AFFIRM; Opinion June 11, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas
No. 05-12-00341-CR
HARLEN ARTHUR ECKISS II, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F09-33276-N
OPINION Before Justices Francis, Lang, and Evans Opinion by Justice Evans Harlen Arthur Eckiss II was convicted by a jury of felony driving while intoxicated. In
four points of error, he complains the trial court erred in admitting his toxicology report and a
police report into evidence and in permitting certain testimony by the arresting officer.
Concluding appellant’s arguments are without merit, we affirm the trial court’s judgment.
BACKGROUND
When Irving police officer Kevin Palms first spotted appellant one morning around 12:30
a.m., he was standing on the side of a highway inside the passenger door of his pickup truck.
The truck’s lights were on, and appellant appeared to Palms to be urinating or vomiting. Palms,
who had been traveling in the opposite direction of appellant’s truck, turned his squad car around
and headed in appellant’s direction. Appellant pulled onto the highway without signaling his
intent to do so, then he sped away. Palms testified that he had to travel eighty miles per hour to keep pace with appellant. Eventually, Palms activated his lights and appellant pulled over in the
parking lot of a closed gas station.
Palms was able to conduct only two field sobriety tests on appellant due to windy
weather. Appellant said the alphabet two times; the first time, Palms heard appellant substitute
the letter B for the letter V, but the second time appellant said the alphabet correctly. Appellant
failed the horizontal gaze nystagmus test, showing six out of a possible six clues of intoxication.
Palms also noticed that appellant smelled strongly of alcohol and had glassy eyes. When Palms
asked if he had been drinking, appellant said he had drunk four twenty-four ounce beers (ninety-
six fluid ounces). Palms arrested appellant and asked him to submit to a breath test, which
appellant refused. Upon arrest, appellant gave his height as six feet zero inches and weight as
170 pounds.
After he arrested appellant, Palms searched appellant’s truck. He found five open
containers of Smirnoff Ice and poured out their remaining contents. He later discovered that
appellant had prior DWI convictions. As a result, Palms obtained a warrant to take appellant’s
blood and transported him from the jail to a local hospital for the blood draw. He then
transported the collected blood to Parkland Hospital for testing. The ethanol concentration of
appellant’s blood at the time it was drawn, approximately two hours and twenty minutes after
appellant’s arrest, was .12 grams of ethanol per 100 millimeters of blood. In Palms’s opinion,
due to appellant’s ingestion of alcohol, he did not have the normal use of his mental or physical
faculties at the time of his arrest and was unable to safely operate a motor vehicle.
The forensic toxicologist who testified about the blood testing for the State admitted on
cross-examination that it was possible to imagine a scenario where an individual’s blood alcohol
level could have risen from below the legal limit of .08 to .12 in a span of two hours and twenty
minutes. She explained, however, that for that scenario to operate in the case of someone
–2– appellant’s size, the drinker would have between 2.6 and 5.7 unabsorbed alcoholic drinks in his
stomach at the time he was stopped.
ANALYSIS
I. Predicate for the Blood Draw
In his first point of error, appellant complains the trial court erred in admitting into
evidence the toxicology report showing his blood alcohol level because the State failed to
establish the “proper predicate” for the blood draw. Testimony at trial showed that not only did
the nurse who took appellant’s blood invert the blood vials several times to mix the blood with
the anti-coagulant and preservative materials inside the vials, but Palms did so as well. Palms
testified that he always inverts the vials several times after receiving a blood specimen to insure
that the blood has been properly mixed.
At the time the State attempted to offer the toxicology report into evidence, appellant
objected that there had been an “improper predicate drawn as to the gathering of this blood.”
Defense counsel argued that the State did not follow the mandates of the search warrant in the
case, which authorized Palms to have a qualified person obtain appellant’s blood “in accordance
with accepted medical procedure.” Appellant now argues, as he did at trial, that Palms’s actions
in inverting the vials himself inserted an unqualified individual in the blood draw process. He
contends that Palms’s actions exceeded the scope of the warrant.
A search is unreasonable and violates the protections of the Fourth Amendment if it
exceeds the scope of the warrant authorizing it. U.S. CONST. amend. IV; Long v. State, 532
S.W.2d 591, 596 (Tex. Crim. App. 1975). The warrant in this case authorized the retrieval of
appellant’s blood by an authorized medical professional. Such retrieval occurred and was
complete by the time Palms received the vials for transfer to Parkland Hospital. Palms’s actions
following the gathering of the blood sample are not germane to whether he exceeded the scope of
–3– the warrant authorizing the blood draw itself. We therefore overrule appellant’s first point of
error.
II. Police Report Admitted Into Evidence
In his second point of error, appellant complains that the trial court, over his hearsay
objection, admitted into evidence Palms’s police report. The State concedes that the trial court
violated rule of evidence 803(8)(B) in admitting the report but alleges that appellant was not
harmed by the admission. We agree.
Under rule of appellate procedure 44.2, we must disregard all non-constitutional error
unless it affected the appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). The single page
of the police report admitted into evidence here reveals nothing but the fact that appellant refused
to give a breath sample. Because this same evidence was elicited from Palms himself without
objection, appellant could not have been harmed by the report’s admission into evidence. See
Bourque v. State, 156 S.W.3d 675, 677 (Tex. App.—Dallas 2005, pet. ref’d). We overrule
appellant’s second point of error.
III. Allowing Expert Testimony
In his third point of error, appellant contends the trial court erred in allowing the State to
question Palms about circumstances that can affect a blood specimen. While Palms was
testifying, the prosecutor asked him about witnessing the blood draw and if anything “went
wrong” with the blood draw, to the best of Palms’s knowledge. Palms said that nothing had
gone wrong. The prosecutor then asked if Palms would have noted in his police report if
anything had gone wrong. Palms replied yes, but clarified that “[i]t depends on what you mean
by go wrong.” The prosecutor then specified that he intended the question to apply to anything
“that might affect the specimen or its validity.” Appellant objected on the basis of relevance and
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AFFIRM; Opinion June 11, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas
No. 05-12-00341-CR
HARLEN ARTHUR ECKISS II, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F09-33276-N
OPINION Before Justices Francis, Lang, and Evans Opinion by Justice Evans Harlen Arthur Eckiss II was convicted by a jury of felony driving while intoxicated. In
four points of error, he complains the trial court erred in admitting his toxicology report and a
police report into evidence and in permitting certain testimony by the arresting officer.
Concluding appellant’s arguments are without merit, we affirm the trial court’s judgment.
BACKGROUND
When Irving police officer Kevin Palms first spotted appellant one morning around 12:30
a.m., he was standing on the side of a highway inside the passenger door of his pickup truck.
The truck’s lights were on, and appellant appeared to Palms to be urinating or vomiting. Palms,
who had been traveling in the opposite direction of appellant’s truck, turned his squad car around
and headed in appellant’s direction. Appellant pulled onto the highway without signaling his
intent to do so, then he sped away. Palms testified that he had to travel eighty miles per hour to keep pace with appellant. Eventually, Palms activated his lights and appellant pulled over in the
parking lot of a closed gas station.
Palms was able to conduct only two field sobriety tests on appellant due to windy
weather. Appellant said the alphabet two times; the first time, Palms heard appellant substitute
the letter B for the letter V, but the second time appellant said the alphabet correctly. Appellant
failed the horizontal gaze nystagmus test, showing six out of a possible six clues of intoxication.
Palms also noticed that appellant smelled strongly of alcohol and had glassy eyes. When Palms
asked if he had been drinking, appellant said he had drunk four twenty-four ounce beers (ninety-
six fluid ounces). Palms arrested appellant and asked him to submit to a breath test, which
appellant refused. Upon arrest, appellant gave his height as six feet zero inches and weight as
170 pounds.
After he arrested appellant, Palms searched appellant’s truck. He found five open
containers of Smirnoff Ice and poured out their remaining contents. He later discovered that
appellant had prior DWI convictions. As a result, Palms obtained a warrant to take appellant’s
blood and transported him from the jail to a local hospital for the blood draw. He then
transported the collected blood to Parkland Hospital for testing. The ethanol concentration of
appellant’s blood at the time it was drawn, approximately two hours and twenty minutes after
appellant’s arrest, was .12 grams of ethanol per 100 millimeters of blood. In Palms’s opinion,
due to appellant’s ingestion of alcohol, he did not have the normal use of his mental or physical
faculties at the time of his arrest and was unable to safely operate a motor vehicle.
The forensic toxicologist who testified about the blood testing for the State admitted on
cross-examination that it was possible to imagine a scenario where an individual’s blood alcohol
level could have risen from below the legal limit of .08 to .12 in a span of two hours and twenty
minutes. She explained, however, that for that scenario to operate in the case of someone
–2– appellant’s size, the drinker would have between 2.6 and 5.7 unabsorbed alcoholic drinks in his
stomach at the time he was stopped.
ANALYSIS
I. Predicate for the Blood Draw
In his first point of error, appellant complains the trial court erred in admitting into
evidence the toxicology report showing his blood alcohol level because the State failed to
establish the “proper predicate” for the blood draw. Testimony at trial showed that not only did
the nurse who took appellant’s blood invert the blood vials several times to mix the blood with
the anti-coagulant and preservative materials inside the vials, but Palms did so as well. Palms
testified that he always inverts the vials several times after receiving a blood specimen to insure
that the blood has been properly mixed.
At the time the State attempted to offer the toxicology report into evidence, appellant
objected that there had been an “improper predicate drawn as to the gathering of this blood.”
Defense counsel argued that the State did not follow the mandates of the search warrant in the
case, which authorized Palms to have a qualified person obtain appellant’s blood “in accordance
with accepted medical procedure.” Appellant now argues, as he did at trial, that Palms’s actions
in inverting the vials himself inserted an unqualified individual in the blood draw process. He
contends that Palms’s actions exceeded the scope of the warrant.
A search is unreasonable and violates the protections of the Fourth Amendment if it
exceeds the scope of the warrant authorizing it. U.S. CONST. amend. IV; Long v. State, 532
S.W.2d 591, 596 (Tex. Crim. App. 1975). The warrant in this case authorized the retrieval of
appellant’s blood by an authorized medical professional. Such retrieval occurred and was
complete by the time Palms received the vials for transfer to Parkland Hospital. Palms’s actions
following the gathering of the blood sample are not germane to whether he exceeded the scope of
–3– the warrant authorizing the blood draw itself. We therefore overrule appellant’s first point of
error.
II. Police Report Admitted Into Evidence
In his second point of error, appellant complains that the trial court, over his hearsay
objection, admitted into evidence Palms’s police report. The State concedes that the trial court
violated rule of evidence 803(8)(B) in admitting the report but alleges that appellant was not
harmed by the admission. We agree.
Under rule of appellate procedure 44.2, we must disregard all non-constitutional error
unless it affected the appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). The single page
of the police report admitted into evidence here reveals nothing but the fact that appellant refused
to give a breath sample. Because this same evidence was elicited from Palms himself without
objection, appellant could not have been harmed by the report’s admission into evidence. See
Bourque v. State, 156 S.W.3d 675, 677 (Tex. App.—Dallas 2005, pet. ref’d). We overrule
appellant’s second point of error.
III. Allowing Expert Testimony
In his third point of error, appellant contends the trial court erred in allowing the State to
question Palms about circumstances that can affect a blood specimen. While Palms was
testifying, the prosecutor asked him about witnessing the blood draw and if anything “went
wrong” with the blood draw, to the best of Palms’s knowledge. Palms said that nothing had
gone wrong. The prosecutor then asked if Palms would have noted in his police report if
anything had gone wrong. Palms replied yes, but clarified that “[i]t depends on what you mean
by go wrong.” The prosecutor then specified that he intended the question to apply to anything
“that might affect the specimen or its validity.” Appellant objected on the basis of relevance and
–4– noted that Palms was not a medical expert and so could not speak to what might affect the
specimen. The trial court overruled the objections.
Palms then testified, “Sure, just—I mean, if you’re talking about just having to fight
somebody or just whatever. It just depends on what you mean by go wrong.” When the
prosecutor specified “if he bled out” or the “vial fell” or things of that nature, Palms stated,
“Absolutely. There were occasions when we would use a new vial, things of that nature. Yes,
absolutely.” He testified that in appellant’s case two vials were taken and labeled in his
presence.
Appellant argues that the trial court erred in permitting the testimony because Palms was
never established under rule of evidence 702 as a medical expert who could testify about
circumstances that would affect a blood specimen. Regardless of the questions asked, however,
Palms never gave answers that required any medical expertise. His responses pertained to
circumstances such as having to “fight” an accused or vials being damaged. This amounted to
testimony by a lay witness regarding what he had personally observed. Appellant was not
harmed, therefore, because Palms did not give medical expert testimony, regardless of whether
the trial erred in overruling the objection. See TEX. R. APP. P. 44.2(b). We overrule appellant’s
third point of error.
IV. Officer’s Testimony About the Change in Law
In his final point of error, appellant complains that Palms was permitted to testify about
the change in Texas law requiring a person arrested for DWI to give a blood sample. During the
State’s opening argument, the prosecutor stated, without objection,
Today if you are charged with a DWI with two priors, it is mandatory that blood can be drawn. However, back in 2009 the law was different. We had to get a search warrant. We had to do a warrant, we have to get an affidavit, and you have to find a judge to sign it to approve that withdrawal. You don’t need consent. There was a law back then. So the officer had to get a warrant.
–5– Later, during Palms’s testimony, he discussed why he got a warrant to collect appellant’s blood,
Basically the way I do it is, if I arrest somebody for DWI and they refuse my sample, then—well, now more so because the law changed—I run them on the computer before I go to the jail. Because if it’s mandatory, I can go straight to a hospital.
At that time warrants were kind of moot as far as DWI goes. So we were only getting warrants as far as DWI goes. So we were only getting warrants on people that totally refused to do any of those sobriety tests or if it was a felony situation. So I ran his from the history to see if that were the case, which it was; so I then I applied for a warrant.
Appellant did not object to this testimony.
Later in Palms’s testimony, the prosecutor asked Palms to explain to the jury how the law
pertaining to collection of blood evidence at the time of appellant’s arrest differed from the
current law. Appellant objected on the basis of relevance and Palms’s lack of expert status on
the matter, but the trial court overruled the objections. Palms then testified,
Prior to September of 2009, you could only get a mandatory blood sample if a person was killed because of a drunk driver or if a person had serious bodily injury because of a drunk driver.
After September 2009 up to now, now [sic] you can get a mandatory blood specimen if a person is killed by a drunk driver, if a person has serious bodily injury, if a person has just injury and they’re transported to the hospital for treatment, if it’s a DWI third or more, if it’s a DWI with a child, or in their criminal history they have a conviction for . . . manslaughter or intoxication assault or DWI with a child.
Appellant complains that the above testimony was not relevant to his case. Regardless of
whether the trial court erred in allowing it, however, appellant cannot show how he was harmed.
Improper admission of evidence constitutes non-constitutional error that we must disregard
unless the error affected an appellant’s substantial rights. See Wilson v. State, 90 S.W.3d 391,
393 (Tex. App.—Dallas 2002, no pet.). An error affects a substantial right when it has a
substantial and injurious effect or influence on determining the jury’s verdict. See id. Appellant
argues that he was harmed by the testimony because it “highlighted a procedure that was
inapplicable to Appellant’s case.” Any error in doing so could not have had a substantial and –6– injurious effect or influence on determining the jury’s verdict. Moreover, the jury had already
heard about the differences in the law through argument and testimony that was received by the
jury without objection. Because appellant was not harmed by any error in permitting the
testimony, we overrule appellant’s fourth point of error.
We affirm the trial court’s judgment.
/David Evans/ DAVID EVANS JUSTICE
Do Not Publish TEX. R. APP. P. 47 120341F.U05
–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
HARLEN ARTHUR ECKISS II, Appellant On Appeal from the 195th Judicial District Court, Dallas County, Texas No. 05-12-00341-CR V. Trial Court Cause No. F09-33276-N. Opinion delivered by Justice Evans. THE STATE OF TEXAS, Appellee Justices Francis and Lang participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 11th day of June, 2013.
–8–