Opinion issued April 2, 2015




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-14-00250-CR
                           ———————————
                  AZAN MUHAMMAD JANNAH, Appellant
                                       V.
                           THE STATE OF TEXAS


          On Appeal from the County Criminal Court at Law No. 1
                           Harris County, Texas
                       Trial Court Case No. 1883398

                         MEMORANDUM OPINION

      Appellant Azan Muhammad Jannah was charged by information with the

misdemeanor offense of driving while intoxicated (“DWI”).        The jury found

Jannah guilty and the trial court sentenced him to 180 days’ confinement in county

jail, probated for one year, and a $750 fine.    In two points of error, Jannah
contends that the trial court erred in admitting (1) his blood test result and (2) the

search warrant authorizing his blood draw. We affirm.

                                     Background

      Around 2:50 a.m. on March 10, 2013, Officer S. Arellano of the Houston

Police Department observed Jannah run two stop signs. Arellano pulled Jannah’s

car over and testified that when Jannah rolled down the window, he mumbled

something about a girlfriend and a cell phone and was “fidgeting.” Arellano

testified that because Jannah’s eyes were glassy and she smelled alcohol on his

breath, she called for a DWI unit to come to the scene.

      Officer A. Beaudion of the Houston Police Department’s DWI Task Force

arrived at the scene around 3:20 a.m. Beaudion testified that she noticed several

signs that Jannah was intoxicated. She detected a strong odor of alcohol on his

breath and noticed that his eyes were red and glassy. She administered a horizontal

gaze nystagmus (“HGN”) test and determined that Jannah’s performance indicated

that he was intoxicated. After performing the HGN test, Beaudion transported

Jannah to the central intoxilyzer (“central intox”) police station to conduct two

additional field sobriety tests. Once at the station, Beaudion administered the

walk-and-turn and one-leg stand tests, and Jannah’s performances on both tests

indicated that he was intoxicated.




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      Beaudion requested a breath or blood sample, but Jannah refused. As a

result, Beaudion applied for a warrant authorizing a blood draw. A magistrate

judge reviewed Beaudion’s probable cause affidavit and signed the search warrant

at 5:51 a.m.

      Jamie Balusek, a registered nurse, worked as a “blood-draw nurse” for the

Houston Police Department at the time of Jannah’s arrest and drew Jannah’s blood.

Balusek testified that it is necessary to invert the vials into which blood is placed

so that the blood mixes with anticoagulant, preventing the blood from clotting

before it is analyzed at the lab. Balusek testified that she inverted the blood vials

containing Jannah’s blood at least ten times. Officer E. Swift of the Houston

Police Department testified that she observed Balusek draw Jannah’s blood and

invert the blood vials at least ten times.

      Laura Mayor, a criminalist at the Houston Police Department Crime

Laboratory who worked in the Toxicology Section of the crime lab, analyzed

Jannah’s blood samples for the presence of alcohol. Before Mayor testified before

the jury, Jannah requested a Kelly hearing outside the presence of the jury to

challenge the reliability of the blood test pursuant to Texas Rule of Evidence 702.

Jannah argued that the blood test was unreliable because the State failed to show

that the proper technique was used in analyzing Jannah’s blood.




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      Mayor, the sole witness at the Kelly hearing, testified that she tested

Jannah’s blood sample using headspace gas chromatography, an accepted

methodology for analyzing blood alcohol content (“BAC”) within the relevant

scientific community. Mayor testified that she followed proper protocol and that

the headspace gas chromatograph instrument was working properly when she

analyzed Jannah’s blood. She testified that she knew the instrument was working

properly because she ran a series of calibrators and controls and they met the

required criteria. She also testified that she runs each blood sample twice to ensure

that the results are consistent and only deems a result acceptable if the BAC levels

of both test results are within five percent of each other. If the variation between

the two blood samples is greater than five percent, she retests the sample.

      When Mayor analyzed Jannah’s blood on May 2, 2013, she ran the sample

twice, as required to ensure accuracy. She testified that the difference between the

two results was greater than five percent. She therefore retested Jannah’s blood on

May 15. 1    Mayor also acknowledged that two blood samples drawn from

individuals other than Jannah were analyzed on May 2 and also had to be re-

analyzed on May 15.



1
      We note that the Forensic Alcohol Analysis Report is dated May 16, 2013 and
      states that the analysis was completed on May 16, not May 15. But Mayor
      consistently testified that the second test occurred on May 15 and the parties state
      the same in their appellate briefs.
                                           4
      On cross-examination during the Kelly hearing, Jannah adduced evidence

that his blood sample contained clots, the lab made mistakes in other cases, and the

pipette used in analyzing his sample failed an external test. Mayor acknowledged

that she observed “small clots” in the blood vials and that the evidence form noted

that she observed the small clots on May 2. She agreed with Jannah’s counsel that

clots may prevent a proper analysis because clotted blood usually will not move in

the vial. She also acknowledged that failure to invert the blood vials properly may

cause clotting. But Mayor testified that she was not concerned that the clots in

Jannah’s sample affected the accuracy of the analysis because they were small.

Jannah’s counsel asked Mayor whether she homogenized the blood sample

because of the clots, and she acknowledged that she did not.

      Additionally, on cross-examination, Mayor testified that analysts use a

pipette to pick up samples of blood when testing BAC levels. Mayor testified that

one person in the lab is usually responsible for inspecting pipettes.            The

performance verification form for the pipette used to test Jannah’s blood on May

15 contained the words “not in use,” which were scratched out. But the form also

contained a handwritten notation that the pipette had been in use since December

28, 2012. On June 25, 2013, over a month after Jannah’s blood was tested on May

15, the pipette that Mayor used in testing Jannah’s blood failed an external test and

was taken out of use.


                                         5
      The trial court questioned Mayor about the pipette’s failure.          Mayor

explained that there were controls in place on May 15 that would have shown if

any equipment was malfunctioning.        She testified that “if a pipette was not

working properly at that time [of test], then we would see that in our controls as

well.” Mayor testified that she knew the pipette worked properly on May 15

because the “blood controls were within the specified range.”

      On cross-examination, Jannah’s counsel also offered evidence of a lab audit

report dated October 3, 2013. It showed that between September 20 and 27, 2013,

two of the lab’s six randomly-selected case files contained information that related

to a different file. Jannah’s counsel argued that this evidence showed that “in

general the lab has made mistakes” and therefore there may have been an error in

Jannah’s case.

      The trial court ruled that the May 2 test results were unreliable and that the

State could not mention them to the jury, but that the State met its “threshold

burden of proof in establishing the reliability of the testing that was done on May

15, 2013.”

      During trial, Mayor testified before the jury that the May 15 test result was

reliable because the two samples’ BAC levels were within five percent of each

other. When the State offered Mayor’s report showing the results of Jannah’s

BAC, Jannah renewed his objection that the blood test results were unreliable and


                                         6
therefore inadmissible. The trial court overruled his objection and admitted the

report. Mayor testified that Jannah’s blood was drawn at 6:03 a.m. and his BAC

was .117, as indicated in the report. She also testified that Jannah’s BAC would

have been between .14 and .21 at the time he was stopped.

                                     Discussion

      In two points of error, Jannah contends that the trial court erred in admitting

his blood test result and the search warrant for his blood draw.

A.    Standard of Review

      We review a trial court’s evidentiary rulings for an abuse of discretion. De

La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). We will not reverse

a trial court’s ruling on evidentiary matters unless the decision was outside the

zone of reasonable disagreement. Winegarner v. State, 235 S.W.3d 787, 790 (Tex.

Crim. App. 2007). If the trial court’s ruling can be justified on any theory of law

applicable to that ruling, the ruling will not be disturbed. De La Paz, 279 S.W.3d

at 344 (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982) (“When a

trial court’s ruling on the admission of evidence is correct, although giving a

wrong or insufficient reason, this Court will not reverse if the evidence is

admissible for any reason.”)).




                                          7
      1.     Blood test result

             (a) Applicable Law

      Under Texas Rule of Evidence 702, if a witness possesses scientific,

technical, or other specialized knowledge that will assist a fact-finder and is

qualified as an expert by knowledge, skill, experience, training, or education, then

that expert may offer expert opinion testimony. TEX. R. EVID. 702; Jensen v. State,

66 S.W.3d 528, 542 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). For

expert testimony to be admissible under this rule, the party offering the scientific

expert testimony must demonstrate, by clear and convincing evidence, that such

testimony “is sufficiently reliable and relevant to help the jury in reaching accurate

results.” Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (quoting

Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992)).

      Typically, in order for scientific evidence to be considered sufficiently

reliable as to be of help to a jury, the evidence must satisfy three criteria: “(1) the

underlying scientific theory must be valid; (2) the technique applying the theory

must be valid; and (3) the technique must have been properly applied on the

occasion in question.” Reynolds v. State, 204 S.W.3d 386, 390 (Tex. Crim. App.

2006) (citing Kelly, 824 S.W.2d at 573).         Headspace gas chromatography is

considered a reliable method for testing blood alcohol concentration levels and is

generally accepted in the scientific community.        See Bekendam v. State, 398


                                          8
S.W.3d 358, 363 (Tex. App.—Fort Worth 2013), aff’d, 441 S.W.3d 295 (Tex.

Crim. App. 2014); Combs v. State, 6 S.W.3d 319, 322 (Tex. App.—Houston [14th

Dist.] 1999, no pet.) (“Texas and Federal courts have found the gas

chromatography test to be a reliable method for identifying compounds, and it has

been generally accept[ed] in the scientific community.”).

      Evidence of a person’s alcohol intake as shown by an analysis of a blood

sample is admissible when the sample is taken in accordance with statutory

requirements. TEX. TRANSP. CODE ANN. § 724.064 (West 2011), § 724.017(a)

(West Supp. 2014). “[T]he necessary predicate that the State must prove for

admission of such evidence is the use of properly compounded chemicals; the

existence of periodic supervision over the machine used; operation by one who

understands the scientific theory of the machine; and proof of the result of the test

by a witness or witnesses qualified to translate and interpret such results so as to

eliminate hearsay.” Garcia v. State, 112 S.W.3d 839, 848 (Tex. App.—Houston

[14th Dist.] 2003, no pet.). The State has the burden of proof to show by clear and

convincing evidence that the scientific evidence is reliable. Hernandez v. State,

116 S.W.3d 26, 30 (Tex. Crim. App. 2003).             We review the trial court’s

determination of whether these requirements are met under an abuse-of-discretion

standard. Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005); Morales

v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000). We will gauge an abuse of


                                         9
discretion by whether the trial court acted without reference to any guiding rules or

principles. Hernandez v. State, 53 S.W.3d 742, 747–48 (Tex. App.—Houston [1st

Dist.] 2001, pet. ref’d).

             (b) Analysis

      In his first point of error, Jannah contends that the trial court abused its

discretion in admitting his blood test result because the State failed to show that the

testing protocol was properly conducted.       Specifically, Jannah points to three

pieces of evidence that he contends rendered the result unreliable: (1) Mayor’s

testimony that Jannah’s blood sample contained blood clots and that blood clots

may be caused by the failure to properly invert the vials containing a blood sample,

(2) Mayor’s admission that she did not homogenize Jannah’s blood sample after

observing blood clots, and (3) evidence that the pipette used in analyzing Jannah’s

blood sample failed an external test a month after his blood was tested.

      Mayor testified that she analyzed Jannah’s blood sample using a technique

called head gas chromatography to determine the alcohol concentration in the

sample. She used a series of standards and controls to test the accuracy of the

procedure and instrument. Mayor explained that to ensure reliability when testing

a blood sample’s BAC levels, she runs two samples at a time and if the BAC levels

of both samples are within five percent of each other, the sample is considered

reliable. She also testified that when she tested Jannah’s blood on May 15, she ran


                                          10
two samples and determined that the discrepancy between the results of the two

tests was less than five percent. This indicated that the result was reliable. We

conclude that Mayor’s testimony supports the trial court’s ruling that the May 15

test result was reliable. See Reynolds, 204 S.W.3d at 391 (trial court satisfies gate-

keeping function to determine whether technique used in breath test was properly

applied “[a]s long as the operator knows the protocol involved in administering the

test and can testify that he followed it on the occasion in question . . .”).

      Jannah contends that the May 15 test result is unreliable because Mayor

failed to homogenize his blood sample after observing blood clots and the pipette

failed an external test approximately one month later. But Mayor explained that it

was unnecessary to homogenize the sample because the blood clots were too small

to affect the test. The possibility that blood clots may have affected the results

does not render the test result inadmissible where Mayor testified that she followed

protocol and the results met the applicable standards. See Morris v. State, 214

S.W.3d 159, 172–74 (Tex. App.—Beaumont 2007) (holding that possible

problem—inadequate separation of ethanol from the other materials—in blood test

sample did not render test result inadmissible where lab’s results were validated to

plus or minus ten percent variation), aff’d, 301 S.W.3d 281 (Tex. Crim. App.

2009). Likewise, Mayor testified that Jannah’s controls were within the proper

range on May 15 and that the controls would have indicated otherwise if the


                                           11
pipette had not been working properly on May 15. According to Mayor, the

standards and controls showed that the pipette operated within the specified

tolerances when analyzing Jannah’s blood sample. See id. at 175–77 (trial court

did not err in admitting blood test results because sufficient evidence to rationally

conclude test was properly performed where technologist who performed test

testified that he followed protocol and control testing showed machine tested

within “designed criteria”).

      Jannah also contends that the blood test result was unreliable because there

was evidence that the clots in his blood sample could have resulted from a failure

to invert the vials properly. Mayor acknowledged that blood clots can occur when

the blood vial is not properly inverted. But Balusek and Officer Swift, who

observed Balusek draw Jannah’s blood, both testified that Balusek properly

inverted the vials. The trial court rationally could have credited Balusek and

Swift’s testimony that the vial was properly inverted, and we give almost total

deference to the trial court’s determination of historical facts, especially those

based on evaluation of witness credibility or demeanor. See Gonzales v. State, 369

S.W.3d 851, 854 (Tex. Crim. App. 2012); see also State v. Garcia–Cantu, 253

S.W.3d 236, 241 (Tex. Crim. App. 2008) (when record is silent on reasons for

court’s ruling, or when there are no explicit fact findings, we imply necessary fact

findings that would support court’s ruling if evidence, viewed in light most


                                         12
favorable to ruling, supports those findings). Accordingly, we defer to the trial

court’s finding that the vials were properly inverted. See Brooks v. State, 323

S.W.3d 893, 917 (Tex. Crim. App. 2010) (reviewing court defers to fact finder’s

resolution of conflicting evidence unless that resolution is not rational in light of

burden of proof).

      Based on Mayor’s testimony, we conclude that the trial court could have

reasonably concluded that Mayor analyzed Jannah’s blood sample in accordance

with proper standards and controls. The trial court also could have reasonably

concluded that evidence of blood clots and that Mayor did not homogenize the

blood sample did not render the test unreliable. Because Mayor testified that

controls were in place to indicate whether any instruments were not working and

that she followed protocol in analyzing Jannah’s blood, we conclude that the trial

court did not abuse its discretion in concluding that the State showed by clear and

convincing evidence that Jannah’s blood test result was reliable and admissible.

See Stanley v. State, No. 14-11-00679-CR, 2012 WL 4848762, at *4 (Tex. App.—

Houston [14th Dist.] Oct. 9, 2012, no pet.) (mem. op., not designated for

publication) (trial court did not abuse its discretion in admitting evidence of blood

test where scientist who analyzed appellant’s blood testified that she followed

protocol in analyzing blood); Garcia v. State, 112 S.W.3d 839, 848–49 (Tex.

App.—Houston [14th Dist.] 2003, no pet.) (blood test result reliable and properly


                                         13
admitted where evidence showed nurse followed protocol in extracting and storing

blood, toxicologist followed proper lab procedures, and gas chromatograph

performed properly and was checked regularly to ensure accurate calibration).

      We overrule Jannah’s first point of error.

      2.     Search warrant

      In his second point of error, Jannah contends that the trial court erred in

admitting into evidence the search warrant authorizing his blood draw. The State

correctly notes that the affidavit supporting the warrant was not admitted into

evidence and argues that the warrant itself was admissible because it was not

hearsay. We need not decide whether the warrant’s admission was error, because

error in admitting it, if any, would not warrant reversal.

      Error in the admission of evidence is non-constitutional error and is,

therefore, subject to a harm analysis under Rule 44.2(b) of the Texas Rules of

Appellate Procedure. TEX. R. APP. P. 44.2(b); Potier v. State, 68 S.W.3d 657, 666

(Tex. Crim. App. 2002). Non-constitutional error must be disregarded unless it

affects the substantial rights of the defendant. TEX. R. APP. P. 44.2(b). Substantial

rights are not affected by the erroneous admission of evidence unless the error had

a substantial and injurious effect or influence in determining the jury’s verdict.

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). In determining

whether the jury’s verdict was adversely affected by the error, the appellate court


                                          14
must consider the entire record. Id. Additionally, an error in the admission of

evidence is harmless where the same evidence comes in elsewhere without

objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004).

      Here, Beaudion testified that a judge issued a warrant authorizing Jannah’s

blood draw before the blood was drawn. Jannah did not object. When the State

later offered the warrant into evidence, to corroborate Beaudion’s testimony,

Jannah did object. Because Beaudion’s testimony that the State obtained a warrant

was admitted and the challenged documentary evidence (the warrant itself) are

substantively the same, any error in admitting the warrant was harmless. See

Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (en banc) (improper

admission of evidence does not constitute reversible error and is properly deemed

harmless if same or similar facts are proved by other properly admitted evidence);

Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986) (en banc) (same);

see also Lowery v. State, No. 05-08-00899-CR, 2010 WL 610915, at *4 (Tex.

App.—Dallas Feb. 23, 2010, pet. ref’d) (not designated for publication) (admission

of search warrants was harmless where no supporting affidavits were admitted,

officer testified warrants were issued, State introduced warrants to corroborate

officer’s testimony, and State did not use information in warrants for truth of the

matter asserted).

      We overrule Jannah’s second point of error.


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                                   Conclusion

      We affirm the judgment of the trial court.



                                                Rebeca Huddle
                                                Justice

Panel consists of Justices Jennings, Higley, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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