Affirmed and Substitute Memorandum Opinion on Remand filed October 25, 2011.




                                         In The

                      Fourteenth Court of Appeals

                                  NO. 14-08-00050-CR


                           JULIAN KUCIEMBA, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


                      On Appeal from the County Court at Law
                            Washington County, Texas
                           Trial Court Cause No. 07-455


 SUBSTITUTE MEMORANDUM OPINION ON
              REMAND
      We overrule the motion for rehearing, withdraw our memorandum opinion on
remand dated June 30, 2011, and issue the following substitute memorandum opinion on
remand.

      This appeal arises from appellant‟s conviction for driving while intoxicated and
comes to us on remand from the Court of Criminal Appeals of Texas. See Kuciemba v.
State, 310 S.W.3d 460 (Tex. Crim. App. 2010). The sole issue on remand concerns
appellant‟s contention that the trial court erred by admitting the results of a blood serum
test performed on a blood sample taken from appellant. We affirm.

                                      BACKGROUND

       Washington County Sheriff‟s Deputy Jonathan Prior responded to a dispatch call
concerning a one-vehicle rollover accident on December 19, 2006. He arrived at the
scene to find a pickup truck upright on its wheels in a ditch; the roof was partially
crushed, indicating that the pickup had rolled over. See id. at 461. Deputy Prior saw
appellant behind the wheel, after which appellant slid across the center console of the
pickup and exited on the passenger side. Id. Appellant had small cuts on his forehead
and was bleeding. Id. Deputy Prior smelled a strong odor of alcohol on appellant‟s
breath and observed that appellant had to steady himself on his vehicle. Id. Deputy Prior
observed that appellant‟s eyes were glassy and bloodshot; he had difficulty standing and
his speech was slurred. Id. Appellant claimed he had fallen asleep. Id.

       No alcoholic beverages or containers were found in the pickup or at the scene. Id.
There were no skid marks on the roadway. Id.

       Paramedics arrived about three minutes after Deputy Prior and placed appellant
into an ambulance. Id. Paramedic David Zeiders smelled alcohol but was not sure
whether the odor emanated from appellant‟s breath or his person. Id. Zeiders observed
cuts on appellant‟s face and hands, and a red strap mark across appellant‟s chest. Id.
Appellant said he did not lose consciousness but did not remember the accident. Id.
Zeiders drew blood from appellant before the ambulance departed for the hospital. Id. A
blood alcohol level of .214 was measured when the sample drawn from appellant was
tested at the hospital. Id.

       A jury convicted appellant of driving while intoxicated; he was sentenced to 180
days in jail, probated for 18 months, and a $750 fine. See Tex. Penal Code Ann. §
49.04(a) (Vernon 2011). On appeal, appellant raised two issues challenging (1) the legal
sufficiency of the evidence to support his conviction for driving while intoxicated; and
(2) the admissibility of the blood test results.


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       This court reversed on grounds that legally insufficient evidence established the
necessary temporal link between appellant‟s driving and his intoxication. Kuciemba v.
State, No. 14-08-00050-CR, 2009 WL 585978, at *2-3 (Tex. App.—Houston [14th Dist.]
March 10, 2009) (mem. op., not designated for publication), rev’d, 310 S.W.3d 460 (Tex.
Crim. App. 2010). This court cited and relied upon Johnson v. State, 517 S.W.2d 536,
538 (Tex. Crim. App. 1975); Stoutner v. State, 36 S.W.3d 716, 721 (Tex. App.—Houston
[1st Dist.] 2001, pet. ref‟d); and Weaver v. State, 721 S.W.2d 495, 498-99 (Tex. App.—
Houston [1st Dist.] 1986, pet. ref‟d). See Kuciemba, 2009 WL 585978, at *2-3. In light
of this disposition, we did not address appellant‟s second issue.

       The Court of Criminal Appeals reversed and held that the evidence was legally
sufficient to support appellant‟s conviction for driving while intoxicated. Kuciemba, 310
S.W.3d at 462-63. It quoted and cited with approval the analysis in a case decided by the
Supreme Court of Nebraska. Id. at 463 (citing State v. Blackman, 580 N.W.2d 546, 550-
51 (Neb. 1998)). The Court of Criminal Appeals did not discuss or cite its prior opinion
in Johnson. See id. at 462-63; see also Scillitani v. State, 297 S.W.3d 498, 503-05 (Tex.
App.—Houston [14th Dist.] 2009) (Hudson, J., concurring), vacated and remanded, 315
S.W.3d 542 (Tex. Crim. App. 2010); Scillitani v. State, 343 S.W.3d 914, 919-20 (Tex.
App.—Houston [14th Dist.] 2011, pet. filed).

       The Court of Criminal Appeals remanded the case with instructions to address
appellant‟s remaining appellate issue concerning admissibility of the blood serum test
results.

                                       ANALYSIS

       Appellant contends that the trial court should have excluded the hospital‟s blood
serum test results from evidence because (1) the manufacturer of the hospital‟s testing
machine designated that it was to be used for therapeutic rather than forensic purposes;
(2) the State failed to establish reliability of the results as required under Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), Kelly v. State, 824 S.W.2d 568 (Tex.
Crim. App. 1992), and Texas Rule of Evidence 702; (3) the blood sample was

                                             3
contaminated during a gap in the chain of custody; and (4) the test was performed on
blood serum instead of whole blood. We review a trial court‟s ruling on a challenge to
the admission of evidence for abuse of discretion. Amador v. State, 275 S.W.3d 872, 878
(Tex. Crim. App. 2009).

       As a threshold matter, we note appellant‟s additional contention on remand that
“[t]he evidence is legally insufficient to sustain a conviction for DWI because the trial
court should have excluded the evidence of the blood serum test results performed by
Trinity Hospital.” We reject this legal sufficiency contention because “all evidence
admitted at trial — including improperly admitted evidence — is considered in a legal
sufficiency review.”    Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999)
(original emphasis). Indeed, the Court of Criminal Appeals already has relied upon the
blood serum test results at issue in concluding that the record contains legally sufficient
evidence to support appellant‟s conviction. See Kuciemba, 310 S.W.3d at 463 (“Finally,
the high-blood alcohol level — more than twice the legal limit — found in a sample
taken at the scene, supports an inference either that appellant was recently involved in the
accident or that he had been intoxicated for quite a while. The combination of these facts
is sufficient to support appellant‟s conviction for driving while intoxicated.”).

       Turning to the admissibility inquiry, this record demonstrates that appellant
objected to the admission into evidence of a blood vial marked as State‟s Exhibit 1 that
was proffered during the direct testimony of Sylvia Waxler, a medical technologist with
Trinity Medical Center whose duties encompass collection, handling, and analysis of
human body fluids. Waxler was on duty when appellant was brought to Trinity Medical
Center after the accident. Waxler testified that the label on State‟s Exhibit 1 identifies it
as containing a sample from appellant drawn on the night of the accident, and that she
tested the sample. Appellant objected to admission of State‟s Exhibit 1 on grounds that
“[t]here‟s no chain of custody according to what the law requires.” The trial court
admitted State‟s Exhibit 1 over appellant‟s objection.



                                              4
       Waxler testified further during direct examination regarding the contents of
Defendant‟s Exhibit 5, entitled “Trinity Community Medical Laboratory Patient
Laboratory Report” and dated December 19, 2006. The “patient” on this laboratory
report is identified as “Kuciemba, Julian Paul.” Waxler testified as follows regarding the
contents of Defendant‟s Exhibit 5.

       Q.      I‟ll ask you to read under alcohol. It has a result and what was that
       result?
       A.     214.
       Q.     What is that 214?
       A.     That is milligrams per deciliter. That‟s the amount of alcohol that
       was in this sample at the time.
       Q.    Okay. And if we were to convert that 214 into a blood alcohol
       content, what would that be?
       A.     I believe it would be .214.
       Q.    Okay. So if the legal intoxication limit in the state of Texas is .08,
       .214 would be way over that legal limit, correct?
       A.     Yeah. If you were to convert the .08 then to milligrams per deciliter
       it would be 80. So if you‟re comparing 80 as being a normal or a legal,
       then 214 is elevated.
Following this testimony, the State offered Defendant‟s Exhibit 5 into evidence.
Appellant then objected to the admission of Defendant‟s Exhibit 5 on grounds that “[t]he
predicate hasn‟t been laid.” Appellant also objected because “[t]here has not been a
chain of custody on the sample and the machine is not shown to be reliable based on the
Daubert v. Robinson protocol.” The trial court admitted Defendant‟s Exhibit 5 into
evidence over appellant‟s objection.

       An objection to blood test results lodged after the results were previously
discussed is not effective to preserve an admissibility challenge. See French v. State, No.
05-99-01015-CR, 2000 WL 102719, at *1 (Tex. App.—Dallas Jan. 31, 2000, no pet.)
(not designated for publication) (“[A]lthough appellant objected when the blood test
documents were finally offered into evidence and later raised untimely objections to
Forrester‟s testimony, he failed to object to Forrester‟s testimony of the testing results at

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the time such evidence was presented.”) (citing Ethington v. State, 819 S.W.2d 854, 858
(Tex. Crim. App. 1991)); see also Tex. R. App. P. 33.1(a)(1); Davis v. State, 313 S.W.3d
317, 352 (Tex. Crim. App. 2010) (“Ordinarily, an objection is required to preserve error
for review” when appellant contends that a witness employed an unreliable
methodology.).

        Appellant contends on rehearing that his appellate complaints regarding
admissibility of the hospital‟s blood test results were preserved when the trial court
denied his pretrial Motion to Suppress Unauthorized Taking of Blood Specimen and
Blood Alcohol Test. The motion was filed on or about October 11, 2007 and denied in a
written order signed on November 26, 2007. The trial was conducted on January 14 and
15, 2008.1

         In his October 2007 motion, appellant asked the trial court to suppress the blood
specimen and the hospital‟s blood test results on grounds that

        (1)          a Washington County paramedic took appellant‟s blood at the accident
                     scene without a warrant, a court order, appellant‟s consent, or
                     appellant‟s knowledge;

        (2)          this conduct violated the “Standing Protocols of the Washington County
                     EMS;”

        (3)          this conduct was undertaken “at the special instance, or urging, or
        1
           Appellant filed a separate Motion to Suppress Blood Alcohol Test on July 2, 2007, in which he
challenged the admissibility of a different blood test conducted by the Texas Department of Public Safety.
After a hearing, the trial court signed an agreed order on October 4, 2007, stating that “the DPS blood
alcohol test results done on the Defendant‟s blood shall not be used, or admitted, or referred to in this
case.” As reflected in this order, the State announced in court that “the State will not use the DPS blood
test in this case, and the State shall not offer such blood alcohol test in evidence in the case for any
purpose.” The DPS test results were not offered at trial and do not affect the analysis on appeal. Also on
July 2, 2007, appellant filed a Motion to Determine Admissibility of Expert Opinions of State‟s
Witnesses. The proposed order accompanying the motion to determine admissibility is not signed, and
there is no indication in the record that the trial court (1) conducted the requested hearing; or (2) ruled on
the motion to determine admissibility. The appellate record contains no indication that a hearing to
determine the admissibility of expert testimony proffered by the State was conducted before or during
trial with respect to the hospital blood test results. No such hearing transcript is part of the record on
appeal.

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                    request of law enforcement officers or by a tacit understanding between
                    EMS and law enforcement” to assist with “a possible DWI prosecution”
                    rather than to “treat the defendant for any condition, injury, or illness;”

      (4)           use of the blood specimen and test results under these circumstances is
                    “unauthorized, illegal, and a violation of defendant‟s medical privilege
                    and the defendant‟s right to privacy;”

      (5)           “the alcohol blood test Trinity Medical Center allegedly performed on
                    the defendant‟s blood specimen should be suppressed because it is
                    unreliable and fails to meet the requirements of Daubert v. Robinson
                    and Mirecles v. State;”2

      (6)           the blood specimen “was contained in improper test tubes and materials
                    insufficient to render a reliable blood test;”

      (7)           “the machine utilized by Trinity Medical Center for alcohol blood
                    testing and the alcohol blood test that the machine used is specifically
                    limited to clinical hospital use only, and the test is specifically stated
                    not to be reliable to be used for „forensic purposes;‟”

      (8)           “the protocols to be followed for use of Trinity Medical Center[‟s]
                    chemical testing machine to be reliable for forensic purposes was not
                    followed and is never followed since the blood alcohol test is designed
                    strictly for clinical use by the hospital;” and

      (9)           “the Trinity Medical Center‟s laboratory personnel have not trained on
                    the chemical testing machine for performing forensic lab work and have
                    not been directed by their supervisors to perform forensic lab work on
                    such chemical testing machine.”

Appellant does not raise grounds (1)-(4), (6), and (8) on appeal. Therefore, we do not


      2
          Research has revealed no Texas case containing the word “Mirecles.”

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address these contentions further.

        Appellant‟s contentions on appeal regarding exclusion of the hospital blood test
results based on asserted contamination of the blood specimen, an asserted gap in the
chain of custody, and the propriety of testing blood serum rather than whole blood were
not raised in the October 2007 motion to suppress. Therefore, appellant may not rely on
the October 2007 motion to preserve these contentions as a basis for challenging the
admissibility of Waxler‟s unobjected-to trial testimony regarding appellant‟s blood test
results. We do not further address these contentions.3

        We turn to the remaining appellate contentions that the trial court should have
excluded the hospital blood test results from the jury‟s consideration because

                “the manufacturer of the hospital‟s blood testing machine designate[d] that
                the machine was unreliable for forensic blood testing;” and

                “the State failed to present evidence that the blood test met the three Kelly
                criteria required for scientific evidence to be considered sufficiently reliable
                as to be of help to a jury.”

The first contention generally corresponds to grounds (7) and (9) referenced in the
October 2007 motion to suppress.              The second contention generally corresponds to
ground (5) referenced in the October 2007 motion to suppress.

        With respect to the purpose for which the hospital‟s blood testing machine is to be
used, the record does not support an assertion that the manufacturer designated the
machine to be “unreliable for forensic blood testing.”                  Defendant‟s Exhibit 5 lists
measurements for 13 substances in appellant‟s blood.                         Under the listing for
“ALCOHOL,” the following phrase appears on the report:                       “FOR THERAPEUTIC


        3
          We note that appellant‟s original brief filed on May 2, 2008 does not raise an issue challenging
the reliability or admissibility of testing conducted on blood serum rather than whole blood. Appellant‟s
supplemental brief on remand raises this new issue. Even if we were to allow the belated addition of a
new issue at this stage, this newly added issue provides no basis for reversal for reasons explained in the
text.

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PURPOSES ONLY, NOT FOR FORENSIC USE.”

       During cross-examination, Waxler was asked the following question: “Is it true,
Ms. Waxler, that the manufacturer designated for that analyzer that it was not to be used
for forensic use?” She responded: “I don‟t believe that any of the literature that was
supplied to us ever said anything about that.” In response to a follow up question,
Waxler stated that the hospital itself “put a disclaimer on our results to say for therapeutic
purposes only, not for forensic use, only because we are not certified as a forensic
laboratory.” Waxler then was asked: “And you‟re not certified as a forensic laboratory
because you cannot show chain of custody; that is, you can‟t show that there‟s not
contamination of your test tubes?” Waxler responded: “No, it‟s because we do not
choose to go through the certification process to become a forensic laboratory.”

       Based on this record, we reject appellant‟s contention that the trial court abused its
discretion by admitting evidence of the blood test results because the hospital used a
machine whose manufacturer designated the machine to be “unreliable for forensic blood
testing.”

       In his second contention, appellant argues that the State failed to demonstrate the
reliability of the hospital‟s blood testing process. Appellant contends the testing process
was unreliable because (1) the hospital laboratory was not certified to operate the
Synchron LX analyzer for forensic testing; (2) the analyzer was not properly calibrated;
(3) Waxler did not correctly convert the results obtained from blood serum to results
applicable to whole blood; (4) no potential error rate was established; (5) Waxler‟s
experience and skill in performing forensic tests was not established; (6) blood serum
tests are not reliable; and (7) Waxler did not remember her actions taken on the night
appellant‟s blood was tested.

       Appellant links these reliability challenges by arguing that “the State bore the
burden of persuasion by clear and convincing evidence that the blood test results were
trustworthy.” He cites Kelly, 824 S.W.2d at 573, to support this proposition. He also
relies on Kelly in asserting that the State was required to adduce proof regarding

                                              9
certification, conversion of serum readings to readings for whole blood, calibration, error
rate, and technician experience “as part of establishing the reliability of scientific
evidence when that reliability is called into question by an objection.”

       Appellant misplaces his reliance on Kelly‟s reference to a clear and convincing
standard. This reference addresses the burden of persuasion borne by a “proponent of
novel scientific evidence” who seeks admission of such evidence under Rule 702. Id.
Appellant does not argue and the appellate record does not suggest that the blood test at
issue is novel.

       Even if it is assumed that the test at issue is novel, this case arrives on appeal in a
far different posture than Kelly. The appellant in Kelly did not merely file a motion to
suppress; in addition, a suppression hearing was conducted outside the jury‟s presence
before the evidence was admitted at trial. Id. at 569. Six witnesses testified during the
suppression hearing in the course of examining the scientific issues and developing a
detailed record concerning the specific reliability challenges being asserted on appeal.
Id.; see also Wooten v. State, 267 S.W.3d 289, 297 (Tex. App.—Houston [14th Dist.]
2008, pet. ref‟d) (“At the Rule 705 hearing, three witnesses testified as to how blood-
alcohol results from a Dimension RXL Analyzer machine . . . are processed and
analyzed.”)

       Here, in contrast, the record provides no indication that a suppression hearing was
held before or during trial with respect to the hospital blood test results. Nor does the
record indicate that the detailed reliability challenges argued on appeal were presented for
the trial court‟s consideration and ruling before Waxler testified at trial about the hospital
blood test results. Appellant does not contend that the trial court erred by failing to
conduct a suppression hearing before or during trial. Appellant‟s fleeting references to
Daubert and a non-existent “Mirecles” case in his suppression motion provide
insufficient notice regarding the extensive reliability arguments developed on appeal. On
this record, we cannot conclude that the trial court abused its discretion by admitting
Waxler‟s unobjected-to trial testimony regarding the hospital blood test results.

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                                   CONCLUSION

      We affirm the trial court‟s judgment.




                                        /s/        William J. Boyce
                                                   Justice


Panel consists of Justices Seymore, Boyce, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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