AFFIRMED and Opinion Filed May 6, 2020




                                    S   In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-19-00434-CR

                    ARTURO ARREOLA GAMIZ, Appellant
                                  V.
                      THE STATE OF TEXAS, Appellee

         On Appeal from the County Criminal Court of Appeals No. 2
                           Dallas County, Texas
                   Trial Court Cause No. MA1418190-M

                        MEMORANDUM OPINION
                  Before Justices Schenck, Osborne, and Reichek
                           Opinion by Justice Reichek
      Arturo Arreola Gamiz appeals his conviction for driving while intoxicated.

Bringing two issues, appellant contends the trial court abused its discretion in

admitting blood draw evidence and in not allowing defense counsel to question a

witness about an incident at the testing facility. We affirm the trial court’s judgment.

      Appellant was indicted for the offense of driving while intoxicated with a

blood alcohol concentration of .15 or more. Appellant pleaded not guilty and was

tried before a jury. After hearing the evidence, the jury found appellant guilty as

charged, and answered the special issue of whether his blood alcohol concentration
was .15 or more at the time it was analyzed in the affirmative. Pursuant to an

agreement, the trial court sentenced appellant to 150 days of house arrest. Appellant

brought this appeal.

I. Authentication of Evidence

      In his first issue, appellant contends the trial court abused its discretion in

allowing the admission of evidence from his blood draw. Appellant contends the

evidence was not sufficiently authenticated by a proponent who could establish the

chain of custody. We review a trial court’s ruling on an authentication issue under

an abuse of discretion standard. Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim.

App. 2018). A trial court judge is given considerable latitude with regard to

evidentiary rulings. Id. The court need only make the preliminary determination

that the proponent of the item has supplied facts sufficient to support a reasonable

jury determination that the proffered evidence is authentic. Id. at 849. This has been

described as a “liberal standard of admissibility.” Id.

      Within the test for authentication is whether the chain of custody has been

preserved. Mitchell v. State, 419 S.W.3d 655, 659 (Tex. App.—San Antonio 2013,

pet. ref’d).   A chain of custody is sufficiently authenticated when the State

establishes the beginning and the end of the chain of custody, particularly when the

chain ends at a laboratory. Id. Absent evidence of fraud or tampering, alleged issues

concerning gaps in the chain affect the weight to be given the evidence and not its

admissibility. Id. at 660.
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      In this case, Deputy Scott Selby testified he drove appellant to the hospital to

have his blood drawn and remained in the room with appellant at the hospital the

entire time. Selby stated he watched as the nurse drew the blood and he made sure

she used the specific “gray top tubes” required for the blood to be analyzed for

evidentiary purposes by the Southwestern Institute of Forensic Sciences (“SWIFS”).

Selby saw the nurse remove printed labels from appellant’s chart and place them on

the collection tubes. After announcing out loud the time of the blood draw, the nurse

wrote the time and date on the labels affixed to the tubes. Selby watched as the nurse

“rotated” the tubes to mix in the preservative and anticoagulant and then placed the

tubes in a plastic bag. According to Selby, all standard practices and procedures

were followed. Selby then drove appellant and the blood samples to the Dallas

County jail. After booking appellant in, Selby placed the samples in a secure

evidence locker. Selby testified that a Dallas police officer in charge of DWI

evidence removed the blood samples from the locker and transported them to SWIFS

for testing. After being shown two pictures of gray-topped tubes with printed labels

containing appellant’s information and a written date and time of the blood draw,

Selby testified the pictures accurately depicted the tubes as he recalled seeing them

that night.

      Appellant contends he “properly objected to the admission of photos of the

blood evidence” because “Selby stated he did not know who took the pictures nor

when the pictures were taken and instead testified as to the identification written on
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the tubes of blood.” For the photographs to be admissible, all that is required is

proof of their accuracy as a correct representation of the subject at a given time.

Darden v. State, 629 S.W.2d 46, 48–49 (Tex. Crim. App. 1982). It was not necessary

that Selby be the photographer or that he have any knowledge concerning the way

the photographs were made. Id. at 49. Selby stated the photographs accurately

showed how the evidence tubes appeared on the night he personally witnessed

Appellant’s blood being drawn. This testimony was sufficient to support admission

of the photographs. Id.

      Appellant also contends the State relied on a “surrogate witness” to testify

regarding the blood draw in violation of his right to confrontation under the United

States Constitution. Appellant failed to raise any constitutional objections to Selby’s

testimony at trial. For a party to preserve a complaint for appellate review, the

complaining party must make a specific objection and obtain a ruling on the

objection. Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). The

complaint must be made at the earliest possible opportunity and the point of error on

appeal must comport with the objection made at trial. Id. Failure to object at trial

may waive even constitutional error. Id. Because appellant did not raise his

confrontation clause challenge at trial, he failed to preserve the issue for review on

appeal.

      Selby’s testimony regarding the events he personally witnessed during

appellant’s blood draw and the method by which the blood was transferred to the
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testing lab was sufficient to authenticate the evidence. See Mitchell, 419 S.W.3d at

660. The trial court did not abuse its discretion in admitting evidence from the blood

draw at trial. We resolve appellant’s first issue against him.

II. Impeachment Evidence

      In his second issue, appellant contends the trial court erred in not allowing

him to cross-examine the SWIFS analyst who testified as a witness for the State

regarding “problems within SWIFS.” Prior to trial, the State disclosed information

to the defense about an incident that occurred four years after appellant’s blood was

tested. In violation of SWIFS policy, a registrar at the facility re-labeled three blood

vials to clarify which vials belonged to which defendants. The blood in those vials

was never analyzed.

      At a hearing on its motion in limine, the State asked that defense counsel be

prohibited from raising the issue of the registrar’s actions at trial because the incident

occurred four years after appellant’s blood was tested and there was no indication of

any issues with the receipt of appellant’s blood in this case. The State contended

any relevance the evidence might have was substantially outweighed by the danger

of undue prejudice. After noting that the register who violated the SWIFS policy

was not a witness in this case, the trial court granted the State’s motion to exclude

the evidence.

      As discussed above, we review a trial court’s decision regarding the admission

or exclusion of evidence under an abuse of discretion standard. See Johnson v. State,
                                          –5–
490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial judge abuses his discretion if

his decision falls outside the zone of reasonable disagreement. Id. If the ruling is

correct under any theory of law, even if the theory was not relied upon by the trial

court, it will not be disturbed. Id.

      Appellant argues the evidence regarding the re-labeling incident was

admissible because it “called into question the credibility of SWIFS.” The only

witness from SWIFS to testify in this case was the forensic analyst, Terry Robinson.

There is nothing in the record to indicate Robison had anything to do with the

labeling incident that occurred four years after he analyzed appellant’s blood. As a

general rule, a party is not entitled to impeach a witness on a collateral matter.

Ramirez v. State, 802 S.W.2d 674, 675 (Tex. Crim. App. 1990). A matter is

collateral if the cross-examining party would not be entitled to prove it as a part of

his case tending to establish his plea. Id. There no evidence to suggest there were

any issues with the labeling of appellant’s blood vials in this case or that the

proffered evidence had any bearing on the conduct of SWIFS personnel at the time

appellant’s blood was tested.

      In addition, appellant makes no argument that the evidence was not properly

excluded as being more prejudicial than probative. In determining whether it would

have been proper to exclude the evidence under Rule 403 of the Texas Rules of

Evidence, we balance the claimed probative force of the proffered evidence along

with appellant's asserted need for that evidence against (1) any tendency of the
                                         –6–
evidence to suggest that the case would be decided on an improper basis; (2) any

tendency of the evidence to confuse or distract the jury from the main issues; (3) any

tendency of the evidence to be given undue weight by a jury that has not been

equipped to evaluate the probative force of the evidence; and (4) the likelihood that

presentation of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted. Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim.

App. 2016). The first three factors all weigh against admitting the evidence. Events

occurring at the lab four years after appellant’s blood was tested have little if any

probative value with respect to appellant’s case. The admission of such evidence

would only serve to confuse the jury and distract them from the main issues

presented. Such evidence might also suggest a decision based on general feelings

about the conduct of the lab rather than the specific facts of this case. We conclude

appellant has failed to show the trial court abused its discretion in refusing to admit

the evidence. We resolve this issue against appellant.

      Based on the foregoing, we affirm the trial court’s judgment.



                                            /Amanda L. Reichek/
                                            AMANDA L. REICHEK
                                            JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
190434F.U05



                                         –7–
                                   S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 JUDGMENT

ARTURO ARREOLA GAMIZ,                        On Appeal from the County Criminal
Appellant                                    Court of Appeals No. 2, Dallas
                                             County, Texas
No. 05-19-00434-CR          V.               Trial Court Cause No. MA1418190-
                                             M.
THE STATE OF TEXAS, Appellee                 Opinion delivered by Justice
                                             Reichek. Justices Schenck and
                                             Osborne participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.



Judgment entered May 6, 2020




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