Affirmed and Memorandum Opinion filed May 15, 2014.




                                      In The

                     Fourteenth Court of Appeals

                                NO. 14-12-01161-CR

                      MITCHELL WININGER, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

           On Appeal from the County Criminal Court at Law No. 2
                           Harris County, Texas
                       Trial Court Cause No. 1800224


                  MEMORANDUM OPINION

      Appellant, Mitchell Wininger, appeals his conviction for driving while
intoxicated. In his sole issue, appellant contends the trial court erred by admitting
appellant’s “blood specimen and related evidence.” Concluding this alleged error
was not preserved, we affirm.
                                    I.       BACKGROUND

         According to the State’s evidence, at approximately 1:00 a.m. on December
24, 2011, a Houston police officer stopped appellant’s vehicle because he failed to
dim his head lights when signaled to do so. That officer and a DWI task-force
officer summoned to the scene suspected appellant was intoxicated based on their
interaction with him and field sobriety tests. After appellant was given applicable
statutory warnings, he consented to providing a blood specimen, which was
obtained at the police station at 2:15 a.m. that morning. Testing revealed a blood-
alcohol concentration of 0.20. See Tex. Penal Code Ann. § 49.01(2)(B) (West
2011) (defining “intoxicated” to include having a blood-alcohol concentration of
0.08).

         After both the State and appellant rested at trial, appellant moved to
“suppress” the “blood evidence” on, inter alia, the ground that the State had not
established the blood was drawn in a sanitary place. The trial court denied the
motion. A jury found appellant guilty of misdemeanor driving while intoxicated.
The trial court sentenced appellant to three days’ confinement in the county jail
and assessed a fine.

                                         II. ANALYSIS

         In his sole issue, appellant contends the trial court erred by admitting his
“blood specimen and any related evidence” because the State failed to establish the
specimen was taken in a sanitary place as required by Texas statute. See Tex.
Transp. Code Ann. § 724.017(a-1) (West Supp. 2013) (providing a blood specimen
“must be taken in a sanitary place”).1 Appellant invokes Texas Code of Criminal

         1
         Section 724.017 was amended after appellant’s conviction, but the relevant portion
remains the same, albeit assigned a different subsection number. See Tex. Transp. Code Ann. §
724.017(a-1) (West Supp. 2013). Thus, we cite the current statute.

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Procedure article 38.23(a) which provides, in pertinent part: “No evidence obtained
by an officer or other person in violation of any . . . laws of the State of Texas . . .
shall be admitted in evidence against the accused on the trial of any criminal case.”
Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005).

      We agree with the State that appellant failed to preserve error on his
contention. To preserve a complaint for appellate review, a party must present to
the trial court a timely request, objection, or motion stating the specific grounds for
the complaint and obtain a ruling. Tex. R. App. P. 33.1(a); Wilson v. State, 71
S.W.3d 346, 349 (Tex. Crim. App. 2002). A defendant may object that evidence is
inadmissible under article 38.23(a) in either of two ways: (1) he may object to
admission of the evidence when it is offered at trial and request a hearing outside
the presence of the jury; or (2) he may file a pretrial motion to suppress and have it
heard and ruled upon before trial. Holmes v. State, 248 S.W.3d 194, 199 (Tex.
Crim. App. 2008). In the present case, appellant did not file a pretrial motion to
suppress.

      We must, therefore, determine whether appellant’s objection to the evidence
was timely. In general, with respect to objecting when evidence is offered at trial,
the objection should be made as soon as the ground becomes apparent. Lagrone v.
State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). “[T]he defense must have
objected to the evidence, if possible, before it was actually admitted. If this was
not possible, the defense must have objected as soon as the objectionable nature of
the evidence became apparent and must have moved to strike the evidence, that is,
to have it removed from the body of evidence the jury is allowed to consider.”
Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). If a defendant
fails to object until after an objectionable question has been asked and answered,
and he can show no legitimate reason to justify the delay, his objection is untimely

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and error is waived.     Lagrone, 942 S.W.2d at 618.       We have construed the
components of Transportation Code section 724.017 as part of the necessary
predicate for the State’s admission of evidence regarding a person’s blood-alcohol
concentration. See Garcia v. State, 112 S.W. 3d 839, 848 (Tex. App.—Houston
[14th Dist.] 2003, no pet.).

      We begin by noting that, although appellant broadly references the allegedly
improper admission of the “blood specimen and any related evidence,” the actual
specimen of blood was not admitted. Appellant does not expressly state what he
means by “related evidence.” It appears from appellant’s argument regarding harm
that his evidentiary challenge is centered on the blood-alcohol test results.
Nevertheless, we examine appellant’s challenge to all blood-related evidence
actually admitted.

      During trial, to establish the manner in which the blood specimen was
obtained, the State presented, without objection, (1) the testimony of Houston
police officer Don Egdorf, an investigator for vehicular crimes, (2) a videotape of
the blood-draw procedure, and (3) photographs of sealed vials containing
appellant’s blood.    Officer Egdorf explained, and the video confirms, that a
registered nurse drew the blood in a police-station office dedicated to that purpose,
while Officer Egdorf observed.

      Then, to prove the blood-alcohol concentration in appellant’s specimen, the
State presented, without objection, (1) testimony of William Arnold, assistant
director of the Houston crime lab, who explained the testing procedure and the
results, and (2) the written lab report showing the results, which was admitted
during Arnold’s testimony.

      We conclude that appellant did not preserve error on the admission of any
evidence related to the blood specimen. Appellant complains the State did not
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establish, through Office Egdorf or otherwise, that the blood-draw office was
sanitary. Assuming, without deciding, that appellant is correct, he knew when the
State offered the photographs of the blood vials, Arnold’s testimony regarding the
testing procedure, and the test results that the State had not laid the predicate for
admission by establishing the blood-draw room was sanitary.
       Moreover, the nature of the proffered evidence was apparent before it was
admitted. Before offering the photographs, the State established they depicted the
blood vials, and appellant then stated he had no objection to their admission, Then,
during Arnold’s testimony, it was clear that the State was questioning him
regarding the testing procedure, but appellant’s only objections were unrelated to
whether the State had proved the blood-draw room was sanitary. When offering
the lab report, the State tendered the exhibit to appellant’s counsel who stated “at
this time, I don’t have any objections.” Subsequently, the State asked Arnold,
“[W]hat does it say that [appellant’s] blood alcohol concentration on the night of
December 24th, 2011 was?” Appellant lodged no objection at that time. Further,
appellant did not object when the State subsequently questioned Arnold regarding
(1) the effects of a 0.20 blood-alcohol concentration on a person, (2) the amount of
alcohol necessary to reach that concentration, and (3) whether that concentration
was reflective of intoxication when appellant was stopped by the officer.
       Rather, appellant first objected after both the State and appellant had
rested—when appellant moved to “suppress” the “blood evidence” on the ground
the State had not established the blood was drawn in a sanitary place.2


       2
         Although appellant refers to his objection after he rested as a “motion to suppress,” the
objection was essentially a “motion to strike.” See Black’s Law Dictionary 1110 (9th ed. 2009)
(distinguishing a “motion to strike” (“[a] request that inadmissible evidence be deleted from the
record and that the jury be instructed to disregard it”) from a “motion to suppress” (“[a] request
that the court prohibit the introduction of illegally obtained evidence at a criminal trial”)).
Appellant did not file any motion to suppress the evidence at issue before it was offered.

                                                5
Accordingly, appellant failed to timely object to admission of the evidence related
to the blood specimen. See Lagrone, 942 S.W.2d at 618 (holding defendant
waived challenge to State’s allegedly improper questions to witness regarding
defendant’s reputation because he did not object until after questions had been
asked and answered and State had passed witness).
      Because appellant did not preserve error on his complaint, we overrule his
sole issue and affirm the trial court’s judgment.



                                       /s/       John Donovan
                                                 Justice




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




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