            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. PD-0736-17

                            JOHN KENNETH LEE, Appellant

                                               v.

                                  THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE THIRTEENTH COURT OF APPEALS
                           VICTORIA COUNTY

       Y EARY, J., delivered the opinion for a unanimous Court.

                                        OPINION

       The Thirteenth Court of Appeals reversed Appellant’s conviction for misdemeanor

driving while intoxicated. Lee v. State, No. 13-15-00514-CR, 2017 WL 2608304 (Tex.

App.—Corpus Christi June 15, 2017) (mem. op., not designated for publication). The court

of appeals held that the trial court abused its discretion in failing to grant his motion for

mistrial. Id. at *7. We granted the State’s petition for discretionary review in order to address

its contentions that (1) Appellant failed to preserve error, and that, (2) in any event, any

potential harm could have been forestalled by a curative instruction, which Appellant failed
                                                                                       LEE — 2

at any time to request before asking for a mistrial. We reverse the judgment of the court of

appeals.

                                        I. THE TRIAL

                 A. The Information, Voir Dire, and Opening Statements

       The information alleged that, on October 11, 2013, Appellant operated a motor vehicle

in a public place while intoxicated, a Class B misdemeanor.1 It did not allege the particular

theory of intoxication: whether by loss of normal mental or physical faculties by reason of

the ingestion of a substance such as alcohol, or else by having an alcohol concentration of

.08 or more.2 Immediately before jury selection, the prosecutor announced on the record that

he had just discovered that “the City of Victoria has destroyed the blood sample prior to

trial.” Appellant’s trial counsel acknowledged on the record that she heard and understood

the prosecutor’s announcement, but she expressly declined the trial court’s invitation to

request a motion in limine. The prosecutor devoted a portion of his half-hour voir dire to

asking the veniremembers whether they would be able to convict a defendant based upon

evidence of his loss of mental or physical faculties alone, in the absence of blood-alcohol-

concentration (BAC) evidence.

       Trial began the next morning. In his opening statement, the prosecutor described the



       1
           TEX . PENAL CODE § 49.04(a) & (b).
       2
         TEX . PENAL CODE § 49.01(2). In State v. Barbernell, 257 S.W.3d 248, 256 (Tex. Crim.
App. 2008), we held “that the definitions of ‘intoxicated’ in Section 49.01(2) are evidentiary and
therefore do not need to be alleged in a charging instrument.”
                                                                                   LEE — 3

evidence he intended to present to show that Appellant had lost his normal mental and

physical faculties. But toward the end, he also explained what he believed the evidence

would show with respect to Appellant’s BAC:

              [Appellant was] transported to the hospital, and eventually a blood draw
      was taken. There were actually two blood draws, but the state, they tested one
      blood draw when it was sent to the lab. You will hear testimony from the
      phlebotomist who actually took the blood draw at Citizens Medical Center, and
      the lab technician who tested this blood sample from the Department of Public
      Safety in the Weslaco lab in Weslaco, Texas, and determined that the blood
      alcohol content was .169. Ladies and gentlemen, the -- as we reviewed to you
      in voir dire, the legal definition of intoxicated, that is over double the legal
      limit. You will hear testimony to that effect.

Appellant’s counsel made no objection to this argument. In her own opening statement, she

first described what she believed the evidence would show regarding Appellant’s mental and

physical faculties. Then, as did the prosecutor, she turned to the BAC evidence:

              Now, the state has said that they have blood evidence, and I was
      informed yesterday that they do not have blood evidence. They’re going to --
      they have told you that they’re going to bring a phlebotomist in here and she’ll
      testify. She’ll be testifying without any blood because that blood evidence is
      not here. They’ll attempt to bring in, according to them a chemist to testify
      about blood that he possibly tested, but they don’t have the blood to show you.
      They have nothing more than someone’s word about blood they tested. This
      chemist does this for a living at DPS. He does possibly hundreds of tests a day.
      So he’ll be having to testify from his own personal recognition or what he
      remembers of this one blood sample, if he gets to testify. So I want you to keep
      that as well, there is no blood in this case, so all the evidence has to do with
      blood, the things they’re claiming they’re going to show you, I don’t believe
      they’ll be able to show you. I don’t believe the state will be able to prove this
      case beyond a reasonable doubt. Thank you.

Appellant’s counsel apparently made a tactical decision not to object to the prosecutor’s

opening remarks about the BAC evidence, although she had known since the previous
                                                                                     LEE — 4

afternoon that the blood had been inadvertently destroyed. She did not attempt to suppress

the evidence or subject it to a motion in limine. Instead, she responded to the prosecutor’s

opening allusion to the BAC evidence in her own opening statement, telling the jury that she

did not expect there to be evidence of Appellant’s BAC, notwithstanding the prosecutor’s

opening statement.

     B. Evidence Relating to Appellant’s Loss of Mental and Physical Faculties

       The guilt-phase evidence showed that, shortly after 10:00 p.m. on October 11, 2013,

Appellant’s truck rear-ended another truck that was idling at a red light, pushing that truck

into the intersection and injuring its driver’s back. Two witnesses to the collision described

Appellant, when he got out of his truck, as smelling of alcohol. Each of them confirmed that

the smell “was pretty strong.” Responding officers also noticed the smell, as well as the fact

that Appellant had glassy, bloodshot eyes and slurred speech. Appellant was subjected to

field sobriety testing, which revealed “all six clues” of intoxication on the horizontal gaze

nystagmus test and five signs of intoxication on the heel-to-toe test. The jury watched a video

of the field sobriety tests. Appellant told the officers that, during the course of the evening,

he had consumed at least six “O’Douls,” a non-alcoholic beverage. However, a half-full

bottle of Crown Royal (a blended Canadian whiskey) was found in the passenger

compartment of Appellant’s truck.

                          C. Evidence Relating to Blood Draws

       Almost half of Appellant’s one-day trial involved the development of the State’s
                                                                                      LEE — 5

blood-draw evidence. Evidence showed that Appellant refused to submit to either a breath

or blood test. Nevertheless, because the collision involved an injury, he was taken to Citizens

Medical Center for a blood draw, pursuant to statute.3 A consulting prosecutor suggested to

the police officers that they obtain a search warrant for Appellant’s blood, which they did,

and a second blood sample was drawn.4 During the latter stages of Appellant’s one-day trial,

the State attempted to develop a chain of custody for the BAC evidence.

       In this regard, the jury heard that Officer J. J. Houlton of the Victoria Police

Department transported Appellant to the hospital for a blood draw. Houlton explained to

Appellant that, because there was an accident involving an injury, he was required by law to

submit to the blood test. Houlton was present when the phlebotomist, Beatrice Salazar,

conducted both blood draws. Salazar drew the first vial at 11:15 p.m., on October 11th; and,

after a warrant was obtained, she drew the second vial at 2:30 a.m., on October 12th. Houlton

initialed the labels for the vials, placed them in a box, sealed the box with evidence tape, and

submitted it to the evidence locker. Appellant did not object to Houlton’s testimony.

       The State next called Salazar to the witness stand. Before Salazar gave any substantive

testimony, Appellant’s counsel objected for the first time, arguing that, in the absence of the



       3
         See TEX . TRANSP . CODE § 724.012(b)(1)(C) (requiring police officers to take a blood or
breath specimen from a person arrested for driving while intoxicated if he causes an accident in
which an individual has been injured and taken to a hospital).
       4
         This prosecutor may well have had in mind the case pending in the Thirteenth Court of
Appeals at that time in State v. Villarreal, 476 S.W.3d 45 (Tex. App.—Corpus Christi 2014), which
this Court eventually affirmed in State v. Villarreal, 475 S.W.3d 784 (Tex. Crim. App. 2014).
                                                                                   LEE — 6

blood vials themselves, Salazar should not be allowed to testify about the blood draw. The

prosecutor replied that Salazar was not the witness who would be testifying about the results

of the blood test. He claimed that he was only calling her to establish the chain of custody.

The trial court assured Appellant’s counsel that “I understand what your objection is, but I’m

going to give [the prosecutor] leeway to see what is there.” Salazar was allowed to testify to

the jury that she took both blood samples from Appellant, though she was unable to

recognize him in the courtroom. Appellant again objected that Salazar should not be allowed

to testify “past this point.” The trial court overruled this objection too. Salazar was then

permitted to testify before the jury that she had handed the blood vials over to “the police

officer, and they [took] it from there.” She confirmed that she had watched Houlton label the

blood and place it in the evidence box.

       Lastly, the State called to the stand an analyst from the Weslaco lab of the Texas

Department of Public Safety (DPS), named Gene Hanson. The jury heard nothing more than

Hanson’s credentials, however, because Appellant objected as soon as the prosecutor asked

Hanson whether he had received a vial of blood with Appellant’s name on the label. The jury

was then excused.

       Outside the presence of the jury, Appellant argued that, in the absence of the blood

vials and accompanying documentation, the State would simply be unable to establish a chain

of custody, and the results of the blood testing would be inadmissible. Appellant argued that,

because the prosecutor had informed the jury of the test results during his opening statement,
                                                                                          LEE — 7

the jury had been prejudiced and a mistrial was appropriate. When the trial court pointed out

that Appellant had declined its invitation to request a motion in limine, Appellant’s counsel

responded:

       But if they cannot prove up something they stated in their opening that was
       highly prejudicial, I am entitled to a mistrial in that case, Judge -- in this case,
       Judge. Because just as I told the jury, I knew that they had no blood, but I did
       not know that they were going to make this claim in their opening, and then
       leave me to try to explain to the Court why this gentleman [Hanson] cannot
       testify in front of a jury.5

The prosecutor answered that a break in the chain of custody merely impacts the weight of

the evidence, but not its admissibility. He pointed out that, in the two years since the date of

the offense, the defense had never requested to inspect the blood evidence. Appellant’s

counsel insisted that she had no interest in re-testing the blood; that her only concern was

with the chain of custody. She contended, moreover, that “there has not been a simple breach

in the . . . chain of custody. There has been a total loss of evidence.” She argued that an

instruction to disregard would not suffice to remove the BAC information from the minds

of the jurors. “So, yes,” she concluded, “I am asking for a mistrial.”


       5
           A little later, Appellant’s counsel asserted that, without the blood,

       . . . I could have filed a Motion to Suppress. I did not do that because I thought that
       the blood was here. I have never been advised that it was destroyed. The -- Evidently
       the state in their statement yesterday just found out yesterday at noon that they had
       no blood, so my opportunity to file that Motion to Suppress was denied. So today I
       have to handle this in the trial. So I am asking the Court to disallow the blood
       evidence, and grant a mistrial.

She never explained why she had not sought a motion in limine, even though the trial court had
expressly invited her to do so.
                                                                                     LEE — 8

       The trial court asked the prosecutor, “[H]ow do we know that this blood came from

the defendant?” The prosecutor replied that he intended to establish a sufficient chain of

custody by having Hanson confirm from his case notes that the blood he tested was labeled

with “the agency number” and “the full name, John Kenneth Lee, the date of birth, Texas

driver’s license number, we have all of that.” The trial court then allowed the prosecutor to

voir dire Hanson in an attempt to elicit that information.

       Hanson testified outside the jury’s presence that he received “one blood tube” for

analysis under Appellant’s name, but did not recall ever receiving a second one. The blood

vial was first sent to the DPS lab in Corpus Christi, but because that lab had a backlog, it was

forwarded to the Weslaco lab. From his case notes, Hanson verified “that the name of the

submission forms actually matches on the -- on the blood tube[,]” and that “the laboratory

case number, in this case . . . is the same case number that’s on the actual DPS blood tube kit

box.” Based on this representation, the trial court allowed Hanson to testify before the jury,

but cautioned the prosecutor to approach the bench before eliciting the blood test results.

       When the jury returned, Hanson testified again about the chain of custody. From his

case notes and lab report, he was able to remember that he had received a sealed vial of blood

indicating that it had been drawn from “John Kenneth Lee,” bearing an agency number for

the Victoria Police Department, for an unspecified offense that occurred on October 11,

2013. He next described for the jury in some detail how he would typically go about testing

blood for its alcohol concentration level. Pursuant to the trial court’s instructions, the
                                                                                              LEE — 9

prosecutor approached the bench before attempting to elicit the test results. The jury was

again excused, and Appellant’s counsel renewed her objection regarding chain of custody.

        For the first time, Appellant’s counsel pointed out that, without a proper chain of

custody, she could not even determine whether the blood that Hanson tested had come from

the first blood draw, taken pursuant to statute, or from the second blood draw, taken pursuant

to a warrant. “So I can’t hardly even argue that the one they sent was the later one, which

would show, as the officer testified earlier, that it’s going to be higher than the other one

because of the time lapse. I don’t know when they drew the blood, I can’t even argue that.” 6

At this point, the trial court sustained Appellant’s objection and ruled the BAC evidence

inadmissible.

        Appellant’s counsel did not immediately lodge another request for a mistrial. At no

point did she move to strike the prior testimony regarding the blood draws, nor did she ever

ask the trial court to instruct the jury to disregard it. And at no point during the course of the

trial did she ever ask the trial court to instruct the jury to disregard the prosecutor’s assertion

in his opening statement that Appellant’s BAC had tested at .169.




        6
         The “officer [who] testified earlier” was patrol officer Jason Sager, one of the officers who
responded to the accident scene and the one who administered the horizontal gaze nystagmus test.
He was also present when the second blood draw was taken. Under questioning from Appellant’s
counsel in the jury’s presence, he testified that it is sometimes advantageous to take two blood
samples because “it can show whether the alcohol BAC is on the rise or on -- or whether it’s
dropping between the two samples.” He elaborated that, if the second blood sample shows a higher
blood alcohol level than the first, it could indicate that the blood alcohol concentration is on the rise,
suggesting that the person may not have had a greater than .08 concentration while driving.
                                                                                     LEE — 10

                  Mistrial Request, Jury Charge, and Final Argument

       Both parties rested and closed, without any further testimony from Hanson. The jury

was excused so that the jury charge could be finalized, and only then did Appellant’s counsel

renew her request for a mistrial:

              THE COURT: Then [Defense Counsel], you did say that you had
       another objection or something that you wanted to take up prior to bringing the
       jury back in?

               [DEFENSE COUNSEL]: Yes, Judge, I just want to reurge my earlier
       objection to the statements -- comments that they made in opening statement.
       I believe that they were very egregious. I believe this jury has been tainted, that
       they’re going to have a very difficult time even with these instructions and the
       instructions from the Court forgetting that opening statement about the blood
       alcohol level of .169. I believe that they’ll remember that and I believe they
       will use that in their considerations, and I am asking to Court for a mistrial.

The trial court denied this request.

       The trial court’s charge to the jury defined intoxication only in terms of “not having

the normal use of one’s mental or physical faculties by reason of the introduction of alcohol

. . . into the body.” The charge made no mention of BAC as a theory of intoxication. The jury

was also instructed that “[t]he lawyers’ arguments or statements are not evidence and not to

be considered by you in your determination of the disputed facts in the case.”

       During his final argument, the prosecutor made no mention of the blood-draw

testimony or the result of the blood analysis. He instead emphasized the evidence showing

that Appellant lacked the normal use of his mental and physical faculties, such as the

prevalent odor of alcohol, the half-full liquor bottle, Appellant’s refusal to voluntarily submit
                                                                                      LEE — 11

a blood or breath specimen, and the results of the field sobriety tests as memorialized on the

video. For her part, Appellant’s counsel reminded the jury that the State had promised to

produce evidence of his blood alcohol concentration but had not fulfilled that promise. She

urged the jury to consider the video, arguing that it failed to establish intoxication. She

summed up by emphasizing the importance of considering only the evidence presented:

       But the one thing that I want to do with you today is make sure that you
       consider only what you heard from here and whatever physical evidence that
       you have. I don’t want you to consider anything that you have heard in this
       courtroom other than that evidence, please. Thank you.

The prosecutor closed by reiterating that the evidence showed loss of normal mental and

physical faculties—again, making no allusion to the blood-draw evidence or Appellant’s

BAC. After final arguments, the jury convicted Appellant in fifteen minutes, and later

assessed a sentence of 180 days in jail and a fine of $1,800.

                                       II. THE APPEAL

       In his sole point of error on direct appeal, Appellant argued that the trial court abused

its discretion in denying his request for a mistrial “after the State disclosed the results of the

blood test in opening statements and examined three separate witnesses regarding the blood

evidence.”7 The court of appeals agreed. While noting that Appellant had not objected to the

prosecutor’s opening statement, the court of appeals nonetheless found it to be error. Lee,

2017 WL 2608304, at *4-5. In the absence of a proper chain of custody, the court of appeals

held, the State could not exclude the possibility that the blood that Hanson analyzed for BAC

       7
           Appellant’s Brief on Direct Appeal at 11.
                                                                                          LEE — 12

came from the initial blood draw. Id. In the court of appeals’ view, the State should have

known that this warrantless blood draw was illegal, and that any BAC testimony was

therefore inadmissible, under this Court’s opinion in State v. Villarreal, 475 S.W.3d 784, 814

(Tex. Crim. App. 2014), which was pending on rehearing at the time of Appellant’s trial. Lee,

2017 WL 2608304, at *4-5. This initial error was magnified, the court of appeals observed,

by the testimony of the three witnesses describing the blood draws and the BAC testing

protocol, which was introduced over Appellant’s objections and requests for mistrial. Id. at

*5. Conducting an analysis under the three-factor test for abuse of discretion in Hawkins v.

State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004),8 the court of appeals concluded that the

trial court abused its discretion in failing to grant Appellant’s ultimate motion for mistrial,

and it reversed the conviction and remanded the cause for a new trial. Lee, 2017 WL

2608304, at *5-7.

                                         III. ANALYSIS

       In its petition for discretionary review, the State argues that the court of appeals erred

to conclude that Appellant preserved any error for appeal. First, the State argues, the

prosecutor’s opening statement was not erroneous, since it is only proper for the parties to

state what they expect the evidence to show at that juncture. Second, by failing to object to



       8
         Under Hawkins v. State, we adopted a three-factor approach for measuring abuse of
discretion in failing to grant a mistrial, which balanced: (1) the severity of the misconduct
(prejudicial effect), (2) curative measures, and (3) the certainty of the punishment (likelihood of the
conviction absent the misconduct). 135 S.W.3d at 77 (citing Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998)).
                                                                                    LEE — 13

the prosecutor’s opening statement, the State maintains, Appellant forfeited any complaint

on appeal about the prejudice it may have caused when the evidence later proved

inadmissible. And finally, the State argues that an instruction to disregard the prosecutor’s

allusion to BAC evidence and the testimony about the blood draw would have been

efficacious, and that Appellant’s failure to request one also served to forfeit error on appeal.

       Because we agree with the State’s third argument, we need not address its first two.

We conclude that an instruction to disregard would have served to obviate any harm in the

jury’s having been exposed to the remaining objectionable blood-draw testimony. For this

reason, the court of appeals should not have proceeded to conduct a Hawkins mistrial

analysis.

       The State argues that, before Appellant can complain on appeal that the trial court

denied his request for a mistrial, he must first have sought a curative instruction. This is so,

the State maintains, because “an event that could have been . . . cured by instruction to the

jury will not lead an appellate court to reverse a judgment on an appeal by the party who did

not request [the lesser remedy] in the trial court.” Young v. State, 137 S.W.3d 65, 70 (Tex.

Crim. App. 2004). We agree that if a curative instruction would have sufficed, it cannot be

said that the trial court abused its discretion to deny Appellant’s final mistrial request. See

Ocon v. State, 284 S.W.3d 880, 885 (Tex. Crim. App. 2009) (“Though requesting lesser

remedies is not a prerequisite to a motion for mistrial, when the movant does not request a

lesser remedy, we will not reverse the court’s judgment if the problem could have been cured
                                                                                   LEE — 14

by the less drastic alternative.”).

       Even assuming that it was appropriate for the court of appeals to factor the

prosecutor’s allusion during his opening statement to the BAC test results into our analysis

of whether a curative instruction would have been efficacious, we conclude that a mistrial

was unnecessary. The jury was instructed in the jury charge that the arguments and

statements of the lawyers were not in evidence and therefore “not to be considered . . . in

your determination of the disputed facts in the case.” Had Appellant supplemented this

boiler-plate instruction by requesting an instruction to disregard that specifically admonished

the jury to discount all of the blood evidence, including the prosecutor’s opening statement

allusion to the BAC test result, the two instructions combined would have made a strong

impression. The evidence establishing driving while intoxicated under the theory that

Appellant had lost the normal use of his mental and physical faculties was fairly compelling,

and the jurors had given assurances during voir dire that they could convict a defendant on

that theory of the offense without the necessity of BAC evidence. Under these circumstances,

there is no persuasive reason to doubt that these curative instructions would have been

efficacious. Because a jury instruction to disregard would have obviated the necessity of a

mistrial, the court of appeals erred to conclude that a mistrial was the only appropriate

remedy. Young, 137 S.W.3d at 70.

                                      IV. CONCLUSION

       Because an instruction to disregard the blood-draw testimony, including an
                                                                                      LEE — 15

admonishment not to consider the prosecutor’s opening statement assertion about the result

of the BAC testing, would have been efficacious, Appellant should not have been heard to

complain on appeal of the trial court’s failure to grant his motion for mistrial. For this reason,

the court of appeals should not have proceeded to its analysis of whether the trial court

abused its discretion to deny the motion for mistrial under the Hawkins factors.

       We reverse the judgment of the court of appeals.




DELIVERED:                    June 13, 2018
PUBLISH
