                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00310-CR


PATRICK RYAN                                                        APPELLANT
HENNESSEY

                                         V.

THE STATE OF TEXAS                                                        STATE


                                     ------------

      FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

                                     ------------

                       MEMORANDUM OPINION1
                                     ------------

                                  I. Introduction

      In two points, Appellant Patrick Ryan Hennessey asserts that the trial court

erred by denying his motion to suppress evidence of a blood test in violation of

the Sixth Amendment’s Confrontation Clause because the blood test results were

testimonial and subject to cross-examination. We affirm.



      1
      See Tex. R. App. P. 47.4.
                          II. Factual and Procedural History

        Hennessey was involved in a single car rollover accident near the

intersection of Forest Park and Interstate 30 in Fort Worth.        The responding

officer saw the vehicle ―on its top‖ on the service road.         He called a DWI

enforcement officer to the scene after speaking with Hennessey and detecting

the smell of alcohol on him. Before Hennessey was transported to the hospital

for medical treatment, he admitted that he had consumed two or three ―Crown

and Cokes‖ about an hour before the accident, that he had been driving

westbound on the interstate at around sixty miles per hour before he lost control

of the vehicle, and that the vehicle slid off the side of the freeway onto the service

road.

        Police officers were stationed outside of Hennessey’s treatment room at

the hospital. Hennessey refused to provide a blood sample after receiving his

statutory DWI warning, and police did not request a search warrant to obtain the

blood sample. Nonetheless, per the hospital’s standard treatment protocol, a

blood sample was drawn for analysis, which included a blood-alcohol level

assessment. The lab results of Hennessey’s blood test were not received until

after initial treatment procedures were completed, and the lab results were filed

in his hospital record.

        The State acquired Hennessey’s medical records and offered them during

trial under the business-records exception to the hearsay rule.           Hennessey



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moved to exclude the records, arguing that the State had violated the federal

Health Insurance Portability and Accountability Act (HIPAA) by obtaining the

medical records, and stating that he was ―strictly attacking the HIP[A]A issue

under 38.23 of the Code of Criminal Procedure.‖        The State countered that

Hennessey had no standing for this argument, and the trial court denied

Hennessey’s motion.        Immediately thereafter, the State again offered

Hennessey’s medical records, and Hennessey’s counsel stated, ―There is no

objection from the Defense.‖ The trial court admitted the records into evidence.

      The following day, after both parties stipulated that the medical staff

member who drew Hennessey’s blood remained unidentified, Hennessey moved

to strike the medical records as violating the Confrontation Clause. The State

argued that the Confrontation Clause did not apply to Hennessey’s medical

records because the blood samples were not taken at the police department’s

behest or for law enforcement purposes and because the medical records were

not testimonial and were instead business records to be relied upon by expert

witnesses.2   The trial court denied Hennessey’s motion, and the jury found

      2
       Charles Cline, the primary emergency room nurse who provided care to
Hennessey; Paul Payberah, the lab technician who performed the analysis on
Hennessey’s blood; and Mark Fondren, the senior forensic chemist for the
Tarrant County Medical Examiner’s Office, testified at trial. Cline testified about
standard trauma patient care, including that every trauma patient has his or her
blood drawn in the same way. Payberah testified about how he conducted the
blood test and the equipment he used to perform it. Fondren testified about the
effect Hennessey’s blood alcohol content—0.15 versus the legal limit of .08—
would have had on Hennessey. See Tex. Penal Code Ann. § 49.01 (Vernon
2003).

                                    3
Hennessey guilty.      The trial court sentenced Hennessey to forty days’

confinement and a $750 fine and suspended his license. This appeal followed.

                     III. Admission of Blood Tests Results

      Hennessey complains that the trial court erred by denying his motion to

suppress and by admitting evidence of the blood test results in violation of the

Confrontation Clause, relying on Crawford v. Washington, 541 U.S. 36, 124 S.

Ct. 1354 (2004), and its progeny.

      When testimonial evidence is at issue, ―the Sixth Amendment demands

what the common law required: unavailability and a prior opportunity for cross-

examination.‖ Id. at 68, 124 S. Ct. at 1374. That is, Crawford applies only when

the extrajudicial testimonial statements of a witness who does not testify at trial

are sought to be admitted. See id. at 59, 124 S. Ct. at 1369.

      Under the circumstances presented here, no Sixth Amendment violation

occurred. That is, respectively, Cline’s, Payberah’s, and Fondren’s testimonies

about routine blood draws of trauma patients in the emergency room, the chain

of custody of the vials of Hennessey’s blood, the testing procedures used, and

the conclusions that could be drawn from the blood test results are not governed

by Crawford because no out-of-court statements were admitted through their

testimonies. None of these witnesses drew Hennessey’s blood or testified about

any statements by the individual who did.        Rather, their testimonies were

admitted based on their own personal knowledge of the standard procedures



                                    4
used, the actions they individually took, and the conclusions they drew based on

their own personal knowledge, experience, and expertise. Therefore, the Sixth

Amendment concerns about out-of-court-statements that were at issue in

Crawford do not apply. See, e.g., Camacho v. State, Nos. 02-07-00322-CR, 02-

07-00323-CR, 2009 WL 2356885, at *3 (Tex. App.—Fort Worth July 30, 2009,

pet. ref’d) (mem. op., not designated for publication) (holding that Crawford did

not apply to chemist’s in-court statement based on personal knowledge acquired

from having trained and worked at the DPS laboratory); Martin v. State, No. 02-

08-00128-CR, 2009 WL 2414294, at *7 (Tex. App.—Fort Worth Aug. 6, 2009, no

pet.) (mem. op., not designated for publication) (holding that Crawford’s Sixth

Amendment concerns about out-of-court statements did not apply to expert’s

testimony that was based on personal knowledge acquired by having trained and

worked at the Tarrant County Medical Examiner’s lab); see also Melendez-Diaz

v. Massachusetts, 129 S. Ct. 2527, 2532 n.1 (2009) (―[W]e do not hold, and it is

not the case, that anyone whose testimony may be relevant in establishing the

chain of custody, authenticity of the sample, or accuracy of the testing device,

must appear in person as part of the prosecution’s case.‖). 3 We overrule both of

Hennessey’s points.




      3
       Furthermore, Hennessey failed to preserve this error. See Holmes v.
State, 248 S.W.3d 194, 196 (Tex. Crim. App. 2008); Reyna v. State, 168 S.W.3d
173, 179 (Tex. Crim. App. 2005); see also Tex. R. App. P. 33.1(a)(1); Tex. R.
Evid. 103(a)(1).

                                   5
                               IV. Conclusion

      Having overruled both of Hennessey’s points, we affirm the trial court’s

judgment.



                                                BOB MCCOY
                                                JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

LIVINGSTON, C.J. filed a concurring opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 2, 2010




                                  6
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-09-00310-CR


PATRICK RYAN                                                        APPELLANT
HENNESSEY

                                         V.

THE STATE OF TEXAS                                                        STATE


                                     ------------

      FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

                                     ------------

                CONCURRING MEMORANDUM OPINION
                                      ----------

      I respectfully concur with the majority opinion. Because appellant failed to

properly preserve this error, I believe we should not address the merits of his

complaint.   Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010).

Preservation of error is a systemic requirement on appeal, and we have been

directed not to address the merits of unpreserved error. Id. (quoting Ford v.

State, 305 S.W.3d 530, 532–33 (Tex. Crim. App. 2009)). Furthermore, as shown

by the majority opinion, the result would be no different.



                                     7
      For these reasons, I respectfully join only in the judgment of the court.



                                             TERRIE LIVINGSTON
                                             CHIEF JUSTICE

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 2, 2010




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