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Date: 06-25-2020

Case Style:


Case Number: 01-18-00390-CR

Judge: Julie Countiss

Court: Court of Appeals For The First District of Texas

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Court of Appeals
For The
First District of Texas

At the beginning of trial, the following exchange took place in the jury’s
[State]: Judge, before we call our first witness, by
stipulation and agreement, State moves to
admit State’s Exhibit 1 and State’s Exhibit 2,
which are the two jurisdictional
enhancements or priors that are required
showing [appellant’s] two previous DWI
[Appellant’s counsel]: No objection from the Defense.
THE COURT: All right. By stipulation, State’s Exhibit[s] 1
and 2 will be admitted.
(State’s Exhibit Nos. 1 and 2 admitted)
[State]: Okay. Thank you, Judge. May we publish to
the jury?
THE COURT: You may briefly.
[State]: Thank you. State’s Exhibit 1 is from Cause
No. 117783, State versus David Allyn Sweat.
The judgment was entered in November—on
November the 15th of 2001 and was—was
out of the County Court at Law No. 1 in
Brazoria County, Texas. State’s Exhibit 2 is
a judgment from Cause No. 180658, State
versus David Allyn Sweat. The judgment
was entered on May 25th, 2011, for—for the
offense of DWI out of Brazoria County,
Galveston County Sheriff’s Office Deputy J. Popovich testified that, in the
early morning hours of August 11, 2016, he was on patrol in Bacliff in Galveston
County, Texas when he noticed a truck traveling in the opposite direction at a high
rate of speed. After Popovich saw the driver run a stop sign, he turned around his
patrol car to follow the truck. The driver of the truck ran three more stop signs before
Popovich pulled the truck over.
Deputy Popovich approached the truck and encountered appellant in the
driver’s seat. Popovich smelled the strong odor of alcoholic beverage coming from
appellant and the truck’s interior. He asked appellant for his driver’s license and
proof of insurance. Appellant fumbled with his wallet; he slurred his words and
could not form a complete sentence. Popovich had trouble understanding appellant
and noticed that appellant was struggling to keep his head upright.
When Deputy Popovich asked appellant how many drinks he had that night,
appellant responded, “[t]oo much” and “a lot.” Appellant had trouble stepping out
of the truck, and he held onto the door with both hands to raise himself out of the
driver’s seat. Appellant refused to perform any field sobriety tests, explaining that
“he couldn’t pass.”
Based on his observations, Deputy Popovich arrested appellant for the offense
of DWI. He placed appellant in the back of his patrol car and read him the statutory
warnings required before taking a breath or blood sample. Appellant did not consent
to breath or blood testing, and Popovich secured a search warrant so that appellant’s
blood could be drawn.
During Deputy Popovich’s testimony, the trial court admitted into evidence a
copy of the “Search Warrant for Blood” obtained by Popovich. The warrant contains
an order that a “physician, registered nurse, qualified technician or medical
laboratory technician” take samples of blood from appellant “in the presence of a
law enforcement officer and deliver them to the said law enforcement officer.”
Deputy Popovich explained that he transported appellant to Mainland Medical
Center in Texas City, Texas and gave the search warrant to Andrea Martin, a
phlebotomist employed in the laboratory there. He observed the procedure that
Martin used to draw the blood sample from appellant. Popovich provided Martin
with the blood test kit for collection, which consisted of two vials for collecting
appellant’s blood, each containing anticoagulant powder to prevent the blood from
clotting. Popovich testified that Martin cleaned appellant’s arm with soap and water
before inserting the needle into the cleaned site and collected appellant’s blood in
the vials.
Rachel Aubel, a forensic scientist at the Texas Department of Public Safety
Crime Lab in Houston, testified that she analyzed appellant’s blood sample to
determine the blood-alcohol concentration (“BAC”). Aubel stated that appellant’s
BAC was 0.132 grams of alcohol per 100 milliliters of blood, which was about four
times the legal limit of 0.080 grams of alcohol per 100 milliliters of blood.
Sufficiency of the Evidence
In his first issue, appellant argues that the evidence is legally insufficient to
support his conviction because “the State failed to prove that appellant is the same
person identified” as having been convicted of the offense of DWI on “two previous
occasions” as required under Texas Penal Code section 49.09(b). See TEX. PENAL
CODE ANN. § 49.09(b)(2).
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process
safeguard, ensuring only the rationality of the trier of fact’s finding of the essential
elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d
866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the fact
finder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable
inferences from the facts. Williams, 235 S.W.3d at 750. However, our duty requires
us to “ensure that the evidence presented actually supports a conclusion that the
defendant committed” the criminal offense of which he is accused. Id.
A person commits the Class B misdemeanor offense of DWI if he operates a
motor vehicle in a public place while intoxicated. TEX. PENAL CODE ANN.
§ 49.04(a), (b). If the person has twice been previously convicted of the offense of
DWI, the third offense constitutes a third-degree felony. Id. § 49.09(b)(2). The State
bears the burden of proving that a defendant has twice been convicted of the offense
of DWI as a jurisdictional element of a third-degree felony offense of DWI. Ross v.
State, 192 S.W.3d 819, 821 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). This
showing requires proof that (1) two prior convictions exist and (2) the defendant is
linked to those convictions. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App.
Appellant argues that the evidence is legally insufficient to support his
conviction for the third-degree felony offense of DWI because State’s Exhibits 1 and
2, the certified records of two prior judgments of conviction, are linked to him by
name only and the State failed to adduce independent evidence showing that
appellant was the person convicted of those offenses. A certified copy of a judgment
of conviction alone seldom suffices to link a defendant to a prior conviction. Beck
v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986); Wilmer v. State, 463 S.W.3d
194, 197 (Tex. App.—Amarillo 2015, no pet.).
The State responds that appellant and the State stipulated to State’s Exhibits
1 and 2 as being appellant’s two prior convictions for the offense of DWI and, as a
result, appellant is precluded from challenging the sufficiency of the evidence on
this issue.
A stipulation constitutes a judicial admission, removing the need for proof of
the facts it addresses. Martin v. State, 200 S.W.3d 635, 639–41 (Tex. Crim. App.
2006); Bryant v. State, 187 S.W.3d 397, 402 (Tex. Crim. App. 2005). Unless a
stipulation accompanies a guilty plea, a party may stipulate to facts without creating
a writing or using specific words. See, e.g., Messer v. State, 729 S.W.2d 694, 699
(“Stipulations, oral or written, in criminal cases where the plea of guilty is entered
before the jury, do not have to comply with Article 1.15.”); Staggs v. State, 314
S.W.3d 155, 159 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (written judicial
confession required to support guilty plea tendered under Texas Code of Criminal
Procedure article 1.15). Because a stipulation is a type of judicial admission, it must
be a clear, deliberate, and unequivocal statement. See Spradlin v. State, 100 S.W.3d
372, 380 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
We consider whether a statement amounts to a judicial admission by
examining it in context. See Thomas v. State, 408 S.W.3d 877, 885–86 (Tex. Crim.
App. 2013). The Court of Criminal Appeals in Thomas, in considering whether a
statement of “no objection” forfeited an earlier-preserved error, explained that
whether it did or not
is context-dependent. By that we mean that an appellate court should
not focus exclusively on the statement itself, in isolation, but should
consider it in the context of the entirety of the record. If the record as
a whole plainly demonstrates that the defendant did not intend, nor did
the trial court construe, his “no objection” statement to constitute an
abandonment of a claim of error that he had earlier preserved for appeal,
then the appellate court should not regard the claim as “waived,” but
should resolve it on the merits. On the other hand, if from the record
as a whole the appellate court simply cannot tell whether an
abandonment was intended or understood, then, consistent with prior
case law, it should regard the “no objection” statement to be a waiver
of the earlier-preserved error. Under the latter circumstances, the
affirmative “no objection” statement will, by itself, serve as an
unequivocal indication that a waiver was both intended and understood.
Id. We follow Thomas here to determine whether appellant intended to stipulate to
his two prior convictions for the offense of DWI by responding with “no objection”
to the State’s description of State’s Exhibits 1 and 2 as “the two jurisdictional
enhancements . . . showing [appellant’s] two previous DWI convictions.”
Appellant posits that the trial court’s use of the term “by stipulation” refers to
an agreement about the admissibility of the exhibits, not his admission to the prior
convictions themselves. We reject this proposed interpretation as unreasonable
because it suggests that neither the trial court nor the attorneys involved understood
the meaning and import of “stipulation” as a legal term of art.
Appellant also points to the trial court’s charge to the jury, which contains the
following application paragraph:
[I]f you find from the evidence beyond a reasonable doubt that, prior to
the commission of the aforesaid offense by [appellant], on the 15th day
of November, AD., 2001 in cause number 117783, in the County Court
at Law No.1 of Brazoria County, Texas, [appellant] was convicted of
an offense relating to the operating of a motor vehicle while intoxicated
on the 25th day of May, AD., 2011, in cause number 180658 in the
County Court at Law No. 1 of Brazoria County, Texas, [appellant] was
convicted of an offense relating to the operating of a motor vehicle
while intoxicated; then you will find [appellant] guilty of the felony
offense of Driving While Intoxicated as alleged in the indictment.
This instruction asks the jury to make findings concerning the facts of appellant’s
prior offenses of DWI without requiring the jury to find that appellant, and not
another person, committed them. It does not support appellant’s position.

Moreover, under circumstances remarkably similar to those presented here,
the Eastland Court of Appeals held that a defendant “acquiesced in the State’s
representation that he stipulated to the identity issue in connection with the prior
conviction when neither he nor defense counsel corrected or objected to the [State’s]
statements.” See Corrales v. State, No. 11-13-00180-CR, 2015 WL 3938100, at *3
2 To avoid any potential misunderstanding, the parties should present the trial court
with a written stipulation, signed by a defendant and defense counsel, that contains
the information necessary to prove the defendant’s two prior convictions for the
offense of DWI. See Bryant v. State, 187 S.W.3d 397, 405 (Tex. Crim. App. 2005)
(Cochran, J., concurring). But the record here suffices to show that appellant
stipulated that the two prior convictions for the offense of DWI documented by
State’s Exhibits 1 and 2 belonged to him.
(Tex. App.—Eastland June 25, 2015, no pet.) (mem. op., not designated for
publication). Like the defendant in Corrales, appellant stipulated to his two prior
convictions for the offense of DWI and thus “waived his right to put the [State] to
its proof on that element.” Bryant, 187 S.W.3d at 402 & n.19 (internal quotations
omitted); see Corrales, 2015 WL 3938100 at *3.
Based on the foregoing, viewing all of the evidence in the light most favorable
to the jury’s verdict, we conclude that the evidence is sufficient for a rational fact
finder to have found beyond a reasonable doubt that appellant “is the same person
identified” as having been convicted of the offense of DWI on “two previous
occasions.” Thus, we hold that the evidence is legally sufficient to support
appellant’s conviction.
We overrule appellant’s first issue.
Motion to Suppress
In his second issue, appellant argues that the trial court erred in denying his
motion to suppress the evidence of his “blood draw” and BAC because no evidence
shows that Martin, the phlebotomist, had the qualifications, skills, and experience
necessary to perform the blood draw or that the procedure she used was reasonable.
We apply a bifurcated standard to review a trial court’s denial of a motion to
suppress evidence. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.
2013). We review the trial court’s factual findings for an abuse of discretion, but we
review the trial court’s application of the law to the facts de novo. Id. At a
suppression hearing, the trial court is the sole trier of fact and judge of a witness’s
credibility, and it may choose to believe or disbelieve all or any part of the witness’s
testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When, as here, a trial court does
not make explicit findings of fact, we review the evidence in a light most favorable
to the trial court’s ruling. Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App.
2000). We give almost total deference to a trial court’s implied findings, especially
those based on an evaluation of witness credibility or demeanor. Valtierra v. State,
310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We will sustain the trial court’s ruling
if it is reasonably supported by the record and is correct on any theory of law
applicable to the case. Id. at 447–48 & n.19.
The Fourth Amendment protects against unreasonable searches and seizures.
U.S. CONST. amend. IV; State v. Villarreal, 475 S.W.3d 784, 795 (Tex. Crim. App.
2015). A blood draw conducted at the direction of a law enforcement officer
constitutes a search and seizure under the Fourth Amendment. Schmerber v.
California, 384 U.S. 757, 767–68 (1966); State v. Johnston, 336 S.W.3d 649, 657–
58 (Tex. Crim. App. 2011); see U.S. CONST. amend. IV. In Schmerber, the United
States Supreme Court set forth a two-part analysis for determining the legality of a
blood draw: (1) whether the law enforcement officer was justified in requiring the
defendant to submit to a blood test and (2) whether the law enforcement officer
employed reasonable means and procedures in taking the defendant’s blood. 384
U.S. at 768; see also Johnston, 336 S.W.3d at 658. The Court of Criminal Appeals
has stated that “means and procedures” under the second prong contains two separate
inquiries: (1) whether the test chosen (the means) was reasonable and (2) whether
the test was performed in a reasonable manner. Johnston, 336 S.W.3d at 658.
Based on Schmerber and Johnston, then, a defendant seeking suppression of
a blood draw as an unreasonable search and seizure in violation of the Fourth
Amendment must prove that (1) a law enforcement officer was not justified in
requiring the defendant to submit to a blood test, (2) drawing the defendant’s blood
was an unreasonable method to determine the defendant’s intoxication level, or
(3) the procedure used for the blood draw was unreasonable. See Schmerber, 384
U.S. at 768; Johnston, 336 S.W.3d at 658. Appellant’s challenge to the
qualifications of Martin—the phlebotomist that performed the blood draw in this
case—implicates the third prong.
In his brief, appellant concedes that a qualified phlebotomist may satisfy
Fourth Amendment standard for the reasonableness of the procedure used to take the
defendant’s blood. He asserts, however, that the mere title of “phlebotomist” is not
enough to meet the State’s burden; the State also must provide additional proof of
the phlebotomist’s qualifications.3 But a defendant who alleges a Fourth
Amendment violation—not the State—has the burden of producing evidence that
rebuts the presumption of proper conduct by law enforcement officers. See State v.
Robinson, 334 S.W.3d 776, 778–79 (Tex. Crim. App. 2011).
Appellant has not challenged the search warrant’s validity, so the presumption
of proper law enforcement conduct applies. Here, Deputy Popovich secured a search
warrant so that appellant’s blood could be drawn, and a copy of the “Search Warrant
For Blood” was admitted into evidence. Because appellant did not produce evidence
that Martin—the phlebotomist who drew his blood—was not qualified, the State had
no burden to adduce additional proof on that issue. See id.; see also id. at 781
(Cochran, J., concurring) (explaining presumption of proper procedures and conduct
makes sense because person who draws blood in hospital, “in the vast majority of
cases,” is likely to be qualified to do so).
Deputy Popovich’s testimony further shows that the blood draw was
conducted in a reasonable manner. Nothing in the record suggests that Martin could
not perform the requirements of her job or that the blood draw procedure she used
3 A phlebotomist is “a person with special training in the practice of drawing blood.”
MOSBY’S MEDICAL DICTIONARY 1333 (6th ed. 2002); see also Krause v. State, 405
S.W.3d 82, 85 (Tex. Crim. App. 2013) (noting intermediate courts of appeals’
conclusion that phlebotomists are “qualified technicians” within meaning of Texas
Transportation Code section 724.017, which applies to mandatory blood draws in
absence of warrant).
did not comply with standard medical procedure or the accepted standard of care.
See Siddiq v. State, 502 S.W.3d 387, 401–02 (Tex. App.—Fort Worth 2016, no pet.).
Thus, we hold that the trial court did not err in denying appellant’s motion to
We overrule appellant’s second issue.

Outcome: We affirm the judgment of the trial court.

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