State, 145 S.W.3d



      5
       … See Ward v. State, No. AP-74695, 2007 WL 1492080, at *3–4 (Tex.
Crim. App. May 23, 2007) (not designated for publication) (stating that “[t]his
Court has yet to state clearly that Franks should apply to omissions” and that
“[w]e need not decide that issue today”), cert. denied, 128 S. Ct. 650 (2007);
see also Renteria v. State, 206 S.W.3d 689, 704 (Tex. Crim. App. 2006)
(assuming that Franks applied to omissions in an affidavit).

                                        9
714, 722 (Tex. App.—Fort Worth 2004, pet. ref’d); McKissick, 209 S.W.3d at

211–14; Heitman v. State, 789 S.W.2d 607, 610 (Tex. App.—Dallas 1990,

pet. ref’d); Melton v. State, 750 S.W.2d 281, 284 (Tex. App.—Houston [14th

Dist.] 1988, no pet.); see also United States v. Martin, 615 F.2d 318, 328 (5th

Cir. 1980). Accordingly, if a defendant establishes by a preponderance of the

evidence that omissions of fact were made in a probable cause affidavit and

that such omissions were made knowingly, intentionally, or with reckless

disregard for the truth, the warrant will be held invalid if the inclusion of the

omitted facts would vitiate probable cause. Martin, 615 F.2d at 328.

      Here, the record does not reflect that Officer Hansard intentionally or

knowingly, with reckless disregard for the truth, made any omissions in the

affidavit that would affect the finding of probable cause to support the issuance

of the search warrant for blood draw. Martin has not shown that use of the

phrase “numerous narcotics” constituted a material misrepresentation or that

Officer Hansard’s failure to specifically identify the narcotics as prescription

drugs prescribed to Martin constituted an omission made by Officer Hansard

intentionally or knowingly with reckless disregard for the truth in an attempt to

mislead the magistrate.      Nor has Martin shown that the affidavit, if

supplemented with the omitted information—that is, that the numerous

narcotics were prescription drugs prescribed to Martin—would be insufficient

                                       10
to support a finding of probable cause.6 Therefore, we hold that the affidavit

was not rendered insufficient by the omission of the fact that the “numerous

narcotics” referenced in the affidavit were Martin’s prescription drugs. See

Darby, 145 S.W.3d at 722–23 (concluding that affidavit for search warrant

was not rendered invalid by the omission of material facts); see also Garza v.

State, 161 S.W.3d 636, 641 (Tex. App.—San Antonio 2005, no pet.)

(upholding warrant when affidavit omitted reference to fact that witness gave

conflicting testimony to police when initially interviewed).

      E.       Additional Statements Can Be Omitted Without Vitiating Probable
               Cause

      Martin’s final argument within his first and second points is that Officer

Hansard’s statements in the affidavit that Martin was “being uncooperative and

requested counsel could not be taken as evidence to support the issuance of



      6
          … The State points out that

      [i]t is difficult to fathom how [the fact that the “numerous
      narcotics” were Martin’s prescription medications] could have been
      relevant to a magistrate trying to determine the existence of
      probable cause. If the suspect is driving around in what seems to
      be a mobile drug store, and appears to be under the influence of
      narcotics, it hardly matters whether his drugs are in neat bottles or
      in a more traditional “junkie” packaging.

Moreover, the voluntary taking of prescription drugs, which impair mental or
physical faculties, is not a defense to DWI. See generally Nelson v. State, 149
S.W.3d 206, 210 (Tex. App.—Fort Worth 2004, no pet.).

                                        11
the warrant” because “[a] request for counsel cannot be used as an inference

of guilt.”   But the affidavit here does not contain a statement that Martin

requested counsel; instead, the affidavit contains the statement that Martin

“stated that his lawyer told him that he did not have to do anything officers

requested.”      That statement, when viewed from the totality of the

circumstances, would appear to explain why Martin refused to perform field

sobriety tests and why the blood draw was needed but does not constitute a

request for counsel. Accord Dinkins v. State, 894 S.W.2d 330, 350–52 (Tex.

Crim. App.) (holding that record did not support a showing that appellant

requested an attorney even though at some point during the interrogation

appellant asked detective “what a lawyer would tell him to do,” and detective

informed appellant “in no uncertain terms that a lawyer would tell him to keep

his mouth shut and not to talk to the police at all”), cert. denied, 516 U.S. 832

(1995).       Even   leaving   out   those   two   statements—that   Martin   was

uncooperative and that he stated that his lawyer told him that he did not have

to do anything officers requested—the affidavit alleges sufficient other facts,

which are set forth above, to support a finding of probable cause for issuance

of a search warrant for blood draw.           As such, we hold that the affidavit

provided the magistrate with sufficient information to support an independent

judgment that probable cause for DWI existed for the search warrant for blood

                                         12
draw. See Pitonyak v. State, 253 S.W.3d 834, 848 (Tex. App.—Austin 2008,

pet. ref’d) (holding that if tainted information is unnecessary to establish

probable cause for the warrant, then the defendant could not have been harmed

by the inclusion of the tainted information); Riley v. State, No. 03-04-00206-

CR, 2004 WL 2900508, at *1 (Tex. App.—Austin Dec. 16, 2004, pet. ref’d)

(mem. op., not designated for publication) (stating that even if challenged

passage is removed from affidavit, the remaining information stated probable

cause for issuing the search warrants).

      F.    Motion to Suppress Properly Denied

      In light of the information contained within the four corners of Officer

Hansard’s affidavit, we hold that, considering the totality of the circumstances,

the magistrate had a substantial basis for concluding that probable cause

existed to support the issuance of the search warrant for blood draw. See

Gates, 462 U.S. at 238, 103 S. Ct. at 2332; Vafaiyan v. State, 279 S.W.3d

374, 384 (Tex. App.—Fort Worth 2008, pet. ref’d) (holding that when

considered together with the other evidence described within the four corners

of the affidavits, the totality of the circumstances provided the magistrate with

a substantial basis for concluding probable cause existed to search); see also

Goodrum v. State, No. 01-01-00950-CR, 2003 WL 1995634, at *5 (Tex.

App.—Houston [1st Dist.] May 1, 2003, pet. ref’d) (mem. op., not designated

                                       13
for publication) (concluding that, under the totality of the circumstances, the

magistrate had sufficient evidence linking appellant to the crime to issue a

search warrant allowing police to draw his blood to further their investigation).

Accordingly, we hold that the trial court did not abuse its discretion by denying

Martin’s motion to suppress and by admitting the blood test result. See Cantu

v. State, No. 05-07-01625-CR, 2009 WL 1479412, at *2 (Tex. App.—Dallas

May 28, 2009, no pet.) (not designated for publication) (holding that trial court

did not err by denying appellant’s motion to suppress after appellate court

reviewed the affidavit as a whole and concluded that affidavit authorized

magistrate’s issuance of search warrant for collection of buccal swabs); Torres

v. State, No. 04-07-00522-CR, 2009 WL 89695, at *3 (Tex. App.—San

Antonio Jan. 14, 2009, pet. ref’d) (mem. op., not designated for publication)

(holding that trial court did not abuse its discretion by denying motion to

suppress the results of the legal blood draw and by admitting that evidence at

trial). We overrule Martin’s first and second points.

               IV. C HALLENGES TO D R. S PRINGFIELD’S T ESTIMONY;
                M ARTIN F AILED TO P RESERVE R ULE 702 A RGUMENT

      A.    Rule 702 Challenge

      In his third point, Martin argues that the trial court abused its discretion

by allowing lab supervisor Dr. Angela Springfield to testify. Martin argues that



                                       14
Dr. Springfield’s testimony did not comport with Texas Rule of Evidence 702

because she did not personally conduct the blood tests on Martin’s blood

sample and because her testimony failed to establish that the technique that

was used to test the blood sample was properly applied.

      To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.

1070 (1999). Further, the trial court must have ruled on the request, objection,

or motion, either expressly or implicitly, or the complaining party must have

objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez

v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).              An objection

preserves only the specific ground cited. Tex. R. App. P. 33.1(a)(1)(A); Mosley,

983 S.W.2d at 265; Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996),

cert. denied, 522 U.S. 827 (1997); see also Fierro v. State, 706 S.W.2d 310,

317–18 (Tex. Crim. App. 1986) (holding that general objection is insufficient

to apprise trial court of complaint urged and thus preserves nothing for review),

cert. denied, 521 U.S. 1122 (1997). The complaint made on appeal must

comport with the complaint made in the trial court or the error is forfeited.

                                       15
Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004); Bell, 938

S.W.2d at 54; Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).

      Martin, without giving a reason for doing so, asked to take Dr. Springfield

on voir dire outside the presence of the jury. The trial court granted Martin’s

request. Dr. Springfield testified that she did not personally perform the tests

on Martin’s blood and that she could not recall whether she had witnessed the

tests but that she could attest to the fact that the procedures of the laboratory

were followed and that the controls, standards, and data retrieved were

appropriate.

      On appeal, Martin argues that the trial court erred by admitting the

testimony of Dr. Springfield because it did not comport with rule 702.7 But

Martin did not assert a rule 702 objection in the trial court. Because Martin

failed to object at trial to Dr. Springfield’s competency to testify as an expert,

he has forfeited this argument on appeal. See Martinez v. State, 22 S.W.3d

504, 507 (Tex. Crim. App. 2000) (stating that defendant’s repeated objections

concerning her right to confront witnesses did not preserve error on the ground




      7
      … Texas Rule of Evidence 702 provides that if scientific, technical, or
other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify thereto in the
form of an opinion or otherwise. Tex. R. Evid. 702.

                                       16
that witness was not qualified as an expert when defendant did not once object

to witness’s qualifications as an expert); Matson v. State, 819 S.W.2d 839,

852 (Tex. Crim. App. 1991) (stating that “[i]t is a familiar rule of law that the

failure to object to a witness’s competency to testify operates as a waiver of

the witness’s qualifications and may not be raised for the first time on appeal”).

We therefore overrule Martin’s third point.

      B.       Confrontation Clause Challenge

      In his fourth point, Martin argues that the trial court abused its discretion

by admitting the testimony of Dr. Springfield on the ground that the testimony

violated his rights under the Confrontation Clause. Martin contends that Dr.

Springfield’s testimony deprived him of the opportunity to confront and cross-

examine a witness against him because he was unable to question the person

who had performed the testing on his blood sample.

      In Crawford v. Washington, the United States Supreme Court held that

admitting a statement made by a nontestifying declarant offends the

Confrontation Clause of the Sixth Amendment if the statement was

“testimonial” when made and the defendant lacked a prior opportunity for

cross-examination. 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004). Thus,

Crawford applies to a nontestifying declarant’s out-of-court statements that are

testimonial.

                                       17
      Here, after Martin questioned Dr. Springfield outside the presence of the

jury, he objected to Dr. Springfield’s testimony on the ground that it violated his

rights under the Confrontation Clause because he was unable to confront the

person who actually performed the blood tests.8         The trial court overruled

Martin’s Confrontation Clause objection. Dr. Springfield then testified before

the jury without objection regarding the chain of custody of the vials of Martin’s

blood and the testing procedures utilized on Martin’s blood samples.9          She

stated that three types of tests were performed, and she described the purpose,

process, and results of each test, including the general effects that each

substance found in Martin’s blood would have on the human body.               She

testified that the substances found in Martin’s blood included meprobamate,

diazepam, nordiazepam, and methadone; that the synergistic effect of these

drugs would cause a person to lose the normal use of his or her physical and

mental faculties; and that she would deem such a person intoxicated. The


      8
          … The specific objection Martin made at trial is as follows:

            [MARTIN’S COUNSEL]: Your Honor, we’re going to object
      based on the confrontation clause. She says she’s not the one
      who actually did the tests. I can’t question the person who did the
      test to how they done it to see exactly whether they done it
      properly and all of that. She has records that she’s reviewed, but
      she’s not -- she’s not the one who did it. So I’m going to make a
      confrontation clause objection to the admission of this evidence.
      9
          … As noted above, Dr. Springfield did not perform the tests herself.

                                         18
toxicology test results, which were signed by Dr. Springfield, were then

admitted into evidence without objection.    Martin then cross-examined Dr.

Springfield.

      We conclude that Dr. Springfield’s testimony about the chain of custody

of the vials of Martin’s blood and the testing procedures utilized on Martin’s

blood samples is not governed by Crawford because no out-of-court statement

was admitted through her testimony.        Rather, Dr. Springfield’s in-court

testimony was admitted based upon her own personal knowledge acquired

from having trained and worked at the Tarrant County Medical Examiner’s

laboratory. The Sixth Amendment concerns about out-of-court-statements at

issue in Crawford, therefore, do not apply to Dr. Springfield’s in-court

testimony. See Camacho v. State, Nos. 2-07-322-CR, 2009 WL 2356885, at

*3 (Tex. App.—Fort Worth July 30, 2009, no pet. h.) (mem. op., not

designated for publication) (holding that Sixth Amendment concerns at issue in

Crawford did not apply to testimony that was chemist’s in-court statement

based upon her own personal knowledge acquired from having trained and

worked at the DPS laboratory); Blaylock v. State, 259 S.W.3d 202, 207–08

(Tex. App.—Texarkana 2008, pet. ref’d) (holding that testimony of the expert

witness concerning the chemical analysis of the substance, which was

determined by applying his expertise to reliable scientific test data, was

                                     19
admissible as he was subject to cross-examination, so the requirements of the

Confrontation Clause were fulfilled), cert. denied, 77 U.S.L.W. 3710 (U.S. June

29, 2009) (No. 08-8259). Thus, we hold that the trial court did not abuse its

discretion by admitting Dr. Springfield’s in-court testimony concerning analysis

of the blood test results over Martin’s Confrontation Clause objection. We

overrule Martin’s fourth point.

                    V. T RIAL C OURT’S S ENTENCE W AS P ROPER

      In his fifth point, Martin argues that the trial court erred by sentencing

him on the DWI to twenty-four months’ community supervision and by ordering

him to serve five days’ confinement as a condition of community supervision.

Specifically, Martin claims that because the DWI arose out of the same criminal

episode as his conviction for failure to stop and render aid, the trial court could

not order community supervision that required him to serve five additional days

when the statute provides that sentences for offenses arising out of the same

criminal episode must run concurrently. Additionally, Martin argues that his

sentence is illegal because it exceeds the maximum sentence allowed by law

for the charge of DWI - misdemeanor repetition.

      We review a trial court’s decision to cumulate sentences for an abuse of

discretion.   See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon 2006);

Nicholas v. State, 56 S.W.3d 760, 764 (Tex. App.—Houston [14th Dist.]

                                        20
2001, pet. ref’d); see also Cyphers v. State, No. 12-07-00304-CR, 2009 WL

606550, at *3 (Tex. App.—Tyler Mar. 11, 2009, pet. filed) (mem. op., not

designated for publication).   As a practical matter, however, an abuse of

discretion generally will be found only if the trial court imposes consecutive

sentences where the law requires concurrent sentences, where the trial court

imposes concurrent sentences but the law requires consecutive ones, or where

the trial court otherwise fails to observe the statutory requirements pertaining

to sentencing. Nicholas, 56 S.W.3d at 765; Cyphers, 2009 WL 606550, at

*3.

      When a defendant is found guilty of more than one offense arising out of

the same criminal episode prosecuted in a single criminal action, a sentence for

each offense for which he has been found guilty shall be pronounced, and

unless an exception applies, the sentences shall run concurrently. Tex. Penal

Code Ann. § 3.03(a) (Vernon Supp. 2008). “A ‘single criminal action’ refers

to a single trial or plea proceeding; as such, a defendant is prosecuted in a

‘single criminal action’ when allegations and evidence of more than one offense

arising out of the same criminal episode are presented in a single trial or plea

proceeding.” Malone v. State, 163 S.W.3d 785, 804 (Tex. App.—Texarkana

2005, pet. ref’d).




                                      21
      Here, the record clearly demonstrates that, while the charges for DWI -

misdemeanor repetition and failure to stop and render aid may have arisen out

of the same criminal episode, they were not adjudicated in a “single criminal

action.”   See id.   In fact, the DWI record before us offers little evidence

concerning Martin’s conviction for failure to stop and render aid. As such, the

trial court did not err by failing to have the sentence from Martin’s DWI -

misdemeanor repetition conviction run concurrently with his conviction for

failure to stop and render aid because the two convictions were tried in

separate criminal actions. See Tex. Penal Code Ann. § 3.03(a); Ex parte Pharr,

897 S.W.2d 795, 796 (Tex. Crim. App. 1995) (holding that cumulation order

did not violate section 3.03 when statement of facts showed that in cause

number 7760 applicant pleaded guilty, was admonished, was found guilty, and

was sentenced and immediately thereafter, in cause number 7761 applicant

pleaded guilty, was admonished, was found guilty, and was sentenced because

record supported trial court’s finding that applicant was not tried in a single

criminal action).

      Moreover, the sentence was not illegal.        Texas Code of Criminal

Procedure article 42.12, section 13(a)(1) mandates that a judge granting

community supervision to a defendant convicted of an offense under chapter

49 of the penal code, which includes DWI, shall require as a condition of

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community supervision that the defendant submit to not less than five days’

confinement. Tex. Code Crim. Proc. Ann. art. 42.12, § 13(a)(1) (Vernon Supp.

2008). Under section 13(e), it states that the confinement imposed—here, the

five days—shall be treated as a condition of community supervision. Id. art.

42.12, § 13(e). And while community supervision is part of the “judgment,”

it is not part of the “sentence,” as those terms are defined in the Texas Code

of Criminal Procedure. Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App.

1999), cert. denied, 529 U.S. 1088 (2000).

      Therefore, we hold that the trial court did not err by placing Martin on

twenty-four months’ community supervision after he had already served two

years for his failure to stop and render aid conviction because penal code

section 3.03(a) did not apply; nor did the trial court err by ordering Martin to

serve five days’ confinement as a condition of community supervision because

the confinement is mandated by code of criminal procedure article 42.12,

section 13(a)(1). See Tex. Penal Code Ann. § 3.03(a); Tex. Code Crim. Proc.

Ann. art. 42.12, § 13(a)(1). We overrule Martin’s fifth point.




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                            VI. C ONCLUSION

     Having overruled Martin’s five points, we affirm the trial court’s

judgment.


                                              SUE WALKER
                                              JUSTICE

PANEL: CAYCE, C.J.; WALKER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 6, 2009




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