                              Fourth Court of Appeals
                                     San Antonio, Texas
.
                                                OPINION
                                        No. 04-12-00870-CR

                                   Gregory Everett MITCHELL,
                                            Appellant

                                                v.
                                           The STATE of
                                        The STATE of Texas,
                                              Appellee

                    From the 227th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2011CR11068
                          Honorable Philip A. Kazen Jr., Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: December 4, 2013

AFFIRMED

           Appellant Gregory E. Mitchell was indicted on separate counts of intoxication

manslaughter and manslaughter in the death of Ryan Bettcher. The jury found Mitchell guilty of

intoxication manslaughter and sentenced him to fifteen years confinement in the Texas Department

of Criminal Justice and assessed a fine in the amount of $10,000.00. On appeal, Mitchell asserts

(1) the trial court erred in admitting an alcohol analysis request form and (2) the evidence is not

legally sufficient to support his conviction. We affirm the trial court’s judgment.
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                                           BACKGROUND

         On May 7, 2011, Mitchell drove away from his father’s residence after drinking “three

Miller Lite beers.” Roxanne Leon was traveling with her two children in the westbound lane on

Aviation Boulevard, Bexar County, Texas, when she first saw Mitchell’s vehicle as it approached

head-on in her lane of traffic. Mitchell veered off the road and struck a guard post. Leon

immediately pulled over, called 911, and approached Mitchell’s vehicle. No one was in the

vehicle, but when Leon turned, she saw Mitchell walking in the middle of the street and he stated,

“I swerved. I hit someone.” Leon described Mitchell as either “drunk or on something” and they

both proceeded to look for someone who might be injured.

         Universal City police officers arrived shortly thereafter and were able to locate Bettcher on

the side of the road, several feet from the point of impact. Bettcher was already deceased when

officers located his body. Mitchell’s right side-view mirror was found near Bettcher’s body.

Officers further noted the front passenger quarter panel of Mitchell’s vehicle was damaged; his

passenger–side windshield was shattered and imbedded with pieces of Bettcher’s hair, flesh, and

blood.

         Officer David Allen and Detective Sheila Vitacco took photographs of the scene. Officer

Allen described Mitchell as thick-tongued, slurring his speech, slow to respond, and unsteady on

his feet. Officer Allen also noted a strong odor of alcohol on Mitchell’s breath. Detective Allen

conducted several field sobriety tests. Mitchell failed the walk-and-turn and the one-leg stand.

Mitchell was placed under arrest for intoxication manslaughter. After Mitchell refused both a

blood and breath sample, he was taken to the Magistrate’s Office for a mandatory blood draw due

to the officer’s suspicion that alcohol was involved in Bettcher’s death.

         Officer Allen submitted an analysis request form for the blood testing. Lois Peterson, the

nurse on duty, drew a blood sample from Mitchell’s arm in the presence of Officer Allen. Nurse
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Peterson did not testify at the trial. Detective Allen, however, testified that he observed Peterson

clean Mitchell’s arm with iodine, draw blood into two gray–top vials, and turn the vials ten times

as required by protocol. The vials were labeled with Mitchell’s name and the agency case number,

placed in a manila envelope, sealed with the necessary request form completed by Officer Allen,

and secured in a lock box.

       Toxicologist Veronica Hargrove testified she received the two vials sealed in a manila

envelope labeled with Mitchell’s name and the agency case number. Hargrove conducted blood

alcohol testing which showed Mitchell’s blood alcohol content at .20 grams per deciliter at the

time of the blood draw.

                                        CHAIN OF CUSTODY

       In his first issue on appeal, Mitchell contends the trial court erred in admitting a redacted

version of the request form over his hearsay objection. Without the request form in evidence,

Mitchell argues, the State failed to prove the necessary chain of custody regarding the toxicology

reports. The request form was redacted to provide only the following identifying information:

Mitchell’s name; his social security number; his date of birth; his sex; the date of the incident; the

time of arrest; the submitting agency; the agency case number; the type of specimen submitted

(i.e., blood); the type of case/test to be performed (i.e., intoxication assault/intoxication

manslaughter—all drugs including alcohol); the printed name of the requesting officer; the

officer’s signature; the date; and a phone number for the requesting agency.

       The State contends the form was introduced solely to support the beginning of the chain

by identifying the vials of blood. Additionally, the State argues that any questions regarding

whether the proper vials were used or whether proper medical protocol was followed is only

relevant to the weight to be given the testimony and does not affect admissibility.



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A.     Standard of Review

       An appellate court reviews a trial court’s admission of extraneous offense evidence under

an abuse of discretion standard. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007);

Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004). “A trial court abuses its discretion when

its decision [to admit evidence] lies outside the zone of reasonable disagreement.” Casey, 215

S.W.3d at 879; accord Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007) (citing Moses

v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)).

B.     Texas Rule of Evidence 901

       “The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter in question is

what its proponent claims.” TEX. R. EVID. 901(a); Druery, 255 S.W.3d at 502. Texas Rule of

Evidence 901 is interpreted liberally and “[t]he trial judge does not abuse his or her discretion in

admitting evidence where he or she reasonably believes that a reasonable juror could find that the

evidence has been authenticated or identified.” See Druery, 225 S.W.3d at 502.

       Within the test for authentication is whether the chain of custody was preserved. A chain

of custody is sufficiently authenticated when the State establishes “the beginning and the end of

the chain of custody, particularly when the chain ends at a laboratory.” Martinez v. State, 186

S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); see also Gallegos v. State, 776

S.W.2d 312, 315–16 (Tex. App.—Houston [1st Dist.] 1989, no pet.). Links in the chain can be

proven by circumstantial evidence. Bass v. State, 830 S.W.2d 142, 146 (Tex. App.—Houston

[14th Dist.] 1992, pet. ref’d). Absent evidence of fraud or tampering, alleged issues concerning

gaps in the chain of custody affect the weight to be given the evidence and not the admissibility of

the evidence. Druery, 225 S.W.3d at 503–04; Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim.

App. 1997).
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C.     Analysis

       In order to allow the toxicologist to testify regarding the scientific tests and results, the

State is required to establish a proper chain of custody for the tested specimen. Avila v. State, 18

S.W.3d 736, 739 (Tex. App.—San Antonio 2000, no pet.). Here, the State bore the burden to

establish that the blood drawn from Mitchell was the same blood delivered to be tested at the

toxicology lab. Reed v. State, 158 S.W.3d 44, 52 (Tex. App.—Houston [14th Dist.] 2005, pet.

ref’d). At trial, Officer Allen testified that he “observed the nurse clean the area with iodine, take

a blood sample, rotate the vial and move it ten times, seal it in a manila envelope and place it in a

lock box.” Additionally, Officer Allen testified the vials were labeled with Mitchell’s name and

the agency number. Defense counsel took the officer on voir dire and questioned him as to his

observations and how he could be certain the blood vials were the same ones he collected from the

nurse. During the State’s re-direct of Officer Allen, the State offered into evidence the request

form to show the two vials of blood were the same vials submitted to the crime lab and tested by

Toxicologist Veronica Hargrove. Over objection by defense counsel, the trial court admitted the

evidence.

       Assuming, without deciding, the request form was hearsay, and that none of the hearsay

exceptions apply, there is no harm. Officer Allen testified that he witnessed Nurse Peterson follow

each of the statutory requirements. His testimony was offered without objection from the defense.

Thus, any error resulting from the trial court’s admission of the request form was “harmless in

light of other properly admitted evidence proving the same fact.” Brooks v. State, 990 S.W.2d

278, 287 (Tex. Crim. App. 1999); see also Cordero v. State, No. 08-05-00285-CR, 2007 WL

4724675, at *7 (Tex. App.—El Paso 2007, pet. ref’d) (citing Penley v. State, 2 S.W.3d 534, 537

(Tex. App.—Texarkana 1999, pet. ref’d)).

       Accordingly, we overrule Mitchell’s first issue.
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                                    CONFRONTATION CLAUSE

       Mitchell next contends his Sixth Amendment right to confront the witnesses against him

was violated by the admission of the blood request form. Specifically, Mitchell argues the request

form was testimonial in nature and the State’s failure to call Nurse Peterson, as a witness

substantiating the blood draw, denied him the ability to cross-examine her. The State contends

that because the request form was not an out-of-court testimonial statement, the request form was

not barred by the Confrontation Clause.

A.     Standard of Review

       An appellate court defers to a trial court’s determination of historical facts and credibility,

but constitutional rulings, particularly whether a statement is testimonial or non-testimonial, are

reviewed de novo. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006) (citing Lilly v.

Virginia, 527 U.S. 116, 137 (1999)).

B.     Confrontation Clause

       The Sixth Amendment to the United States Constitution provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against

him.” U.S. CONST. amend. VI; Pointer v. Texas, 380 U.S. 400, 407 (1965). The Confrontation

Clause and cross-examination exist in part to ensure fairness in criminal proceedings and reliability

of the evidence. See Lilly, 527 U.S. at 123–24. Through cross–examination, a defendant tests the

believability of a witness and the truth of that witness’ testimony. Id.; Davis v. Alaska, 415 U.S.

308, 316 (1974). Therefore, to trigger the protections afforded by the Confrontation Clause, an

out-of-court statement must be made by an absent witness and be testimonial in nature. Crawford

v. Washington, 541 U.S. 36, 68 (2004). We weigh each Confrontation Clause issue “on a case-by-

case basis, carefully taking into account the defendant’s right to cross-examine and the risk factors



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associated with admission of the evidence.” Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App.

2000).

         In Crawford v. Washington, 541 U.S. at 68, the Supreme Court held that the Confrontation

Clause bars the admission of an out-of-court testimonial statement made by a witness who does

not testify unless the witness is unavailable to testify and the defendant has had a prior opportunity

to cross-examine the witness. In determining whether an out-of-court statement is testimonial,

appellate courts look to (1) the formal nature of the interaction, (2) the intent of the declarant, or

(3) some combination of the two factors. Moore v. State, 169 S.W.3d 467, 471 (Tex. App.—

Texarkana 2005, pet. ref’d) (citing Crawford, 541 U.S. at 68).

         The Crawford Court emphasized the Confrontation Clause is more a procedural guarantee

than a substantive one. Crawford, 541 U.S. at 61. Thus, if the proposed testimony is the functional

equivalent of an ex parte, in-court statement, the statement is testimonial. Id. at 51. The Crawford

Court further indicated that the subjective intent of the declarant was relevant holding that a

statement “knowingly given in response to structured police questioning” was testimonial “under

any conceivable definition” of interrogation. Id. at 53 n.4.

C.       Analysis

         The case of Ash v. State, No. 08-04-00046-CR, 2006 WL 357875 (Tex. App.—El Paso

Feb. 16, 2006, no pet.) (mem. op., not designated for publication) is instructive. Similar to the

request form in question, a form containing the defendant’s name, case number, date, and officer’s

initials was also admitted. Id. at *1–2. The El Paso court found the information contained within

the form involved routine information not requiring any subjective interpretation or analysis by

police personnel. Id. at *4.

         This case is not different. Officer Allen testified he read the initial request form verbatim

to Mitchell prior to obtaining the blood draw. He also testified the request form was required prior
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to submission to the laboratory and it contained a checklist to which he adhered step-by-step.

Additionally, all information contained on the request form was testified to by Officer Allen during

either direct testimony or on cross-examination. See Brooks v. State, 990 S.W.2d 278, 287 (Tex.

Crim. App. 1999) (deciding that proper admission of testimony on the same information contained

in the form cured any possible error).

       Mitchell points to Burch v. State, 401 S.W.3d 634, 637–40 (Tex. Crim. App. 2013), for the

proposition that the State’s failure to present Nurse Peterson for cross-examination barred

admission of the request form under the Confrontation Clause. In Burch, the State called a

“reviewing analyst” to testify to the lab report substantiating the substance in question was cocaine.

Id. at 637–38. The witness did not have personal knowledge of the actual tests performed or the

procedures followed during such testing and, therefore, could not testify to the contents of the

analysis. Id. at 639–40. Here, Nurse Peterson did not perform any tests. To the contrary, Veronica

Hargrove, the toxicologist who performed all of the tests was available for cross-examination by

the defense. Unlike an autopsy or a toxicology report, the request form did not contain any

analysis, but simply started the chain of evidence sufficient to allow Hargrove to testify as to the

blood-alcohol levels in Mitchell’s blood. Cf. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311

(2009); McWilliams v. State, 367 S.W.3d 817, 819 (Tex. App.—Houston [14th Dist.] 2012, no

pet.); Wood v. State, 299 S.W.3d 200, 208 (Tex. App.—Austin 2009, pet. ref’d). Even further, the

request form was redacted to contain only identifying information.

       Thus, regardless of whether the request form was testimonial, the analyst who performed

any and all testing on Mitchell’s blood was called to testify and was cross-examined by the defense.

Mitchell’s Sixth Amendment rights were not violated. We, therefore, overrule this issue on appeal.




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                                   SUFFICIENCY OF THE EVIDENCE

        Mitchell challenges the sufficiency of the evidence to support his intoxication

manslaughter conviction. Specifically, Mitchell argues the State failed to prove Mitchell’s conduct

caused Bettcher’s death.

A.      Standard of Review

        In reviewing the legal sufficiency of the evidence, an appellate court determines whether,

viewing “all the evidence in the light most favorable to the verdict, any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt.” Hardy v. State, 281

S.W.2d 414, 421 (Tex. Crim. App. 2009); accord Brooks v. State, 323 S.W.3d 893, 899 (Tex.

Crim. App. 2010); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). We must defer to the

jury’s assessment of the credibility of the witnesses “and the weight to be given to their testimony,”

Brooks, 323 S.W.3d at 899, and allow for reasonable inferences from the evidence presented.

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see also TEX. CODE CRIM. PROC.

ANN. art. 38.04 (West 1979) (stating that “the jury, in all cases, is the exclusive judge of the facts

proved, and of the weight to be given to the testimony” except where provided otherwise by law);

Jackson, 442 U.S. at 319 (reiterating it is strictly the province of the jury “fairly to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts”). In so doing, an appellate court presumes that the jury “resolved the conflicts in

favor of the prosecution and therefore defer to that determination.” Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

        The key question is whether “the evidence presented actually supports a conclusion that

the defendant committed the crime that was charged.” See Williams, 235 S.W.3d at 750. Only

upon a finding the evidence is legally insufficient will this court reverse the trial court’s judgment

and order an acquittal. See Tibbs v. Florida, 457 U.S. 31, 41 (1982); Brooks, 323 S.W.3d at 904.
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This legal sufficiency standard applies equally to both direct and circumstantial evidence. Clayton,

235 S.W.3d at 778; King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000).

B.     Intoxication Manslaughter

       “A person commits [intoxication manslaughter] if the person [] (1) operates a motor vehicle

in a public place . . . , (2) is intoxicated and by reason of that intoxication causes the death of

another by accident or mistake.” TEX. PENAL CODE ANN. § 49.08 (West 2011). Appellant

contends the evidence is legally insufficient to support two elements of the offense: (1) that he

operated a motor vehicle and (2) that he was intoxicated. The Texas Penal Code does not define

the term “operated.” However, in assessing whether the evidence is sufficient to support the

operation of a motor vehicle element, courts examine all of the evidence to determine whether it

supports a finding that Appellant exerted personal effort to cause the vehicle to function. Denton

v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). “‘Intoxicated’ means . . . not having the

normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled

substance, a drug, a dangerous drug, a combination of two or more of those substances, or any

other substance into the body . . . .” TEX. PENAL CODE ANN. § 49.01(2)(A).

C.     Analysis

       1.      Who Was Operating Mitchell’s Vehicle

       Mitchell contends the evidence is insufficient to prove he was operating the vehicle at the

time of the accident. However, there was no evidence of other individuals in Mitchell’s vehicle

that evening. Leon saw the car hit the guard post and by the time she called emergency officers,

Mitchell was out of his vehicle wandering in the middle of the road. Mitchell immediately told

Leon, “I swerved. I hit somebody.” Minutes later, when Officer Allen asked Mitchell what

happened, Mitchell replied, “I think I hit someone . . . I’m sorry, I just didn’t see him. I hit him.”

The damage to Mitchell’s vehicle was consistent with Bettcher hitting his windshield. From all
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the evidence presented, a reasonable jury could have concluded that Mitchell was operating the

vehicle that struck Ryan Bettcher.

       2.      Mitchell’s Intoxication Caused Bettcher’s Death

       Mitchell argues there were no witnesses to the accident or the manner in which Mitchell

was operating his vehicle at the time in question. The toxicologist testified that, in her opinion, it

was “very unlikely” Mitchell’s blood alcohol content would have been below .08 grams per

deciliter at the time of the accident. Although defense counsel aggressively cross-examined the

toxicologist, a reasonable juror could have put significant weight behind Mitchell’s blood alcohol

content at .20 grams per deciliter, more than twice the amount that defines intoxication in the Penal

Code. See TEX. PENAL CODE ANN. § 49.01 (West 2011); Cone v. State, 383 S.W.3d 627, 633 (Tex.

App.—Houston [14th Dist.] 2012, pet. ref’d).

       Mitchell further argues that no behavioral connection can be drawn between Mitchell’s

actions and any substances that might have been detected in his blood. See TEX. PENAL CODE

ANN. § 6.04(a) (West 2011) (“A person is criminally responsible if the result would not have

occurred but for his conduct, operating either alone or concurrently with another cause . . . .”); see

also Quintanilla v. State, 292 S.W.3d 230, 232–35 (Tex. App.—Austin 2009, pet. ref’d). On

appeal, Mitchell contends he swerved to avoid hitting Bettcher who was “walking down a dark,

barely-paved, poorly defined road.” The evidence is to the contrary.

       Leon testified Mitchell was traveling eastbound in the westbound lane, coming at her

vehicle head-on before he veered across the road into a guard post. When she first found Mitchell

he was walking in the middle of the street looking for someone who he hit. The evidence shows

that when Bettcher was struck by Mitchell’s vehicle, Bettcher was on foot, traveling in the grass

on the side of the road and there were no brake marks evident on the ground.                 Mitchell

acknowledged drinking two to three Miller Lite beers prior to the accident. Leon described
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Mitchell as “drunk or on something” and Officer Allen testified that Mitchell was “thick-tongued,”

glassy-eyed, unsteady, and smelled of alcohol. Additionally, Mitchell was unable to successfully

complete either the one-leg stand or the walk-and-turn field sobriety tests. There was sufficient

evidence admitted from which the jury could find beyond a reasonable doubt a causal connection

between Bettcher’s death and Mitchell’s intoxication, “not having the normal use of mental or

physical faculties by reason of the introduction of alcohol” or having an alcohol concentration of

0.08 or more grams per 100 milliliters of blood. See TEX. PENAL CODE ANN. § 49.08 (West 2011);

Glauser v. State, 66 S.W.3d 307, 313 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd).

       Here, based on both the direct and circumstantial evidence, the jury had an opportunity to

assess the witnesses’ credibility and make reasonable inferences therefrom. See Brooks, 323

S.W.3d at 899; Williams, 235 S.W.3d at 750. Viewing the evidence “in the light most favorable

to the verdict,” a rational jury could have inferred the ultimate fact that Mitchell operated a motor

vehicle and that he was intoxicated. See Brooks, 323 S.W.3d at 899; see also Louis v. State, 159

S.W.3d 236, 247–48 (Tex. App.—Beaumont 2005, pet. ref’d).

       Because the evidence is legally sufficient to prove both the operation and the intoxication

elements beyond a reasonable doubt, we overrule Mitchell’s third issue.

                                           CONCLUSION

       The blood analysis request form was admitted to establish the beginning of the chain of

custody, and any questions regarding the veracity of the request form would affect the weight to

be given the testimony, not whether the request form was admissible. See Druery, 225 S.W.3d at

503–04. Further, because we concluded the request form was not testimonial in nature, the request

form’s admission did not violate Mitchell’s Sixth Amendment rights. Finally, based on both the

direct testimony regarding Mitchell’s behavior and demeanor at the scene, and the circumstantial



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evidence offered through witnesses, the evidence is legally sufficient to prove Mitchell operated

the vehicle and a causal connection between Bettcher’s death and Mitchell’s intoxication.

       Having overruled all of Mitchell’s appellate issues, we affirm the trial court’s judgment.


                                                 Patricia O. Alvarez, Justice

PUBLISH




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