                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-18-00035-CR
                            ____________________

                       VANESSA ANN DAVIS, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

_______________________________________________________             ______________

                    On Appeal from the 252nd District Court
                           Jefferson County, Texas
                          Trial Cause No. 16-25447
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Seeking to overturn her conviction for intoxication manslaughter, Vanessa

Ann Davis argues the trial court abused its discretion by admitting evidence during

the guilt-innocence phase of her trial about the results of lab tests performed on her

blood. According to Davis, because a respiratory therapist drew her blood, the

seizure was not authorized by the Texas Transportation Code. She argues that

respiratory therapists are not among the categories of professionals authorized by


                                          1
Chapter 724 of the Texas Transportation Code to draw blood from a person who was

driving a car.1 In her second issue, Davis argues that in assessing her sentence, the

trial court improperly considered that she did not testify in her trial, violating her

rights under the Fifth Amendment not to testify against herself.

      We conclude the trial court did not abuse its discretion by admitting testimony

about the results of the tests on Davis’s blood. The evidence presented in a hearing

on Davis’s motion to suppress shows that Davis’s blood was obtained by using a

search warrant, so the Transportation Code does not provide the provisions that

control whether the seizure of Davis’s blood was reasonable. Second, we conclude

that by failing to object to the trial court’s comment indicating the trial court wished

Davis had testified during the punishment phase of her trial, Davis failed to properly

preserve her complaint about whether the trial court improperly considered her

failure to testify. For these reasons, we affirm the trial court’s judgment.

                                     Background

      Early one morning in July 2015, Davis was driving at a high rate of speed on

Gulfway Drive in Port Arthur, Texas, when she lost control of her car. Davis’s car

collided with several objects, went airborne, and rolled over several times. Pamela

Fields, a passenger in Davis’s car, was thrown from the car during the collision.


      1
          Tex. Transp. Code Ann. §§ 724.001-.064 (West 2011 & Supp. 2018).
                                           2
Fields died at the scene. In late July 2016, based on the fact that Fields was killed in

the collision, a grand jury indicted Davis on a charge of intoxication manslaughter. 2

Her case was tried to a jury in January 2018.

      Officer Lane Cherry, a City of Port Arthur police officer, was one of the

officers who was involved in the investigation of Davis’s wreck on the morning that

it occurred. Several hours after Davis arrived at Saint Elizabeth Hospital, Officer

Cherry presented a search warrant to the hospital authorizing the police to seize

samples of Davis’s blood. A respiratory therapist working at the hospital drew the

samples. Subsequently, Officer Cherry placed the samples into the Police

Department’s evidence locker. Several days later, the samples were forwarded to the

Department of Public Safety’s Crime Lab in Austin.

      Dana Baxter, a chemist employed by the Crime Lab in Austin, was one of the

witnesses who testified in Davis’s trial. According to Baxter, the analysis on Davis’s

blood showed that it contained cocaine and benzoylecgonine, which is a metabolite

of cocaine. Baxter testified that Davis either “took a whole bunch [of cocaine], or

the sample was collected shortly after [she] used it.”


      2
        See Tex. Penal Code Ann. § 49.08(a) (West 2011) (a person commits the
offense of intoxication manslaughter if she operates a motor vehicle in a public place
while intoxicated and, by reason of that intoxication, causes the death of another by
accident or mistake).

                                           3
       After jury selection, but before any witnesses testified, Davis moved to

suppress the evidence related to the testing performed on her blood. She argued that

the evidence was inadmissible because a respiratory therapist had drawn her blood,

suggesting that respiratory therapists are not among those expressly authorized by

section 724.017 of the Transportation Code to draw blood from individuals who

have been operating cars.3 In response, the prosecutor argued that the Transportation

Code’s provisions did not control whether the seizure was reasonable because the

search in Davis’s case had been conducted with a search warrant. Davis did not argue

that the evidence was irrelevant to whether she lost the normal use of her faculties.

Additionally, Davis did not argue that probable cause did not exist to support the

magistrate’s decision to issue a warrant that authorized the police to obtain a sample

of her blood. 4

       The trial court denied the motion, finding that the evidence presented in the

hearing demonstrated that the respiratory therapist who took Davis’s blood was a

“qualified technician.” Section 724.017(a)(2) uses the term “qualified technician”



       3
           See Tex. Transp. Code Ann. § 724.017(a) (West Supp. 2018).
       4
        The warrant the magistrate issued authorized the police to direct a physician,
registered nurse, medical laboratory technician, or other qualified person skilled in
the taking of blood from the human body to obtain the sample.

                                          4
but it does not describe the group of people who are authorized to draw blood by

specifically identifying the occupations for persons who are “qualified technicians.”5

      During the trial, the trial court allowed the jury to consider testimony from a

chemist at the Crime Lab showing that she tested Davis’s blood and found it to

contain cocaine. Based on the chemist’s testimony, along with other testimony and

photographs showing that Davis lost control of her car, the jury found Davis guilty

of intoxication manslaughter.

      After she was found guilty of intoxication manslaughter, Davis elected to have

the trial court decide her punishment. The trial court then heard Fields’s sister and

Davis’s niece testify in the punishment phase of her trial. After hearing the testimony

and arguments from the parties’ attorneys, the trial court assessed an eighteen-year

sentence in Davis’s case. 6 Immediately after pronouncing the sentence, the trial court

stated: “Another thing that’s very important to me that I did not say that I want you

to know is I -- I wish I had heard from you. I wish I had seen something that I didn’t




      5
          See id. § 724.017(a)(2) (West Supp. 2018).
      6
        Intoxication manslaughter is a second-degree felony, punishable by a prison
sentence of not less than two and no more than twenty years. See Tex. Penal Code
Ann. § 12.33 (West 2011) (Second Degree Felony Punishment); Id. § 49.08(b) (West
2011) (generally prescribing the punishment for intoxication manslaughter as the
punishment that is available for second-degree felonies).
                                          5
see from you during this trial and during today.” Davis neither objected to the trial

court’s statement, nor did she move for a new trial.

                                      Analysis

                 Admissibility of Evidence Related to Blood Tests

      In her first issue, Davis argues the trial court erred by allowing the jury to

consider testimony that the State acquired by testing her blood. In her brief, Davis

argues the testimony about the results of her blood tests are inadmissible for one

reason: respiratory therapists are not among those the Legislature authorized police

to use under the Transportation Code to draw a sample of a driver’s blood.7 In its

brief, the State argues that the search warrant issued by the magistrate controlled

whether the police could legally seize a sample of Davis’s blood.

      We review complaints about alleged errors in admitting evidence using an

abuse-of-discretion standard. 8 If the trial court’s decision to admit the evidence was


      7
         Section 724.017 authorizes the following groups to take blood specimens at
the request of peace officers: “(1) a physician; (2) a qualified technician; (3) a
registered professional nurse; (4) a licensed vocational nurse; or (5) a licensed or
certified emergency medical technician-intermediate or emergency medical
technician-paramedic authorized to take a blood specimen [by the medical director
who employs them].” Tex. Transp. Code Ann. § 724.017 (West Supp. 2018). The
term “qualified technician” is not expressly defined by either the Penal Code or the
Transportation Code.
      8
       Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); see also
Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
                                          6
proper under any theory of law that applies to the case, its ruling will not be disturbed

on appeal. 9

      While still subject to the reasonableness requirements of the Fourth

Amendment, Chapter 724 of the Texas Transportation Code defines the

circumstances under which a peace officer may conduct a warrantless search to

obtain a specimen of a person’s blood.10 Officer Cherry, however, did not rely on

section 724.017 when he seized the samples of Davis’s blood. Instead, he obtained

the samples with a warrant, which authorized a “qualified person skilled in the taking

of blood from the human body” to draw the samples tested by the Crime Lab.

Consequently, the terms of the search warrant, not section 724.017 of the

Transportation Code, controlled whether the police were authorized to have a

respiratory therapist draw Davis’s blood.11



      9
          See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
      10
       See Tex. Transp. Code Ann. §§ 724.001-.064; see also State v. Johnston,
336 S.W.3d 649, 660 (Tex. Crim. App. 2011).
      11
        See State v. Johnston, 336 S.W.3d at 661 (“Chapter 724 is inapplicable
when there is a warrant to draw blood; therefore, compliance with Chapter 724 is
not necessary to satisfy the Fourth Amendment.”); see also Sanchez v. State, 365
S.W.3d 681, 684 (Tex. Crim. App. 2012) (“[a]lthough a blood draw constitutes a
search under the Fourth Amendment, the Constitution will not be offended if the
draw occurs pursuant to a valid search warrant”).

                                           7
         The testimony before the trial court shows that the respiratory therapist who

drew Davis’s blood is authorized by the hospital to perform arterial blood draws.

The evidence also shows that she has twenty-five years of experience in drawing

blood. The respiratory therapist testified that she regularly performs arterial blood

draws in her job at Saint Elizabeth Hospital. Because the evidence before the trial

court allowed the trial court to conclude that the warrant authorized the draws that

are at issue in the appeal, the trial court did not abuse its discretion by admitting the

evidence showing that Davis’s blood contained cocaine. We overrule Davis’s first

issue.

                                  Davis’s Failure to Testify

         In her second issue, Davis argues that during the punishment phase of her trial,

the trial court improperly considered that she did not testify in assessing her

sentence.12 Davis cites the trial court’s express statement about wanting to hear from

her to support her claim that the trial court violated her constitutional rights and that

she was harmed by the error.




         12
              See U.S. CONST. amend. V; see also Tex. Const. art. I, § 10.

                                              8
      But Davis did not object to the comment when it occurred, so she failed to

preserve her complaint for our review on appeal. 13 Generally, a reviewing court

cannot address the merits of an issue upon appeal unless the party followed the

proper procedural steps to preserve the issue for review. While the error preservation

requirements in Rule 33.1 are not absolute, they generally apply to a defendant’s

Fifth Amendment privilege not to testify. 14 In Johnson, the Court of Criminal

Appeals explained that “[t]he Fifth Amendment privilege against self-incrimination

under a Marin analysis is a forfeitable privilege.” 15 Since the privilege can be

forfeited if not asserted, “a trial judge has no independent duty to implement a

defendant’s Fifth Amendment privilege.”16

      We conclude that by failing to object to the trial court’s comment, Davis failed

to properly preserve her complaint for our review. Because Davis raises issues that




      13
         See Tex. R. App. P. 33.1 (preserving error for appellate review requires the
complaining party to show that he presented his complaint to the trial court by
making a timely request, objection, or motion and that the trial court ruled on the
request).
      14
           See Johnson v. State, 357 S.W.3d 653, 658 n.3 (Tex. Crim. App. 2012).
      15
           Id. (citing Marin v. State, 851 S.W.2d 275, 278-80 (Tex. Crim. App. 1993)).
      16
           Id. (citing Minnesota v. Murphy, 465 U.S. 420, 427 (1984)).
                                           9
are either without merit or not properly preserved for our review, the judgment the

trial court rendered is affirmed.

      AFFIRMED.


                                                   _________________________
                                                        HOLLIS HORTON
                                                             Justice


Submitted on September 5, 2018
Opinion Delivered November 14, 2018
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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