                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00109-CR

MICHAEL ANTHONY MCGRUDER,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 11-05822-CRF-85


                          MEMORANDUM OPINION


      Michael Anthony McGruder was convicted of the offense of driving while

intoxicated, a felony offense, and sentenced to 30 years in prison. See TEX. PENAL. CODE

ANN. § 49.04 (West 2011). In an opinion issued August 14, 2014, a majority of this Court

held that because section 724.012(b)(3)(B) of the Texas Transportation Code was not

unconstitutional on its face, the trial court’s judgment was affirmed. McGruder v. State,
475 S.W.3d 345 (Tex. App.—Waco 2014), vacated and remanded by, 483 S.W.3d 880 (Tex.

Crim. App. 2016).1

        The Court of Criminal Appeals vacated our judgment and remanded the appeal

to us because we did not have the benefit of cases that were decided by the United States

Supreme Court and the Texas Court of Criminal Appeals. McGruder, 483 S.W.3d at 883-

84. In a footnote, however, the Court of Criminal Appeals suggested an alternate method

of disposing this case:

        Appellant did not object, however, to the forensic chemist's oral testimony
        to the same effect. Given our disposition of Appellant's sole ground for
        review, the court of appeals may wish to address whether the doctrine of
        curative admissibility might apply. See George E. Dix & John M.
        Schmolesky, 43A TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE §
        53:82, at 1058 (3rd ed. 2011) ("The admission of improper evidence does not
        constitute reversible error if the same facts were proved by evidence which
        was not objected to."). An appellate court may not reverse a conviction
        without first addressing any issue of error preservation that might be
        presented by the record. Gipson v. State, 383 S.W.3d 152, 159 (Tex. Crim.
        App. 2012).

Id. at 882, n. 1.

        This alternate method of disposing the appeal has now been briefed on remand by

the State. The State’s briefing on remand is to the same effect as the Court of Criminal

Appeals’ suggestion in footnote 1 above. McGruder was given the opportunity to




1The procedural and legal development of this case is presented in the Court’s original opinion and in the
opinion of the Court of Criminal Appeals. There is no need for us to restate that development.

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provide an amended or supplemental brief on remand but specifically declined to do so.

See TEX. R. APP. P. 38.6(a); Robinson v. State, 790 S.W.2d 334, 335-36 (Tex. Crim. App. 1990).

       At trial, McGruder objected to the introduction into evidence of the blood draw

kit and blood draw vial, referred to in appellant’s original brief as “the blood evidence,”

on the basis that section 724.012 of the Texas Transportation Code is unconstitutional.

Later, McGruder also objected to the lab report which contained the blood alcohol content

results of McGruder's blood test by stating, "Renew my earlier objection." He did not,

however, object to the chemist's testimony, which occurred prior to the introduction of

the lab report, that McGruder's blood alcohol content was .09 grams per 100 milliliters.

       It is well-settled that the erroneous admission of testimony is not cause for reversal

"if the same fact is proven by other testimony not objected to." Smith v. State, No. PD-

1615-14, 2016 Tex. Crim. App. LEXIS 89, at *11 (Tex. Crim. App. 2016) (publish), quoting

Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Because McGruder did not

object to the chemist’s testimony regarding McGruder's blood alcohol content, no

reversible error in admitting the “blood evidence” is presented. See id. (“Even if appellant

had obtained a ruling on his objection to the blood vial itself, the test results were already

in evidence.” Emphasis added.); see also Lane v. State, 151 S.W.3d 188 (Tex. Crim. App.

2004) (no reversible error presented when victim’s out of court statements came into

evidence without objection).




McGruder v. State                                                                       Page 3
       Accordingly, McGruder’s sole issue is overruled, and the trial court’s judgment is

affirmed.



                                         PER CURIAM

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Justice Davis concurs without opinion)
Affirmed
Opinion delivered and filed July 27, 2016
Do not publish
[CRPM]




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