                                                                            PD-1230-15
                                                           COURT OF CRIMINAL APPEALS
                                                                           AUSTIN, TEXAS
                                                         Transmitted 10/19/2015 5:52:39 PM
                                                           Accepted 10/20/2015 4:24:21 PM
                                                                            ABEL ACOSTA
                        No. PD-1230-15                                              CLERK

                             In the
                   Court of Criminal Appeals
                            of Texas

        _____________________________________

                   MELISSA DROMGOOLE,
                           Appellant
                               v.
                    THE STATE OF TEXAS,
                            Appellee

        _____________________________________

                 From the Court of Appeals
            For the First Judicial District of Texas
                       Houston, Texas
                     No. 01-13-00931-CR

         ____________________________________


      PETITION FOR DISCRETIONARY REVIEW
          _______________________________________

                                      NORMAN J. SILVERMAN
                                      T.B.C. No. 00792207
                                      917 Franklin, 4th Floor
                                      Houston, Texas 77002
                                      (713) 526-1515
                                      (713) 526-1798 (FAX)
October 20, 2015
                                      Attorney for Appellant
                                      Melissa Dromgoole
                          IDENTITY OF PARTIES AND COUNSEL

      The following is a complete list of all parties to the trial court’s judgment,
and the names and addresses of all trial and appellate counsel:

Melissa Dromgoole ...................................................................................... Appellant

State of Texas ................................................................................................ Appellee

Norman J. Silverman....................................... Appellant’s Retained Counsel at Trial
917 Franklin, 4th Floor                                                         and on Appeal
Houston, Texas 77002

Jay B. Cohen ................................................... Appellant’s Retained Counsel at Trial
917 Franklin, 4th Floor
Houston, Texas 77002

Clint Davidson ............................................... Appellant’s Retained Counsel at Trial
917 Franklin, 4th Floor
Houston, Texas 77002

Kristin Assad ........................................................ Assistant District Attorney at Trial
1201 Franklin, Suite 600
Houston, Texas 77002

Cara Burton .......................................................... Assistant District Attorney at Trial
1201 Franklin, Suite 600
Houston, Texas 77002

Carly Dessauer ................................................ Assistant District Attorney on Appeal
1201 Franklin, Suite 600
Houston, Texas 77002

Alan Curry....................................................... Assistant District Attorney on Appeal
1201 Franklin, Suite 600
Houston, Texas 77002

Hon. Paula Goodheart ............................................................................... Trial Judge
                                                           2
                                                   CONTENTS
                                                                                                                        Page

Identity of Parties and Counsel .................................................................................. 2

Table of Contents ....................................................................................................... 3

Index of Authorities ................................................................................................... 5

Statement Regarding Oral Argument ....................................................................... 8

Statement of the Case................................................................................................. 8

Statement of Procedural History ................................................................................ 8

Questions Presented for Review .............................................................................. 10

              1. Does a police officer have a duty, when a suspect claims to be
                 incapacitated due to an uncommon medical condition while in
                 police custody, to further investigate the condition or to inform
                 the blood draw nurse of the condition prior to executing a blood
                 warrant?

              2. Did the court of appeals err in formulating a per se rule, rather
                 than using a totality of the circumstances approach, on the issue
                 of whether a nonconsensual blood test was unreasonable due a
                 medical condition?

              3. Did the court of appeals err in refusing to consider the Kelly
                 factors in examining the reliability of a HPD Crime Lab blood
                 testing technique that violated basic industry standards?

Arguments ................................................................................................................ 10

Questions One and Two: Unreasonable Blood Draw ............................................. 10

    A.      Facts ........................................................................................................... 10

                                                              3
   B.     The Court of Appeals’ Resolution ............................................................ 12

   C.      The Court of Appeals’ Inflexible Standard Places an
           Unreasonable Burden on a DWI Suspect Beyond the
           Requirements of Johnston and Fails to Consider the
           Totality of the Circumstances. .................................................................. 13

           1.     The Johnston standard imposes a duty on police to
                  investigate whether an unfamiliar disclosed medical
                  condition is relevant to blood drawing. ............................................ 14

           2.     The burden imposed by the court of appeals is
                  unreasonable because post-arrest procedures do not
                  provide a legitimate opportunity to assert a medical
                  exemption. ......................................................................................... 15

           3.     Under a totality of the circumstances approach,
                  Appellant met her burden. ................................................................ 18

Question Three: Reliability of Blood Analysis ...................................................... 19

   A.      Facts .......................................................................................................... 19

   B.      The Court of Appeals’ Analysis ................................................................ 22

   C.      The Court of Appeals’ Analysis Conflicts with Kelly. ............................ 22

           1.     The court of appeals erred in refusing to consider the
                  Kelly reliability factors. .................................................................... 22

           2.     The lab’s error was not a single inadvertent variance
                  but rather a sustained practice. ......................................................... 23

           3.     There is no basis for judicial notice of the reliability
                  of the unconventional technique. ...................................................... 24




                                                            4
              4.     Because the court of appeals did not consider the Kelly
                     factors, its analysis resembles the less rigorous standard
                     applied to “soft” sciences. ................................................................. 25

              5.      By reducing the analysis to a mere credibility determination,
                      the court of appeals failed to apply the proper burden of proof
                      and burden of persuasion. ................................................................ 28

Prayer ....................................................................................................................... 30

Certificate of Service .............................................................................................. 31

Certificate of Compliance ........................................................................................ 31

Appendix .................................................................................................................. 32


                                         INDEX OF AUTHORITIES

         Cases:

Bekendam v. State,
   441 S.W.3d 295 (Tex. Crim. App. 2014) ......................................................... 24

Blasdell v. State,
   2015 WL 5449878 (Tex. Crim. App. Sept. 16, 2015) ....................................... 28

Bumper v. North Carolina,
  391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) ........................................ 17

Coble v. State,
  330 S.W.3d 253 (Tex. Crim. App. 2010) ....................................................28, 29

Florida v. Bostick,
   501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) .................................... 15

Florida v. Royer,
   460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) ................................... 15
                                                               5
Kelly v. State,
   824 S.W.2d 568 (Tex. Crim. App. 1992) ..................................................passim

Miranda v. Arizona,
  384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) ..................................... 17

Moore v. Ashland Chemical, Inc.,
  151 F.3d 269 (5th Cir. 1998) ............................................................................. 28

Nenno v. State,
  970 S.W.2d 549 (Tex. Crim. App. 1998) .......................................................... 25

Russeau v. State,
  171 S.W.3d 871 (Tex. Crim. App. 2005) .......................................................... 26

Samson v. California,
  547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) .................................... 18

Schmerber v. California,
   384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ..................................12, 13

Somers v. State,
  368 S.W.3d 528 (Tex. Crim. App. 2012) .......................................................... 24

State v. Johnston,
   336 S.W.3d 649 (Tex. Crim. App. 2011) ...................................................passim

State v. Villarreal,
   No. PD–0306–14, -- S.W.3d --,
   2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014) .................................15, 18

United States v. Drayton,
  536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) .................................... 18

Weatherred v. State,
  15 S.W.3d 540 (Tex. Crim. App. 2000) ............................................................ 26


                                                      6
         Statutes, Rules, and Constitutional Provisions:

TEX. PENAL CODE ANN. § 49.04(a) ........................................................................... 8

TEX. R. APP. P. 9.4 .................................................................................................. 31

TEX. TRANSP. CODE ANN. § 724.012(b) .................................................................. 15

TEX. TRANSP. CODE ANN. § 724.013 ....................................................................... 15

TEX. TRANSP. CODE ANN. § 724.015 ...................................................................... 16

U.S. CONST. amend. IV ............................................................................................ 12




                                                           7
To The Honorable Justices of the Court of Criminal Appeals:

      Appellant, Melissa Dromgoole, by and through the undersigned counsel,

submits this petition for discretionary review.

                  STATEMENT REGARDING ORAL ARGUMENT

      Appellant anticipates that oral argument would be helpful because this case

presents a novel issue requiring the Court to identify relevant circumstances that

may render a forced blood draw unreasonable under the Fourth Amendment due to

a disclosed medical condition.

                          STATEMENT OF THE CASE

      Appellant was charged by information with the Class A misdemeanor

offense of driving while intoxicated1 alleged to have occurred on July 21, 2012.

CR8. Appellant entered a plea of not guilty and a jury found her guilty. CR103;

118. The trial court assessed punishment at one year confinement in the county jail,

probated for one year, and a $500 fine. CR53-54. Appellant filed timely written

notice of appeal, and the trial court certified her right to appeal. CR127-128.

                 STATEMENT OF PROCEDURAL HISTORY

      On June 4, 2015, the First Court of Appeals issued a published opinion

affirming Appellant's conviction and modifying the judgment. Appellant filed a



1 See TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2014).
                                            8
motion for rehearing on July 1, 2015, which was amended on July 13, 2015. On

July 23, 2015, the court of appeals denied the amended motion for rehearing,

vacated and withdrew its opinion of June 4, 2015, and issued a new published

opinion affirming Appellant’s conviction and modifying the judgment. See

Dromgoole v. State, -- S.W.3d --, 01-13-00931-CR, 2015 WL 4497978 (Tex.

App.—Houston [1st Dist.] July 23, 2015), reh'g overruled (Aug. 20, 2015).

      On August 4, 2015, Appellant filed a motion for further rehearing and

motion for en banc reconsideration. On August 20, 2015, these motions were

denied and the court of appeals issued a corrected opinion.

      This Court granted Appellant’s motion to extend time for filing the petition

for discretionary review until October 21, 2015.




                                         9
                 QUESTIONS PRESENTED FOR REVIEW

1.    Does a police officer have a duty, when a suspect claims to be incapacitated
      due to an uncommon medical condition while in police custody, to further
      investigate the condition or to inform the blood draw nurse of the condition
      prior to executing a blood warrant?2

2.    Did the court of appeals err in formulating a per se rule, rather than using
      a totality of the circumstances approach, on the issue of whether a
      nonconsensual blood test was unreasonable due a medical condition?3

3.    Did the court of appeals err in refusing to consider the Kelly factors in
      examining the reliability of a HPD Crime Lab blood testing technique
      that violated basic industry standards?4

                                  ARGUMENTS

                Questions One and Two: Unresonable Blood Draw

      Review should be granted because the court of appeals has decided an

important question of state and federal law that should be settled by this Court. The

court of appeals has formulated an unreasonable and inflexible standard for

asserting a medical exemption to blood drawing that conflicts with State v.

Johnston, 336 S.W.3d 649, 658-59 (Tex. Crim. App. 2011).

A. Facts

      During the traffic stop, Appellant told the arresting officer that she had a

medical condition, syncope, which she explained was fainting caused by a drop in


2 2RR41.
3 2RR41.
4 8RR15, 198.
                                         10
blood pressure. SX4 (2:50:30-40). Officer Nunn had never heard of this condition.

5RR35; 127-138. At the police station, Appellant told several officers, including

Nunn, that she could not exit the vehicle because she was having difficulty with

her syncope. 2RR65; 5RR81, 164; 9RR32, 79. Appellant was able to exit the

vehicle after about ten minutes. 5RR82. Nunn believed that Appellant’s medical

condition was just an “excuse” and that she was being “uncooperative.” 2RR67,

73.

      When Nunn presented the DIC-24 statutory warning form, Appellant did not

consent to providing a breath or blood specimen and requested an attorney. 5RR79.

Nunn obtained a warrant for a blood specimen which was executed by a nurse at

the police station using the standard blood draw procedure. 5RR89, 93; SX7. The

nurse testified that she was trained to use different blood drawing procedures for a

patient with a history of fainting during blood draws; however, it was not her

practice to inquire about an arrestee’s medical history or check vital signs prior to

drawing blood at the police station. 6RR16, 32-33, 41.

      Appellant’s physician, Dr. Varon, testified that he diagnosed Appellant’s

syncope in 2007 after numerous diagnostic tests. 2RR85-90. Appellant’s symptoms

involved episodes of pre-syncope (dizziness, weakness, and visual disturbances)

and full syncope (fainting). 2RR109. Varon explained that Appellant’s syncope

                                          11
was caused by inadequate circulatory response to low blood pressure. 2RR142.

Varon testified that Appellant had suffered episodes twice in conjunction with

blood draws in his office, during one of which she blacked out completely and fell

out of the chair. 2RR91. Varon testified that it was not reasonable to perform a

blood draw on a person prone to syncope or low blood pressure in the standard

sitting position; the patient should be lying flat. 2RR102, 116-117. Varon also

testified that blood pressure should be measured in conjunction with a blood draw

for a patient prone to syncope. 2RR117-118.

B. The Court of Appeals’ Resolution

      Appellant claims that the blood draw was unreasonable under the Fourth

Amendment because the evidence established that she had a medical condition that

“could result in risk, trauma, or more than de minimus pain” if a blood draw were

to be performed. State v. Johnston, 336 S.W.3d 649, 658-59 (Tex. Crim. App.

2011); Schmerber v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 1836, 16

L.Ed.2d 908 (1966). The court of appeals held that Appellant failed to meet her

burden because she did not “sufficiently notif[y] the police or the person

performing the blood draw of the risk posed by the blood draw.” Slip op. at 13.

The court held that a defendant cannot “simply state the name for an uncommon

medical condition and indicate that it is associated with fainting—outside the

                                         12
context of a blood draw and without mentioning how it might create a risk of harm

in connection with a blood draw—and claim to have carried her burden.” Slip op.

at 19.

C.       The Court of Appeals’ Inflexible Standard Places an Unreasonable
         Burden on a DWI Suspect Beyond the Requirements of Johnston and
         Fails to Consider the Totality of the Circumstances.

         In Johnston, the Court held that failing to inquire into an individual’s

medical history before drawing blood does not “render blood draws per se

unreasonable.” Johnston, 336 S.W.3d at 659. The Court found that, as implied by

Schmerber, “each suspect bears the burden of showing that a venipuncture blood

draw is not a reasonable means to obtain a blood alcohol level assessment as to

him or her, individually.” Id. “A DWI suspect, naturally familiar with his or her

own medical history, is in the best position to identify and disclose any peculiar

medical condition that could result in risk, trauma, or more than de minimus pain if

a blood draw were to be performed.” Id. The Court held that reasonableness is

presumed “in the absence of any record evidence showing that a venipuncture

blood draw would not be reasonable in a particular case due to a verifiable medical

condition.” Id. Accordingly, a suspect’s burden includes identifying and disclosing

a medical condition, and producing record evidence showing that the disclosed

condition rendered the blood draw unreasonable.

                                            13
      The Court, however, also imposed an affirmative duty on police officers to

respond appropriately to a suspect’s disclosures. Recognizing that a DWI arrestee’s

well-being and safety “are weighty concerns that should not be marginalized,” the

Court entrusted law enforcement officials with the duty to be “deliberate and

conscientious when choosing the type of test to administer to obtain a suspect’s

blood alcohol level.” 336 S.W.3d at 660.

      1.     The Johnston standard imposes a duty on police to investigate
             whether an unfamiliar disclosed medical condition is relevant
             to blood drawing.

      This “deliberate and conscientious” standard contemplates that an officer

who has been informed about an unfamiliar medical condition will not simply

ignore this information when considering a warrant. When presented with a

suspect who has identified a condition involving low blood pressure and fainting,

and who claimed to be suffering from the condition while in custody, a

conscientious officer should further investigate the condition before executing a

blood warrant. This investigation should include, at a minimum, (1) asking the

suspect whether the disclosed condition could affect the safety of a blood draw, or

(2) informing the nurse or technician performing the blood draw of the disclosed

medical condition.




                                         14
      2.     The burden imposed by the court of appeals is unreasonable
             because post-arrest procedures do not provide a legitimate
             opportunity to assert a medical exemption.

      While officers routinely ask about medical conditions in conjunction with

sobriety testing, there are no procedures in place for ascertaining whether a DWI

arrestee has a medical condition relevant to blood drawing. Nevertheless, the court

of appeals faulted Appellant for having disclosed her condition “outside the

context of a blood draw.” A DWI arrestee cannot fairly be tasked with

volunteering this information in the context of a consent request or in the face of a

warrant, as the court of appeals would require.

      It is legally incompatible with a consent request to require a suspect to

explain a refusal. Under Texas law, an individual who is arrested for an “ordinary”

DWI “has an absolute right to refuse to provide a specimen.” TEX. TRANSP. CODE

ANN. §§ 724.012(b), 724.013; State v. Villarreal, No. PD–0306–14, -- S.W.3d --,

2014 WL 6734178, at *7 (Tex. Crim. App. Nov. 26, 2014). Likewise, under the

Fourth Amendment, an officer does not need a reason to request consent, and a

citizen is free to decline, without presenting any reason. Florida v. Bostick, 501

U.S. 429, 435, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Florida v. Royer, 460 U.S.

491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 (1983). It is inconsistent with

these rights to require a suspect to justify her refusal; to do so would effectively

                                          15
render the right to refuse conditional.

        Moreover, the consent request procedure used in Texas does not present a

logical opportunity to assert a medical exemption. When an officer requests a

breath or blood specimen, a suspect is confronted with a legal form detailing

numerous statutory consequences of refusing to consent. See TEX. TRANSP. CODE

ANN. § 724.015 (West Supp. 2014). Nowhere in the form is there any indication

that a suspect must inform the police of any medical conditions relevant to blood

drawing. The written warnings inform the suspect of the right to a hearing on a

license suspension, but do not inform the suspect about the right to a medical

exemption. The form permits a suspect to indicate only whether she refuses

consent, but not her reasons for doing so.5 Nothing in the form or the procedure

would indicate that it is incumbent on the suspect to volunteer information

justifying the consent refusal, or that the police would be receptive to a suspect’s

explanations. In fact, Officer Nunn admitted that he routinely disregards reported

medical conditions as mere “excuses” and maintained that Appellant was being

uncooperative. 2RR28, 67, 73-77.

        The only other opportunity to assert a medical exemption is when the

suspect is presented with a warrant—a court order requiring her to submit to a



5   See SX6 (DPS DIC-24 Statutory Warning Form).
                                            16
blood draw. But the subject of a validly issued search warrant has no right to resist

the search. Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 20

L.Ed.2d 797 (1968) (“When a law enforcement officer claims authority to search a

home under a warrant, he announces in effect that the occupant has no right to

resist the search.”). Police armed with a warrant are even permitted to use force to

“restrain an uncooperative DWI suspect in order to obtain a blood sample.”

Johnston at 663. If a suspect presented with a warrant has no right to object to its

execution, it cannot be the case that a suspect must do so in order to assert a

constitutional right.

      Moreover, a DWI arrestee may be too incapacitated, either from intoxication

or from a medical condition, to effectively explain the nature of the risk. An

arrestee in a vulnerable state is even less likely to raise an objection in the face of a

warrant. The Supreme Court has observed that, with respect to the right to counsel,

“[w]e cannot penalize a defendant who, not understanding his constitutional rights,

does not make the formal request and by such failure demonstrates his

helplessness.” Miranda v. Arizona, 384 U.S. 436, 471, 86 S. Ct. 1602, 1626, 16 L.

Ed. 2d 694 (1966). This reasoning is all the more compelling in the context of an

impaired or ill suspect faced with a court order requiring her submission.




                                           17
       3.    Under a totality of the circumstances approach, Appellant met
             her burden.

       When resolving questions of Fourth Amendment reasonableness, a court

examines the totality of the circumstances to determine whether a particular search

is reasonable. Villarreal at *8; Samson v. California, 547 U.S. 843, 848, 126 S.Ct.

2193, 165 L.Ed.2d 250 (2006). Accordingly, per se rules are generally

“inappropriate the Fourth Amendment context.” Id.; quoting United States v.

Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002).

       The court of appeals’ inflexible test amounts to a per se rule, rather than a

case-by-case assessment of the circumstances. This per se rule fails to take into

account that the content of suspect’s disclosure, in conjunction with surrounding

circumstances, can put an officer on notice of a potential risk sufficient to render a

blood test unreasonable, even if the suspect does not explain the specific nature of

the risk.

       In this case, Appellant told Officer Nunn that her condition was related to

low blood pressure and fainting, and that it rendered her temporarily unable to

stand while in police custody. Any reasonable person would further investigate the

nature of the medical condition, or notify the blood drawing technician, before

subjecting the arrestee to a nonconsensual blood draw. Nunn’s failure to do so in

these circumstances rendered the blood draw unreasonable. The Court should grant
                                          18
review to clarify a suspect’s burden for asserting a medical exemption to a blood

draw.

                       Question Three: Reliability of Blood Analysis

        Review is warranted because court of appeals failed to apply the correct

burden of proof, burden of persuasion, and applicable analysis required by Kelly v.

State, 824 S.W.2d 568 (Tex. Crim. App. 1992).

A. Facts

        When the HPD Crime Lab analyzed Appellant’s blood specimen, it violated

basic industry standards by failing to conduct the test in accordance with a

validated method.

        The State’s experts testified that the internal operating standards of the lab

and the standards of its accrediting agency require all case work to be conducted in

accordance with the validated method established for an instrument. 6RR129;

7RR13-14, 19-20, 24; 61; 92; 134; 155; 188; 191-92; 196-97; 8RR159.

        A validation study was conducted several months prior to the analysis of

Appellant’s specimen. 7RR14. The validation study was required after the lab

replaced important parts of the headspace chromatograph. 7RR108-109, 140;

8RR159-160. The purpose of a validation study is to demonstrate that an

instrument will produce reliable results at specific parameters (settings). 7RR172-

                                           19
73. The State’s experts testified that parameters may be adjusted during the

development of the method but should remain fixed for the duration of the

validation study. 6RR148-149; 8RR172-173.

      HPD Criminalist L. Mayor conducted the validation study and the analysis

of Appellant’s specimen. The validation report stated that the study was conducted

with the vial oven set at 70 degrees Celsius. DX20; DX21. But the supporting

documentation showed that all of the fundamental components of the study were

conducted with the vial oven set at 60 degrees. 6RR131; 7RR26-37, 57-59; DX20.

This parameter was changed to 70 degrees on the fourth and final day of the study,

where it remained for subsequent forensic casework, including the analysis of

Appellant’s specimen. DX20; DX21; 6RR131; 7RR26-37, 58. The only portion of

the study conducted at the 70-degree setting was an optional criterion that was not

duplicative of the fundamental components. 7RR58, 115-116.

      Mayor and her supervisor, W. Arnold, opined that Appellant’s test results

were reliable despite the deviation for two reasons, neither of which satisfactorily

addressed the issue. First, they testified that a temperature change should not

impact the test results because the instrument measures the ratio between a known

standard (n-Propanol) added to each sample and the unknown ethanol content of

the sample. Because, theoretically, an increase in temperature would

                                         20
proportionately increase the instrument’s response to both, the ratio should not be

affected. 7RR59-60; 68-69; 74. This explanation, however, is dependent on a

properly functioning machine, because the scientific principle (“Henry’s Law”)

upon which it is based requires a constant pressure and temperature. 7RR35; 118.

Without proper validation, there can be no assumption that the machine maintains

these conditions at the designated parameters.

       Second, the State’s experts testified that the lab routinely tests controls

(substances with known concentrations) in conjunction with forensic samples to

check the instrument’s accuracy. 7RR96; 8RR150. But the State’s experts admitted

that the use of controls is not a substitute for proper validation, which is a

regimented procedure that involves more than simply running controls. 6 7RR62;

156; 189; 191; 201-02.

       As explained by Appellant’s expert, A. Culbertson, the use of controls is no

substitute for a method validation because validation is a condition precedent to

expressing results: “you have to have a validated method before you can even

speak to the results of a control or a sample.” 7RR156, 168. Culbertson testified

that the method used to analyze Appellant’s sample was not validated; therefore,

the results were not scientifically valid or reliable. 7RR166.



6 See 7RR26-29 for a description of the validation study procedure.
                                               21
B. The Court of Appeals’ Analysis

      Appellant claims that the State failed to establish clear and convincing

evidence that the blood test was reliable, in light of the Kelly analysis, because the

lab’s technique was not shown to be accepted as valid by the scientific community

and was not supported by any literature or other independent, objective source

material.

      The court of appeals refused to apply the multi-factor Kelly analysis. Slip op.

at 30-32. Instead, it characterized the issue as a credibility determination, requiring

deferential review, and held that the trial court was within its discretion in

resolving the issue in favor of the State. Slip op. at 38-39.

C.    The Court of Appeals’ Analysis Conflicts with Kelly.

      1.     The court of appeals erred in refusing to consider the Kelly
             reliability factors.

      In Kelly, the Court set forth three criteria that scientific evidence must

satisfy: (1) the underlying scientific theory must be valid; (2) the technique

applying the theory must be valid; and (3) the technique must have been properly

applied on the occasion in question. Id. at 573. The Court identified seven non-

exclusive factors for consideration in the reliability determination: (1) the extent to

which the underlying scientific theory and technique are accepted as valid by the

relevant scientific community, if such a community can be ascertained; (2) the
                                          22
qualifications of the expert(s) testifying; (3) the existence of literature supporting

or rejecting the underlying scientific theory and technique; (4) the potential rate of

error of the technique; (5) the availability of other experts to test and evaluate the

technique; (6) the clarity with which the underlying scientific theory and technique

can be explained to the court; and (7) the experience and skill of the person(s) who

applied the technique on the occasion in question. Id.

      The court of appeals held that the Kelly factors were inapplicable because it

found that Appellant’s complaint did not involve a challenge to the validity of the

technique, but only a challenge to the improper application of the technique. The

court characterized the lab’s practice as a mere “inadvertent variance” rather than a

new technique subject to the Kelly multi-factor analysis. Slip op. at 31-32.

      2.     The lab’s error was not a single inadvertent variance but rather a
             sustained practice.

      The court of appeals’ analysis is erroneous because the challenged practice

went beyond a mere inadvertent variance. To the extent that inadvertence is

relevant to the applicable analysis, the lab employees denied that the temperature

change was unintentional and defended the practice as proper. Mayor testified that

she “must have had permission” to change the temperature setting (7RR53), while

her supervisor, Arnold, testified that Mayor acted properly within her discretion in

changing the parameter without supervisor clearance (8RR145-149).
                                          23
      Moreover, the variance did not merely involve a single test. The lab failed to

conduct a full validation study after replacing components on the machine, which

calls into question all subsequent forensic testing done on the machine pursuant to

the incomplete validation. This is a significant omission that bears directly on the

validity of the technique itself, not just whether the technique was properly applied

on a single occasion.

      3.     There is no basis for judicial notice of the reliability of the
             unconventional technique.

      This Court has held that in some cases the first two prongs of the Kelly

test—the validity of the underlying scientific theory and the validity of the

technique applying that theory—can be determined through judicial notice, thereby

relieving the proponent of the burden of producing evidence on that question.

Somers v. State, 368 S.W.3d 528, 536 (Tex. Crim. App. 2012). But the Court

cautioned that some court must have actually examined and assessed the reliability

of the particular theory or technique “before other courts may ride along behind it.”

Id.

      While the Court has recognized that gas chromatography is accepted as

reliable, this reliability is, of course, contingent on the use of “a validated and

calibrated instrument.” Bekendam v. State, 441 S.W.3d 295, 304 (Tex. Crim. App.

2014). No court has actually examined the reliability of the practice challenged
                                           24
here. There is no basis for taking judicial notice of the reliability of a technique

that dispenses with the industry-standard validation requirement.

      By failing to complete a proper validation study with fixed parameters, and

by conducting forensic analysis with the machine set at unvalidated parameters, the

lab implemented a technique that deviated from industry standards. Additionally,

by relying solely on the use of controls to demonstrate the machine’s reliability, in

lieu of a proper and full validation study, the lab implemented a new technique that

has not been shown to be generally recognized as reliable. Regardless of whether

the lab’s technique was intentional or merely the result of sloppy work, it

constitutes a significant departure from standard procedures, and thus should be

subjected to a meaningful reliability review pursuant to the Kelly factors.

       4.    Because the court of appeals did not consider the Kelly factors, its
             analysis resembles the less rigorous standard applied to “soft”
             sciences.

      This Court has recognized that when addressing fields of study aside from

the hard sciences, such as the social sciences or fields that are based primarily upon

experience and training as opposed to the scientific method, Kelly's requirement of

reliability applies but with less rigor than to the hard sciences. Nenno v. State, 970

S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled on other grounds by State v.

Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999). When “soft” sciences are at

                                          25
issue, the trial court should inquire: (1) whether the field of expertise is a legitimate

one; (2) whether the subject matter of the expert’s testimony is within the scope of

that field; and (3) whether the expert’s testimony properly relies on or utilizes the

principles involved in the field. Russeau v. State, 171 S.W.3d 871, 883 (Tex. Crim.

App. 2005).

      Forensic chemistry is a hard science, so the rigorous Kelly analysis is

required. Weatherred v. State, 15 S.W.3d 540, 542 n. 5 (Tex. Crim. App. 2000)

(“hard sciences” include mathematics, physical science, earth science, and life

science).

      Instead of examining the Kelly factors, the court of appeals examined only

whether the State’s experts utilized principles involved in the field. The court’s

analysis focused on a scientific principle known as Henry’s Law, as described by

the State’s experts. The opinion explains that, according to Henry’s Law, in a

closed environment (such as a sealed vial) with a constant temperature, the volume

of volatile compounds (such as alcohol and n-Propanol) in a liquid will be

proportional to the concentration of those compounds released into the headspace

above the liquid. Accordingly, the ratio of alcohol to n-Propanol should not be

affected by a temperature increase. Because the test results are derived from the

ratio, a temperature change should have no effect on the results. Slip Op. at 35-37.

                                           26
      This focus on Henry’s Law, however, is a red herring. The testimony of the

State’s experts regarding Henry’s Law explained only that, theoretically, an

increase in temperature would not affect the test results. But this testimony did not

address the real issue of whether the change in the instrument’s settings affected its

functioning—for example, its ability to maintain a constant temperature. In a

perfect world in which all machines always functioned perfectly, Henry’s Law

would play out predictably, obviating the need for validation studies. But because

performance varies from one instrument to another, a validation study is required

to demonstrate that a machine performs reliably at defined parameters, including

the vial oven temperature. Tellingly, Arnold was able to testify only that, with a

10-degree temperature change, he “wouldn’t expect there to be any impact on the

analytical results.” 8RR147. He could not assure, without speculating, that the

deviation had no unexpected consequences on the machine’s functioning.

      Accordingly, the court of appeals erred in finding that the State met its

burden by virtue of Arnold’s explication of a tangentially related scientific

principle. Instead, the court of appeals should have examined whether the State

produced evidence that the lab’s practice of deviating from validated parameters is

accepted as valid by the relevant scientific community, is supported by literature,

has a known error rate, and has been evaluated by other experts. Kelly at 573. This

                                         27
analysis especially critical here because the State’s experts failed to identify any

literature or other objective, independent source material supporting the challenged

practices, but offered only their mere assurances or bare opinions. Coble v. State,

330 S.W.3d 253, 277-79 & n.69 (Tex. Crim. App. 2010) (an expert’s “assurances

that he has utilized generally accepted scientific methodology” are insufficient

unless supported by “some objective, independent validation of the expert’s

methodology”), quoting Moore v. Ashland Chemical, Inc., 151 F.3d 269, 276 (5th

Cir.1998).

      5.     By reducing the analysis to a mere credibility determination, the
             court of appeals failed to apply the proper burden of proof and
             burden of persuasion.

      It is well-established that the proponent of expert scientific testimony must

prove by clear and convincing evidence that the proffered testimony is reliable.

Blasdell v. State, 2015 WL 5449878, at *2 (Tex. Crim. App. Sept. 16, 2015); Kelly

at 572.

      The court of appeals mischaracterized the issue as “a resolution of

conflicting evidence between experts,” thus requiring the court to defer to the trial

court’s credibility determinations. Slip op. at 39. This analysis disregards the

required burden of proof and burden of persuasion.

      Even assuming that the Arnold’s testimony about Henry’s Law was entirely

                                          28
credible and true, and even if Appellant had not offered her own expert testimony,

the State failed to establish by clear and convincing evidence that the lab’s

unconventional technique was reliable. The State’s experts provided no evidence

that the lab’s practice of deviating from validated parameters was accepted by the

relevant scientific community, was supported by any literature, or had been

evaluated by other experts. Nor did the State’s experts provide anything but mere

assurances and bare opinions supporting the lab’s reliance on the use of controls, in

lieu of proper validation, to demonstrate a machine’s accuracy.

      The court of appeals held that the evidence was properly admitted because

the defense expert did not “disprove[] as a matter of law” Arnold’s testimony about

Henry’s Law. Slip Op. at 36. This burden shifting is irreconcilable with the

standard announced in Kelly. Because the State failed to produce any evidence,

beyond the experts’ mere assurances, that their unconventional technique was

accepted by the scientific community as reliable, the court of appeals erred in

requiring Appellant to disprove the State’s evidence “as a matter of law.”

                                     Conclusion

      While the admission of expert testimony is reviewed on appeal for an abuse

of discretion, appellate review must ensure that the trial judge acts “as a true

‘gatekeeper.’” Coble at 272. Accordingly, reviewing courts must examine whether

                                          29
the basis of an expert’s testimony is grounded in the “accepted methods and

procedures of science” and supported by “appropriate validation.” Id. The court of

appeals’ abbreviated analysis dispensed with the rigorous inquiry appropriate for

hard sciences, and thus failed to ensure that the trial court acted as a true

gatekeeper.

                                      PRAYER

      Appellant prays that this Court grant discretionary review, reverse

Appellant’s conviction, and remand the case for a new trial.

                                                Respectfully submitted,

                                                /s/ Norman J. Silverman
                                                NORMAN J. SILVERMAN
                                                T.B.C. No. 00792207
                                                917 Franklin, 4th Floor
                                                Houston, Texas 77002
                                                (713) 526-1515
                                                (713) 526-1798 (FAX)

                                                Attorney for Appellant
                                                Melissa Dromgoole




                                           30
                         CERTIFICATE OF SERVICE


      This document has been served on the following parties electronically
through the electronic filing manager on October 19, 2015.

Carly Dessauer
Harris County District Attorney’s Office
dessauer_carly@dao.hctx.net

Alan Curry
Harris County District Attorney’s Office
curry_alan@dao.hctx.net

Office of the State Prosecuting Attorney
information@spa.texas.gov


                                       /s/ Norman J. Silverman



                      CERTIFICATE OF COMPLIANCE

   The undersigned attorney certifies that the relevant sections of this computer-
generated document have 4,404 words, based on the word count function of the
word processing program used to create the document. TEX. R. APP. P. 9.4 (i).


                                       /s/ Norman J. Silverman




                                           31
                              APPENDIX

                   Opinion of the First Court of Appeals
Dromgoole v. State, -- S.W.3d --, 01-13-00931-CR, 2015 WL 4497978 (Tex.
 App.—Houston [1st Dist.] July 23, 2015), reh’g overruled (Aug. 20, 2015)




                                   32
Opinion issued July 23, 2015




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                               NO. 01-13-00931-CR
                           ———————————
                    MELISSA DROMGOOLE, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


            On Appeal from County Criminal Court at Law No. 1
                           Harris County, Texas
                       Trial Court Case No. 1840727


                         OPINION ON REHEARING

      Appellant, Melissa Dromgoole, was charged by information with driving

while intoxicated.1 Appellant pleaded not guilty. The jury found her guilty. The

trial court found an enhancement paragraph to be true and assessed punishment at


1
      See TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2014).
one year’s confinement—probated for one year—and a fine of $500. In four issues

on appeal, Appellant argues the trial court abused its discretion by (1) denying her

motion to suppress and (2) admitting the blood-test evidence over her challenge to

the reliability of the evidence.

      On June 4, 2015, we issued our original opinion in this case. Dromgoole

filed an amended motion for rehearing.        We deny the amended motion for

rehearing, withdraw our prior opinion and judgment, and issue this opinion and a

new judgment in their place. Our disposition remains the same.

      We modify the judgment and affirm as modified.

                                   Background

      Officer D. Nunn, an officer with the Houston Police Department, had pulled

someone over some time after 2:00 A.M. on July 21, 2012. After he was done

with that person, he walked back to his car. On his way back, Appellant drove past

him and nearly hit him. Officer Nunn got in his patrol car and pursued Appellant.

During the pursuit, he saw Appellant drive through two red lights. After Appellant

pulled over, Officer Nunn approached her car. Appellant had glassy eyes and

slurred speech and smelled moderately of alcohol. Appellant acknowledged that

she had consumed two alcoholic drinks in the evening.

      Officer Nunn decided to perform a field sobriety test on Appellant. Before

conducting the test, he asked Appellant if she had any medical conditions.


                                         2
Appellant responded that she had syncope, which she described as low blood

pressure. Specifically, she explained that, with syncope, her “blood pressure drops

and then [she] faints.”

      As part of the field sobriety test, Officer Nunn performed three specific tests:

a horizontal-gaze-nystagmus test, a one-leg-stand test, and a walk-and-turn test.

Appellant exhibited indications of intoxication on each test. Officer Nunn arrested

Appellant and drove her to the police station.

      At the police station, Appellant said she could not get out of the car because

she was having difficulty with her syncope. In a later affidavit, Appellant asserted

that, when she was in the police car, her condition worsened “and I was unable to

get out of the police car for about ten minutes. At the jail, I again told the officer

of my condition.” Officer Nunn testified that, when they arrived at the police

station, Appellant said she could not get out because of her low blood pressure.

Ten minutes later, she was able to get out of the car.

      Once inside the police station, Appellant was placed in a holding cell with

other people. While there, Appellant got into a fist fight with another woman in

the cell. Officer Nunn broke up the fight. At the end of the fight, Appellant did

not exhibit any dizziness or lightheadedness.

      At some point, Officer Nunn decided to obtain a blood draw from Appellant.

Appellant refused to submit to a blood draw. As a result, Officer Nunn sought and


                                          3
obtained a search warrant for a blood draw on Appellant. The video of the blood

draw shows that Officer Nunn led Appellant into the room. Appellant sat in an

inclined chair. Officer Nunn explained to Appellant that he had obtained a warrant

for the withdrawal of a sample of her blood. Appellant presented her arm to the

nurse, who then drew Appellant’s blood.

      L. Mayor, a criminalist at the Houston Police Department Crime Laboratory,

performed the analysis on Appellant’s blood. The report from the test indicated

that appellant’s blood contained a concentration of alcohol of 0.17 grams of

alcohol per 100 milliliters of blood.

      Before trial, Appellant filed a motion to suppress the blood test results,

arguing, among other things, that the blood draw was a violation of her rights

under the Fourth Amendment of the United States Constitution against

unreasonable searches and seizures.       Specifically, Appellant argued that the

affidavit in support of the warrant failed to identify that she had syncope; that the

effects of pre-syncope could account for why she failed the field sobriety test; and

that her medical condition of syncope rendered the blood draw unreasonable as it

applied to her.

      At the hearing on the motion to suppress, Appellant presented her physician,

Dr. J. Varon. Dr. Varon testified that he diagnosed Appellant with syncope about

five years before the trial. Syncope is the condition of being subject to fainting


                                          4
spells. A person who has syncope will also have pre-syncope, or symptoms that

can signal the possible onset of fainting. The pre-syncope symptoms can vary

widely among people, but can include dizziness, weakness in the legs, chest pains,

or a sense of “pulling of the blood.” Contrary to Appellant’s description of

syncope to Officer Nunn, Dr. Varon testified that Appellant does not, in fact, have

low blood pressure. Her blood pressure is normal, and her syncope does not affect

her blood pressure.

      Dr. Varon also testified that, after viewing the video of Appellant’s field

sobriety test, it was possible that Appellant was experiencing pre-syncope during

the field sobriety test. He asserted that, as a result, it was possible that her troubles

with the three field sobriety tests were influenced by the pre-syncope. For the

walk-and-turn test, Dr. Varon testified it was “more likely than not” that

Appellant’s troubles with the test were “related to a pre-syncope equilibration.”

For the other two, he only testified it was possible that the difficulties were related

to pre-syncope.

      Finally, Dr. Varon testified that syncope could create some risk with a blood

draw. While he acknowledged that he had performed numerous blood draws on

Appellant, he testified that Appellant had complete syncope (that is, she fainted)

during one blood draw. During a second blood draw, Appellant had a “pre-

syncopal episode,” meaning that she complained of “feeling fainty” and turned


                                           5
white. During this second incident, Dr. Varon resolved this by having Appellant

lie down. Dr. Varon testified that it is not reasonable to perform a blood draw

from a person with syncope without having the person lie down.

      The trial court denied the motion to suppress.

      At trial, the State called Mayor to discuss the results of the test on

Appellant’s blood.     After a question about whether the machine that tested

Appellant’s blood was working properly on the day of the test, Appellant raised

another objection to the admissibility of the blood test. During the hearing on this

objection, Appellant argued that the blood draw technique was not properly

applied because the machine that performed the blood test had not been properly

validated.   Based on documents produced at the time of the validation test,

Appellant argued that, during three of the four days of the validation test, the

machine’s vial oven had been set at 60 degrees Celsius when it was intended to be

set at 70 degrees Celsius.

      The State presented the testimony of Mayor and W. Arnold, a police

administrator for the Houston Police Department Crime Laboratory, at the hearing

on the second motion to suppress. Both Mayor and Arnold testified that the

discrepancy in the oven temperature did not affect the ultimate validation of the

machine.     Arnold explained that the test results are not obtained from a

measurement of only the alcohol released by the heating, but instead from a


                                         6
determination of the ratio between measurements of the alcohol and a control

compound added to the sample. Because the change in temperature would have

resulted in a proportional change to both chemicals being released by the heating,

the measurements remained accurate, and, accordingly, the validation test was

reliable.

       Additionally, both Mayor and Arnold testified that samples with known

concentrations of alcohol were tested every time a suspect’s blood was tested. Any

deficiencies in the machine’s ability to accurately measure the concentration of

alcohol in Appellant’s blood would have been detected in measuring the known

quantity samples.

       Appellant subpoenaed Irma Rios, the lab director for the Houston Police

Department, to testify. Like Mayor and Arnold, Rios testified that the difference in

temperature would not affect the reliability of the validation test. She testified that

the known concentration samples would have detected any problems with the

measurement of the machine.

       Appellant also presented her own expert witness, A. Culbertson. Culbertson

had many years of experience with performing blood tests and consulting on

reviewing blood test results. She testified that, in order for a machine to produce

reliable results, it must be validated first. She asserted that the measurement of

controls (known concentration samples) during regular testing could not establish


                                          7
that the machine had been properly validated “[b]ecause you have to have a valid

method before you can even speak to the results of a control or a sample.”

      The trial court denied Appellant’s second motion to suppress. At the time of

the ruling, the court expressly found that Mayor and Arnold were credible and that

the blood test results were reliable.

                          Reasonable Search and Seizure

      In her first two issues, Appellant argues the trial court abused its discretion

by denying her motion to suppress the blood-draw evidence because Appellant’s

medical condition was omitted from the affidavit in support of the warrant for the

blood draw and the blood draw was unreasonable based on Appellant’s medical

condition.

A.    Standard of Review

      Where, as here, a trial judge does not make explicit findings of fact, we

review the evidence at a motion to suppress hearing in the light most favorable to

the trial court’s ruling. Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App.

2000).   We afford almost total deference to a trial court’s determination of

questions of fact and its rulings on mixed questions of law and fact when the

resolution of those questions depends on an evaluation of credibility and

demeanor. State v. Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011). For

mixed questions of law and fact that do not depend on an evaluation of credibility


                                         8
and demeanor and for pure questions of law, we review the trial court’s rulings de

novo. Id.

      At a suppression hearing, the trial court is the sole and exclusive trier of fact

and judge of the witnesses’ credibility and may choose to believe or disbelieve all

or any part of the witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.

2000). We will defer to the trial court’s fact findings and not disturb the findings

on appeal unless the finding is not supported by the record. Cantu v. State, 817

S.W.2d 74, 77 (Tex. Crim. App. 1991).

B.    Applicable Law & Burden of Proof

      At a hearing on a motion to suppress based on a violation of the defendant’s

Fourth Amendment rights, the court presumes that police conduct was proper.

Delafuente v. State, 414 S.W.3d 173, 176 (Tex. Crim. App. 2013). The defendant

bears the burden, then, of rebutting the presumption of proper police conduct. Id.

The defendant can meet this burden, thus shifting the burden to the State, by

showing the search was conducted without a warrant. Id. Here, however, all

parties agreed that Appellant’s blood was drawn after the police had obtained a

warrant. Accordingly, the parties recognize that Appellant bore the burden of

proof of rebutting the presumption of proper police conduct at the motion to




                                          9
suppress. See id. Nevertheless, the parties do not entirely agree on what Appellant

had to prove in order to meet her burden of rebutting proper police conduct.

      In her motion to suppress, Appellant argued that the blood draw violated her

rights against unreasonable search and seizure under the Fourth Amendment of the

United States Constitution and, accordingly, should be suppressed. “Schmerber v.

California is the landmark case addressing the constitutionality of compulsory

blood draws conducted for law-enforcement purposes under the Fourth

Amendment.” Johnston, 336 S.W.3d at 657 (citing Schmerber v. California, 384

U.S. 757, 86 S. Ct. 1826 (1966)). Schmerber identifies a two-part analysis for

determining the legality of a blood draw: “(1) ‘whether the police were justified in

requiring [the defendant] to submit to a blood test; and, (2) ‘whether the means and

procedures employed in taking [the defendant’s] blood respected the relevant

Fourth Amendment standards of reasonableness.’” Id. at 658 (quoting Schmerber,

384 U.S. at 768, 86 S. Ct. at 1834). The Court of Criminal Appeals has recognized

that “means and procedures” under the second element contains two separate

inquiries: (1) whether the test chosen (the means) was reasonable and (2) whether

the test was performed in a reasonable manner (the procedures). Id.

      These are the primary, disjunctive elements for a defendant to challenge the

reasonableness of a blood draw under the Fourth Amendment. See id. For a

defendant challenging the means or procedures of the blood test on the basis that


                                        10
the blood draw created an unreasonable medical risk due to a medical condition of

the defendant, additional elements must also be proved.

      “Extraction of blood samples for testing is a highly effective means of

determining the degree to which a person is under the influence of alcohol. . . .

[F]or most people the procedure involves virtually no risk, trauma, or pain.”

Schmerber, 384 U.S. at 771, 86 S. Ct. at 1836. Accordingly, venipuncture blood-

draws to test for intoxication are presumptively reasonable under the Fourth

Amendment for the general population. See id.; Johnston, 336 S.W.3d at 659. To

defeat this presumption, the defendant must show that she is “one of the few who

on grounds of fear, concern for health, or religious scruple might prefer some other

means of testing.” Schmerber, 384 U.S. at 771, 86 S. Ct. at 1836. Appellant

claims to fall within the concern-for-health exception.2

      Before requiring a defendant to submit to a blood draw, a police officer does

not have a duty to inquire into the defendant’s medical history. Johnston, 336

S.W.3d at 659. Rather, the suspect, naturally familiar with his or her own medical

history, is in the best position to identify and disclose any particular medical

2
      To the degree Appellant believes she also falls in the “fear” exception, her degree
      of fear and the relevance of the fear have not been developed in this record or in
      her legal arguments at trial and on appeal. See TEX. R. APP. P. 33.1(a) (requiring
      complaint to be made to trial court before being raised on appeal), 38.1(i)
      (requiring briefs to contain concise arguments for contentions made); see also
      State v. Krause, 484 N.W.2d 347, 350 (Wis. Ct. App. 1992) (holding statements
      by defendant that he “didn’t believe in needles” and “d[id]n’t want AIDS” were
      insufficient to establish fear exception).
                                          11
condition that could result in risk, trauma or more than de minimus pain if a blood

draw were to be performed. Id. at 660. From this we can conclude that the

defendant bears the burden to establish that she notified the officer or the person

performing the blood draw that her relevant medical history would render a blood

draw unreasonably medically risky. See id. Appellant argues that she should not

have a burden to inform the police officer or person performing the blood draw

about how the blood draw could impact her due to a medical condition. Instead,

she argues, she should be able to present this fact for the first time at the motion to

suppress to defeat the presumption of a reasonable blood draw. We must reject

this argument.

      The United States Supreme Court has held that the relevant inquiry into the

reasonableness of a search and seizure depend on the facts known to the officer at

the moment of the search and seizure. Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct.

1868, 1880 (1968).3 Specifically, it held the relevant question is “would the facts

available to the officer at the moment of the seizure or the search ‘warrant a man

3
      Terry concerned a warrantless search. Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct.
      1868, 1879 (1968). Nevertheless, the court held that, “the notions which underlie
      both the warrant procedure and the requirement of probable cause remain fully
      relevant in this context.” Id. Additionally, we see no justification for restricting
      the relevant facts to what the officer knew at the time of the search for warrantless
      search cases but expanding the relevant facts for cases where the officer obtained a
      warrant before the search. The law is meant to incentivize police officers to obtain
      a warrant before performing searches and seizures. See United States v. Leon, 468
      U.S. 897, 914, 104 S. Ct. 3405, 3416 (1984) (recognizing preference for courts to
      adopt rules incentivizing obtaining warrants before search and seizure).
                                           12
of reasonable caution in the belief’ that the action taken was appropriate?” Id.

(emphasis added). Because the relevant inquiry is what information was available

to the officer at the time of the seizure, a defendant cannot seek suppression of

evidence based on facts that are disclosed for the first time in a motion to suppress

hearing. See id.

      The defendant also has a burden at the hearing on the motion to suppress to

show “that a venipuncture blood draw [was] not a reasonable means to obtain a

blood alcohol level assessment as to him or her, individually.” Johnston, 336

S.W.3d at 660. Stated differently, a defendant who disclosed to the officer that she

has a medical condition creating an unreasonable medical risk for a blood draw

must establish at the motion to suppress hearing that she does, in fact, suffer from

that medical condition and that the medical condition does, in fact, create an

unreasonable medical risk for a blood draw. See id.

      Accordingly, based on Schmerber and Johnston, a defendant seeking to

suppress a blood draw as an unreasonable search and seizure must prove (1) the

police were not justified in requiring the defendant to submit to a blood test, (2)

drawing the defendant’s blood was an unreasonable method to determine

intoxication, or (3) the procedure for the blood draw was unreasonable.          See

Schmerber, 384 U.S. at 768, 86 S. Ct. at 1834; Johnston, 336 S.W.3d at 658.

Johnston further establishes that, if the defendant is seeking to prove the second or


                                         13
third elements by proving the existence of a medical condition, the defendant must

additionally prove (1) the defendant had a medical condition (2) that created an

unreasonable risk of medical harm for a blood test and (3) that the defendant

sufficiently notified the police or the person performing the blood draw of the risk

posed by the blood draw. See Johnston, 336 S.W.3d at 659–60.

       Appellant challenges all three primary elements in her first two issues in her

brief. Because we find it dispositive, we address the requirement that Appellant

notify the police or the person drawing her blood that the blood draw posed an

unreasonable medical risk.

C.     Justification to Conduct Seizure

       Schmerber involved a warrantless blood draw. 384 U.S. at 768, 86 S. Ct. at

1834. Typically, the existence of a valid warrant will establish the justification to

conduct the seizure. Adkins v. State, 418 S.W.3d 856, 860 (Tex. App.—Houston

[14th Dist.] 2013, pet. ref’d). Here, however, Appellant has attacked the validity

of the warrant in her second issue. Appellant presents two grounds for why the

warrant is invalid: (1) the affidavit in support of the warrant failed to identify that

she had syncope and (2) the effects of pre-syncope could account for why she

failed the field sobriety test.

       If there is an affirmative misrepresentation in a probable cause affidavit in

support of a search warrant and if the misrepresentation is material and necessary


                                          14
to establishing probable cause, the warrant is invalid under the Fourth Amendment.

Franks v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 2676 (1978); Blake v.

State, 125 S.W.3d 717, 723–24 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

This ruling has been extended to material omissions. Blake, 125 S.W.3d at 724.

At a Franks hearing, the defendant bears the burden by a preponderance of the

evidence to establish that a false statement was made—or a true statement was

omitted—intentionally, knowingly, or with reckless disregard for the truth. See

Franks, 438 U.S. at 155–56, 98 S. Ct. at 2676. If the defendant carries that burden,

the false statement is removed from the affidavit, or the true statement is added,

and the court must determine whether probable cause for the warrant still exists.

See id. at 156, 98 S. Ct. at 2676. If it does not, the warrant must be voided and the

fruits of the search must be suppressed. Id.

      Appellant’s first ground for why the warrant is invalid is that the affidavit in

support of the warrant failed to identify that she had syncope. Appellant argues

that, if it had known that she suffered from syncope and knew the implications of

performing a blood draw on someone with syncope, the magistrate “could have

ascertained that a blood draw presented an unreasonable risk of trauma or more

than de minimus pain.” This argument is redundant to our analysis of the other

Schmerber elements, however. Under Schmerber we must review whether the

method for or the performance of a blood draw was unreasonable. See Schmerber,


                                         15
384 U.S. at 768, 86 S. Ct. at 1834; Johnston, 336 S.W.3d at 658. If we determine

that the blood draw method or procedure was unreasonable, then we must suppress

the evidence obtained regardless of whether a magistrate judge would have denied

the motion for the same reason.4 See TEX. CODE CRIM. PROC. ANN. art. 38.23(a)

(Vernon 2005) (prohibiting evidence obtained in violation of United States

Constitution from being admitted at trial).

      Appellant’s second ground for why the warrant is invalid is that the effects

of pre-syncope could account for why she failed the field sobriety test. As part of

his field sobriety test, Officer Nunn conducted a horizontal-gaze-nystagmus test, a

one-leg-stand test, and a walk-and-turn test. Appellant exhibited indications of

intoxication on each test.

      In his testimony at the hearing on the motion to suppress, Dr. Varon claimed

that it was possible that Appellant was experiencing pre-syncope during the field

sobriety test and that, as a result, it was possible that her troubles with the three

field sobriety tests were influenced by the pre-syncope. For the walk-and-turn test,

Dr. Varon testified it was “more likely than not” that Appellant’s troubles with the

test were “related to a pre-syncope equilibration.” For the other two, he only

testified it was possible that the difficulties were related to pre-syncope.



4
      As a result, we do not need to determine whether the reasonableness of the method
      or performance of the search is even a matter to be considered by the magistrate.
                                           16
      Even assuming Officer Nunn excluded Appellant’s diagnosis of syncope

from his probable cause affidavit intentionally, knowingly, or with reckless

disregard for the truth, we cannot conclude that inclusion of Appellant’s diagnosis

of syncope in the affidavit would have defeated a determination of probable cause

for the warrant. Probable cause to support a warrant is reviewed under a totality-

of-the-circumstances analysis. State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim.

App. 2012). “Probable cause exists when, under the totality of the circumstances,

there is a ‘fair probability’ that contraband or evidence of a crime will be found at

the specified location.”    Id.    Under this analysis, we are not concerned with

whether particular conduct is “innocent” or “guilty,” but the degree of suspicion

that attaches to the overall circumstances. Angulo v. State, 727 S.W.2d 276, 279

(Tex. Crim. App. 1987) (citing Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S. Ct.

2317, 2335 n.13 (1983)).          Even seemingly innocent behavior can establish

probable cause in light of the suspicious circumstances under which the behavior

occurred. Id. at 279–80.

      Here, the record establishes that Appellant had been drinking that night,

nearly hit Officer Nunn while driving, drove through two stop lights, smelled of

alcohol, had slurred speech, and failed all three of the field sobriety tests conducted

on her that night. The fact that there might be an innocent explanation for failing

the field sobriety test does not disprove probable cause. Under the totality of the


                                          17
circumstances, Appellant’s failure of the field sobriety test was consistent with the

other facts to create a “fair probability” that blood tests would establish Appellant

was legally intoxicated. See id.

      We overrule Appellant’s second issue.

D.    Notice of Unreasonable Medical Risk

      In her first issue, Appellant argues that the blood draw constituted an

unreasonable seizure due to her medical condition of syncope. In her affidavit

presented at the motion to suppress, Appellant claimed, “I told everyone else

involved in taking my blood that I did not want to undergo a blood test because

blood tests have caused me to black out in the past.” The trial court could have

disregarded that assertion, however, and we must show almost total deference to

the trial court’s determination of historical facts. See Ross, 32 S.W.3d at 855

(holding trial court “may believe or disbelieve all or any part of witness’s

testimony”); Johnston, 336 S.W.3d at 657 (holding appellate courts afford almost

total deference to trial court’s determination of historical fact and mixed questions

of law and fact when resolution depends on evaluation of credibility and

demeanor).

      The video of the field sobriety test shows Officer Nunn asking Appellant if

she has any medical conditions.       Appellant responded that she has syncope,




                                         18
describing it as low blood pressure. She explained that, with syncope, her “blood

pressure drops and then [she] faints.”

      Contrary to Appellant’s statement to Officer Nunn, Dr. Vargas testified that

Appellant does not, in fact, have low blood pressure.       Her blood pressure is

normal, and her syncope does not affect her blood pressure. Even assuming

Officer Nunn was under a duty to report all health problems that had been

conveyed to him to the person drawing Appellant’s blood, a warning of low blood

pressure would not have conveyed appropriate information to prevent an

unreasonable blood draw.

      We are left with, then, Appellant’s statement to Officer Nunn, in the context

of a field sobriety test, that she had syncope and that this condition has some

relationship to fainting. Appellant argues that this was enough to satisfy her

burden to alert the officer of any potential complications that could arise from a

blood draw. We cannot agree.

      A blood draw is presumptively reasonable unless a defendant establishes she

is “one of the few who on grounds of fear, concern for health, or religious scruple

might prefer some other means of testing.” Schmerber, 384 U.S. at 771, 86 S. Ct.

at 1836. An officer is not under a duty to inquire about a defendant’s medical

history to make this determination. Johnston, 336 S.W.3d at 659. Accordingly,

the burden is on the defendant to give sufficient notice to the officer that a blood


                                         19
draw would create an unreasonable medical risk. See id. at 659–60. A defendant

cannot simply state the name for an uncommon medical condition and indicate that

it is associated with fainting—outside the context of a blood draw and without

mentioning how it might create a risk of harm in connection with the blood draw—

and claim to have carried her burden.

      Appellant also relies on her difficulty getting out of the car when she

reached the police station as proof that Officer Nunn was put on notice that

performing a blood draw would create an unreasonable medical risk.            In her

affidavit, Appellant asserted that, when she was in the police car, her condition

worsened “and I was unable to get out of the police car for about ten minutes. At

the jail, I again told the officer of my condition.” Even assuming the trial court

credited this evidence, claiming that she “told the officer of [her] condition” does

not provide any detail of how she described it. Accordingly, this cannot establish

that she provided sufficient notice to Officer Nunn.

      Officer Nunn testified that, when they arrived at the police station, Appellant

said she could not get out because of her low blood pressure. Ten minutes later,

she was able to get out of the car. Officer Nunn acknowledged that Appellant told

her that her condition could cause dizziness or faintness.

      Appellant fails to establish, however, how this establishes that she carried

her burden of providing notice that that performing a blood draw would create an


                                         20
unreasonable medical risk. Dr. Varon testified at the hearing on the motion to

suppress and explained that Appellant’s dizziness and faintness was caused by her

having syncope and that syncope could create some risk with a blood draw. But

Appellant fails to show that Officer Nunn had any reason to draw a connection

between her occasional dizziness and faintness and an unreasonable medical risk

for drawing blood.

      This is especially true considering that, after Appellant was placed in a

holding cell, she got in a fist fight with another detainee. Appellant did not exhibit

any dizziness or faintness during this encounter.        Even assuming exhibiting

dizziness or faintness should put an officer on notice that performing a blood draw

could result in an unreasonable medical risk, Officer Nunn could have reasonably

determined that any dizziness or faintness Appellant had been feeling in his car had

dispelled.

      Finally, there is some question about whether Officer Nunn was under an

obligation to report all disclosed medical conditions of the defendant to the person

performing the blood draw and, if so, whether such imputed knowledge should

have alerted the person performing the blood draw of any unreasonable increased

risk in performing the blood draw. We do not need to resolve this question,

however. This is because, even assuming Officer Nunn was under an obligation to

convey Appellant’s disclosed medical conditions to the person performing the


                                         21
blood draw, there is no evidence in the record that the term syncope or the claim

that Appellant sometimes faints should have alerted a reasonable person authorized

to perform a blood draw about any increased medical risk in performing a blood

draw. Accordingly, Appellant has failed to establish that simply stating that she

had syncope in the context of a field sobriety test and exhibiting faintness or

dizziness in the police car were sufficient to carry her burden of adequately

disclosing to the officer or the person performing the blood draw that the blood

draw would create an unreasonable risk of medical harm due to an existing medical

condition.

      We overrule Appellant’s first issue.

                      Statutory Limitations on Blood Draw

      In her third issue, Appellant argues the trial court abused its discretion by

denying her motion to suppress the blood-draw evidence because the blood draw

was prohibited by statute.

A.    Standard of Review

      Matters of statutory construction are questions of law, which this Court

reviews de novo. Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008).

When construing a statute, our primary objective is to ascertain and give effect to

the Legislature’s intent. TEX. GOV’T CODE ANN. § 312.005 (Vernon 2013); see

also Bryant v. State, 391 S.W.3d 86, 92 (Tex. Crim. App. 2012). We begin with


                                        22
the plain language of the statute in order to discern its meaning because we

“presume that the legislature meant what it said.” State v. Vasilas, 187 S.W.3d

486, 489 (Tex. Crim. App. 2006). We further consider statutes as a whole rather

than their isolated provisions. Nguyen v. State, 1 S.W.3d 694, 696 (Tex. Crim.

App. 1999).

B.    Waiver

      The State argues Appellant has waived this issue because her complaint on

appeal is not the complaint she made at trial. See TEX. R. APP. P. 33.1(a)(1)(A);

Curiel v. State, 243 S.W.3d 10, 19 (Tex. App.—Houston [1st Dist.] 2007, pet.

ref’d) (holding that argument raised on appeal must comport with specific

objection made at trial, or error is waived).

      Appellant argued at trial that, pursuant to Chapter 724 of the Texas

Transportation Code, “[t]he legislature never intended those accused of first

offense DWI, with no aggravating circumstances, to be subject to a search by

needle.” Appellant argues on appeal that Chapter 724 of the Texas Transportation

Code “prohibits a nonconsensual blood draw for a person arrested for

misdemeanor DWI in the absence of certain aggravating circumstances set forth in

section 724.012(b).”

      Both arguments rely heavily on section 724.012 of the Transportation Code.

See TEX. TRANSP. CODE ANN. § 724.012 (Vernon 2011). Both arguments claim


                                          23
that the State was not permitted to draw Appellant’s blood because it was not

permitted by Section 724.012.      The State argues, however, that Appellant’s

argument on appeal is different because Appellant also relies heavily on Section

724.013 (which refers exclusively to Section 724.012) on appeal but did not cite it

in her motion to suppress at trial.    See TEX. TRANSP. CODE ANN. § 724.013

(Vernon 2011). We find no merit in this argument.

      A party is not required to say magic words or recite a specific statute to

preserve an issue. Bryant, 391 S.W.3d at 92. Instead, for preservation purposes,

the party must simply present the basis of its complaint to the trial court and that

same complaint must be presented on appeal. Id. Adding more detailed citation to

statutory law on appeal does not create an entirely different argument than what

was raised at trial. We hold this argument has been preserved.

C.    Analysis

      Section 724.012 provides when an officer may and when an officer must

obtain a blood or breath in specific cases of suspected intoxication. See TEX.

TRANSP. CODE ANN. § 724.012. Section 724.013 provides that, except for when an

officer must obtain a blood or breath sample, if the suspect refuses to give a blood

or breath sample, then “a specimen may not be taken.” See id. § 724.013; TEX.

GOV’T CODE ANN. § 311.016(5) (Vernon 2013) (“‘May not’ imposes a prohibition

and is synonymous with ‘shall not’”). Appellant argues that, because she does not


                                        24
fit within any of the circumstances requiring the officer to obtain a blood sample,

Chapter 724 rendered her refusal to submit to a blood test into a prohibition on

drawing her blood regardless of the presence of a warrant.

      As the State points out, the Court of Criminal Appeals held in Beeman that

Chapter 724 concerns implied consent for breath and blood tests. Beeman v. State,

86 S.W.3d 613, 615 (Tex. Crim. App. 2002). The court held in Beeman that “if the

State has a valid search warrant, it has no need to obtain the suspect’s consent.” Id.

That is, “once a valid search warrant is obtained by presenting facts establishing

probable cause to a neutral and detached magistrate, consent, implied or explicit,

becomes moot.” Id. at 616. As a result, Chapter 724 is independent of Fourth

Amendment search warrant law, not a restriction of it. See id. 616 (agreeing with

State’s argument that construing Chapter 724 to restrict Fourth Amendment search

warrant law would be absurd result contrary to statute’s intent).

      In response, Appellant argues that “the entire analysis in Beeman

interpreting the implied consent scheme has been called into doubt” by subsequent

cases from the United States Supreme Court. See Missouri v. McNeely, --- U.S. ---

, 133 S. Ct. 1552 (2013); Aviles v. Texas, --- U.S. ---, 134 S. Ct. 902 (2014).

Regardless of what doubt may have existed about the continuing validity of

Beeman following McNeely, the Court of Criminal Appeals has subsequently

affirmed the relevant portion of Beeman. In Villarreal, the Court of Criminal


                                         25
Appeals held that, following McNeely, “[t]he holding in Beeman, that an officer

may obtain a search warrant even where implied consent statutes would authorize

an involuntary blood draw, remains good law.” State v. Villarreal, No. PD-0306-

14, 2014 WL 6734178, at *20 n.15 (Tex. Crim. App. Nov. 26, 2014). The court

held that an officer may obtain a search warrant “even where” Chapter 724

authorizes a mandatory blood draw, not “only where.” See id. Accordingly, the

holding in Beeman that an officer is not constrained by consent after obtaining a

search warrant remains good law.5

      We overrule Appellant’s third issue.

                              Reliability of Blood Test

      In her fourth issue, Appellant argues the trial court abused its discretion by

allowing the results of the blood test to be admitted because the blood test was

unreliable under Rule 702 of the Texas Rules of Evidence. See TEX. R. EVID. 702.

A.    Standard of Review

      We review a trial court’s admission or exclusion of evidence for an abuse of

discretion. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). In

determining whether the trial court abused its discretion, we consider whether the

court acted without reference to guiding rules and principles—that is, whether the

5
      The Court of Criminal Appeals has granted rehearing on Villarreal. The State has
      not challenged in its motion for rehearing the holding upon which we rely. At
      present, the current holding in Villarreal is the strongest indication we have on the
      Court of Criminal Appeal’s perception of the continuing validity of Beeman.
                                           26
court acted arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex.

Crim. App. 1993). We must uphold the trial court’s ruling so long as it is “within

the zone of reasonable disagreement.” Wheeler v. State, 67 S.W.3d 879, 888 (Tex.

Crim. App. 2002).

B.    Applicable Law

      Rule 702 of the Texas Rules of Evidence provides, “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, 61 TEX. B.J. 374, 392 (Tex. &

Tex. Crim. App. 1998, amended 2015).6 Typically, in order for scientific evidence

“to be considered sufficiently reliable as to be of help to a jury,” the evidence must

satisfy three criteria: “(1) the underlying scientific theory must be valid; (2) the

technique applying the theory must be valid; and (3) the technique must have been

properly applied on the occasion in question.” Reynolds v. State, 204 S.W.3d 386,

390 (Tex. Crim. App. 2006) (citing Kelly v. State, 824 S.W.2d 568, 573 (Tex.

Crim. App. 1992)).




6
      Effective April 1, 2015, the Texas Supreme Court has adopted amendments to the
      Texas Rules of Evidence. See 78 TEX. B.J. 42, 42 (Tex. 2015). The amendments
      to Rule 702 were stylistic in nature. Id.
                                         27
      In Kelly, the Court of Criminal Appeals identified certain non-exclusive

factors that are relevant in determining whether the three criteria for scientific

evidence have been satisfied. 824 S.W.3d at 573. Appellant argues that, in our

review of her challenge to the reliability of the blood draw, we must also consider

these factors. This is incorrect in this situation.

      In Reynolds, the Court of Criminal Appeals held the determination of

reliability for a breath test is modified from the standard Kelly analysis. 204

S.W.3d at 390. “[T]he Legislature has already determined that the underlying

science is valid, and that the technique applying it is valid as long as it is

administered by individuals certified by, and using methods approved by the rules

of, DPS [the Texas Department of Public Safety].” Id. Accordingly, the only

determination for a trial court to make in the Kelly hearing on a breath test, then, is

“whether the technique was properly applied in accordance with the rules of DPS

on the particular occasion in question.” Id. at 391.

      For authority that the Texas Legislature had already determined that the

underlying science for breath tests was valid, the Court of Criminal Appeals cited

Section 724.064 of the Texas Transportation Code. Id. at 390 n.26. (citing TEX.

TRANSP. CODE ANN. § 724.064 (Vernon 2011)). Section 724.064 provides, in

pertinent part, “On the trial of a criminal proceeding arising out of an offense under

Chapter 49, Penal Code, involving the operation of a motor vehicle . . . evidence of


                                           28
the alcohol concentration . . . as shown by analysis of a specimen of the person’s

blood, breath, or urine . . . is admissible.”7 TRANSP. § 724.064.

       The statute makes alcohol concentrations established by the person’s blood

just as admissible as alcohol concentrations established by the person’s breath.

Accordingly, the same conclusions must be drawn about the validity of blood tests.

That is, “the Legislature has already determined that the underlying science is valid

. . . .” Reynolds, 204 S.W.3d at 390.

       As Appellant correctly points out in her motion for rehearing, the Court of

Criminal Appeals bases its holding that “the Legislature has already determined

. . . that the technique for performing breath tests is valid” on a separate statute.

See id. at 390 & n.26 (citing Stevenson v. State, 895 S.W.2d 694, 696 (Tex. Crim.

App. 1995) for proposition “that scientific reliability of intoxilyzer test is

established so long as the proponent of evidence of the test results shows that the

provisions of what is now Section 724.016 of the Transportation Code were

satisfied”).   Section 724.016 requires breath test specimens to be taken and

analyzed under the rules established by DPS for both analytical methods and

qualifications for persons performing the analysis.      TEX. TRANSP. CODE ANN.

§ 724.016 (Vernon 2011). Accordingly, the Reynolds court held that the second

7
       Appellant was charged with an offense under Chapter 49 of the Texas Penal Code
       and the offense involved the operation of a motor vehicle. See TEX. PENAL CODE
       ANN. § 49.04(a).

                                         29
Kelly criterion was satisfied as long as the DPS rules had been followed. 204

S.W.3d at 390–91.

      Appellant is also correct that there is no corresponding statute in the

Transportation Code establishing the reliability of the technique applying the

legislatively-approved scientific theory for blood tests.8 Accordingly, the State

retains the burden of showing that the technique applying the scientific theory for

blood tests is reliable. As a result, when a defendant challenges the reliability of a

blood–alcohol test, the determinations for a trial court to make in the modified

Kelly hearing is whether the technique applying the theory is valid and whether the

technique was properly applied on the occasion in question. See id.

      We disagree with Appellant, however, that we are required to perform the

entire Kelly analysis to determine whether the blood test performed in this case—

known as headspace gas chromatography—is reliable.              “Of course, once a

particular type of scientific evidence is well established as reliable, a court may

take judicial notice of that fact, thereby relieving the proponent of the burden of

producing evidence on that question.” Weatherred v. State, 15 S.W.3d 540, 542

n.4 (Tex. Crim. App. 2000). “[O]nce some courts have, through a Daubert/Kelly

‘gatekeeping’ hearing, determined the scientific reliability and validity of a specific


8
      Section 724.017 of the Texas Transportation Code places certain restrictions on
      performing the blood draw, but not on the analysis of the blood after the draw is
      performed. TEX. TRANSP. CODE ANN. § 724.017 (Vernon Supp. 2014).
                                          30
methodology to implement or test the particular scientific theory, other courts may

take judicial notice of the reliability (or unreliability) of that particular

methodology.” Hernandez v. State, 116 S.W.3d 26, 29 (Tex. Crim. App. 2003).

This applies to the requirement of establishing the validity of the technique

applying the scientific theory as well. Id.

      Headspace gas chromatography is considered a reliable method for testing

blood alcohol concentration levels and is generally accepted in the scientific

community. See Bekendam v. State, 441 S.W.3d 295, 304 (Tex. Crim. App. 2014)

(upholding admission of evidence of blood draw based on conclusion that results

of gas chromatography tests are widely accepted in the scientific community);

Combs v. State, 6 S.W.3d 319, 322 (Tex. App.—Houston [14th Dist.] 1999, no

pet.), abrogation on diff. grounds recognized by McGowen v. State, 25 S.W.3d

741, 745–46 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (“Texas and

Federal courts have found the gas chromatography test to be a reliable method for

identifying compounds, and it has been generally acceptance in the scientific

community.”).9     Because the validity of the technique of headspace gas

chromatography for blood tests has been well-established by numerous, previous




9
      See also Jannah v. State, No. 01-14-00250-CR, 2015 WL 1544619, at *3 (Tex.
      App.—Houston [1st Dist.] Apr. 2, 2015, no pet.) (mem. op., not designated for
      publication).
                                          31
Kelly hearings and appellate reviews, we are not required to repeat this review in

this appeal.

       Moreover, despite her claims to the contrary, Appellant does not challenge

the first two elements of the Kelly test in her brief. Her issue concerns whether a

variation of the technique for performing the blood test rendered the test unreliable.

Appellant casts this as the State establishing a new technique that must be subject

to a full Kelly analysis. We disagree. The State never claimed that the variation in

the technique, discussed further below, was a new or different method. To the

contrary, the State conceded the variation was inadvertent. The State’s position

was that the court could still determine that the technique was properly applied—

the third element of the Kelly test—because the variation did not affect the

reliability of the test.

       We agree with the State that a challenge to an inadvertent variance in the

technique of performing a blood test requires determining whether the existing

technique was properly applied, not whether a new technique has been invented

and satisfies the Kelly factors. “[T]he third Kelly prong—whether the technique

was properly applied on the occasion in question—must necessarily be decided on

a case-by-case basis.” Somers v. State, 368 S.W.3d 528, 537 n.27 (Tex. Crim.

App. 2012) (citing Hartman v. State, 946 S.W.2d 60, 64 (Tex. Crim. App. 1997)).

It is this prong that we review in this appeal.


                                           32
      When a defendant challenges the reliability of scientific evidence, the State

bears the burden at the hearing to establish reliability by clear and convincing

evidence. See Kelly, 824 S.W.2d at 573; Schultz v. State, 457 S.W.3d 94, 103

(Tex. App.—Houston [1st Dist.] 2014, no pet.). This includes challenges to the

performance of a test to ensure scientific equipment is functioning properly before

the use of the equipment. See Schultz, 457 S.W.3d at 103–05 (considering whether

moving location of breath alcohol testing van required re-inspection of equipment

in van before use). If the State carries this burden, the burden then shifts to the

defendant “to establish that the evidence was otherwise unreliable.” Id. at 105

(citing Pham v. State, 175 S.W.3d 767, 773 (Tex. Crim. App. 2005)).

C.    Analysis

      Appellant argues that the blood draw technique was not properly applied

because the machine that performed the blood test had not been properly validated.

Appellant’s blood test was performed on August 23, 2012. About four months

earlier, certain components on the machine had to be replaced.            Once the

components were replaced, the machine had to be revalidated.

      For validation, a machine is set at certain parameters. Then samples with the

known concentration of alcohol are tested to ensure that the machine is reporting

the expected results for the known samples. In the validation process, the machine

is evaluated for “linearity, precision, limit of quantification, limit of detection,


                                        33
resolution, carryover, and sample to sample carryover,” as indicated in the

validation report. As long as the machine produces the expected results for each of

these matters at the parameters that were defined, then the machine is validated.

The machine then runs its tests for actual specimens using the defined parameters

of the validation test.

       The record shows that one of the defined parameters for the validation test

was that the vial oven in the machine would be set at 70 degrees Celsius (158

degrees Fahrenheit).      The record also shows that Appellant’s blood test was

analyzed with the vial oven in the machine set at 70 degrees Celsius. The record

indicates, however, that, for three of the four days of the validation test, the vial

oven in the machine was instead set at 60 degrees Celsius (140 degrees

Fahrenheit).10 Appellant argues that, due to the discrepancy in the vial oven

temperature during the validation, the machine had not, in fact, been properly

validated. She further argues that, because the machine had not been properly

validated and because Appellant’s blood was tested at a temperature different from

what was actually used during most of the validation test, the State failed to carry

its burden of showing that the blood draw technique was properly applied.


10
       Some question was raised during the hearing about whether the evidence really did
       show that the vial oven had been incorrectly set at 60 degrees Celsius during the
       first three days of the validation test. Because we can affirm the trial court’s
       ruling even when we assume that the evidence established the incorrect setting of
       the vial oven temperature, we do not need to resolve this dispute.
                                           34
      Understanding the significance of the discrepancy in the vial oven

temperature requires a more detailed explanation of how the machine tests for

alcohol in a blood sample. The machine used to test Appellant’s blood in this case

does not perform tests on the blood itself. Instead, the concentration of alcohol in

the blood is tested by measuring the volume of alcohol released into the air under

set conditions. Specifically, a portion of the blood sample (a known concentration

sample or the sample of the suspect’s blood) is placed in a vial along with a set

amount of a chemical referred to as n-Propanol. The vial is sealed and placed in a

heating chamber, the “vial oven.” The liquid solution is heated to the specified

temperature. The heating of the liquid solution causes the volatile compounds,

such as alcohol, to turn into a gas and form in the remaining portion of the sealed

vial, known as the “headspace.” The gases in this headspace are tested for alcohol,

n-Propanol, and any other relevant chemicals.

      According to what is known as Henry’s Law, in a closed environment (such

as the sealed vial) with a constant temperature, the volume of volatile compounds

(such as alcohol and n-Propanol) in a liquid will be proportional to the

concentration of those compounds released into the headspace above the liquid.

As it applies to blood tests, this law provides that a certain concentration of alcohol

in blood will release a predictable, specific amount of alcohol into the headspace of

a sealed vial when the blood is heated to a specified temperature, while blood with


                                          35
twice that concentration of alcohol will release twice the amount of alcohol into the

headspace of the vial. For blood tests, the machine measures the presence and

quantity of volatiles (such as alcohol and n-Propanol) in the headspace of the vial

after the liquid has been heated.

      As stated, Henry’s Law is based on a fixed, constant temperature. The

implication of this law is that, when the temperature of the liquid solution is raised,

the concentration of volatiles in the air of the container also increase. If all that

were measured were the amount of alcohol in the headspace, then, increasing the

temperature on a blood sample would resemble the proportion of alcohol released

from blood with a greater concentration of alcohol at a lower temperature.

      Arnold provided the most scientifically detailed explanation for why the

change in temperature during the validation test did not render the validation

useless and, by extension, why the blood draw technique for Appellant’s test was

properly applied. Arnold acknowledged that, if the machines only tested for the

volume of alcohol released into the headspace, an inaccurate reading could result

from the change in the oven temperature. But that is not how results are obtained

for machines like the one used to test Appellant’s blood.

      Instead, blood–alcohol concentration is determined by measuring the ratio of

the proportion of alcohol contained in the headspace to the proportion of n-

Propanol contained in the headspace. The results on the report identifying the


                                          36
suspect’s blood–alcohol concentration is derived from a determination of the ratio

of alcohol to n-Propanol, not from a determination of just the amount of alcohol in

the headspace.

      A set amount of n-Propanol is added to every sample tested, whether the

sample is of a known concentration or of the suspect’s blood. Based on this, while

an increase in the oven temperature would have increased the amount of alcohol

released into the headspace, it also would have—based on Henry’s Law—released

the same proportion of n-Propanol into the headspace. Accordingly, a change in

the vial oven temperature would not affect the ratio of alcohol to n-Propanol found

in the headspace. It would change the total quantity of both, but not the ratio

between the two.

      Arnold, Mayor, and Rios also testified that the validation should not be

unreliable due to the change in the oven temperature for a similar reason: the tests

of the known concentration samples continued to be measured at the expected

amount during the subsequent tests, including Appellant’s. The purpose of the

validation is to ensure that the machine produces results within a permissible range

for samples with known concentrations. Arnold, Mayor, and Rios testified that

each time a test is performed on a suspect’s blood sample, known concentration

samples are also tested.     If the machine continues to report the expected




                                        37
measurements for known quantity samples during normal use, then the change in

oven temperature did not have an impact on its validation.

      Appellant’s expert, Culbertson, testified to the contrary. She testified that, in

order for a machine to produce reliable results, it must be validated first. She

asserted that the measurement of controls (known concentration samples) during

regular testing could not establish that the machine had been properly validated

“[b]ecause you have to have a valid method before you can even speak to the

results of a control or a sample.”      Culbertson did not testify, however, why

Arnold’s explanation that the ratio of alcohol to n-Propanol would remain constant

after increasing the temperature of the vial oven was incorrect.

      Appellant’s argument on appeal follows the same reasoning. Appellant

argues, “If the testimony in this case is sufficiently reliable, then the industry-

standard requirements of validation and maintaining documentation are nothing but

mere formalities which may be disregarded as long as a lab employee testifies that

a method ‘has proven itself’ by virtue of casework analysis.” Appellant’s concerns

are understandable. Yet, to hold that the trial court abused its discretion by

crediting and considering this evidence would be tantamount to holding that any

discrepancy in performance of the validation test renders it and all subsequent tests

unreliable as a matter of law regardless of any explanation proffered by the State’s




                                          38
expert to show that the discrepancy did not result in any error in the blood test

results in question. We cannot hold this.

      The trial court’s determination of whether the State discharged its burden of

establishing that the technique was properly applied includes considering

challenges to the performance of tests designed to ensure scientific equipment is

functioning properly prior to the use of the equipment. See Schultz, 457 S.W.3d at

103–05 (considering whether rules of DPS required re-inspection after van

containing breath testing machine had driven to different site). We afford almost

total deference to a trial court’s determination of questions of fact and its rulings

on mixed questions of law and fact when the resolution of those questions depends

on an evaluation of credibility and demeanor. Johnston, 336 S.W.3d at 657.

Nothing in Culbertson’s testimony disproved as a matter of law Arnold’s testimony

that the ratio of alcohol to n-Propanol would remain constant after increasing the

temperature of the vial oven.      Accordingly, the determination of whether the

machine that tested Appellant’s blood had been properly validated came down to a

resolution of conflicting evidence between experts.       This necessarily involves

determinations of credibility. As a result, it was within the trial court’s discretion

to resolve the question in favor of the State. See id.

      When it ruled on Appellant’s challenge to the reliability of the blood test

results, the trial court explicitly found that Mayor and Arnold were credible. It


                                          39
then ruled that the State met its burden on establishing reliability. Appellant has

not established that the trial court abused its discretion by admitting the evidence.

See id.; Osbourn, 92 S.W.3d at 537 (holding trial court’s admission of evidence is

reviewed for abuse of discretion).

      We overrule Appellant’s fourth issue.

                   Modification of the Trial Court Judgment

      The judgment reflects that the trial court’s finding on the State’s

enhancement paragraph was “n/a,” meaning “not applicable.” This is incorrect.

      An appellate court has the authority to reform an error in the judgment when

the matter has been called to its attention by any source. French v. State, 830

S.W.2d 607, 609 (Tex. Crim. App. 1992) (holding that appellate court could

reform judgment to reflect jury’s affirmative deadly weapon finding and adopting

reasoning in Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991,

pet. ref’d) (“The authority of an appellate court to reform incorrect judgments is

not dependent upon the request of any party, nor does it turn on the question of

whether a party has or has not objected in the trial court.”)); see also Rhoten v.

State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.) (reforming

judgment to correctly reflect appellant’s plea). “The Texas Rules of Appellate

Procedure also provide direct authority for this Court to modify the trial court’s




                                         40
judgment.” Rhoten, 299 S.W.3d at 356 (citing TEX. R. APP. P. 43.2(b) (providing

that court of appeals may modify trial court’s judgment and affirm as modified)).

      The record reflects that, the State’s amended information contained an

enhancement paragraph. During the punishment phase, the trial court found it to

be true. Without such a finding, Appellant’s sentence would be outside of the

permissible punishment range. See TEX. PENAL CODE ANN. § 12.21 (Vernon 2011)

(setting maximum punishment range for class A misdemeanors at one year),

§ 12.22 (Vernon 2011) (setting maximum punishment range for class B

misdemeanors at 180 days), § 49.04(d) (Vernon Supp. 2014) (setting level of

punishment for driving while intoxicated as class A misdemeanor when

defendant’s blood alcohol concentration is at 0.15 or above). Accordingly we will

modify the judgment to correctly reflect the trial court’s finding.

                                     Conclusion

      We modify the judgment to reflect that the trial court found the State’s

enhancement paragraph to be true. We affirm the judgment as modified.




                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Jennings, Higley, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).

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