                                                                                 ACCEPTED
                                                                            14-14-00402-CR
                                                              FOURTEENTH COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                      12/24/2014 9:36:23 AM
                  No. 14-14-00402-CR                                    CHRISTOPHER PRINE
                                                                                     CLERK
                              In the
                        Court of Appeals
                             For the
                   Fourteenth District of Texas             FILED IN
                                                     14th COURT OF APPEALS
                           At Houston                   HOUSTON, TEXAS
                                          12/24/2014 9:36:23 AM
                          No. 1900496                CHRISTOPHER A. PRINE
                                                              Clerk
           In the County Criminal Court at Law No. 15
                    Of Harris County, Texas
                    
                  GREG SALDINGER
                           Appellant
                              V.
               THE STATE OF TEXAS
                       Appellee
                   
            STATE’S APPELLATE BRIEF
                   

                                            DEVON ANDERSON
                                            District Attorney
                                            Harris County, Texas

                                            ERIC KUGLER
                                            Assistant District Attorney
                                            Harris County, Texas
                                            TBC No. 796910
                                            kugler_eric@dao.hctx.net

                                            LAUREN MARFIN
                                            RYAN MCLEARAN
                                            Assistant District Attorneys
                                            Harris County, Texas

                                            1201 Franklin, Suite 600
                                            Houston, Texas 77002
                                            Tel: (713) 755-5826
                                            FAX: (713) 755-5809

                                            Counsel for Appellee

ORAL ARGUMENT REQUESTED ONLY IF GRANTED TO APPELLANT
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral

argument is granted to the appellant.


                    IDENTIFICATION OF THE PARTIES

Counsel for the State:

      Devon Anderson  District Attorney of Harris County

      Eric Kugler  Assistant District Attorney on appeal

      Lauren Marfin; Ryan McLearan  Assistant District Attorneys at trial

Appellant or criminal defendant:

      Greg Saldinger

Counsel for Appellant:

      Jose Ceja  Counsel on appeal

      Grant Scheiner  Counsel at trial

Trial Judge:

      Hon. Jean Spradling Hughes; Hon. Jim Anderson  Presiding Judges




                                         i
                                           TABLE OF CONTENTS
                                                                                                                      Page

STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 1

REPLY TO APPELLANT’S FIRST AND SECOND POINTS OF ERROR ........... 2
   A. A prospective juror who is more likely to believe a police officer than
   another citizen is not challengeable for cause because such a position does not
   constitute an unequivocal belief that a police officer would never lie while
   testifying. ................................................................................................................5
   B. The appellant failed to preserve his second point of error for review by
   showing that the trial court prevented him from asking a particular proper
   question. .................................................................................................................7
   C. Even if the trial court erred in refusing to allow the appellant to voir dire on
   the issues of police credibility and proof beyond a reasonable doubt, the
   appellant was not harmed by the limitation because those subjects had already
   been thoroughly covered during the voir dire. .......................................................9
REPLY TO APPELLANT’S THIRD POINT OF ERROR .................................... 13
   A. The blood search warrant and supporting affidavit were admissible because
   the appellant made the existence of probable cause an issue before the jury. .....15
   B. The appellant was not harmed by the admission of the blood search warrant
   and supporting affidavit because the same information was admitted elsewhere
   during the trial. .....................................................................................................17
CONCLUSION ........................................................................................................ 20

CERTIFICATE OF SERVICE AND COMPLIANCE ........................................... 21




                                                              ii
                                     INDEX OF AUTHORITIES


CASES

Allridge v. State,
  762 S.W.2d 146 (Tex. Crim. App. 1988),
  cert. denied, 489 U.S. 1040 (1989) ........................................................................8
Anderson v. State,
  633 S.W.2d 851 (Tex. Crim. App. 1982) ...............................................................5
Annis v. State,
  578 S.W.2d 406 (Tex. Crim. App. 1979) ...................................................... 11, 18
Barajas v. State,
  93 S.W.3d 36 (Tex. Crim. App. 2002) ...................................................................7
Baxter v. State,
  66 S.W.3d 494 (Tex. App.—
  Austin 2001, pet. ref’d) ........................................................................................16
Brasher v. State,
  139 S.W.3d 369 (Tex. App.—
  San Antonio 2004, pet. ref’d) .................................................................................7
Briddle v. State,
  742 S.W.2d 379 (Tex. Crim. App. 1987) ...............................................................6
Cain v. State,
  947 S.W.2d 262 (Tex. Crim. App. 1997) ...............................................................9
Coffin v. State,
  885 S.W.2d 140 (Tex. Crim. App. 1994) .............................................................15
Cotton v. State,
  686 S.W.2d 140 (Tex. Crim. App. 1985) ...................................................... 11, 17
Dhillon v. State,
 138 S.W.3d 583 (Tex. App.—
 Houston [14th Dist.] 2004, no pet.)........................................................................9
Easley v. State,
  424 S.W.3d 535 (Tex. Crim. App. 2014) ...............................................................9




                                                         iii
Faulder v. State,
  745 S.W.2d 327 (Tex. Crim. App. 1987),
  cert. denied, 519 U.S. 995 (1996) ..........................................................................8
Foster v. State,
  779 S.W.2d 845 (Tex. Crim. App. 1989) .............................................................15
Green v. State,
  934 S.W.2d 92 (Tex. Crim. App. 1996) ...............................................................15
Guzman v. State,
 955 S.W.2d 85 (Tex. Crim. App. 1997) ...............................................................15
Hernandez v. State,
 563 S.W.2d 947 (Tex. Crim. App. 1978) ...........................................................5, 7
Johnson v. State,
  967 S.W.2d 410 (Tex. Crim. App. 1998) ...................................................... 11, 17
King v. State,
  953 S.W.2d 266 (Tex. Crim. App. 1997) .............................................................11
Lacy v. State,
  424 S.W.2d 929 (Tex. Crim. App. 1967) .............................................................16
Lane v. State,
  822 S.W.2d 35 (Tex. Crim. App. 1991) .............................................................5, 7
Leal v. State,
  13-00-457-CR, 2001 WL 892834 (Tex. App.—
  Corpus Christi July 5, 2001, no pet.) .....................................................................6
Loredo v. State,
  159 S.W.3d 920 (Tex. Crim. App. 2004) ...............................................................8
Maxwell v. State,
 253 S.W.3d 309 (Tex. App.–
 Fort Worth 2008, pet. ref’d) .......................................................................... 12, 18
Mohammed v. State,
 127 S.W.3d 163 (Tex. App.—
 Houston [1st Dist.] 2003, pet. ref’d) ..................................................................8, 9
Montgomery v. State,
 810 S.W.2d 372 (Tex. Crim. App. 1990) .............................................................15
Moody v. State,
 827 S.W.2d 875 (Tex. Crim. App. 1992) ...............................................................6


                                                      iv
Morales v. State,
 32 S.W.3d 862 (Tex. Crim. App. 2000) ...............................................................12
Morgan v. Illinois,
 504 U.S. 719 (1992) ...............................................................................................7
Motilla v. State,
 78 S.W.3d 352 (Tex. Crim. App. 2002) ........................................................ 11, 17
Nance v. State,
  807 S.W.2d 855 (Tex. App.—
  Corpus Christi 1991, pet. ref’d) .............................................................................6
Pratt v. State,
  748 S.W.2d 483 (Tex. App.—
  Houston [1st Dist.] 1988, pet. ref’d) ....................................................................15
Sells v. State,
  121 S.W.3d 748 (Tex. Crim. App. 2003) ...............................................................8
State v. Ross,
  32 S.W.3d 853 (Tex. Crim. App. 2000) ...............................................................15
Wainwright v. Witt,
 469 U.S. 412 (1985) ...............................................................................................6
Williams v. State,
 773 S.W.2d 525 (Tex. Crim. App. 1988) ...............................................................6


STATUTES

TEX. CODE CRIM. PROC. art. 35.16(a)(9) (West 2010) ...............................................5


RULES

TEX. R. APP. P. 33.1(a)(1)(A) ....................................................................................8
TEX. R. APP. P. 39....................................................................................................... i
TEX. R. APP. P. 44.2(b) .............................................................................................17
TEX. R. APP. PROC. 44.2(b) ......................................................................................17




                                                            v
TO THE HONORABLE COURT OF APPEALS:


                          STATEMENT OF THE CASE

      The appellant was charged with DWI committed on June 6, 2013 (CR – 6).

He pled “not guilty” to the charge, and the case was tried to a jury (CR – 240).

The jury found him guilty and assessed punishment at two years of probation on

February 12, 2014 (CR – 240). The appellant filed notice of appeal on March 11,

2014, and the trial court certified that he had the right to appeal (CR – 247, 253).




                            STATEMENT OF FACTS

      On the night of June 6, 2013, Kenneth Troost with the Houston Police

Department was on patrol when he saw the appellant drive through a stop sign

without stopping at the intersection of Lake Hills Drive and Big Springs (RR. III –

27-29). Troost pulled the appellant over and observed that the appellant had a

strong odor of an alcoholic beverage on his breath, slurred speech, and red and

glassy eyes (RR. III – 32-33). There was an open bottle of wine in a cooler behind

the driver’s seat (RR. III – 44). Troost administered some field sobriety tests on

the appellant and noted several signs of intoxication, and he believed that the

appellant was intoxicated (RR. III – 34-42, 77, 112).
        Officer Troost took the appellant down to the police station for further

investigation, where he handed the appellant over to Officer Robert Klementich

(RR. III – 45, 89-107). The appellant continued to demonstrate his intoxication to

Klementich through his performance on the field sobriety tests (RR. III – 89-107,

153-154). Finally, Officer Joel Quezada stepped in to finish up the investigation

(RR. III – 110-111).

        The appellant refused Quezada’s request to provide a specimen to determine

whether there was alcohol in his body, so Quezada applied for and received a

search warrant (RR. III – 109-110, 156-157). The appellant’s blood was drawn

pursuant to the warrant at 10:30 p.m. (RR. III – 161-163, 175-176). His blood

alcohol level at that time was 0.191, which is more than twice the legal limit (RR.

III – 244) (St. Ex. 14). A conservative estimation of his blood alcohol level at the

time of the traffic stop would have been between a 0.20 and 0.22 (RR. III – 247-

248).




                REPLY TO APPELLANT’S FIRST AND SECOND
                           POINTS OF ERROR

        In his first point of error, the appellant claims that the trial court erred in

failing to strike for cause prospective jurors who stated that they were more likely

to believe a police officer than another citizen. (App’nt Brf. 11-13). This point of



                                           2
error lacks merit because the question did not require a strike for cause and

because the appellant was not harmed by the trial court’s refusal to strike those

prospective jurors. His related second point of error complains that the trial court

erred in restricting his examination of the prospective jurors regarding both the

credibility of police officers and the concept of proof beyond a reasonable doubt.

(App’nt Brf. 15-18). But this point fails because it was not preserved and any

restriction was harmless.

      During the court’s voir dire of the jury, the judge talked extensively about

the credibility of police officers and the concept of proof beyond a reasonable

doubt (RR. II – 9-11, 18-20, 35-38). The prosecutor also addressed the second

issue, and the appellant was able to observe the reactions of the prospective jurors

during both of those voir dires (RR. II – 51-52, 62, 70-71). When the prosecutor

attempted to conduct a poll at the end of voir dire, the trial court stated, “You’ve

gone past your time. If you did that 15 minutes ago, I’m with you. If you’re going

to take that big, long poll, you’re way late for that.” (RR. II – 71-72). During the

appellant’s voir dire, he did address some specific factual scenarios that could

amount to a reasonable doubt (RR. II – 88, 89).

      At the end of the appellant’s voir dire, he attempted to ask the prospective

jurors one final question of whether they would be “more predisposed to believe a

police officer or a person accused.” (RR. II – 99). The trial court told the appellant



                                          3
that “the State went over without their poll, so your poll is ending, and just close it.

You’re past your time, well past your time. I stopped the State, I’ll be stopping

you.” (RR. II – 99-100). Nevertheless, the appellant asked the jurors, “How many

people would be, without even knowing the background of the police officer, not

knowing anything about him, before he even testifies, would be more likely to

believe what a police officer says than what a citizen says?” (RR. II – 100). One of

the prospective jurors noted that it was a loaded question, and the appellant

conceded as much (RR. II – 101). Nevertheless, the appellant asked the jurors to

say their numbers for the record, and thirteen jurors responded (RR. II – 101-102).

      While the appellant noted that prospective juror number one “would be more

apt to believe a police officer than an ordinary witness,” he never asked to strike

that prospective juror (RR. II – 108-109). Nevertheless, the trial court responded:

             You asked that and the jurors appropriately said it’s a loaded
      question. Even the jury called you on it. I will not strike those jurors
      based on your question, which one do you take first. No matter what
      answer they give, they’re automatically strikable. Pick one or the
      other. You have to pick one or the other in your question. It’s the
      way you worded it. I would not strike jurors based on your wording
      of that question.

(RR. II – 108). The appellant asked for “additional time to question the panel on

that topic,” but the trial court denied the request (RR. II – 109). The appellant then

moved “to strike all of those jurors who, by raising their hand and stating their

numbers, committed that they are more apt to believe a police officer than a citizen



                                           4
accused without knowing anything about the police officer’s background or before

he even testifies.” (RR. II -109). The trial court denied that request (RR. II – 109).

The appellant also requested additional peremptory strikes, which was denied (RR.

II – 110-111). Finally, the appellant requested additional time to voir dire on

“proof beyond a reasonable doubt,” and the trial court denied that request (RR. II –

102).



        A.    A prospective juror who is more likely to believe a police
              officer than another citizen is not challengeable for cause
              because such a position does not constitute an unequivocal
              belief that a police officer would never lie while testifying.
        According to Article 35.16(a)(9) of the Code of Criminal Procedure, a juror

may be excused for cause if “he has a bias or prejudice in favor of or against the

defendant.” TEX. CODE CRIM. PROC. art. 35.16(a)(9) (West 2010).                  The

unequivocal belief by a venireman that a police officer would never lie while

testifying has been found to constitute a bias against the defendant under Article

35.16(a)(9). Lane v. State, 822 S.W.2d 35, 44 (Tex. Crim. App. 1991); Hernandez

v. State, 563 S.W.2d 947, 950 (Tex. Crim. App. 1978). Otherwise, the trial court

has discretion to determine whether bias or prejudice actually exists to such a

degree that a prospective juror is disqualified and that a challenge for cause should

be sustained. See Anderson v. State, 633 S.W.2d 851, 854 (Tex. Crim. App. 1982);




                                          5
Leal v. State, 13-00-457-CR, 2001 WL 892834, at *1-2 (Tex. App.—Corpus

Christi July 5, 2001, no pet.) (not designated for publication).

      Bias is an inclination toward one side of an issue, rather than to the other,

which leads to the natural inference that a juror will not act with impartiality. Id. at

853. A trial court’s refusal to sustain a defendant’s challenge for cause is reviewed

in light of all the prospective juror’s answers. Williams v. State, 773 S.W.2d 525,

537 (Tex. Crim. App. 1988); Nance v. State, 807 S.W.2d 855, 866 (Tex. App.—

Corpus Christi 1991, pet. ref’d).

      Prospective jurors should be excused for cause only if their views would

prevent or substantially impair the performance of their duties as jurors.

Wainwright v. Witt, 469 U.S. 412, 424 (1985); Moody v. State, 827 S.W.2d 875,

888 (Tex. Crim. App. 1992). In deciding the propriety of the trial court’s ruling on

challenges for cause during voir dire, this Court must keep in mind that the trial

judge has had the opportunity to observe the tone of voice and demeanor of the

prospective juror in determining the precise meaning intended, while appellate

courts have only the cold record. Briddle v. State, 742 S.W.2d 379, 384 n. 1 (Tex.

Crim. App. 1987).

      In the present case, the prospective jurors merely affirmed that they would

be “more likely to believe what a police officer says than what a citizen says.”

(RR. II – 100). Such is a perfectly rationale position based on the additional



                                           6
training and screening that police officers must endure coupled with the additional

professional sanctions faced by police officers for perjury. Moreover, such an

answer is not equivalent to the unequivocal belief that a police officer would never

lie while testifying. Lane, 822 S.W.2d at 44; Hernandez, 563 S.W.2d at 950.

Therefore, the trial court did not abuse its discretion in denying the challenges for

cause.



         B.    The appellant failed to preserve his second point of error
               for review by showing that the trial court prevented him
               from asking a particular proper question.
         Voir dire plays a critical function in assuring that a criminal defendant’s

constitutional right to an impartial jury will be honored. Morgan v. Illinois, 504

U.S. 719, 729 (1992).        “[P]art of the guarantee of a defendant’s right to an

impartial jury is an adequate voir dire to identify unqualified jurors.” Id. Thus,

counsel must be diligent in eliciting pertinent information from prospective jurors

during voir dire in an effort to uncover potential prejudice or bias, and counsel has

an obligation to ask questions calculated to bring out information that might

indicate a juror’s inability to be impartial. Brasher v. State, 139 S.W.3d 369, 373

(Tex. App.—San Antonio 2004, pet. ref’d).

         Nevertheless, a trial court has broad discretion over the process of selecting

a jury. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002); Allridge v.



                                            7
State, 762 S.W.2d 146, 167 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1040

(1989). Without this discretion, voir dire could go on forever without reasonable

limits. Faulder v. State, 745 S.W.2d 327, 334 (Tex. Crim. App. 1987), cert. denied,

519 U.S. 995 (1996).

      In order to preserve his complaint for appellate review, an appellant must

show that the trial court prevented him from asking particular proper questions.

Sells v. State, 121 S.W.3d 748, 755–66 (Tex. Crim. App. 2003); Mohammed v.

State, 127 S.W.3d 163, 170 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

That the trial court generally disapproved of an area of inquiry from which proper

questions could have been formulated is not enough for an appellate court to

determine error because the trial court might have allowed a proper question had it

been submitted for the court’s consideration. Id.; see TEX. R. APP. P. 33.1(a)(1)(A).

To preserve error for review, an appellant must make the trial court aware of any

objections or complaints at a time when there is an opportunity for the trial court to

cure or respond to the complaints. Loredo v. State, 159 S.W.3d 920, 923 (Tex.

Crim. App. 2004).

      In the present case, the appellant told the trial court that he wanted

“additional time to question the panel on that topic [of police credibility]” and on

“proof beyond a reasonable doubt,” but he did not inform the trial court of any

specific questions that he wanted to ask (RR. II – 102, 109). Therefore, the



                                          8
appellant failed to preserve his complaint for appellate review. See Dhillon v. State,

138 S.W.3d 583, 590 (Tex. App.—Houston [14th Dist.] 2004, no pet.);

Mohammed, 127 S.W.3d at 170. His second point of error should be overruled.



      C.     Even if the trial court erred in refusing to allow the
             appellant to voir dire on the issues of police credibility and
             proof beyond a reasonable doubt, the appellant was not
             harmed by the limitation because those subjects had
             already been thoroughly covered during the voir dire.
      The Court of Criminal Appeals has stated that, “except for certain federal

constitutional errors labeled by the Supreme Court as ‘structural,’ no error, whether

it relates to jurisdiction, voluntariness of a plea, or any other mandatory

requirement, is categorically immune to a harmless error analysis.” Cain v. State,

947 S.W.2d 262, 264 (Tex. Crim. App. 1997). In Easley v. State, 424 S.W.3d 535,

539 (Tex. Crim. App. 2014), the court of criminal appeals held that while there

may be instances in which a judge’s limitation on voir dire is “so substantial” as to

rise to the level of a constitutional error, such instances are generally the exception

rather than the rule. The Easley court affirmed the appellate court’s application of

the more lenient non-constitutional harm analysis under Rule 44.2(b) to the trial

court’s erroneous refusal to allow the defendant’s counsel to void dire on

comparative burdens of proof. Id. The high court agreed with the lower court’s

holding that the trial court’s error did not rise to the level of a constitutional error



                                           9
because defense counsel was not “foreclosed from explaining the concept of

beyond a reasonable doubt and exploring the veniremembers’ understanding and

beliefs of reasonable doubt by other methods.” Id.          The correct inquiry to

determine whether the error was of a constitutional nature, therefore, was not

whether defense counsel was prevented from exercising his “preferred method” of

questioning, but rather whether he was “precluded from discussing and explaining

the beyond-a-reasonable-doubt standard.” See id., 424 S.W.3d at 542.

      The appellant claims that he is entitled to the constitutional harm analysis

because he was not allowed to address the topic of reasonable doubt “at all.”

(App’nt Brf. 18). The appellant, however, confuses a limitation based on time with

a limitation based on content. According to the trial court, the appellant was

treated the same as the State with regard to the time allowed for voir dire (RR. II –

99-100). It was the appellant’s decision on how to allocate that time. The trial

court never ruled that the topic of reasonable doubt was off-limits. In fact, the

concept of reasonable doubt had already been explored by the trial court, the

prosecutor, and the appellant himself (RR. II – 9-11, 18-20, 51-52, 62, 70-71, 88,

89). Therefore, even if there were error in this case, the appellant is entitled only

to a non-constitutional harm analysis under Rule 44.2(b).

      Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any

non-constitutional “error, defect, irregularity, or variance that does not affect



                                         10
substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b). A substantial right

is affected when an error has a substantial, injurious effect or influence in

determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim.

App. 1997). If, on the record as a whole, it appears the error “did not influence the

jury, or had but a slight effect,” this Court must consider the error harmless and

allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.

App. 1998).

      The weight of the evidence of the defendant’s guilt is a relevant factor in

conducting a harm analysis under Rule 44.2(b). Motilla v. State, 78 S.W.3d 352,

360 (Tex. Crim. App. 2002). In the present case, the evidence against the appellant

was very strong. A credible police officer testified that the appellant drove through

the stop sign without stopping, had a strong odor of an alcoholic beverage on his

breath, had slurred speech, had glassy eyes, and had an open bottle of wine behind

the driver’s seat (RR. III – 27-29, 32-33, 44). See Cotton v. State, 686 S.W.2d 140,

142 n.3 (Tex. Crim. App. 1985) (enumerating nonexclusive list of signs recognized

as evidence of intoxication, including slurred speech, bloodshot eyes, odor of

alcohol on the person, unsteady balance, and staggered gait). That officer believed

that the appellant was intoxicated (RR. III – 44). See Annis v. State, 578 S.W.2d

406, 407 (Tex. Crim. App. 1979) (reasoning that an officer’s testimony that a

person was intoxicated provided sufficient evidence to establish the element of



                                         11
intoxication). The appellant demonstrated several signs of intoxication and refused

to provide a sample to determine his level of intoxication; nevertheless, the police

were able to obtain a sample, which showed that he was well over the legal limit

(RR. III – 34-42, 77, 89-110, 112, 153-157, 244-248) (St. Ex. 14). See Maxwell v.

State, 253 S.W.3d 309, 318 (Tex. App.–Fort Worth 2008, pet. ref’d) (“when so

reviewing the evidence, including the evidence of appellant’s refusal to perform

field sobriety tests, we conclude the evidence is also factually sufficient to support

the jury’s verdict.”).

      Another relevant factor in a harm analysis under Rule 44.2(b) is “the

character of the alleged error and how it might be considered in connection with

other evidence in the case.” Motilla, 78 S.W.3d at 359 (quoting Morales v. State,

32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). In the present case, as stated

previously, the appellant had already touched on the meaning of beyond a

reasonable doubt, at least as it applied to the accuracy of a blood test (RR. II – 88,

89). Furthermore, both the trial court and the prosecutor addressed the issue of

reasonable doubt in more depth, and the appellant was able to observe the reactions

and answers of the prospective jurors during those exchanges (RR. II – 9-11, 18-

20, 51-52, 62, 70-71). Finally, the appellant’s closing argument did not depend on

the credibility of a police officer or proof beyond a reasonable doubt; rather, it

seemed to be based on supposed outrage that police could obtain a search warrant



                                         12
for blood and that the police crime lab could make a mistake in analyzing it (RR.

III – 349-361). Therefore, the appellant was not harmed by the trial court’s alleged

refusal to allow him to voir dire on the issues of police credibility and proof

beyond a reasonable doubt. His second point of error should be overruled and the

conviction affirmed.




           REPLY TO APPELLANT’S THIRD POINT OF ERROR

      In his third and final point of error, the appellant claims that the trial court

erred in admitting the search warrant and affidavit over a hearsay objection.

(App’nt Brf. 18-21).    This point lacks merit because the appellant made the

existence of probable cause an issue before the jury. Nevertheless, the appellant

was not harmed by the admission of the blood search warrant and supporting

affidavit because the same substantive information was admitted during the trial

      During the appellant’s opening statement, which was given prior to the

State’s first witness, the appellant repeatedly attacked the probable cause that was

developed by the three police officers and had been used to secure the search

warrant for the appellant’s blood (RR. III – 11-21). The appellant claimed during

opening that he was “a 63-year-old male, 6-foot-3, tall, and skinny…sitting in a

doctor’s office…cardio stenosis…prostate cancer…didn’t have a full night’s

sleep…played golf in the hot sun” all in an effort to show that his poor health

                                         13
mistakenly led the police officers to believe that he was intoxicated (RR. III – 12,

14, 18, 19). He characterized his situation as being “arrested by the police, who

may have initially thought that he was intoxicated, but he wasn’t. He just flat out

wasn’t.” (RR. III – 20) (emphasis added).

      During the State’s direct examination of Officer Quezada, the prosecutor

offered the search warrant and supporting affidavit into evidence (RR. III – 157).

The appellant objected to it as hearsay, but the trial court overruled the objection

(RR. III – 157, 159) (St. Ex. 15).

      Once again, during closing argument, the appellant continued to attack the

probable cause used to secure the search warrant (RR. III – 349-361).             The

appellant specifically asked the jury, “If I run into the police, if there is a police

encounter, will they take the time to really understand what is going on? I don’t

think they did that here. I don’t think they even tried to do that.” (RR. III – 350).

He claimed that “If you’re 65, it’s pretty clear that they shouldn’t ask you to do

field sobriety tests at all. There are other things they can do….But with Mr.

Saldinger they jumped the gun a little bit, and they took him to a police station.”

(RR. III – 351). Finally, the appellant concluded, “If there is a villa[i]n in this

story, I think the villa[i]n is that we’re such slaves to this system that we’ve set up

where we go and get warrants and pull blood from people whether they like it or

not.” (RR. III – 360).



                                          14
      The trial court’s ruling on the admissibility of evidence is subject to an abuse

of discretion standard on appeal. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.

Crim. App. 1994). An abuse of discretion occurs when the trial court acts without

reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372,

380 (Tex. Crim. App. 1990). A reviewing court should not reverse a trial judge

whose ruling was within the “zone of reasonable disagreement.” Green v. State,

934 S.W.2d 92, 101 (Tex. Crim. App. 1996). The reviewing court must view the

evidence in the light most favorable to the trial court’s ruling, giving the trial court

almost total deference on its findings of historical fact that find support in the

record. Guzman, 955 S.W.2d at 89; State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000). When the trial court does not file findings of fact, this Court must

assume that the trial court made implicit findings that support its ruling, so long as

those implied findings are supported by the record. Id.



      A.     The blood search warrant and supporting affidavit were
             admissible because the appellant made the existence of
             probable cause an issue before the jury.
      A search warrant and supporting affidavit are hearsay and generally

inadmissible. See Foster v. State, 779 S.W.2d 845, 857 (Tex. Crim. App. 1989);

Pratt v. State, 748 S.W.2d 483, 484 (Tex. App.—Houston [1st Dist.] 1988, pet.

ref’d). But there are exceptions in which search warrants or affidavits may be



                                          15
admissible over a hearsay objection. Baxter v. State, 66 S.W.3d 494, 498 n.2 (Tex.

App.—Austin 2001, pet. ref’d). For example, if a defendant makes probable cause

an issue before a jury, hearsay evidence is admissible. Id. (citing Lacy v. State, 424

S.W.2d 929, 931 (Tex. Crim. App. 1967) (“An issue of probable cause for

appellant’s search without a warrant was made before the jury—which fact

distinguishes the case from the above cases cited by appellant. Such testimony was

therefore admissible on the issue of probable cause, although such issue was not

submitted to the jury in the charge.”)).

       The appellant claims that “probable cause was never disputed.” (App’nt Brf.

19).   But he repeatedly made probable cause an issue before the jury by

questioning whether the police officers were mistaken in their belief that the

appellant was intoxicated (RR. III – 12, 14, 18, 19, 20).         He confirmed his

intentions behind such statements during closing argument when he claimed that

the police “jumped the gun a little bit” when they took him down to the station

(RR. III – 351). Thus, the appellant made the existence of probable cause an issue

before the jury, and the trial court did not abuse its discretion in admitting the

blood search warrant and its supporting affidavit. See Baxter, 66 S.W.3d at 498

n.2; Lacy, 424 S.W.2d at 931. The appellant’s third point of error should be

overruled.




                                           16
      B.     The appellant was not harmed by the admission of the
             blood search warrant and supporting affidavit because the
             same information was admitted elsewhere during the trial.
      Even if the trial court erred in admitting the blood search warrant and

supporting affidavit into evidence, this Court must apply Rule 44.2(b) of the Texas

Rules of Appellate Procedure and determine whether the admission of the evidence

affected the appellant’s substantial rights. TEX. R. APP. P. 44.2(b); TEX. R. EVID.

103(a).

      As stated previously, Rule 44.2(b) of the Texas Rules of Appellate

Procedure provides that any non-constitutional “error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.” TEX. R. APP.

PROC. 44.2(b). If, on the record as a whole, it appears the error “did not influence

the jury, or had but a slight effect,” this Court must consider the error harmless and

allow the conviction to stand. Johnson, 967 S.W.2d at 417.

      The weight of the evidence of the defendant’s guilt is a relevant factor in

conducting a harm analysis under Rule 44.2(b). Motilla, 78 S.W.3d at 360. And

the evidence against the appellant was very strong. A credible police officer

testified that the appellant drove through the stop sign without stopping, had a

strong odor of an alcoholic beverage on his breath, had slurred speech, had glassy

eyes, and had an open bottle of wine behind the driver’s seat (RR. III – 27-29, 32-

33, 44). See Cotton, 686 S.W.2d at 142 n.3.          That officer believed that the



                                         17
appellant was intoxicated (RR. III – 44). See Annis, 578 S.W.2d at 407. The

appellant demonstrated several signs of intoxication and refused to provide a

sample to determine his level of intoxication; nevertheless, the police were able to

obtain a sample, which showed that he was well over the legal limit (RR. III – 34-

42, 77, 89-110, 112, 153-157, 244-248) (St. Ex. 14). See Maxwell, 253 S.W.3d at

318. Thus, even without the warrant, the appellant’s conviction was a certainty.

         Another relevant factor in a harm analysis under Rule 44.2(b) is “the

character of the alleged error and how it might be considered in connection with

other evidence in the case.” Motilla, 78 S.W.3d at 359. In the present case, the

same information contained in the blood search warrant and supporting affidavit

was admitted elsewhere during the trial.        The search warrant itself simply

commanded any peace officer to search the appellant’s body for blood samples (St.

Ex. 15). But Officer Quezada testified that Magistrate Nicholas ruled that there

was enough probable cause for a search warrant (RR. III – 160).

         The search warrant affidavit began by stating Quezada’s qualifications, it

then related the facts of the stop and the investigation that Quezada had learned by

talking with Troost and Klementich, then it discussed the appellant’s refusal to

give a sample to Quezada, and it concluded with the appellant’s identification (St.

Ex. 15). But that same information was admitted without objection during the

trial.     Quezada testified extensively about his training, background, and



                                         18
qualifications (RR. III – 147-149). Troost testified concerning his stop of the

appellant and initial observations before handing the case over to Klementich, who

also testified concerning his administration of the field sobriety tests (RR. III – 89-

107). Finally, Quezada testified concerning the appellant’s performance on some

additional sobriety tests as well as the appellant’s refusal to provide a sample as

required by law (RR. III – 152-156).

      The appellant claims that the facts in the search warrant affidavit “with

respect to the officer’s prior knowledge of the accuracy of blood testing appear

nowhere else in the record.” (App’nt Brf. 21).         Those assertions by Officer

Quezada were specifically that:

             I am familiar with the methods in the State of Texas used to
      obtain samples for alcohol impairment or impairment caused by the
      introduction of other substances into the body, that being breath,
      blood, or urine samples. I have found these forensic tests to be
      reliable in supporting my opinions and observations on consumed
      substances and levels of impairment.

(St. Ex. 15). While Quezada did not repeat that testimony on the witness stand at

trial, the toxicology expert testified that the blood test results in the present case

were “accurate and valid.” (RR. III – 244, 308). Furthermore, Quezada testified

that all of the information he had gathered during his investigation, including that

received from officers Klementich and Troost, was included in the search warrant

affidavit (RR. III – 175). Finally, neither of the parties referred to the search

warrant as substantive evidence except when the appellant used it to impeach

                                          19
Officer Qezada with inconsistencies between the affidavit, the offense report, and

the testimony of other officers at trial (RR. III – 180-184). Therefore, the appellant

was not harmed by the admission of the blood search warrant and the supporting

affidavit. His third point of error should be overruled and the conviction affirmed.



                                  CONCLUSION

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.

                                                    DEVON ANDERSON
                                                    District Attorney
                                                    Harris County, Texas

                                                    /s/ Eric Kugler
                                                    ERIC KUGLER
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                    1201 Franklin, Suite 600
                                                    Houston, Texas 77002-1923
                                                    (713) 755-5826
                                                    kugler_eric@dao.hctx.net
                                                    TBC No. 796910




                                         20
              CERTIFICATE OF SERVICE AND COMPLIANCE
      This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 5,772 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:

      Jose Ceja
      Attorney at Law
      2211 Norfolk #735
      Houston, Texas 77098
      Jose.Ceja@scheinerlaw.com
                                                  /s/ Eric Kugler
                                                  ERIC KUGLER
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002-1923
                                                  (713) 755-5826
                                                  TBC No. 796910
Date: December 24, 2014




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