COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-152-CR
JOHNNY GASCA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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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.
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… 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
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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.
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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).
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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
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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
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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).
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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
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