                               Fourth Court of Appeals
                                        San Antonio, Texas
                                 MEMORANDUM OPINION

                                          No. 04-17-00430-CR

                                          San Juan GARCIA,
                                               Appellant

                                                  v.

                                         The STATE of Texas,
                                               Appellee

                     From the 227th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2014CR3674
                          Honorable Kevin M. O’Connell, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: December 12, 2018

AFFIRMED

           Appellant San Juan Garcia appeals his conviction for the offense of driving while

intoxicated. On appeal, Garcia raises three issues challenging the admission of evidence, improper

hearsay testimony, and the trial court’s jurisdiction. We affirm the judgment of the trial court.

                                            BACKGROUND

           On January 10, 2014, Garcia was involved in a motor vehicle accident in which the car

Garcia was driving collided with a motorcycle driven by Elliot Brown. Brown was injured in the

accident and, immediately following the collision, was unable to walk. According to the first
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officer on the scene, San Antonio Police Department (“SAPD”) Officer Kody Patterson, Garcia

smelled strongly of alcohol, had slurred speech, and stumbled when he walked. Garcia appeared

uninjured, aside from blood on his nose. Also according to Officer Patterson, Garcia admitted he

had been drinking.

       SAPD Detective Gary Nel, a member of the DWI Task Force, administered three standard

field sobriety tests to Garcia, who informed Detective Nel he was “a hundred percent.” According

to Detective Nel, Garcia was cooperative but “struggled to follow the instructions.” Additionally,

Garcia smelled strongly of intoxicants, was unsteady on his feet, and had glassy and bloodshot

eyes and slurred speech. Detective Nel placed Garcia under arrest for suspicion of driving while

intoxicated and asked Garcia to voluntarily provide a blood sample, but Garcia refused. Detective

Nel then applied for and received a search warrant for a blood specimen, which was drawn by the

nurse on duty. The test results for Garcia’s blood specimen indicated Garcia’s blood alcohol

concentration (“BAC”) was 0.21 g/dL, which is over the legal limit of 0.08 g/dL. See TEX. PENAL

CODE ANN. § 49.01(2)(B) (West 2011) (defining “intoxicated”).

       The State later charged Garcia by indictment with the offense of driving while intoxicated

(“DWI”), which was enhanced by two prior DWI convictions. See TEX. PENAL CODE ANN. §

49.09(b)(2) (West Supp. 2017). A jury found Garcia guilty and, during the punishment phase,

found Garcia used or exhibited his vehicle as a deadly weapon.            Based upon the jury’s

recommendation, the trial court sentenced Garcia to thirty years’ imprisonment.

       This appeal followed.

                                            ANALYSIS

                                           Jurisdiction

       We first address Garcia’s contention that the State failed to invoke the trial court’s

jurisdiction because the State failed to prove all prior DWI convictions pleaded in the indictment.
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Garcia argues that because the State alleged eight prior DWI convictions in the indictment, the

State was required to prove all eight prior convictions to invoke the trial court’s jurisdiction.

       Ordinarily, when the State alleges a prior conviction for jurisdictional purposes, a

defendant may stipulate to the allegation and prevent the State from adducing evidence of the prior

conviction other than the stipulation. See Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App.

2003) (finding no error in the admission of the stipulation into evidence); see generally Tamez v.

State, 11 S.W.3d 198, 202–03 (Tex. Crim. App. 2000). If the State alleges more convictions than

necessary to establish jurisdiction, a defendant may stipulate to the statutorily required number of

prior convictions necessary to establish jurisdiction. See Tamez, 11 S.W.3d at 202–03. Under

these circumstances, the State may not read the indictment allegations concerning the additional

prior convictions or adduce extrinsic evidence of any of the convictions, including the one to which

the defendant stipulated. See Hernandez v. State, 109 S.W.3d 491, 493–94 (Tex. Crim. App. 2003)

(per curiam) (finding error when the State read and proved three prior convictions when the offense

of felony driving while intoxicated required proof of only two prior convictions); Tamez, 11

S.W.3d at 202–03 (holding it was error for the State to read and prove six prior convictions

although the defendant offered to stipulate to the required two).

       Commission of a DWI offense under Section 49.04 is a Class B misdemeanor, unless the

person has been convicted of two prior DWI offenses. In such event, the offense may be elevated

to a third degree felony. See TEX. PENAL CODE ANN. §§ 49.04(b), 49.09(b). When the State uses

prior convictions to elevate a misdemeanor DWI offense to a felony, the State must plead the prior

convictions in the indictment for the trial court to gain jurisdiction over the felony offense, and the

State must prove the prior convictions to support prosecution. Robles v. State, 85 S.W.3d 211,

213–14 (Tex. Crim. App. 2002); Tamez, 11 S.W.3d at 201; TEX. PENAL CODE ANN. § 49.09(b).

However, where a defendant stipulates to the prior convictions, reading or introducing the
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stipulation to the jury is sufficient to meet the State’s burden of proof, making extraneous evidence

of the prior convictions inadmissible under Texas Rule of Evidence 403. Robles, 85 S.W.3d at

213–14; Tamez, 11 S.W.3d at 202.

       Here, prior to its opening statement, the State read the indictment, including only two prior

convictions rather than all eight as alleged in the indictment. In the charge of the court, the trial

court instructed jurors that Garcia stipulated to the two prior convictions that the State read with

the indictment. Therefore, because Garcia stipulated to the two prior convictions, the State could

not adduce evidence of the other six prior convictions alleged in the indictment. Accordingly, we

conclude the State properly invoked the trial court’s jurisdiction.

       Issue three is overruled.

                                        Evidentiary Issues

       In issues one and two, Garcia contends the trial court erred by admitting the blood analysis

report and by allowing Dr. Vanessa Hargrove to testify over objection that Garcia’s blood

specimen was drawn at 00:12 on the night of the accident. We review the trial court’s admission

or exclusion of evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex.

Crim. App. 2011).

                                      Blood Analysis Report

       In issue one, Garcia complains the trial court improperly admitted State’s Exhibit No. 34,

the blood analysis report, because the record contains no evidence of the initial link in the chain-

of-custody for the blood evidence itself. The nurse who drew Garcia’s blood did not testify at

trial. However, Detective Nel testified he observed the nurse use two gray-topped vials to draw

blood samples from Garcia, rotate the vials ten times, and label and seal the vials in a biohazard

bag, which was then sealed in an envelope and placed into an evidence refrigerator. Detective Nel



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also testified the labels used by the nurse identified the SAPD case number and Garcia’s name, as

well as the detective’s name and the name of the nurse who drew the blood sample.

       Toxicology chemist Marie Renteria testified she received the envelope containing the

blood samples at the Bexar County Crime Lab on January 13, 2014. Renteria testified she verified

the seals on the vials, as well as the outer packaging, were intact. Renteria assigned Garcia’s

samples the in-house accessioning number FTL-20140004. Renteria then placed the blood

samples in a secured storage refrigerator for testing.

       Senior toxicology chemist Mackenzie Dunn testified she tested the blood sample identified

by number FTL-20140004 and Garcia’s name. Dunn testified she received two gray-topped blood

vials for testing in this case with Garcia’s name and assigned FTL number. Dunn further testified

she analyzed the blood using gas chromatography to determine its blood alcohol concentration.

Dunn identified State’s Exhibit No. 34, the blood analysis report, as a true and accurate copy of

the testing she conducted and the results of that testing. Toxicology chemist Laurel Porter testified

she confirmed the results of Dunn’s testing.

       Dr. Hargrove, the Chief Toxicologist at the Bexar County Medical Examiner’s Office,

testified she reviewed the testing results. Dr. Hargrove identified State’s Exhibit No. 34 as the

blood analysis report produced following the testing of FTL-20140004 and which she signed. Dr.

Hargrove further testified the report lists Garcia’s full name and shows the vials were received at

the lab on January 13, 2014. When the State moved to admit the blood analysis report, Garcia

objected, arguing the chain of custody had not been established because “[w]e haven’t heard from

a nurse or the person who actually did the drawing of the blood and followed all the protocol to do

that.” Garcia asserted, “there is a gap there.” The trial court overruled the objection and admitted

the report. Dr. Hargrove then testified the report showed Garcia’s BAC level at the time his blood

was drawn was 0.21 g/dL.
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       Garcia argues on appeal that the trial court abused its discretion by admitting the blood

analysis report because a proper chain of custody was not established. Specifically, Garcia asserts

that for a proper chain of custody to be established, the State was required to present testimony

from the person who actually drew his blood.

Applicable Law

       A proper chain of custody must be established to lay the predicate for admission of blood

test results. Mitchell v. State, 419 S.W.3d 655, 660 (Tex. App.—San Antonio 2013, pet. ref’d).

The State must prove that the blood drawn from the defendant was the same blood that was

received at the laboratory. Id. It is only necessary for the State to prove the beginning and end of

the chain of custody to support admission of the evidence, “particularly when the chain ends at a

laboratory.” Id. at 559; see also Durrett v. State, 36 S.W.3d 205, 208 (Tex. App.—–Houston [14th

Dist.] 2001, no pet.). Absent any evidence of fraud or tampering, any gaps in the chain of custody

go to the weight of the evidence, not to its admissibility. Mitchell, 419 S.W.3d at 660; Druery v.

State, 225 S.W.3d 491, 503–04 (Tex. Crim. App. 2007). Finally, it is not necessary that the nurse

who drew the blood testify if an officer who observed the nurse conduct the blood-draw can testify

that the proper procedure was followed. See Beck v. State, 651 S.W.2d 827, 829 (Tex. App.—

Houston [1st Dist.] 1983, no pet.) (holding that when standard procedures are followed, the

testimony of a person who observed the blood draw and the laboratory technician who tested the

sample adequately establishes the beginning and the end of the chain of custody, even if the

identity of the specific person who drew the blood is unknown).

Discussion

       Here, Detective Nel’s testimony was sufficient to establish the beginning of the chain of

custody for the blood samples. He witnessed the nurse use two gray-topped vials to draw the blood

from Garcia, described the procedures she followed and how she labeled the vials, and saw the
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nurse seal the vials in an envelope and place the envelope in an evidence refrigerator. See Mitchell,

419 S.W.3d at 660. Likewise, Renteria’s and Dunn’s testimony sufficiently established the end of

the chain of custody at the laboratory. See id. Renteria testified that on January 13, 2014 she

received the blood vials for testing in Garcia’s case, his name was on the form, and the blood vials

were intact. See id. Dunn then analyzed those blood samples for their alcohol concentration. See

id. Dunn testified the blood analysis report accurately reflected the testing she conducted and the

testing results. See id. Finally, Porter testified she verified Dunn’s testing results, and Dr.

Hargrove testified she reviewed the results and signed the blood analysis report. See id. The trial

court therefore did not abuse its discretion by admitting the blood analysis results showing Garcia’s

blood alcohol concentration level.

       Issue one is overruled.

                                 Admission of Hearsay Testimony

       During Dr. Hargrove’s testimony, the State asked Dr. Hargrove whether she was aware “at

what time the blood was drawn.” Dr. Hargrove responded the information was in her records, and

the State asked Dr. Hargrove if she could refresh her memory by looking at her records. Defense

counsel objected on the basis of hearsay, arguing “Even though it’s in her records, she had to get

that from somebody else … the fact that she copied it into her records does not mean it’s not

hearsay.” The trial court overruled the objection, and Dr. Hargrove testified “the blood was drawn

on January 11, 2014, at 0012.” On appeal, Garcia contends the trial court erred by overruling the

objection and allowing the testimony regarding the time at which the blood was drawn.

Preservation of Error

       “As a prerequisite to presenting a complaint for appellate review, the record must show

that: (1) the complaint was made to the trial court by a timely request, objection, or motion ....”

TEX. R. APP. P. 33.1(a)(1). “In addition, a party must object each time the inadmissible evidence
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is offered or obtain a running objection.” Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App.

2003). “An error in the admission of evidence is cured where the same evidence comes in

elsewhere without objection.” Id.

Discussion

       The record shows that prior to Dr. Hargrove’s testimony, toxicology chemist Marie

Renteria with the Bexar County Crime Lab testified during cross-examination that Garcia’s blood

was drawn at 00:12 on January 11, 2014.

       [Defense]:     Do you know the amount of lapsed time between the time [the
                      blood] was collected until the time it got to your office?

       [Renteria]:    No.

       [Defense]:     If you look at the forms, can you figure it out?

       [Renteria]:    I mean, from the time of the draw, not the time that the officers had
                      it or where they had it. I can tell you the time that — the draw was
                      done on the 11th at 0012 and we received it on the 13th at 1508.

       [Defense]:     So on January 11th at 12 minutes past midnight is when the blood
                      was drawn from the person’s arm. Is that fair to say?

       [Renteria]:    Yes.

       Any possible error in the trial court’s decision to overrule Garcia’s objection to Dr.

Hargrove’s testimony was overcome by Renteria’s previous unobjected-to testimony that the blood

was drawn at 00:12 on January 11, 2014. See id.

       Issue two is overruled.

                                          CONCLUSION

       For the above reasons, we affirm the judgment of the trial court.

                                                 Irene Rios, Justice

DO NOT PUBLISH



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