Glenn David Dean v. The State of Texas--Appeal from 216th Judicial District Court of Bandera County

No. 04-97-00077-CR
Glenn David DEAN,
Appellant
v.
The STATE of Texas,
Appellee
From the 216th Judicial District Court, Bandera County, Texas
Trial Court No. 2925
Honorable Stephen B. Ables, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: September 23, 1998

AFFIRMED

Glenn Dean was convicted of driving while intoxicated (DWI) and was sentenced to five years imprisonment. On appeal, he complains the trial court erred in admitting certain evidence, including a blood test, intoxilyzer results, prior DWI convictions, and a witness's comment on Dean's right to remain silent. Dean also alleges the trial court erred by failing to hold a hearing on his motion for new trial. Finding no reversible error, we affirm.

Background

Dean was driving a pickup truck that collided head on with a car driven by Brenda Caldwell. He received a concussion and a separated shoulder while Caldwell received multiple internal injuries and brain damage. At trial, Dean recalled talking on his cellular phone prior to the accident but could not remember the accident. Caldwell also said she did not remember the accident. Several witnesses who arrived shortly after the accident said Dean smelled of alcohol. Dean was taken to the hospital, where his doctor ordered a test that indicated Dean's blood had 0.1825 grams of alcohol per 100 milliliters of serum.

Blood Test Result

Because Dean's blood test was taken at the order of his doctor and not a peace officer, the results were not automatically admissible. See Tex. Transp. Code Ann. 724.064 (Vernon 1998). In his second point of error, Dean contends the trial court erred by admitting his blood test result. Specifically, Dean alleges the evidence was not reliable under Rule 702 of the Texas Rules of Evidence regarding expert testimony. The State argues that Dean waived error by presenting rebuttal witnesses and that, alternatively, the trial court did not err. We agree the trial court did not err in admitting the test result.(1)

We review the trial court's decision to admit scientific expert testimony with the abuse of discretion standard. Waring v. Wommack, 945 S.W.2d 889, 892 (Tex. App.--Austin 1997, no pet.). In applying this standard, we decide whether the trial court's decision was made without reference to any guiding rules or principles, or whether the decision was arbitrary or unreasonable. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). We will not disturb the trial court's ruling as long as it was within a "zone of reasonable disagreement." Id. at 391 (op. on reh'g); Gottson v. State, 940 S.W.2d 181, 187 (Tex. App.--San Antonio 1996, pet. ref'd).

In admitting expert testimony under Rule 702, the trial court must "determine whether the scientific evidence is sufficiently reliable and relevant to help the jury in reaching accurate results." Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992); see also Hartman v. State, 946 S.W.2d 60, 62 (Tex. Crim. App. 1997) (applying this standard to all scientific evidence, whether novel or not). The burden of persuasion rests with the proponent of the evidence, and the standard of proof is clear and convincing. Kelly, 824 S.W.2d at 573.

This appeal raises the issue of reliability. To be considered reliable, evidence based on scientific theory 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. Id. The trial court may test reliability with the following non-exclusive list of factors: "(1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question." Id. The court should focus on the validity of the principles and methodology underlying the testimony, not the conclusions of the testimony. Waring, 945 S.W.2d at 893.

Dean filed a motion to suppress alleging the technique used to analyze his blood was unreliable. At the hearing on the motion to suppress, the State introduced the testimony of Linda Ball, the director of the laboratory at Southwest Texas Methodist Hospital, where Dean's blood was drawn and tested after the accident. Ball explained that her hospital tests the alcohol level in blood serum with a "Du Pont aca IV discrete clinical analyzer." Although she said the testing technique was an "enzyme acid" and "reliable," she admitted she was "not real familiar with the theory." She also said similar machines were widely used and had been used at her hospital for twenty years. Based on the maintenance records for the machine, Ball opined it was working on the day Dean's blood was tested. However, she could not say whether the correct testing technique was applied to Dean's test. Based on this testimony, the trial court overruled Dean's motion to suppress.

At trial, Ball again testified that the analyzer was working properly at the time of Dean's test, but she could not say whether his test was conducted correctly nor could she testify about the theory underlying the analyzer. She indicated Dean's serum alcohol content was 0.1825 per hundred milliliters. Sheryl Peyton, a forensic toxicologist for the Department of Public Safety, converted Ball's serum test result into a whole blood test result of 0.16. Based on the time of the accident and the time blood was drawn, she opined that Dean's blood alcohol concentration was greater than 0.10 at the time of the accident.(2)

Peyton also testified extensively about the analyzer, which she considered well-maintained. She indicated the analyzer's serum test was generally accepted in the scientific community as valid, and she considered it reliable based on published research studies and her own experience. She explained the scientific basis for the analyzer's operation, having read several technical bulletins about it. However, Peyton admitted she had never operated the Du Pont aca analyzer nor had she read its instruction manual. She could not say whether the analyzer's procedures were properly applied to Dean's test.

Jennifer Holmberg, a medical technologist, recalled administering the analyzer test on Dean's blood but could not remember the details. However, she discussed the general process used to test blood alcohol levels on the analyzer. In particular, she indicated she placed samples in the centrifuge for five to ten minutes and then immediately processed them in the analyzer. In response to cross-examination, she said she was not aware that the hospital required a ten-minute centrifuge nor that Du Pont recommended the sample sit fifteen to thirty minutes before centrifuging.

Two other witnesses testified about the analyzer during the defendant's case in chief. Catherine Renfro, a medical lab technician, testified about the different blood alcohol conversion methods and the necessity of following Du Pont's recommendations regarding blood samples. Dr. James Booker also testified about the necessity of following Du Pont's methods. In his opinion, Dean's test was neither valid nor generally accepted. Furthermore, he opined that the blood test result, including its conversion from a serum value to a whole blood value, had a potential rate of error of ten percent.

On appeal, the State contends Dean waived any error in the admission of his blood test result by proffering the testimony of Renfro and Booker. To the contrary, Dean's actions were permissible not only to fully develop the Kelly factors but also to properly rebut the credibility of the State's witnesses. See, e.g., Waring, 945 S.W.2d at 893; Barnes v. State, 839 S.W.2d 118, 125 (Tex. App.--Dallas 1992, pet. ref'd).

We hold there was clear and convincing evidence that (1) the theory underlying the Du Pont aca analyzer blood test is valid; (2) the technique applying the theory is valid; and (3) the technique was properly applied to Dean's test as evidenced by general procedures. See Massey v. State, 933 S.W.2d 141, 152-53 (Tex. Crim. App. 1996); Beck v. State, 651 S.W.2d 827, 829-30 (Tex. App.--Houston [1st Dist.] 1983, no pet.). The State was not required to prove, to a certainty, that the technique was properly applied in Dean's case because the accuracy of conclusions is challenged by cross-examination. See Waring, 945 S.W.2d at 893. Because the evidence was reliable, the trial court did not abuse its discretion in admitting it. We overrule Dean's second point of error.

Prior DWI Convictions

In his third and fourth points of error, Dean complains the trial court erred in admitting evidence of two prior DWI convictions when there was no independent link between Dean and the evidence. Although cast as an admissibility issue, Dean's complaint is actually a challenge to the sufficiency of the evidence. Although we agree with Dean the State's identification method was insufficient, error was cured by Dean's trial admissions.

Generally, prior convictions are admissible for enhancement purposes during the punishment phase of trial. Tex. Penal Code Ann. 12.46 (Vernon 1994). The DWI statute, however, includes a special enhancement provision that elevates an offense from a misdemeanor to a felony. Id. 49.09(b). Thus, prior DWI convictions are elements of the felony offense and are admissible during the guilt/innocence phase. Will v. State, 794 S.W.2d 948, 952-53 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd); cf. Rosales v. State, 867 S.W.2d 70, 72-74 (Tex. App.--El Paso 1993, no pet.) (distinguishing relevancy and sufficiency of the evidence).

Prior DWI convictions can be established by a variety of methods, including photographic and physical comparisons. Rosales, 867 S.W.2d at 72. Most frequently, the State introduces expert testimony identifying the defendant's fingerprints with those found in penitentiary records, which also include certified copies of judgments and sentences. Id. Regardless of the method, the prior convictions must be proven beyond a reasonable doubt and are reviewed on appeal for legal sufficiency of the evidence. Human v. State, 749 S.W.2d 832, 834 (Tex. Crim. App. 1988). In other words, we view the evidence in the light most favorable to the jury's verdict and ask whether any rational jury could have found, beyond a reasonable doubt, that the defendant was the same person as the one previously convicted. Yeager v. State, 737 S.W.2d 948, 952 (Tex. App.--Fort Worth 1987, no pet.).

In this case, the State introduced two judgments naming Dean as the defendant and indicating the date of the offense. The judgments contain trial court cause numbers but no fingerprints. For each judgment, the State also introduced a surety bail bond with Dean's name, a fingerprint, an offense date, and a case number. The case numbers do not match the cause numbers on the judgments, although the dates of the offenses match. Finally, the State's fingerprint expert testified that Dean's fingerprints appeared on the surety bonds.

Although the offense dates on the surety bonds matched the offense dates on the judgments, this information failed to prove beyond a reasonable doubt that Dean was placed on bond for the same offense for which he was allegedly convicted. See Griffin v. State, 866 S.W.2d 754, 756 (Tex. App.--Tyler 1993, no pet.). However, when Dean took the stand in his own defense, he admitted he was convicted of DWI twice before and was not contesting the judgments previously introduced. Dean's stipulation was sufficient to meet the State's burden of proof. See Garza v. State, 548 S.W.2d 55, 56-57 (Tex. Crim. App. 1977); see also McGlothlin v. State, 896 S.W.2d 183, 189 (Tex. Crim. App. 1995) (applying doctrine of curative admissibility to statements made in cross examination). Accordingly, we overrule Dean's third and fourth points of error.

Right to Remain Silent

In his fifth point of error, Dean argues the trial court erred during the punishment phase by overruling his objection to Brenda Caldwell's statement that Dean "took the Fifth" in a related civil case. The State maintains the remark was not a comment on Dean's right to remain silent. Alternatively, the State alleges Dean waived his complaint by taking the stand in his own defense. We agree with the State's arguments.(3)

During the guilt/innocense phase, Dean had asked Brenda Caldwell about the civil suit she had filed against him. During the punishment phase, the State returned to the subject:

Q. And you were in the hospital at the time the suit was filed; is that right?

A. Yes.

Q. Do you know how it got filed or the circumstances leading to that?

A. After I was asked the question the other day, I went home and I looked in my file and there's no date on my copy, but I received the answer, a copy of the answer to Mr. Dean's interrogatories where he took the Fifth and the date of that was July 21st.

(Emphasis added). The trial court overruled Dean's objection and declined to give a curative instruction.

A criminal defendant has a right to testify in his own behalf, but if he does not testify, his silence cannot be used against him. U.S. Const. Amend. V; Tex. Const. art. I, 10; Tex. Code Crim. Proc. Ann. 38.08 (Vernon 1979). To violate this right, the remark must be either manifestly intended, or of such a character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify. Patrick v. State, 906 S.W.2d 481, 490 (Tex. Crim. App. 1995). The comment must be more than an implied or indirect allusion to the defendant's silence. Id. at 490-91. We review the trial court's decision to admit or exclude the statement with the abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996).

The remark in this case was not manifestly intended nor was it a direct comment on Dean's failure to testify in another proceeding. Thus, it was not a violation of his right to remain silent in the criminal proceeding, and the trial court did not abuse its discretion in admitting the remark. Furthermore, by taking the stand in his own defense, Dean waived his right to remain silent. Brown v. State, 617 S.W.2d 234, 236 (Tex. Crim. App. 1981). Therefore, any error in admitting the statement would be harmless. Accordingly, we overrule Dean's fifth point of error.

Breath Tests

In his six and seventh points of error, Dean asserts the trial court erred during the punishment phase by admitting the intoxilyzer results from his prior DWI cases. More specifically, Dean complains the State failed to establish the proper predicate that (1) the intoxilyzer machine was functioning properly on the days in question; (2) the machines were periodically supervised by one understanding the scientific theory of the machines; or (3) the results were interpreted by a witness qualified to do so. See Harrell v. State, 725 S.W.2d 208, 209 (Tex. Crim. App. 1996). In rebuttal, the State argues that Dean's hearsay objection waived his complaint on appeal and, alternatively, that any error was harmless. We agree with the State that error, if any, was harmless because Dean admitted his prior convictions and received minimal punishment. See Tex. Penal Code Ann. 12.32(a) (stating range of punishment as 5 to 99 years); Clark v. State, 722 S.W.2d 14, 16 (Tex. App.--Houston [14th Dist.] 1986, no pet.) (discussing harmless error). We therefore overrule Dean's sixth and seventh points of error.

Motion for New Trial

In his first point of error, Dean complains the trial court erred by overruling his motion for new trial without a hearing. More specifically, Dean asserts we should abate the appeal for a hearing on his allegations of juror misconduct during the punishment phase of trial. In rebuttal, the State maintains that Dean's supporting affidavit did not raise sufficient grounds to warrant a hearing. We agree with the State.

We review the trial court's decision to conduct a hearing on the defendant's motion for new trial with the abuse of discretion standard. Oestrick v. State, 939 S.W.2d 232, 236 (Tex. App.--Austin 1997, pet. ref'd). A defendant is entitled to a hearing when the motion for new trial and supporting affidavit (1) raise matters that cannot be determined from the record; and (2) show that reasonable grounds exist for granting a new trial. Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994); Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). An allegation of juror misconduct satisfies the first requirement. Vera v. State, 868 S.W.2d 433, 435 (Tex. App.--San Antonio 1994, no pet.). In the context of juror misconduct, the second requirement must be shown with a juror's affidavit. See id.; Garcia v. State, 960 S.W.2d 329, 334 (Tex. App.--Corpus Christi 1997, no pet.). Another person may raise reasonable grounds for a new trial if the juror alleging misconduct refuses to do so. Harmon v. State, 889 S.W.2d 521, 525 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd). Mere unavailability of the juror does not justify the affidavit of another person. Id.

In his motion for new trial, Dean argued the jury improperly considered parole. Specifically, he alleged that juror Donna Henry changed her vote from two years imprisonment to five years because other jurors told her that Dean would have to receive a longer sentence to actually serve two years. Dean's motion was supported by an investigator's affidavit who interviewed Henry but was unable to obtain her affidavit because "no one appeared to be at her residence."

The investigator's affidavit does not contain a recitation that Henry refused to supply an affidavit. See Harmon, 889 S.W.2d at 525 (citing Smith v. State, 437 S.W.2d 835, 839 (Tex. Crim. App. 1969)). Therefore, it did not provide the trial court with reasonable grounds for granting a new trial. Accordingly, the trial court did not abuse its discretion in denying Dean's motion for new trial without first holding an evidentiary hearing. We therefore overrule Dean's first point of error.

Conclusion

We affirm the trial court's judgment.

PAUL W. GREEN,

JUSTICE

Do not publish

1. Although Kelly states the reliability of evidence "must be proven to the trial court, outside the presence of the jury, before the evidence may be admitted," 824 S.W.2d at 573, any error in the State's failure to establish the Kelly criteria outside the jury's presence is harmless. See Reid v. State, 964 S.W.2d 723, 728 (Tex. App.--Amarillo 1998, pet. ref'd); Brown v. State, 881 S.W.2d 582, 588 (Tex. App--Corpus Christi 1994, no pet.).

2. The conversion correlated the test result with the statutory definition of intoxication. See Tex. Penal Code Ann. 49.01(2) (Vernon 1994) (defining "intoxication" as "having an alcohol concentration of 0.10 or more" or mental/physical impairment); see also id. 49.01(1) (defining "alcohol concentration" on the basis of whole blood).

3. We disagree with the State's suggestion that Dean waived error on appeal by not objecting to the statement in the trial court. Dean objected that the "Fifth Amendment cannot be used against him in a court of law." This statement is sufficient to preserve error, especially in light of the trial court's remark that Dean "ha[d] taken the stand."

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