Court of Appeals For The First District of Texas

Case Number: 01-15-00182-CR

Judge: Rebeca A. Huddle

Court: In The Court of Appeals For The First District of Texas

Plaintiff's Attorney:

The Honorable Kim K Ogg
Jessica Akins

Defendant's Attorney:

Matthew DeLuca

Description: The State introduced testimony at trial from the arresting officer, Deputy T.
Gossett. At approximately 7:40 a.m., the Toll Road Dispatch received a call
reporting that a black SUV traveling northbound struck a wall while crossing the
toll bridge over the Ship Channel and continued driving. Deputy Gossett was
already at a nearby toll plaza. According to Deputy Gossett, dispatch informed
him that the vehicle had stopped at the toll plaza, and at that point, he observed a
black SUV leaving the toll plaza. Deputy Gossett began following the black
SUV—Ashby’s SUV—with his dash cam recording. Gossett testified that he
observed the vehicle weaving within the lanes, crossing the shoulder line, and
nearly striking a concrete barrier.
Deputy Gossett initiated a traffic stop, and the driver identified himself as
David Ashby. Deputy Gossett testified that Ashby wore a soiled gray sweater, and
Gossett believed the sweater was likely soiled by vomit. Deputy Gossett testified
that he believed he smelled an odor of alcohol on Ashby. He noted that Ashby’s
eyes appeared glassy. As Ashby tried to get his driver’s license out of his wallet,


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Deputy Gossett noted that Ashby’s movements were slow and deliberate.
Suspecting that Ashby was intoxicated, Deputy Gossett asked him to step out of
the vehicle. In response to Deputy Gossett’s questioning, Ashby explained that he
had not eaten since the previous day and had been awake all night. Ashby denied
drinking alcohol prior to driving, and Deputy Gossett did not find any alcoholic
containers in Ashby’s vehicle.
Deputy Gossett proceeded to administer three standardized field sobriety
tests: Horizontal Gaze Nystagmus (“HGN”), Walk and Turn, and One-Legged
Stand. Deputy Gossett explained at trial that in administering the HGN test, he
looks for a jerking motion of the eye, which, if present, indicates the presence of “a
central nervous system depressant-type drug, alcohol, or brain stem injury.”
Deputy Gossett repeatedly attempted to administer the HGN test, but was unable to
complete the test because Ashby was unable to focus on the focal stimulus.
Overall, he noted that Ashby was unsteady and appeared to sway during the HGN
test.
Next, Deputy Gossett administered the Walk and Turn and One-Legged
Stand tests. Both tests are “divided attention tests,” meaning that they are designed
to test whether an individual is capable of physically performing an action while
also having to think about it. Deputy Gossett testified that Ashby performed
poorly on the Walk and Turn test and was unable to follow the instructions—he


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failed to respond to instructions to walk or stop walking and to put his arms by his
side.
Deputy Gossett testified that, before administering the One-Legged Stand
test, he both provided instructions and demonstrated the test. He explained at trial
that he looks for four clues during the One-Legged Stand test: returning a foot to
the ground; swaying; using arms for balance; and hopping to maintain balance.
Deputy Gossett testified that he observed three clues as Ashby attempted the test:
returning a foot to the ground, swaying, and using arms for balance.
Deputy Gossett acknowledged that sleep deprivation could affect an
individual’s performance on each of these tests and that the tests were not
administered on a flat surface, which is ideal. Nevertheless, based on Ashby’s
slow, deliberate movements, his poor performance on the field sobriety tests, and
his inability to follow instructions, Deputy Gossett determined that Ashby did not
have his normal mental and physical faculties, and he placed Ashby under arrest
for driving while intoxicated. Deputy Gossett testified that he suspected Ashby
was intoxicated due to alcohol consumption.
Deputy Gossett asked Ashby to submit to a blood sample, and Ashby
agreed. A voluntary blood sample was collected at Bayshore Medical Center, and
Deputy Gossett personally delivered the blood sample to the Medical Examiner’s
Office. Analysis of the blood sample showed the presence of


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Trifluoromethylphenylpiperazine (“TFMPP”), a controlled substance. TEX.
HEALTH & SAFETY CODE § 481.103(a)(1).
Ashby objected to the admission of the State’s blood analysis. The trial
court proceeded to hold a gatekeeper hearing outside the presence of the jury,
determined that the State’s blood analysis evidence was admissible, and ultimately
denied Ashby’s objection. Following that ruling and without an agreement as to
punishment, Ashby changed his plea to guilty, the jury was excused, and the trial
court sentenced Ashby to 180 days in the Harris County Jail, probated for one
year’s probation, and assessed a $1,000 fine.1
Reasonable Suspicion
In his first issue, Ashby contends that the trial court erred in denying his
motion to suppress evidence resulting from the traffic stop. Ashby argues that the
stop was not supported by reasonable suspicion because Deputy Gossett never
observed Ashby commit a traffic violation and the anonymous call to dispatch was
not sufficiently corroborated to justify the stop.
1 At the time of the plea, the trial court entered a certification that this was a pleabargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal. On September 1, 2016, we abated the appeal and issued an order suggesting to the trial court that the certification might be defective. The trial court then filed an amended certification indicating this was not a plea-bargain case, and the defendant has the right of appeal.


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A. Standard of Review
In reviewing a trial court’s ruling on a motion to suppress, we use a
bifurcated standard of review to evaluate the totality of the circumstances and
determine whether reasonable suspicion exists. Abney v. State, 394 S.W.3d 542,
547 (Tex. Crim. App. 2013). First, we must give “almost total deference to a trial
court’s determination of the historical facts that the record supports,” and second,
we review de novo the trial court’s application of the law to facts, which do not
turn on credibility and demeanor. Id. (citations omitted).
B. Applicable Law
If supported by reasonable suspicion, an officer may make a warrantless
traffic stop. Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014).
Reasonable suspicion exists if the officer has “specific articulable facts that, when
combined with rational inferences from those facts, would lead him to reasonably
suspect that a particular person has engaged or is (or soon will be) engaging in
criminal activity.” Abney, 394 S.W.3d at 548 (quoting Garcia v. State, 43 S.W.3d
527, 530 (Tex. Crim. App. 2001)). “The State does not have to establish with
absolute certainty that a crime occurred; it just has to carry its burden of proving
that, under the totality of the circumstances, the seizure was reasonable.” Id.


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C. Analysis
Assuming arguendo that Ashby preserved this issue for appellate review, we
conclude that the trial court reasonably determined that the traffic stop was
supported by reasonable suspicion. Deputy Gossett’s testimony at trial established
that he was dispatched following an anonymous report that someone driving a
black SUV struck a wall while traveling northbound on the toll bridge and
continued driving. Deputy Gossett was at the toll plaza when dispatch advised that
the black SUV in question was stopped at the toll plaza, and he observed a black
SUV leaving the northbound toll plaza. As he followed the black SUV, over a
short distance Deputy Gossett observed the driver weaving within lanes, nearly
striking a concrete barrier, and straddling lane lines. Deputy Gossett testified that
classic signs indicating a driver is intoxicated include weaving within a lane and
crossing over lane lines. Having observed classic signs of intoxication, Deputy
Gossett initiated the traffic stop.
The record thus shows that Deputy Gossett observed a black SUV like the
one that had been reported to dispatch upon his arrival at the toll plaza. But we
need not decide whether the anonymous dispatch report provided sufficient
justification for an investigatory stop because Deputy Gossett did not rely solely on
the anonymous report. Cf. Brother v. State, 166 S.W.3d 255, 258–60 (Tex. Crim.
App. 2005) (stop based on facts relayed by citizen caller sufficiently corroborated


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to justify stop because caller gave detailed description of defendant’s car and
location, remained in contact throughout incident, and assisted officer in
identifying suspect vehicle); Pipkin v. State, 114 S.W.3d 649, 654–56 (Tex.
App.—Fort Worth 2003, no pet.) (stop based on facts relayed to law enforcement
by citizen caller sufficiently corroborated to justify stop because caller was
disinterested but accountable private citizen who provided detailed description).
Rather, Deputy Gossett testified that he personally observed erratic driving
characteristic of intoxication. This is sufficient to create reasonable suspicion to
justify the stop despite the fact that Deputy Gossett did not testify that he observed
Ashby commit a particular traffic violation. See, e.g., State v. Alderete, 314
S.W.3d 469, 473 (Tex. App.—El Paso 2010, pet. ref’d) (“[T]here is no requirement
that a traffic regulation must be violated in order for an officer to have sufficient
reasonable suspicion to justify a stop of a vehicle.”); James v. State, 102 S.W.3d
162, 172 (Tex. App.—Fort Worth 2003, pet. ref’d) (“Erratic or unsafe driving may
furnish a sufficient basis for a reasonable suspicion that the driver is intoxicated
even absent evidence of violation of a specific traffic law.”). Based on Deputy
Gossett’s testimony that he observed Ashby’s erratic driving—which is supported
by his dash cam video—the trial court reasonably determined that Deputy Gossett
had reasonable suspicion to believe that Ashby may have been intoxicated. See
Martinez v. State, 29 S.W.3d 609, 611–12 (Tex. App.—Houston [1st Dist.], pet.


9

ref’d) (officer lawfully initiated traffic stop based on defendant’s failure to
maintain single lane of traffic after observing defendant’s car swerve onto
shoulder).
Accordingly, we overrule Ashby’s first issue.
TFMPP Evidence
In his second issue, Ashby contends that the trial court erred in allowing the
State to introduce evidence that the drug TFMPP was present in his blood sample
because the State failed to show that such evidence was relevant and reliable,
rendering it inadmissible under Texas Rules of Evidence 702 and 403.
A. Standard of Review
Absent an abuse of discretion, a trial court’s decision to admit scientific
testimony should not be overturned. DeLarue v. State, 102 S.W.3d 388, 395 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref’d) (first citing Wyatt v. State, 23 S.W.3d
18, 27 (Tex. Crim. App. 2000); then citing Morales v. State, 32 S.W.3d 862, 865
(Tex. Crim. App. 2000)). We will uphold the trial court’s decision unless it lies
outside the zone of reasonable disagreement. Layton v. State, 280 S.W.3d 235, 240
(Tex. Crim. App. 2009).
B. Applicable Law
Under Texas law, a person commits the offense of Driving While
Intoxicated “if the person is intoxicated while operating a motor vehicle in a public


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place.” TEX. PENAL CODE § 49.04(a). “Intoxicated” is defined as “not having the
normal use of mental or physical faculties by reason of the introduction of alcohol,
a controlled substance, a drug, a dangerous drug, a combination of two or more of
those substances, or any other substance into the body.” TEX. PENAL CODE
§ 49.01(2)(A).
To obtain a conviction for driving while intoxicated, the State must establish
“a temporal link between the defendant’s intoxication and his driving.” Kuciemba
v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). A conviction for driving
while intoxicated can be supported solely by circumstantial evidence. Id.; Weems
v. State, 328 S.W.3d 172, 177 (Tex. App.—Eastland 2010, no pet.). Whether
direct or circumstantial, there must be evidence from which a jury could conclude
that, at the time of driving, the defendant was intoxicated. Kuciemba, 310 S.W.3d
at 462; Weems, 328 S.W.3d at 177; Zavala v. State, 89 S.W.3d 134, 139 (Tex.
App.—Corpus Christi 2002, no pet.).
Generally, all relevant evidence is admissible. TEX. R. EVID. 402. Relevant
evidence is that which has any tendency to make the existence of any
consequential fact more or less probable than it would be without the evidence.
TEX. R. EVID. 401(a). In determining relevance, courts must examine the purpose
for which particular evidence is being introduced. Layton, 280 S.W.3d at 240. “It


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is critical that there is a direct or logical connection between the actual evidence
and the proposition sought to be proved.” Id.
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise. TEX. R. EVID. 702; see also
Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579, 590–93, 113 S. Ct. 2786,
2795–96 (1993); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001).
Before admitting expert testimony, a trial court must determine that (1) the witness
qualifies as an expert by reason of his knowledge, skill, experience, training, or
education; (2) the subject matter of the testimony is an appropriate one for expert
testimony; and (3) admitting the expert testimony will actually assist the fact-finder
in deciding the case. Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App.
2006). Thus, the trial court must determine that the expert is qualified to testify
and the proffered testimony is reliable and relevant. Vela v. State, 209 S.W.3d
128, 131 (Tex. Crim. App. 2006).
The Court of Criminal Appeals set forth the test for assessing the reliability
of expert testimony concerning “hard sciences” in Kelly v. State, 824 S.W.2d 568
(Tex. Crim. App. 1992). To be considered reliable under Kelly, evidence derived
from a scientific theory must satisfy three criteria: (a) the underlying scientific


12

theory must be valid; (b) the technique applying the theory must be valid; and
(c) the technique must have been properly applied on the occasion in question. Id.
at 573.
C. Testimony adduced concerning TFMPP
During trial, Ashby objected to the admission of and moved to suppress the
State’s evidence showing the presence of TFMPP in Ashby’s blood sample and
requested a Kelly hearing to determine the reliability and relevance of such
evidence. The trial court proceeded to hear expert testimony outside the presence
of the jury from Doctors Chen, Walterscheid, and Valentine concerning the State’s
TFMPP evidence.
Dr. Michael Chen, a toxicologist with the Harris County Institute of Forensic
Science, analyzed Ashby’s blood sample. Dr. Chen testified during the Kelly
hearing that the method he employed has been subjected to peer review, recently
published in the Journal of Applied Toxicology, and is generally accepted in the
relevant scientific community. He testified that he followed the accepted protocol
in analyzing Ashby’s blood and concluded that Ashby’s blood tested positive for
TFMPP. Dr. Chen did not attempt to quantify the amount of TFMPP present in the
sample.
Dr. Walterscheid, Co-Director of Toxicology at the Harris County Institute
of Forensic Science, explained that TFMPP is a relatively new designer drug which


13

has not yet been studied in humans. He explained that the drug can produce a
psychedelic-like euphoria and has similar properties to cocaine, methamphetamine,
and ecstasy. Dr. Walterscheid explained that outward signs of intoxication vary,
but that stimulants like TFMPP usually cause excitability, and then later,
drowsiness. Dr. Walterscheid explained that it would have been possible to
quantify the amount of TFMPP is Ashby’s blood sample, but questioned the value
of doing so:
We could quantitate it. We have standards to do so, but it’s a lot of extra effort for whatever reason—you know, if it was 17, or 70 or 7,000, what difference does it make? Nobody knows exactly what’s the fatal amount or toxic amount. We know that it has these properties. We know you shouldn’t have it at all. So, it’s just better to distinguish present or none detected.

Dr. Walterscheid also testified that—even if TFMPP in Ashby’s system had been
quantified—he would be unable to reliably extrapolate whether TFMPP was
psychoactive at the time of Ashby’s arrest given the lack of scientific knowledge
regarding TFMPP’s effects. However, Dr. Walterscheid testified that the results of
Ashby’s blood analysis showed the presence of both parent cocaine and the
metabolite, suggesting recency of TFMPP use. Based on the half-life of cocaine,
Dr. Walterscheid opined that the presence of parent cocaine in Ashby’s blood
sample suggested that he would have ingested TFMPP near the time of the stop.
Defense expert, Dr. Valentine, also testified concerning TFMPP. Dr.
Valentine explained that there are very few studies on TFMPP and that there is


14

little scientific knowledge concerning the absorption, distribution, and secretion of
TFMPP in humans. Dr. Valentine testified that without quantifying the level of
TFMPP in Ashby’s blood, it would not be possible to render an opinion as to time
of ingestion or as to whether the TFMPP was affecting Ashby at the relevant time.
After watching the video of Ashby driving and performing field sobriety tests, Dr.
Valentine opined that Ashby appeared intoxicated by alcohol, and not by a
sympathomimetic drug like TFMPP.
After hearing evidence and argument, the trial court concluded that evidence
of the presence of TFMPP in Ashby’s blood sample was sufficiently relevant and
reliable under Rule 702 and that the prejudicial value of the evidence was not
substantially outweighed by its probative value.
D. Analysis
To be deemed reliable under Kelly, evidence derived from a scientific theory
must meet the following three criteria: (a) the underlying scientific theory must be
valid; (b) the technique applying the theory must be valid; and (c) the technique
must have been properly applied on the occasion in question. Kelly, 824 S.W.2d at
573. Here, Dr. Chen explained the underlying scientific theory relied upon to
determine whether TFMPP was present or absent in Ashby’s blood sample. He
offered a detailed abstract explanation of the scientific process used for analyzing
the presence or absence of TFMPP in a blood sample. Dr. Chen testified that this


15

technique for blood testing is generally accepted in the scientific community. He
further informed the court that the process has been subject to peer review and
recently published in the Journal of Applied Toxicology. Asked whether he had
followed that same protocol in this instance, Dr. Chen asserted that he followed
protocol. This testimony was sufficient to establish the reliability of Dr. Chen’s
blood analysis and his conclusion that TFMPP was present in Ashby’s blood under
Kelly. See Bekendam v. State, 441 S.W.3d 295, 302–04 (Tex. Crim. App. 2014).
We further conclude that this evidence was relevant to the question of
whether Ashby was intoxicated at the time of his arrest. While reliability concerns
the scientific basis for the expert testimony, relevance concerns the “fit” of
proffered evidence or testimony to the case. Jordan v. State, 928 S.W.2d 550, 555
(Tex. Crim. App. 1996). Whether evidence is relevant depends on whether there is
a logical connection between the evidence offered and the proposition sought to be
proved by that evidence. Layton, 280 S.W.3d at 240. Here, Ashby’s arguments
concerning relevance collectively challenge whether evidence showing the
presence of TFMPP in his bloodstream would assist the trier of fact in
understanding the evidence and in making a factual determination regarding
whether he was intoxicated where we know little of the pharmacokinetics of
TFMPP and where the specific amount of TFMPP in his bloodstream is unknown.


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In resolving that challenge, we begin by identifying the proposition sought
to be proved by the State’s TFMPP evidence: here, TFMPP evidence was offered
to show that Ashby’s condition at the time of his arrest was caused by the
introduction of some substance or combination of substances into his body. The
presence of TFMPP in Ashby’s blood has a tendency to make it more probable that
Ashby did not have the normal use of his mental or physical faculties by reason of
the introduction of a controlled substance, or some combination of substances, into
his body. See TEX. R. EVID. 402; TEX. PENAL CODE §§ 19.01(2)(A), 19.04(a). The
failure to quantify the amount of TFMPP in this instance concerns the weight and
sufficiency of the scientific evidence, but not its relevance and admissibility.
Ashby cites Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009) for the
proposition that “without evidence [of] the level of dosage, exact times of
ingestion, or the half-life of the drug in the human body, the usage of a particular
drug was not relevant to a person’s intoxication.” Id. at 241–42. This overstates
the holding in Layton, which concerns only the relevance of evidence of use of a
particular drug when a defendant faces a DWI charge for consumption of alcohol.
See Layton, 280 S.W.3d at 241–42. Ashby was charged with driving while
intoxicated, but unlike in Layton, the charge was not limited to intoxication by
consumption of alcohol. In this case, evidence that TFMPP was present in
Ashby’s blood sample is relevant because it tends to make it more probable that he


17

was intoxicated by reason of introduction of a controlled substance or some
combination of substances. See TEX. R. EVID. 401; cf. Layton, 280 S.W.3d at 241–
42.
Appellant similarly relies on DeLarue v. State, 102 S.W.3d 388
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d), for the proposition that a
failure to extrapolate a controlled substance to the time of an event at issue can
render evidence showing mere presence of a substance inadmissible. Id. at 401. In
DeLarue, our sister court concluded that the admission of evidence of marijuana in
the defendant’s bloodstream to show intoxication without a Daubert-Kelly hearing
was error, because without proof of scientific reliability, the evidence was more
prejudicial than probative. Id. at 401–02 (“Because there was no Daubert-Kelly
hearing held to determine the reliability of the State’s marijuana evidence as it
related to appellant’s intoxication and resultant behavior, we find the trial court
erred in admitting this evidence.”). The court observed that though the State
elicited testimony showing the presence of marijuana in the defendant’s
bloodstream:
[N]o attempt was made to quantify the presence; no attempt was made to show when the marijuana was introduced into his system; no attempt was made to show appellant was “under the influence” of the marijuana at the time of the accident; and no attempt was made to show causation between appellant’s behavior and the presence of marijuana in his system.

Id. at 401.


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Appellant’s reliance on DeLarue is problematic for multiple reasons. First
and foremost, here, the trial court did what the trial court in DeLarue failed to do:
the trial court held a Daubert-Kelly hearing to determine the reliability of the
State’s TFMPP evidence. Though no attempt was made to quantify the presence
of TFMPP in Ashby’s blood sample and no attempt was made to show when the
TFMPP was introduced into his system, the State did attempt to show Ashby was
under the influence of TFMPP at the time of the traffic stop. Cf. id. at 401. Dr.
Walterscheid opined that the presence of parent cocaine in Ashby’s sample
suggested recency of use. He testified to the effects of TFMPP, which include the
known aftereffect of drowsiness. Coupled with video evidence of the arrest and
testimony of the arresting officer, the State attempted to establish a logical
connection between Ashby’s condition at the time of his arrest and the presence of
an unquantified amount of TFMPP in his blood sample. Thus, the trial court
reasonably could have found the presence of TFMPP in Ashby’s blood sample
probative. Cf. id. at 401–02.
Secondly, DeLarue does not categorically require the quantification of a
controlled substance in a defendant’s bloodstream in order to prove intoxication.
The DeLarue court did note that evidence can be rendered inadmissible by a
“failure to extrapolate the presence of a controlled substance back to the time of an
accident—because such failure can render the evidence insufficient under a Rule


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403 analysis.” Id. at 401 (citing Manning v. State, 84 S.W.3d 15, 22 (Tex. App.—
Texarkana 2002), rev’d, 114 S.W.3d 922 (Tex. Crim. App. 2003)). However, the
case supporting that proposition—Manning, 84 S.W.3d at 22—was subsequently
reversed by the Court of Criminal Appeals, which cautioned against confusing
sufficiency with admissibility. See Manning, 114 S.W.3d at 927 (“The fact that
this evidence may not have been sufficient, by itself, to prove that Manning’s
actions were the result of his ingestion of cocaine does not detract from the fact
that the evidence of the metabolite was strong evidence that Manning had
consumed cocaine.”). Here, though evidence that an unquantified amount of
TFMPP was in Ashby’s bloodstream at the relevant time may not have been
sufficient, by itself, to prove that the observed loss of the normal use of his mental
and physical faculties resulted from ingesting TFMPP, it is nevertheless some
evidence that Ashby consumed TFMPP. The failure to quantify TFMPP in
Ashby’s bloodstream lessens the inherent probative force of the evidence, but it
does not render it unreliable or irrelevant under Rule 702.
Ashby further complains that Dr. Walterscheid was not qualified to opine on
the effects of TFMPP because there had been limited human testing, he had no
knowledge of its absorption and elimination rates, and he could not extrapolate
time of ingestion. Each of these complaints arises not because Dr. Walterscheid is
not qualified to offer an opinion concerning the presence or absence of TFMPP,


20

but because there is a dearth of scientific knowledge concerning the
pharmacokinetics of TFMPP. Both parties’ experts agreed that no human studies
had been conducted on TFMPP, and as a result, that the absorption and elimination
rates for TFMPP are unknown. Thus, while both experts were able to testify as to
the general effects of TFMPP, neither could have testified as to the specific
pharmacokinetics of TFMPP. Expert scientific testimony is necessarily limited by
the reach of science, and Dr. Walterscheid appropriately did not purport to offer an
expert opinion that exceeded scientific knowledge.
Finally, Ashby relies on State v. Guzman, 439 S.W.3d 482 (Tex. App.—San
Antonio 2014, no pet.), to argue that Rule 702 requires the analyst who tests the
blood sample to be capable of offering testimony concerning the effects of the
drug. See id. at 488. In Guzman, the San Antonio Court of Appeals wrote: “our
case law is clear that with respect to blood tests, the expert who must satisfy the
criteria in any particular case is the analyst who tests the blood sample, not the
nurse who performs the blood draw.” Id. at 488–89 (first citing Mata v. State, 46
S.W.3d 902, 914–15 (Tex. Crim. App. 2001); then citing Adkins v. State, 418
S.W.3d 856, 862 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d); and Subirias
v. State, 278 S.W.3d 406, 410–11 (Tex. App.—San Antonio 2008, pet. ref’d)).
Unlike in Guzman, here, no testimony concerning the relevance and reliability of
scientific testing of the blood sample was solicited from the phlebotomist, who


21

performed the blood draw. Thus, Guzman is of limited value. Rather than relying
on testimony from the phlebotomist, in this case, the State relied on the testimony
of two scientists at the Harris County Institute of Forensic Scientists. Dr. Chen
testified about the process of analyzing Ashby’s blood, and Dr. Walterscheid
explained the significance of that analysis and its result. Neither Guzman nor the
cases relied upon by Guzman foreclose the use of two scientific experts involved in
the analysis of a blood sample from testifying concerning their respective parts of
the analysis.
For the foregoing reasons, we conclude that the trial court did not err in
allowing the State to introduce evidence of TFMPP in Ashby’s blood, and we
overrule Ashby’s second issue.

Outcome: