                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00597-CR


LAJUAN L. HALL                                                      APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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      FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 1192679

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                        MEMORANDUM OPINION1

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      A jury convicted Appellant Lajuan L. Hall of driving while intoxicated, and

the trial court sentenced him to 90 days’ confinement and a fine of $800. In a

single point, Hall argues that his Sixth Amendment right to confrontation was

violated when the trial court admitted evidence of a blood test without requiring




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       See Tex. R. App. P. 47.4.
the State to call the phlebotomist who performed the blood draw as a witness.

We will affirm.

      In October 2009, Hall was driving home on I-30 when he collided with

another vehicle. After continuing for about a quarter-mile, Hall and the other

driver stopped and exited their vehicles. Hall immediately told the other driver

that “[h]e had been drinking,” admitted fault for the accident, and told the other

driver to call the police. When the police arrived, Officer King, an officer in the

Arlington DWI unit, “immediately detected the odor of an alcoholic beverage

coming from [Hall’s] breath and person” and noticed that his eyes were

bloodshot. Hall once again admitted to drinking prior to the accident and told

Officer King that he was on his way home from a club in Dallas. Officer King

then asked Hall to perform a series of standardized field sobriety tests, and Hall

eventually agreed.     She had Hall perform three tests: the horizontal gaze

nystagmus test, the walk-the-line test, and the one-leg-stand test.        On these

three tests, Hall scored a total of fourteen clues, indicating to Officer King that he

was intoxicated, and she placed him under arrest.

      At the police station, Hall was placed in the intoxilyzer room, where he was

read a statutory warning and asked for a sample of his breath or blood. After

refusing this request, Officer King obtained a warrant and transported Hall to

Arlington Memorial Hospital, where LaKeisha Dallas, a phlebotomist, performed

the blood draw. Officer King personally observed Dallas draw blood from Hall

and certified that everything was done according to standard procedure. Joyce


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Ho, a lab manager for the Tarrant County Medical Examiner’s Office Toxicology

Department, tested Hall’s blood sample and reported Hall’s blood alcohol

concentration (BAC) to be approximately .16.

      In his only point, Hall argues that “[t]he trial court erred when it allowed the

[S]tate to admit the results of [his] blood test without providing him an opportunity

to confront the individual who extracted the blood sample.”

      The standard of review for a trial court’s admission of evidence is abuse of

discretion, and wide discretion is afforded to the trial judge. See Green v. State,

934 S.W.2d 92, 101‒02 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200,

(1997); see also Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007);

Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). The trial court’s

decision should be reversed on appeal only if there is a showing of a clear abuse

of discretion. See Theus, 845 S.W.2d at 881; Lajoie v. State, 237 S.W.3d 345,

352 (Tex. App.—Fort Worth 2007, no pet.). Therefore, only if the court’s decision

falls outside the “zone of reasonable disagreement” has it abused its discretion.

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

v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.1991) (op. on reh’g).

      The Sixth Amendment’s Confrontation Clause states, “In all criminal

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

witnesses against him.”      U.S. Const. amend. VI.        This makes testimonial

evidence inadmissible at trial unless the witness who made the testimonial

statement: (1) takes the stand to be cross-examined, or (2) is unavailable and


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the defendant had a prior opportunity to cross-examine him. Burch v. State, 401

S.W.3d 634, 636 (Tex. Crim. App. 2013) (citing Crawford v. Washington, 541

U.S. 36, 57, 124 S. Ct. 1354, 1367 (2004)). “[T]estimonial statements are those

‘that were made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later

trial.’” Adkins v. State, 418 S.W.3d 856, 861‒62 (Tex. App.—Houston [14th Dist.]

2013, pet. ref’d) (quoting Burch, 401 S.W.3d at 636).        “Forensic reports are

testimonial statements.” Id. at 862; see Burch, 401 S.W.3d at 636‒67.

       In Bullcoming v. New Mexico, the prosecution provided a forensic lab

report demonstrating that the defendant’s BAC exceeded the legal limit. See 131

S. Ct. 2705, 2709 (2011).       Instead of calling the analyst who tested the

defendant’s blood and certified the report, the prosecution called a surrogate

analyst to testify. Id. The Supreme Court held that the lab report constituted a

testimonial statement by the analyst who tested the sample, and the

Confrontation Clause required that the defendant have an opportunity to cross-

examine that analyst. See id. at 2710 (“The accused’s right is to be confronted

with the analyst who made the certification, unless that analyst is unavailable at

trial, and the accused had an opportunity, pretrial to cross-examine that particular

scientist.”).

       In Burch, the trial court admitted a lab report that the State had offered

certifying that a substance found in the defendant’s possession was cocaine.

401 S.W.3d at 635. The State called the person who reviewed the report but not


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the person who tested or analyzed the substance.          While the reviewer had

signed off on the report, “there was no indication that she actually saw the tests

being performed or participated in them.” Id. at 635‒36. The Court of Criminal

Appeals held that the defendant’s Sixth Amendment right was violated because

the evidence was testimonial and the defendant did not have an opportunity to

confront the analyst who made the testimonial statement.            Id. at 637‒38

(“Without having the testimony of the analyst who actually performed the tests, or

at least one who observed their execution, the defendant has no way to explore

the types of corruption and missteps the Confrontation Clause was designed to

protect against.”).

       In Adkins, the trial court admitted a blood test report certifying the

defendant’s BAC after his arrest. 418 S.W.3d at 859‒60. At trial, the State

called the analyst who performed the test and the officer that witnessed the blood

draw; however, the defendant argued that this was insufficient under the

Confrontation Clause because the State failed to call the nurse who actually drew

the blood. Id. at 861. The court of appeals held that the Confrontation Clause

was not violated because “[t]he analyst who tested [the defendant’s] blood and

signed the report testified at trial and was subjected to cross-examination.” Id. at

862.

       In State v. Guzman, the trial court granted the defendant’s motion to

suppress after the State offered into evidence blood test results without giving

the defense an opportunity to confront the nurse who performed the blood draw.


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439 S.W.3d 482, 484‒85 (Tex. App.—San Antonio 2014, no pet.). The court of

appeals, however, reversed, holding that the decision in Bullcoming does not

extend “to a person who only performs a blood draw and has no other

involvement in the analysis or testing of a blood sample.” Id. at 488 (noting that

the nurse performed only the blood draw, was not involved in the analysis or

testing of the blood sample, and did not provide any statement appearing within

or accompanying the blood test results).

      Here, Hall is correct that the blood test results are testimonial, but his

inability to cross-examine Dallas, the phlebotomist who drew his blood, did not

violate his right to confrontation because Dallas was not involved in the analysis

of Hall’s blood specimen, nor did she provide any statement that appeared within

or accompanied the blood test results. See Guzman, 439 S.W.3d at 484‒85;

Adkins, 418 S.W.3d at 862. In Adkins and Guzman, the courts focused on the

availability of the analyst who certified the forensic reports to determine whether

or not the defendant’s right to confrontation had been violated.2 See Guzman,

439 S.W.3d at 484‒85; Adkins, 418 S.W.3d at 862. Likewise, here, Joyce Ho


      2
        Hall distinguishes this case from Adkins in two ways. First, he asserts
that the court was provided with a video recording of the blood draw in that case.
This fact is not dispositive, however, because no video evidence was available in
Guzman and the court in Adkins did not draw on this fact to support its
reasoning. Second, he argues that the court in Adkins was “more focused on the
third prong of the Kelly standard” rather than the issue of confrontation. We
disagree. The Adkins court focused on the admissibility of the evidence under
the Kelly standard and the Confrontation Clause, giving sufficient attention to
both arguments.


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analyzed Hall’s blood sample, testified at trial regarding the accuracy of the blood

test results, and provided a detailed explanation of the blood-testing procedure.

Thus, it was Ho, not Dallas, who had “personal knowledge about whether the

test[] [was] done correctly or whether the . . . results [were fabricated].”   See

Adkins, 418 S.W.3d at 862.

      Hall contends that Officer King was a “surrogate” witness, given the

Supreme Court’s reasoning in Bullcoming, and asserts that she could not validly

testify regarding the blood draw, “being that she lacked the training and authority

to conduct blood draws herself.” While Hall has a constitutional right to confront

the persons involved in the preparation of tests and reports arising from the

analysis of his blood, “the Confrontation Clause does not require ‘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.’” Adkins, 418 S.W.3d at 862 (quoting

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1, 129 S. Ct. 2527, 2532

n.1 (2009)). Moreover, Officer King cannot be considered a “surrogate” witness

for Dallas because Hall never had any right to cross-examine Dallas under the

Confrontation Clause.

      Because Hall had the opportunity to cross-examine the analyst who tested

the blood and generated the forensic report, the requirements of the

Confrontation Clause were satisfied. See Bullcoming, 131 S. Ct. at 2710; Burch,

401 S.W.3d at 637‒38; Guzman, 439 S.W.3d at 488 (“[A]ppellee’s rights under


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the Confrontation Clause will not be violated by the unavailability of the nurse

who merely performed the blood draw.”).        Accordingly, the trial court did not

abuse its discretion by admitting evidence of Hall’s blood test without requiring

the State to call the phlebotomist who performed the blood draw as a witness.

We overrule Hall’s only issue and affirm the trial court’s judgment.



                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

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

DELIVERED: July 16, 2015




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