Opinion issued January 7, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-01040-CR
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CHESTER DEAN BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Case No. 1364531
MEMORANDUM OPINION
A jury convicted appellant of intoxication assault with two prior felony
convictions, and the trial court assessed punishment at 35 years’ confinement. In
two points of error, appellant contends (1) the trial court erred by admitting
hearsay testimony by an expert toxicologist, who did not perform the toxicology
tests about which she testified, in violation of appellant’s rights under the
Confrontation Clause of the United States Constitution; and (2) appellant received
ineffective assistance of counsel at trial because counsel did not object to a
warrantless blood draw. We affirm.
BACKGROUND
On October 16, 2010, Darius Smith was driving northbound on Kuykendahl
in Houston, TX, and Anitra Hill was his passenger. He noticed two people—a man
and a woman—on a motorcycle in the lane to his right. As Smith approached a
green light at the intersection of Kuykendahl and Demontrond he noticed a white
Chevy Geo approaching from the southbound direction at a high rate of speed.
The white Geo, driven by appellant, sped up and made a wide turn in front of
Smith and the motorcycle. Smith swerved to avoid an impact, but his passenger,
Hill, saw the motorcycle collide with the side of appellant’s car. The motorcycle
driver, Glen Hosmer, fell off the motorcycle, but was eventually able to get up and
go check on his passenger, Debra Shannon. Shannon had been thrown from the
motorcycle, hit appellant’s car, and fell to the ground “like a rag doll,” landing face
down on the street. Smith called 911.
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Smith saw appellant sitting in his car after it stopped and noticed that “he
appeared to under the influence or alcohol.” His face was “really red,” he was
“sweating profusely,” and he was “ranting about that it wasn’t his fault.”
The first officer on the scene saw Shannon face-down on the road and
initially, he thought that she was dead. Based on the severity of her injuries, the
officer called the accident investigation division.
Deputy S. Sargent of the Harris County Sheriff’s Department responded to
the scene as part of the accident investigation division. When Sargent arrived,
appellant was in the back of an ambulance being prepared for transport to a
hospital. At first he did not notice any signs of intoxication, but Sargent then
noticed “red glassy eyes, slurred speech” and “could smell the odor of alcoholic
beverage coming from [appellant’s] breath.” Because appellant was on a back
board with a cervical collar, Sargent was able to perform only one field sobriety
test—the horizontal gaze nystagmus [HGN] test. Appellant exhibited all six
possible clues on the test.
Deputy Guttierrez also responded to the scene. He determined that appellant
did not have a protected green light when he attempted to turn in front of Smith
and Hosmer. Rather, appellant should have yielded to oncoming traffic before
attempting to make a left turn because Hosmer and Smith had the right-of-way.
There were also tire marks at the scene indicating that appellant had made a left
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turn at a higher rate of speed than normal. Guttierrez also concluded that, had
appellant not hit the motorcycle, he actually would have gone off the roadway.
There were also skid marks indicating that Hosmer had attempted to brake the
motorcycle before impact.
At the hospital, Sargent requested that appellant provide a blood sample and
read appellant a DIC-24 form to appellant in its entirety, which explained the
consequences of a voluntary blood sample. Appellant refused to consent to a
voluntary blood sample. Officer Sargent then determined that a mandatory blood
sample was permissible because the accident had involved a serious bodily injury
and appellant had failed the HGN field sobriety test. Accordingly, Sargent had one
of the nurses at the hospital take a sample of appellant’s blood.
Dr. F. Guale, of the Harris County Institute of Forensic Sciences [HCIFS],
testified that the test result showed a blood alcohol concentration of .08, plus the
presence of Nordiazepam and Tramadol, both of which would have had a
synergistic effect intensifying the effect of the alcohol. The State also admitted
certificates of analysis documenting these results, which were completed by four
employees under Dr. Guale’s supervision at HCIFS.
CONFRONTATION CLAUSE
In his first point of error, appellant contends that admission of Dr. Guale’s
testimony as to results in four certificates of analysis performed by other
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employees of HCIFS violated his right to confrontation under the Sixth
Amendment to the United States Constitution.
The Confrontation Clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. CONST. amend. VI. This procedural guarantee bars the admission of
testimonial statements of a witness who does not appear at trial unless the witness
is unavailable to testify and the defendant had a prior opportunity to cross-examine
the witness. Crawford v. Washington, 541 U.S. 36, 54, 124 S. Ct. 1354, 1365
(2004). Affidavits reporting the results of forensic analysis are testimonial
statements, and the analysts who performed the tests are witnesses for purposes of
the Sixth Amendment. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310, 129 S.
Ct. 2527, 2532 (2009); see also Deener v. State, 214 S.W.3d 522, 526 (Tex.
App.—Dallas 2006, pet. ref’d) (chain of custody affidavit and certificate of
analysis are testimonial for purposes of right to confrontation). Therefore, absent a
showing the analyst was unavailable to testify at trial and that the defendant had a
prior opportunity to cross-examine the analyst, a defendant is entitled to be
confronted with the analyst at trial. Melendez-Diaz, 557 U.S. at 311, 129 S. Ct. at
2532. However, a state may enact procedural rules in the form of notice-and-
demand statutes that “require the prosecution to provide notice to the defendant of
its intent to use an analyst’s report as evidence at trial, after which the defendant is
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given a period of time in which he may object to the admission of the evidence
absent the analyst’s appearance live at trial.” Melendez-Diaz, 557 U.S. at 326–27,
129 S. Ct. at 2541.
Texas’s notice-and-demand statute is contained in articles 38.41and 38.42 of
the code of criminal procedure. See TEX. CODE CRIM. PROC.
ANN. arts. 38.41, 38.42 (Vernon 2005). Certificates of analysis of physical
evidence and chain of custody affidavits are admissible without a witness
appearing at trial if they are filed and served on the opposing party more than
twenty days before trial begins and the opposing party does not file a written
objection by the tenth day before trial begins. TEX. CODE CRIM. PROC.
ANN. arts. 38.41 (certificate of analysis of physical evidence); 38.42 (chain of
custody affidavit). A defendant waives any objection under the Confrontation
Clause to the admissibility of the certificate of analysis or chain of custody
affidavit by failing to timely object under the statute. Deener, 214 S.W.3d at
528; see also Melendez-Diaz, 557 U.S. at 327, 129 S. Ct. at 2541 (“There is no
conceivable reason why [the defendant] cannot similarly be compelled to exercise
his Confrontation Clause rights before trial.”).
Here, the State filed the certificates of analysis more than twenty days before
trial began. TEX. CODE CRIM. PROC. ANN. art. 38.41, § 4, art. 38.42, § 4. Appellant
did not timely object to certificates, but instead raised his objection for the first
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time at trial. Accordingly, he waived any objection that the admission of the
certificates or the testimony about those certificates violated his confrontation
rights. Deener, 214 S.W.3d at 528.
We overrule appellant’s first point of error.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his second point of error, appellant contends that “defense counsel was
ineffective in failing to move to suppress or object at trial to the evidence arising
from the warrantless blood draw.” Specifically, appellant contends that the
mandatory blood draw in this case was invalid because appellant’s denial of
consent to a voluntary blood draw was invalid.
The United States Supreme Court has established a two-pronged test for
determining whether there was ineffective assistance of trial counsel. Strickland v.
Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984). To
prevail on a claim of ineffective assistance of counsel, a defendant must show that
(1) his counsel’s performance was deficient and (2) a reasonable probability exists
that the result of the proceeding would have been different but for counsel’s
deficient performance. Id.; Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim.
App. 2005).
The first prong of the Strickland test requires that the defendant show that
counsel’s performance fell below an objective standard of
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reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
The defendant must prove, therefore, by a preponderance of the evidence that trial
counsel’s representation objectively fell below professional standards. Mitchell v.
State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); see Strickland, 466 U.S. at 687,
104 S. Ct. at 2064 (“This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.”).
To understand appellant’s contention that counsel was ineffective, a brief
discussion of the background facts and applicable law is necessary. When Deputy
Sargent asked appellant to consent to a voluntary blood draw, he read a form DIC-
241 in its entirety to appellant. Appellant refused consent. Thereafter, the officer
determined that a mandatory blood draw was required pursuant to section 724.012
of the Transportation Code, which provides in pertinent part:
(b) A peace officer shall require the taking of a specimen of the
person’s breath or blood under any of the following circumstances if
the officer arrests the person for an offense under Chapter 49, Penal
Code, involving the operation of a motor vehicle or a watercraft and
the person refuses the officer’s request to submit to the taking of a
specimen voluntarily:
(1) the person was the operator of a motor vehicle . . . involved
in an accident that the officer reasonably believes occurred as a
result of the offense and, at the time of the arrest, the officer
reasonably believes that as a direct of the accident:
1
A form DIC-24 provides the information that, pursuant to statute, must be
provided by an officer before requesting a blood or breath specimen. See TEX.
TRANSP. CODE ANN. § 724.015 (Vernon Supp. 2013).
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(A) any individual has died or will die;
(B) an individual other than the person has suffered
serious bodily injury; or
(C) an individual other than the person has suffered
bodily injury and been transported to a hospital or other
medical facility for medical treatment[.]
TEX. TRANSP. CODE ANN. § 724.012(b)(1)(A-C) (Vernon 2011) (emphasis added). The
officer then drew appellant’s blood pursuant to the mandatory blood draw statute above.
Appellant argues that the mandatory blood draw was invalid because appellant did
not validly refuse a consensual blood draw. Appellant contends that the DIC-24 that was
read to appellant did not include one of the elements required by the statute. Specifically,
appellant argues that the DIC-24 did not include a warning that “if the person refuses to
submit to the taking of a specimen, the officer may apply for a warrant authorizing a
specimen to be taken from the person.” See TEX. TRANSP. CODE ANN. § 724.015(3)
(Vernon Supp. 2013). We disagree with appellant.
The section that appellant contends was left out of the DIC-24 warnings did not
become effective until September 1, 2011. 2 Appellant was arrested on October 16, 2010.
Counsel was not ineffective for failing to object to the absence of an element on the form
DIC-24 that was not required at the time of the arrest.
Accordingly, we overrule point of error two.
2
See Act of 2011, 82nd Leg., R.S., ch. 674, § 8 (effective Sept. 1, 2011).
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CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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