 AFFIRMED; Opinion Filed December 5, 2013.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-01521-CR

                            BLAKE DANIEL STONE, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 1
                                  Grayson County, Texas
                            Trial Court Cause No. 2011-1-0338

                             MEMORANDUM OPINION
                        Before Justices O’Neill, Lang-Miers, and Evans
                                   Opinion by Justice Evans

       Following a jury trial, Blake Daniel Stone appeals his conviction for boating while

intoxicated. In his first issue on appeal, Stone contends the trial court erred by denying his

motion to suppress and admitting the blood sample and related evidence because the State failed

to produce any evidence demonstrating that the blood sample was drawn in a sanitary place. In

his second issue on appeal, Stone contends that the evidence is legally insufficient to prove

beyond a reasonable doubt that he was intoxicated while operating a watercraft. In his final

issue, Stone contends the trial court abused its discretion in admitting the game warden’s police

report. Finding no merit in appellant’s arguments, we affirm the trial court’s judgment.
                                        BACKGROUND

       On July 4, 2010, game warden Ricky May was assisting in the patrol of Lake Texoma

when he observed a boat with multiple persons. After detaining the boat to determine if all

passengers had life jackets, May observed alcohol on the boat and requested that the driver of the

boat, Stone, recite the alphabet. After failing to include “W” in his recital, May instructed Stone

to step onto the patrol boat for further testing. On the patrol boat, May performed the “float test”

on Stone which consisted of a finger count, a palm pat, and another recital of the alphabet. As a

result of Stone’s performance, May transported Stone to the game warden station to perform the

standardized field sobriety test consisting of the horizontal gaze nystagmus test, the walk-and-

turn test, and the one-leg stand test. May concluded that Stone failed the first test but passed the

second two tests.

       Following completion of the standardized field sobriety test, May placed Stone under

arrest for boating while intoxicated and read him his rights regarding breath and alcohol tests.

Stone refused to give a breath sample but consented to a blood sample. A nurse drew Stone’s

blood and the sample was mailed to the Department of Public Safety crime lab. The Department

of Public Safety tested the blood and determined that Stone had a 0.12 blood alcohol content.

       Stone was subsequently charged with the offense of boating while intoxicated. A jury

found Stone guilty and set the punishment at ninety days in the county jail and a $1,000 fine. The

jury also recommended community supervision and suspension of the confinement term. The

trial court sentenced Stone based on the jury verdict and set a twenty-four-month probation term.

Stone then filed this appeal.




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                                               ANALYSIS

        I.      No Statutory Violation

        In his first issue on appeal, Stone argues that the trial court erred by denying his motion

to suppress the blood sample and related evidence because the State failed to produce any

evidence demonstrating that the blood sample was drawn in a sanitary place. 1 When reviewing a

trial court’s ruling on a motion to suppress, we view the evidence in the light most favorable to

the ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the record is

silent on the reasons for the trial court’s ruling, or when the trial court does not make explicit fact

findings, the appellate court implies the necessary fact findings that would support the trial

court’s ruling if the evidence (viewed in the light most favorable to the trial court’s ruling)

supports these implied fact findings. Id. at 818-19. The appellate court then reviews the trial

court’s legal ruling de novo unless the supported-by-the-record implied fact findings are also

dispositive of the legal ruling. Id.

        A defendant that moves for suppression of evidence under Article 38.23 due to the

violation of a statute has the burden of producing evidence of a statutory violation. State v.

Robinson, 334 S.W.3d 776, 779 (Tex. Crim. App. 2011). The State bears the burden to prove

compliance with the statute only when defendant’s burden has been met. Id.

        Here, Stone argues that the game warden station cannot be a “sanitary place” as required

under the Texas Transportation Code because the blood was drawn in a room containing a

kitchen. Stone also argues that the blood should have been drawn “some place where citizens

would expect to receive routine medical treatment in relation to the drawing of blood.” Stone,


    1
      The Texas Transportation Code which governs this issue states as follows: “[t]he blood specimen must be
taken in a sanitary place.” See TEX. TRANSP. CODE ANN. § 724.017(a-1).




                                                    –3–
however, does not cite any case law in support of these propositions. 2 In this case, the State

introduced evidence that game warden Randolph McGee had sanitized the game warden station

the morning of July 4, 2010, by using a bleach/water solution on the furniture and Pine-Sol on

the floors. Stone did not provide any evidence that the room was not clean. Stone has made no

showing, and cites no authorities holding, that these actions were insufficient to make the game

warden station sanitary. Accordingly, we resolve this first issue against Stone.

        II.      Sufficient Evidence for Conviction

        In his second issue, Stone contends the evidence is legally insufficient to prove beyond a

reasonable doubt that he was intoxicated while operating a watercraft. When an appellant

challenges the sufficiency of the evidence to support a conviction, we review all the evidence in

the light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Wise v. State, 364

S.W.3d 900, 903 (Tex. Crim. App. 2012). Evidence is sufficient if “the inferences necessary to

establish guilt are reasonable based upon the cumulative force of all the evidence when

considered in the light most favorable to the verdict.” Id. If the evidence is conflicting, we

“‘presume that the factfinder resolved the conflicts in favor of the prosecution’ and defer to that

determination.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 326 (1979)). This standard is

the same for both direct and circumstantial evidence. Id.

        The Texas Penal Code defines “intoxicated” as “having a blood alcohol content of 0.08

or more.” See TEX. PEN. CODE ANN. § 49.01(2)(B). A person commits the offense of boating

        2
           Stone does cite State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011). In Johnston, the Court of
Criminal Appeals decided a “clean, but not sterile” room with furniture that “could be cleaned with a commercial
sanitizer before each use” satisfied the reasonableness requirement of the Fourth Amendment regarding the blood
draw. Id. at 652, 662. The Court, however, did not address the sanitary requirement for blood draws under Chapter
724 of the Texas Transportation Code.




                                                      –4–
while intoxicated if the person is intoxicated while operating a watercraft. See TEX. PEN. CODE

ANN. § 49.06(a). In this case, it is undisputed that Stone was operating a watercraft and the

evidence shows that he had a blood alcohol concentration of 0.12 on July 4, 2010. Accordingly,

there was sufficient evidence to support Stone’s conviction and we resolve the second issue

against him. 3

        III.     No Harm in Admission of Report

        In his final issue, Stone contends the trial court erred in admitting the game warden’s

police report into evidence because it was inadmissible hearsay. The trial court’s decision to

admit or exclude evidence is viewed under an abuse of discretion standard. Torres v. State, 71

S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial court abuses its discretion when its decision

lies outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex.

Crim. App. 1996).

        Pursuant to Rule 801(e)(1)(B), if a declarant testifies at trial and is subject to cross-

examination concerning a prior statement and the prior statement is consistent with the

declarant’s testimony and is offered to rebut an implied charge of recent fabrication, then the

prior statement is not hearsay. TEX. R. EVID. 801(e)(1)(B). Here, May testified at trial about the

events which occurred on July 4, 2010. During cross-examination, Stone’s counsel repeatedly

questioned May about specific facts that were omitted from May’s police report but about which

he testified during direct examination.4 The State argued that this questioning left the jury with


    3
      Appellant’s counsel conceded in oral argument that if the blood evidence was admissible and an almost-
double-the-legal-limit blood alcohol content was affirmed then, as a matter of law, sufficient evidence for a
conviction did exist.
    4
       For example, appellant’s counsel noted that May had failed to include the following items in his report:
(1) the weather and wind conditions; (2) wave height; (3) that the stop occurred in Texas; (4) number of passengers
on boat; (5) the type of boat; (6) whether there was alcohol present on the boat; (7) that Stone stepped over half an
inch (which is the allowable variance in the heel-to-toe test); and (8) that Stone told him his father was a lawyer.




                                                        –5–
the false impression that May fabricated his testimony at trial and the State requested that the

report be admitted so that the jury could see the level of detail in his report to rebut the

fabrication allegation. The trial court admitted the report but limited its admissibility. 5

         Pursuant to Rule 801(e)(1)(B), the report could have been admitted without condition to

rebut even a subtle charge of recent fabrication. White v. State, 256 S.W.3d 380, 383 (Tex.

App.—San Antonio 2008, pet. ref’d) (“There need only be a suggestion that the witness

consciously altered her testimony in order to permit the use of the earlier consistent statements”

(citing Hammons v. State, 239 S.W.3d 798 (Tex. Crim. App. 2007))). We defer to the trial

court’s “assessment of tone, tenor, and demeanor” of the examination. Id. at 384. The trial

court, however, chose to limit the report’s admissibility to demonstrate the level of detail game

warden May employed in preparing the report. There was no harm in the report’s admission. Id.

(“Even if we were to assume that defense counsel’s cross-examination in this case did not equate

to a charge of recent fabrication, we may not reverse a defendant’s conviction for non-

constitutional error if, after examining the record as a whole, we have a fair assurance that the

error did not have a substantial and injurious effect or influence in determining the jury’s

verdict.”).     Here, we held above that (1) the blood sample was properly admitted as evidence;

and (2) the blood sample conclusively demonstrated that Stone was intoxicated while operating a

watercraft. Therefore, even if we disagreed with the report’s admission, it would not have had “a

substantial or injurious effect or influence” on the jury’s verdict based on our prior resolution of

issues one and two. We resolve the third issue against Stone.




    5
       The trial court instructed the jury, “[The report] is not admitted for the truth of any matter set out in the report.
It is admitted merely to demonstrate the degree of detail that the officer recorded when he prepared his report, and
the report, which is State’s Exhibit 8, should not be considered for any other purpose.”




                                                           –6–
                                       CONCLUSION

       We resolve appellant’s issues against him and affirm the trial court’s judgment.



                                                           /David Evans/
                                                           DAVID EVANS
                                                           JUSTICE


Do Not Publish
TEX. R. APP. P. 47
121521F.U05




                                              –7–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

BLAKE DANIEL STONE, Appellant                      On Appeal from the County Court at Law
                                                   No. 1, Grayson County, Texas
No. 05-12-01521-CR        V.                       Trial Court Cause No. 2011-1-0338.
                                                   Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee                       Justices O’Neill and Lang-Miers
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 5th day of December, 2013.




                                                   /David Evans/
                                                   DAVID EVANS
                                                   JUSTICE




                                             –8–
