                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-152-CR


JOHNNY GASCA                                                     APPELLANT

                                              V.

THE STATE OF TEXAS                                                     STATE

                                          ------------

             FROM 297TH DISTRICT COURT OF TARRANT COUNTY

                                          ------------

                           MEMORANDUM OPINION 1

                                          ------------

      Johnny Gasca appeals his conviction for felony repetition driving while

intoxicated. In two points, he complains that alcohol content evidence was not

properly authenticated and that the trial court failed to instruct the jury to

disregard any evidence that it believed was illegally obtained. We affirm.




      1
          … See T EX. R. A PP. P. 47.4.
                                  Background

      Fort Worth Police Officer Mark Macy testified that one night when he was

on patrol, he turned his patrol car onto a residential street and saw oncoming

headlights in his lane of traffic. He swerved to the right-hand curb line and let

the other vehicle pass. When asked what traffic violations the vehicle’s driver

had committed, Officer Macy answered, “[D]riving on the wrong side of the

road, failed to yield right-of-way, unsafe movement, [and] unsafe lane change

or passing.”   He turned around, followed the car, and caught up to it as it

entered a convenience store parking lot.     Officer Macy activated his lights,

pulled in behind the car, and called for backup after detecting a strong odor of

alcohol and approaching the driver, who appeared very unsteady and

disoriented with slurred speech and bloodshot eyes. He identified Appellant as

the car’s driver.

      Officers Brian Farmer and Rudy Cantu responded to the call for backup.

Officer Farmer testified that he conducted field sobriety tests, determined that

Appellant was intoxicated, and arrested him.

      Officer Cantu testified that he transported Appellant to the jail. At the

jail, he read Appellant the statutory warnings.    Appellant refused to give a

breath specimen and offered to give a blood specimen instead. Officer Cantu

drove Appellant to the hospital. At the hospital, Appellant signed a consent to

                                       2
draw blood. Officer Cantu testified that he watched a nurse draw the blood

and fill the vials from a DWI kit, which Officer Cantu then sealed in an

envelope. He said Joseph Cooper, the nurse who drew the blood, signed the

consent form on the appropriate line.      Officer Cantu testified that he then

secured the vials in a refrigerator in the police department’s secure property

room. The trial court admitted the DWI kit into evidence, and Officer Cantu

identified his own handwriting and Cooper’s initials on the vials’ sealing

stickers.

      Cooper testified that when working in the “rapid assessment room” at

John Peter Smith Hospital, he typically draws blood from four patients an hour.

He identified his signature on the consent form and his signature on the blood

vials’ sealing stickers. He said that he had no recollection of the events of the

night in question and that he could not identify Appellant, but he testified that

his signature on the form meant that he drew Appellant’s blood.

      Elizabeth van Munchrath, a senior forensic scientist with the police

department crime lab, testified that she tested Appellant’s blood sample and

found it to contain 0.24 grams of ethyl alcohol per 100 milliliters of whole

blood. She testified that when she received the vials, they were sealed and

showed no evidence of tampering and that the offense number on the vials

matched the offense number on the offense report.

                                       3
      The parties stipulated in writing that before the charged DWI, Appellant

had been twice convicted of DWI. The jury found him guilty, and the trial court

assessed punishment at forty-five years’ confinement. This appeal followed.

                          Admission of blood evidence

      In his first issue, Appellant argues that the trial court abused its discretion

by overruling his objection to the physical evidence of the blood test and the lab

results because the State failed to establish a chain of custody for the blood

evidence. Specifically, Appellant argues that Cooper’s inability to recall drawing

Appellant’s blood on the night in question means there is no proof of the

beginning of the chain of custody.

      Rule 901(a) provides that “[t]he requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent

claims.” T EX. R. E VID. 901(a). Proof of the beginning and end of the chain will

support admission of the evidence barring any showing of tampering or

alteration. See Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989),

cert. denied, 498 U.S. 951 (1990). We review a trial court’s evidentiary rulings

for an abuse of discretion. Sauceda v. State, 129 S.W.3d 116, 120 (Tex.

Crim. App. 2004).




                                         4
      Here, Officer Cantu testified that he watched Cooper draw Appellant’s

blood and that he sealed the blood vials. Cooper testified that although he did

not remember Appellant or drawing his blood, his signature on the consent form

meant that he did draw Appellant’s blood, and he identified his signature on the

vials’ sealing stickers. There is no evidence of tampering. We hold that this

evidence is sufficient to establish the beginning of the chain of custody.

      Appellant cites Brown v. State, 240 S.W.2d 310 (Tex. Crim. App. 1951),

and Garner v. State, 848 S.W.2d 799 (Tex. App.—Corpus Christi 1993, no

pet.), in support of his argument. Those cases are distinguishable. In Brown,

the court of criminal appeals held that the State failed to establish a chain of

custody in a DWI case when the nurse who drew the defendant’s blood did not

testify and there was no evidence that the blood drawn by the nurse was the

same blood a doctor later sent to a lab. 240 S.W.2d at 310–11. In this case,

the nurse who drew the blood testified, and his signature and Officer Cantu’s

handwriting on the vial seals proved that the blood Cooper drew from Appellant

was the blood tested by van Munchrath. In Garner, the Corpus Christi court

held that the State had failed to establish a chain of custody when a syringe

found on the defendant was not immediately placed in a container or tagged.

848 S.W.2d at 800. There is no evidence of such a lapse in this case. Officer




                                       5
Cantu testified that he sealed and labeled the vials immediately after Cooper

drew Appellant’s blood.

      We hold that the trial court did not abuse its discretion by admitting the

blood evidence over Appellant’s chain of custody objection, and we overrule his

first point.

                            Article 38.23 instruction

      In his second point, Appellant argues that the trial court erred by refusing

his request to instruct the jury to disregard the blood evidence if it believed, or

had a reasonable doubt, that the evidence was obtained illegally because other

evidence raised a fact question about Officer Macy’s stated basis for stopping

Appellant, i.e., Appellant’s violation of the transportation code by driving on the

wrong side of the road.

      Under article 38.23 of the code of criminal procedure, no evidence

obtained in violation of the federal or state constitutions or laws may be

admitted; and when the evidence raises an issue regarding a violation, the jury

must be instructed that if it believes, or has a reasonable doubt, that the

evidence was obtained in violation of the law, it must disregard the illegally

obtained evidence. T EX. C ODE C RIM. P ROC. A NN. art. 38.23(a) (Vernon 2005).

A defendant’s right to the submission of jury instructions under article 38.23(a)

is limited to disputed issues of fact that are material to his claim of a

                                        6
constitutional or statutory violation that would render evidence inadmissible.

Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007). To raise

a disputed fact issue warranting an article 38.23(a) jury instruction, there must

be some affirmative evidence that puts the existence of that fact into question.

Id. at 513.   A cross-examiner’s questions do not create a conflict in the

evidence, although the witnesses’s answers to those questions might.           Id.

(citing Garza v. State, 126 S.W.3d 79, 86–87 & n.3 (Tex. Crim. App. 2004)

(holding defense cross-examination of police officers who consistently denied

defense suggestion of impropriety did not raise factual dispute)); Wells v. State,

730 S.W .2d 782, 786 (Tex. App.—Dallas 1987) (noting that “remarks by

counsel are not evidence” and “[q]uestions put to a witness are not evidence.

The answers and not the questions are determinative”), pet. ref’d, 810 S.W.2d

179 (Tex. Crim. App. 1990).

      Here, Appellant points to his cross-examination of Officer Macy as

justifying an article 38.23(a) instruction. Officer Macy agreed that driving on

the wrong side of the road is permissible under the transportation code when

an obstruction on the roadway poses an immediate hazard and necessitates

moving the vehicle left of the roadway’s center and the operator yields the

right-of-way to a vehicle moving in a proper direction on the unobstructed

portion of the roadway. See T EX. T RANSP. C ODE A NN. § 545.051 (Vernon 1999).

                                        7
But when asked about other vehicles and potholes on the street—either of

which might be an obstruction—Officer Macy testified that he did not recall.

Appellant points to no other testimony as raising a conflict in the evidence

regarding the basis for the stop.

      Officer Macy’s nonconfirmatory answers to Appellant’s questions on

cross-examination are insufficient to raise a disputed fact issue warranting an

article 38.23(a) jury instruction.    See Madden, 242 S.W.3d at 513.           We

therefore hold that the trial court did not err by refusing the instruction, and we

overrule Appellant’s second point.

                                     Conclusion

      Having overruled both of Appellant’s points, we affirm the trial court’s

judgment.

                                             PER CURIAM

PANEL: GARDNER, J.; CAYCE, C.J.; and MCCOY, J.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 29, 2008




                                         8
