PD-0077-15
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 3/4/2015 5:23:00 PM Accepted 3/6/2015 2:48:48 PM ABEL ACOSTA
PD-0077-15 CLERK
TO THE COURT OF CRIMINAL APPEALS OF TEXAS OF THE STATE OF TEXAS
STEVEN COLE APPELLANT V. THE STATE OF TEXAS APPELLEE
Appeal from Gregg County
124111 District Court No. 41,312-A
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No. 06-13-00179-CR
Sixth Court of Appeals
2014 Tex.App.LEXIS 13498, 2014 WL 7183859
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REPLY TO STATE'S PETITION FOR DISCRETIONARY REVIEW ********
EBB B. MOBLEY
March 6, 2015 State Bar# 14238000 Attorney at Law
422 North Center Street-Lower Level P. 0. Box 2309
Longview, TX 75606
Telephone: 903-757-3331
Facsimile: 903-753-8289
ebbmob@ao l.com
ATTORNEY FOR APPELLANT
REPLY TO QUESTIONS ONE AND TWO The first two questions propounded by the State ask whether the implied consent and mandatory blood draw provisions of the Transportation Code provide an exception to the requirement for a search warrant. This issue has been answered by this Court in the negative in State v. Villarreal, PD-0306-14 (Tex.Crim.App. November 26,2014, pet. reh. granted).
REPLY TO QUESTION THREE
In State v. Villarreal, PD-0306-14, this Court held the Transportation Code does not create an exception to the warrant requirement to permit a warrantless taking of blood. The State offers no new arguments in its petition in this case to distinguish it from Villarreal. Respondent would contend this Court correctly decided Villarreal in light of Missouri v. McNeely, 133 S.Ct. 1552 (2013).
REPLY TO QUESTION FOUR
The concurring opinion in the case below at pp. 22-26 discusses in detail the proposition that the Texas Court of Criminal Appeals has previously rejected an effort to broaden the [Texas] good-faith exception using federal precedent ... Douds, 434 S.W.3d at 861-62 (citing Howard v. State, 617 S.W.2d 191 , 193 (Tex.Crim.App. 1979) (op. on reh'g) (declining to apply federal good-faith doctrine to Texas statutory good-faith exception). Since "the Texas good faith exception is more limited than the scope of its federal counterpart ... an officer's good faith reliance on the law or existing precedent is not recognized as an exception to the Texas exclusionary rule." State v. Jackson, 435 S.W.3d 819, 831 (Tex.App. - Eastland 2014, pet. granted) (citations omitted).
PD-0077-15
STATE OF TEXAS V. STEVEN COLE
APPENDIX TO APPELLANT'S REPLY TO STATE'S PETITION FOR DISCRETIONARY REVIEW
4 RR 6-28
Justin Schwane - July 31, 2013 Direct Examination by Ms. Hood
1 Welcome back, ladies and gentlemen. We're 2 ready to continue with trial at this time. 3 Ms . Brownlee, you may call your next witness. 4 MS . HOOD : The State calls Justin Schwane. 5 THE COURT: Justin Schwane. 6 (Witness enters courtroom) 7 THE COURT : Sir, if you'll raise your right 8 hand and receive the oath from the Clerk . 9 (The oath was administered by the Clerk) 10 THE COURT : Just have a seat right there in 11 the jury box [sic] and speak directly into the microphone . 12 You may proceed. 13 JUSTIN SCHWANE, 14 having been first duly sworn, testified as follows: 15 DIRECT EXAMINATION 16 BY MS. HOOD: 17 Q. Good morning . Can you state your name for the 18 record? 19 A. Justin Schwane, S - C-H-W - A- N-E. 20 Q. And how are y ou presently employed? 21 A. As a toxicology chemist at Dallas County 22 Southwestern Institute of Forensic Sciences . 23 Q. And what is a toxicologist? 24 A. A toxicologist is someone who studies toxins in the 25 human body . A forensic toxicologist is -- has an
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
7
Justin Schwane - July 31, 2013 Direct Examination by Ms . Hood
1 application to drug analysis, law enforcement and criminal 2 investigation. 3 Q. And how long have you been employed with SWIFS? 4 A. Over 10 years . 5 Q. And that's the abbreviation for -- 6 A. SWIFS, yes . S-W-I-F-S. 7 Q. And at the time of testing, was your lab accredited 8 by the Texas Department of Public Safety? 9 A. Yes. 10 Q. December 1st, 2011, into January 30th, 2012? 11 A. Yes . 12 Q. What are your duties at SWIFS? 13 A. There was the analytical services, records 14 management, overall laboratory management, instrument 15 maintenance, method development. There's the evidence 16 management . 17 Q. And have you ever testified before? 18 A. I have . 19 Q. Few or many 20 A. Many occasions. 21 Q. Many . And have you ever tested blood for the 22 purpose of determining if drugs or alcohol are in the blood? 23 A. Yes, I have. 24 Q. And would you say how many times, guesstimate -- 25 A. Many.
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
8
Justin Schwane - July 31, 2013 Direct Examination by Ms. Hood
1 Q. Many; hundreds, thousands? 2 A. Depending on the analysis, yes, thousands possibly. 3 Q. And can you tell us a little bit about your 4 educational background? 5 A. My highest level of education is a master's in 6 chemistry from the University of Oklahoma in Norman; also a 7 bachelor's in chemistry from Southwestern Oklahoma State 8 University in Weatherford, Oklahoma. I have completed our 9 facility's in-house training, some continuing education 10 courses. I belong to a professional organization, attend 11 scientific meetings annually, if I'm capable. 12 Q. And on January 30th, 2012, were you employed as a 13 toxicologist by SWIFS? 14 A. Yes, I was . 15 Q. Did you have an occasion to collect a sample of 16 blood from the SWIFS property room that was identified as 17 Steven Cole's? 18 A. I believe that I did take possession of some blood 19 for this case from our toxicology evidence storage area . 20 Q. When did you receive the blood? 21 A. I'd have to check my records. 22 Q. Okay. That's fine. 23 A. My records show that our facility received it on 24 the 4th of January, 2012. 25 Q. Okay. And when was it tested?
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
9
Justin Schwane - July 31, 2013 Direct Examination by Ms . Hood
1 A. The testing was anywhere from the 9th of January 2 through the 26th of January. 3 Q. Okay. We'll get to that in just a second. 4 I'm showing you what's been marked - - 5 actually it's already been admitted, excuse me, as State's 6 Exhibit 11 . Can you identify this? 7 A. Yes. 8 Q. You can how can you identify that? 9 A. There's our laboratory's unique identifier 10 barcode label is is on here . 11 Q. And does that have a certain number? 12 A. Yes . IFS - 12-00228. 13 Q. And does that number match your records number? 14 A. Yes. 15 Q. And it's the same number? 16 A. Yes, ma'am . 17 Q. Okay . When you received the blood, was it -- the 18 box, was it tampered with in any way? 19 A. Again, to check the chain of custody, it was 20 received in a sealed condition. 21 Q. Okay . And now I'm going to -- if you could open 22 this for us? 23 A. (Witness complies) . 24 Q. And this has previously been admitted also. This 25 is State's Exhibit 12. Do you recognize this?
Tina A . Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview , Texas 75601
10
Justin Schwane - July 31 , 2013 Direct Examination by Ms. Hood
1 A. Yes. 2 Q. How do you recognize that? 3 A. It's a gray-top blood vial, and again it also has 4 our laboratory's unique item identifier barcode label on it. 5 Q. And does the barcode match your numbers and in your 6 records? 7 A. Yes, it does. 8 Q. When you received this vial, was it sealed? 9 A. The vial itself I do not know, but it was sealed 10 within the cardboard box. 11 Q. Yes. That ' s -- that's what I meant, sealed within 12 the box. And did you open it, open the box? How does that 13 normally work when you receive 14 A. We have a centralized evidence registration area. 15 The evidence registration would have been carried out by our 16 evidence registrars. The blood vial itself would have been 17 put into one of our toxicology lab storage refrigerator 18 areas specific for DWI casework . And at that time it would 19 have been ready for analysis to be performed on it. So I 20 would have actually taken possession of the gray-top blood 21 vial itself. 22 Q. And State's Exhibit 12, is this -- this handwriting 23 here , is that -- is that yours; the actual numbers there? 24 Not the handwriting there. Are those your numbers? 25 A. Well, the printed barcode label?
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
11
Justin Schwane - July 31, 2013 Direct Examination by Ms. Hood
1 Q. Yes. Is there any other writing on there that's 2 yours? 3 A. Specifically me, no. 4 Q. From your from SWIFS? 5 A. No. That is no, not on this. I believe that 6 the evidence seal on the cardboard box does have one of our 7 evidence registrar's initials on it. 8 Q. Okay. Thank you. Can you walk us through the 9 start of your procedure from when you received the blood? 10 A. Once the blood is received, it will be the 11 evidence registration process will begin, where the 12 paperwork will be compared to the items of evidence 13 received. It will be opened. Each case will be given its 14 own unique identifier. All of the items of evidence within 15 that case will then be given subsequent sequential case 16 numbers underneath that case. It will be logged into our 17 computer system. The appropriate analysis request will be 18 made in the software, will be transferred from the registrar 19 into our toxicology evidence storage area. 20 And at that time it is then available for the 21 analysis -- analysis to be performed. And, using the
22 software, we can determine which cases, which specific case 23 numbers, need specific analysis. And so using the software,
24 I was able to, you know, pull the case number and go get the 25 evidence and start performing analysis on the blood evidence
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
12
Justin Schwane - July 31, 2013 Direct Examination by Ms. Hood
1 that was submitted. 2 Q. And is this normal procedure? 3 A. Yes, it is . 4 Q. What scientific process did you use to make a 5 determination if drugs were present in the blood? 6 A. The instrumentation that we employ most in our 7 laboratory is called gas chromatography. 8 Q. And was that machine or that -- was the machine 9 working properly? 10 A. It -- it was . 11 Q. And you followed normal procedure? 12 A. Yes, ma'am . 13 Q. In the course of your training and experience, have 14 you learned about physical effects of methamphetamine on the 15 human body? 16 A. I have read information and been instructed on its 17 effects in various courses and review articles that I've 18 read . 19 Q. Can you give us some examples of those? 20 A. Very low-dose concentrations of methamphetamine, 21 the effects can be very mild and intoxication almost 22 nonexistent, all the way to the extreme of binge use where 23 there can be violence and extreme paranoia and what appears 24 to be psychosis. 25 In between, there is appetite suppression,
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
13
Justin Schwane - July 31, 2013 Direct Examination by Ms. Hood
1 removal of fatigue symptoms . There's euphoric effect . 2 There - - 3 Q. And what is the euphoric effect? 4 A. That is -- the feel-good high aspect of a drug is 5 generally referred to as "euphoria" and "euphoric effect . " 6 And also a heightened there can be a heightened 7 self-opinion, an increased self-esteem from the drug. The 8 downside, there can be feelings of anxiety and stress. 9 Apparently there can be some introspective thoughts , you 10 know, regarding, you know, one's actions; how you've been, 11 how you've acted, which can be distracting in terms of 12 concentrating on divided attention tasks . And again, 13 extreme cases, there can be the psychosis and paranoia . 14 Q. Let me back up to the divided attention task. What 15 do you mean by those? Just simple examples of 16 A. Very common divided attention task is operating a 17 motor vehicle, where you're having to do multiple things at 18 once; pay attention to the roadway in front of you, mirrors 19 behind -- your side-view, rear-view mirrors, the cars behind 20 you, the car, perhaps individuals on a sidewalk, if you're 21 driving through town, stoplights, stop signs. All of these 22 different components of operating a motor vehicle are 23 divided attention tasks. 24 Q. So not being able to stop at a red light or failure 25 to go through an intersection
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
14
Justin Schwane - July 31, 2013 Direct Ex amination by Ms. Hood
1 A. One is distracted in terms of thinking about, you 2 know, introspective thoughts, you know, one might not notice 3 stop signs, pedestrians, changes in the roadway . 4 Q. What about loss of memory, not know where 5 someone -- where y ou are? Could that be a possible effect 6 of methamphetamine? 7 A. Possibly. You know, again, if one is distracted 8 and doesn't really realize due to their thought pattern, 9 thought process . 10 Q. And is methamphetamine a stimulant or depressant? 11 A. The on the up side of methamphetamine, it does 12 have the stimulant effect and can reduce fatigue and prevent 13 people from sleeping . However, on the down side, there can 14 be signs of what look like a depressant due to the loss of 15 neurotransmitter 16 Q. Let me stop you right there . When you said to -- 17 sleeping part. 18 A. Uh - huh. 19 Q. Could you repeat that? I'm sorry . 20 A. Well, on the up side, the drug can reduce one's 21 desire to sleep; however, when one is coming down from the 22 drug, especially after what is called "binge use," several 23 days of using methamphetamine, people can sleep for full 24 day s, perhaps a couple of days, as their body recovers from 25 the multiple - day use of methamphetamine.
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
15
Justin Schwane - July 31, 2013 Direct Examination by Ms. Hood
1 Q. So it would be fair to say that people would take 2 methamphetamine to stay awake? 3 A. That is a 4 Q. Could? 5 A. - - a use of it, yes . 6 Q. How quickly does the human body absorb 7 methamphetamine? 8 A. Absorption of methamphetamine is going to depend on 9 the route of administration. Oral administration would be 10 the slowest, meaning you take it by mouth. And it has to be 11 absorbed through the intestinal tract. Faster routes of 12 absorption include what's officially called insufflation, 13 that's snorting methamphetamine. You can also smoke 14 methamphetamine. And there's also the IV injection of 15 methamphetamine, which is one of the fastest routes of 16 administration . 17 Q. And can someone, after they've - - all of these 18 different ways could have ingested meth, could they appear 19 normal? 20 A. Depending on one's experience with the drug, the 21 dosing of the drug . A - - a low dose, therapeutic dosing, 22 yes, I believe a person could appear normal and, you know, 23 there would be no -- could be no outward signs of 24 intoxication at a low therapeutic dose. 25 Q. Okay . I'm showing you what's been marked as
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
16
Justin Schwane - July 31, 2013 Direct Examination by Ms. Hood
1 State's Exhibit 13 . Do you recognize this? 2 A. Yes. 3 Q. And how do you recognize it? 4 A. It is a copy of a report from our laboratory; in 5 particular, our toxicology section. 6 Q. And is this your report? 7 A. Yes. 8 Q. And how do you know? 9 A. My name is on it as the Primary Analyst . 10 Q. Is this the report from your analysis of Steven 11 Cole's blood? 12 A. It does have the -- our case number, the 12 - 00228 13 indicator on it. 14 Q. And does -- do those numbers, this IFS number, does 15 that match your records? 16 A. It does, yes. 17 Q. And is it normal to make a report when you do these 18 analyses? 19 A. At the end of the analysis, when everything is 20 complete, yes . 21 MS . HOOD: At this time the State offers 22 State's Exhibit 11 [sic] into evidence. 23 (State's 13 offered) 24 MR. HAGAN: Can I take the witness on voir 25 dire for a few minutes?
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
17
Justin Schwane - July 31 , 2013 Voir Dire Examination by Mr. Hagan
1 THE COURT : You may . 2 VOIR DIRE EXAMINATION 3 BY MR. HAGAN: 4 Q. Good morning, sir. My name is Rick Hagan, and, I'm 5 sorry, what was your name again? 6 A. Justin Schwane. 7 Q. Mr . Schwane? 8 A. Schwane. 9 Q. Okay. It's not doctor? 10 A. No, it's not. 11 Q. Okay . You say that SWIFS is accredited? 12 A. Yes, we are. 13 Q. What was the date of its accreditation? 14 A. The initial one was 2003; five years after that, 15 2008; and we recently went through our third accreditation 16 back in April . 17 Q. Do you have a copy of your certification with you? 18 A. No, I do not. 19 MR. HAGAN: Judge, we would object to his 20 testimony and report under Code of Criminal Procedure 21 Art i c 1 e 3 8 . 3 5 (d) ( 2 ) . 22 MS. HOOD: Your Honor, there's no reason for 23 Mr. Schwane to have brought that information. That's not 24 necessary for his testimony here. It does not disqualify 25 him has being an expert in this case.
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
18
Justin Schwane - July 31, 2013 Direct Examination by Ms. Hood
1 THE COURT: That will go to the weight, not 2 the admissibility of the evidence; therefore, the objection 3 is overruled . 4 MR . HAGAN: Thank you, Judge . 5 THE COURT: You may continue . And State's 6 Exhibit 11 is admitted into evidence . 7 MS. HOOD : It's 13, Your Honor . I believe I 8 said 11, I apologize . 9 (State's 13 admitted) 10 MS . HOOD: Pe r mission to publish? 11 THE COURT: You may . 12 DIRECT EXAMINATION {CONTINUED) 13 BY MS. HOOD: 14 Q. Are you able to see that? 15 A. Somewhat . 16 Q. Somewhat? 17 MR . HAGAN: Keep zooming. 18 Q. (By Ms. Hood) Just tell me when to stop . 19 A. I think I can read that from here . 20 Q. Okay. All right. I want to talk about your report 21 a little bit. We r e you able to quantify the drug -- the 22 level of the drug in Mr. Cole's blood? 23 A. Yes. There was detectable and quantitatable 24 amounts of some substances. 25 Q. Okay . And can you just kind of walk us through
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
19
Justin Schwane - July 31, 2013 Direct Examination by Ms . Hood
1 what this report is for the jury? 2 A. At the very top is our case number, the 3 IFS-12-00228. The submitting agency is the Longview Police 4 Department . After that, the offense that was on the 5 submission paperwork, the name of the defendant. The Agency 6 Case Number refers to case number information from Longview 7 Police Department. The Evidence Submitted is a description 8 of what we received; that of the cardboard box. And then 9 the blood tube evidence.
10 Q. And is that what we were looking at earlier, 11 Exhibits 11 and 12?
12 A. Yes. Then after that is a list of the analyses and 13 their results. 14 Q. And then, of course, that -- is that your signature
15 at the bottom there? 16 A. Yes. It is an electronic version of my signature 17 that the software puts on through a secure software
18 transaction. 19 Q. Okay. Let's focus on where it says "Blood," and
20 underneath the blood. What is that first "Acid/Neutral 21 Screen"? That came up as negative .
22 A. Acid/Neutral Screen is -- in terms of the 23 Acid/Neutral as well as the Alkaline, those are descriptions 24 of the pH of the compounds . By "pH" I mean it's, you know, 25 an acid base, acidic, or basic in its chemistry when in
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
20
Justin Schwane - July 31, 2013 Direct Ex amination by Ms. Hood
1 solution. so the drugs that are acidic and neutral, things 2 like acetaminophen, aspirin, barbiturates, there are some 3 anti - convulsant medications that are seen in this analysis. 4 Q. Specifically, I want to talk about these - - this 5 .02 number of amphetamine and this . 23 of methamphetamine? 6 A. Okay. 7 Q. What is amphetamine and methamphetamine? 8 A. They a r e compounds that are central nervous system 9 stimulants . 10 Q. And to your knowledge are either of these drugs 11 legal -- 12 A. They -- 13 Q. - - if you have a prescription? 14 A. They can be obtained by prescription. 15 Q. However, there are some illegal street drugs also? 16 A. Yes . 17 Q. And this level - - this .23, would you consider that 18 a low, medium or high level 19 A. It would be a 20 Q. of meth in the human body? 21 A. Overall I would consider it to be a moderate/medium 22 overall dose. If we' r e talking about therapeutic usage, I 23 would consider that to be a very high therapeutic dosing of 24 methamphetamine. 25 Q. That level of methamphetamine, could that possibly
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
21
Justin Schwane - July 31, 2013 Direct Examination by Ms. Hood
1 be suggestive of abuse? 2 A. Yes. Just -- just because it potentially could be 3 within the therapeutic range of methamphetamine does not 4 mean that there could not be intoxication from this level in 5 someone who does not take it on a daily basis as a doctor 6 would prescribe. If someone were to want to use it 7 recreationally, I believe that this level could cause 8 intoxication. 9 Q. Okay. Let me go back to the amphetamine and the 10 methamphetamine. The amphetamine you said was legal if you 11 have a prescription, correct? 12 A. There are formulations of amphetamine, there are 13 also drugs that the body metabolizes into amphetamine. And 14 that's the intent of the drug, to slowly release 15 amphetamine. I've been led to believe that methamphetamine 16 also can be prescribed and is available in tablet form. 17 Q. Is that common? 18 A. I - - with today's current formulations of 19 amphetamine, I do not think that methamphetamine 20 prescription is very common. 21 Q. And you are aware that methamphetamine, if you do 22 not have a prescription, which is not common, is against the 23 law? 24 MR. HAGAN: I'll object, Your Honor . Calls 25 for a witness to make an opinion beyond his expertise .
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
22
Justin Schwane - July 31, 2013 Direct Examination by Ms. Hood
1 MS. HOOD: I'll withdraw that question. 2 THE COURT: I'll let you rephrase it . 3 Q. (By Ms . Hood) Can you say with 100 percent 4 certainty that the defendant was intoxicated? 5 A. At this time, I -- I cannot. I was not witness to 6 any of the actions, I do not know how the witness was acting 7 during interview, you know, after the contact with the 8 police officers. I do not know what any outward signs of 9 intoxication may have been at this time, or no - - no signs. 10 I don't know at this time. 11 Q. Right. You were not there -- 12 A. Correct . 13 Q. We're not saying you were there . There's no way 14 you could say with 100 percent certainty that he was 15 intoxicated? 16 A. Correct . 17 Q. Do you have an opinion as to these levels of 18 methamphetamine, though? 19 A. Again, I previously mentioned they were in terms of 20 a therapeutic dosingi I believe that they would be at the 21 very high end of a therapeutic range . I believe overall, in 22 terms of other drug levels that we have seen for 23 methamphetamine, this is a moderate dose. I do believe that 24 in an abuse situation, this level of methamphetamine could 25 cause intoxication, could cause one to not have normal use
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview , Texas 75601
23
Justin Schwane - July 31, 2013 Direct Examination by Ms. Hood
1 of mental and physical faculties. 2 Q. Just to be certain, these aren't necessarily two 3 different drugs, correct? 4 A. Yes, they -- they are two separate compounds that 5 we can detect and identify separately. Sometimes we see 6 methamphetamine without amphetamine, sometimes we see 7 amphetamine without methamphetamine. 8 Q. So this is common for amphetamine to be with 9 methamphetamine in a drug analysis result? 10 A. Yes, it is. Am-- when a person takes 11 methamphetamine, in the process of metabolizing the drug, 12 meaning the body changing it so that it can remove it from 13 the system and minimize its effects, for methamphetamine, 14 amphetamine is produced. So this is a common phenomenon to 15 find amphetamine in the presence of methamphetamine. 16 Q. Based on your experience and training and the 17 results of this blood test, do you have an opinion as to 18 whether the defendant could have lost the normal use of his 19 mental and physical faculties? 20 A. I believe that the potential is definitely there 21 that there could have been intoxication and not having the 22 normal use of mental and physical faculties . 23 MS. HOOD: Pass the witness . 24 THE COURT: Cross-examination? 25 MR. HAGAN: Thank you.
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
24
Justin Schwane - July 31, 2 013 Cross-Examination by Mr. Hagan
1 CROSS-EXAMINATION 2 BY MR. HAGAN: 3 Q. Good morning, sir. My name is Rick Hagan. A 4 couple of questions . And so you agree with the I guess 5 you're also familiar, being in toxicology, with let ' s 6 see Dr . Charles Wineky? 7 A. No, I don't 8 Q. Winek. I'm sorry. 9 A. I'm not sure I'm familiar with the name. No, I'm 10 not familiar with the name. 11 Q. Okay . Or with his work concerning blood levels of 12 controlled substances? 13 A. No, I'm not . 14 Q. Okay. That's not something that you've looked at, 15 you ' ve heard about before? Have you seen other charts or 16 other compilations of data from professionals in your 17 occupation that have assembled - - 18 A. Yeah, I -- I have seen some. I - - you know, I - - 19 Q. And are charts like those what you're relying on 20 when you're basing your opinion here today about this being 21 a therapeutic level of methamphetamine? 22 A. There are articles I've read. There's also my 23 experience in the laboratory and having seen various , you 24 know, drug levels of methamphetamine, both postmortem 25 casework as well as DWI casework.
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
25
Justin Schwane - July 31, 2013 Cross - Examination by Mr. Hagan
1 Q. Are you also aware of studies kind of in a related 2 field of toxicology -- we just talked about it a minute
3 ago -- as far as fatigue, the effects of fatigue on an 4 individual? 5 A. Somewhat . In terms of fatigue itself on an 6 individual or the use of methamphetamine to remove the 7 effects of fatigue? 8 Q. Kind of both . 9 A. I know that that is a -- that is a legitimate 10 prescription and therapeutic reason for the administration 11 of a stimulant, is for the reduction of fatigue. 12 Narcolepsy . 13 Q. And -- are you -- you're aware of the history 14 behind the substance methamphetamine, aren't you? 15 A. I think initially it found big use in World War II 16 for soldiers that were in the field, for -- had to stay 17 awake for long periods of time . 18 Q. Bomber pilots? 19 A. I believe that even in today's military, pilots can 20 be prescribed low doses of stimulants for the purpose of 21 long periods in the -- in the air. 22 Q. Okay . And long periods without sleep causes 23 physical fatigue, doesn't it? 24 A. Yes. 25 Q. And mental fatigue as well?
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
26
Justin Schwane - July 31, 2013 Cross-Examination by Mr. Hagan
1 A. That's correct. 2 Q. And drugs like amphetamine and methamphetamines, 3 ameliorate fatigue to a certain level; is that right? 4 A. They can. 5 Q. Doesn't eliminate it -- 6 A. I mean, it -- temporarily during the drug's 7 administration the fatigue symptoms can be severely 8 minimized under, you know, therapeutic dosing. 9 Q. Okay. So if you have an individual who has not 10 slept or slept solidly for over a 24-hour period , okay, 11 based upon your experience and knowledge, that person, in 12 all likelihood, would be -- display signs of fatigue. Do 13 you agree with that? 14 A. If someone hasn ' t slept in 24 hours, yes, I would 15 think that signs of fatigue could be seen . 16 Q. Okay. Are you aware of studies that have actually 17 been conducted both in this country and Australia that 18 indicate that that much of a period of time of sleep 19 deprivation and operating a vehicle is almost equivalent to 20 someone with a blood alcohol level of .10? 21 A. No, I have not seen any studies like that. No. 22 Q. You have not seen that? 23 A. No. 24 Q. You have seen studies on the effects of fatigue, 25 though, haven't you?
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
27
Justin Schwane - July 31 , 2013 Cross-Examination by Mr. Hagan
1 A. No . But, you know, it does not seem unreasonable 2 that someone with -- not having slept in 24 hours could 3 potentially have what would appear to be intoxication 4 effects similar to a .1 alcohol. That -- that does not seem 5 out of the realm of being reasonable . 6 Q. Okay. Same would be true for therapeutic levels of 7 methamphetamine in someone who's been deprived of sleep? 8 A. So -- 9 Q. Right? 10 A. I seem -- I seem to be understanding that you're 11 suggesting that the methamphetamine is causing the sleep? 12 Q. No. Just the opposite. It can prevent fatigue in 13 an individual, but it can't eliminate it. Would that be a 14 fair thing to say? 15 A. I mean, not forever it would not eliminate it . But 16 as I've previously stated, methamphetamine or other 17 amphetamines can reduce fatigue in individuals. 18 Q. Okay. And so if someone were to appear 19 disoriented, say, after a motor vehicle accident, that could 20 be attributable to -- if that individual had been deprived 21 of sleep or an adequate amount of sleep for an extended 22 period of time, those type of symptoms could be consistent 23 with fatigue as well as intoxication from methamphetamine? 24 A. I -- I could imagine there could be some 25 disorientation if someone is severely fatigued.
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601
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Justin Schwane - July 31, 2013 Cross - Examination by Mr . Hagan
1 Q. Have you ever driven for a long period of time? 2 A. You know, I've been on, you know, car road trips 3 for, you know, 10-, 12-hour drives to get to a destination. 4 Q. Okay. And after a 10- or 12-hour drive, would you 5 agree with me that it's difficult to stay focused, continue 6 operating safely? 7 A. You know, one -- after 10 or 12 hours, one needs to 8 maintain someone's vigilance. But, yes, it's possible that, 9 you know, being in a car for that long can be tiring both 10 mentally and physically. 11 MR. HAGAN: I pass the witness. 12 THE COURT: Redirect? 13 MS. HOOD: No further questions, Your Honor. 14 THE COURT: May this witness be finally 15 excused? 16 MS . HOOD: Yes, Your Honor. 17 MR . HAGAN: I -- I think so, as long as he's 18 available, and I don't think he's going anywhere today 19 actually, just -- I'll cut that short . No, he can't be. 20 THE COURT : If you'll retire out to the 21 hallway at this time . 22 You may call your next witness . 23 MS . BROWNLEE: We call Dr. John Stash. 24 (Witness enters courtroom) 25 THE COURT: Doctor, if you'll raise your
Tina A. Campbell, CSR
124th District Court
101 East Methvin, Suite 447 Longview, Texas 75601