COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-13-00597-CR
LAJUAN L. HALL APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY TRIAL COURT NO. 1192679
MEMORANDUM OPINION1
A jury convicted Appellant Lajuan L. Hall of driving while intoxicated, and
the trial court sentenced him to 90 days’ confinement and a fine of $800. In a
single point, Hall argues that his Sixth Amendment right to confrontation was
violated when the trial court admitted evidence of a blood test without requiring
1 See Tex. R. App. P. 47.4. the State to call the phlebotomist who performed the blood draw as a witness.
We will affirm.
In October 2009, Hall was driving home on I-30 when he collided with
another vehicle. After continuing for about a quarter-mile, Hall and the other
driver stopped and exited their vehicles. Hall immediately told the other driver
that “[h]e had been drinking,” admitted fault for the accident, and told the other
driver to call the police. When the police arrived, Officer King, an officer in the
Arlington DWI unit, “immediately detected the odor of an alcoholic beverage
coming from [Hall’s] breath and person” and noticed that his eyes were
bloodshot. Hall once again admitted to drinking prior to the accident and told
Officer King that he was on his way home from a club in Dallas. Officer King
then asked Hall to perform a series of standardized field sobriety tests, and Hall
eventually agreed. She had Hall perform three tests: the horizontal gaze
nystagmus test, the walk-the-line test, and the one-leg-stand test. On these
three tests, Hall scored a total of fourteen clues, indicating to Officer King that he
was intoxicated, and she placed him under arrest.
At the police station, Hall was placed in the intoxilyzer room, where he was
read a statutory warning and asked for a sample of his breath or blood. After
refusing this request, Officer King obtained a warrant and transported Hall to
Arlington Memorial Hospital, where LaKeisha Dallas, a phlebotomist, performed
the blood draw. Officer King personally observed Dallas draw blood from Hall
and certified that everything was done according to standard procedure. Joyce
2 Ho, a lab manager for the Tarrant County Medical Examiner’s Office Toxicology
Department, tested Hall’s blood sample and reported Hall’s blood alcohol
concentration (BAC) to be approximately .16.
In his only point, Hall argues that “[t]he trial court erred when it allowed the
[S]tate to admit the results of [his] blood test without providing him an opportunity
to confront the individual who extracted the blood sample.”
The standard of review for a trial court’s admission of evidence is abuse of
discretion, and wide discretion is afforded to the trial judge. See Green v. State,
934 S.W.2d 92, 101‒02 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200,
(1997); see also Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007);
Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). The trial court’s
decision should be reversed on appeal only if there is a showing of a clear abuse
of discretion. See Theus, 845 S.W.2d at 881; Lajoie v. State, 237 S.W.3d 345,
352 (Tex. App.—Fort Worth 2007, no pet.). Therefore, only if the court’s decision
falls outside the “zone of reasonable disagreement” has it abused its discretion.
See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Montgomery
v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.1991) (op. on reh’g).
The Sixth Amendment’s Confrontation Clause states, “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI. This makes testimonial
evidence inadmissible at trial unless the witness who made the testimonial
statement: (1) takes the stand to be cross-examined, or (2) is unavailable and
3 the defendant had a prior opportunity to cross-examine him. Burch v. State, 401
S.W.3d 634, 636 (Tex. Crim. App. 2013) (citing Crawford v. Washington, 541
U.S. 36, 57, 124 S. Ct. 1354, 1367 (2004)). “[T]estimonial statements are those
‘that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later
trial.’” Adkins v. State, 418 S.W.3d 856, 861‒62 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d) (quoting Burch, 401 S.W.3d at 636). “Forensic reports are
testimonial statements.” Id. at 862; see Burch, 401 S.W.3d at 636‒67.
In Bullcoming v. New Mexico, the prosecution provided a forensic lab
report demonstrating that the defendant’s BAC exceeded the legal limit. See 131
S. Ct. 2705, 2709 (2011). Instead of calling the analyst who tested the
defendant’s blood and certified the report, the prosecution called a surrogate
analyst to testify. Id. The Supreme Court held that the lab report constituted a
testimonial statement by the analyst who tested the sample, and the
Confrontation Clause required that the defendant have an opportunity to cross-
examine that analyst. See id. at 2710 (“The accused’s right is to be confronted
with the analyst who made the certification, unless that analyst is unavailable at
trial, and the accused had an opportunity, pretrial to cross-examine that particular
scientist.”).
In Burch, the trial court admitted a lab report that the State had offered
certifying that a substance found in the defendant’s possession was cocaine.
401 S.W.3d at 635. The State called the person who reviewed the report but not
4 the person who tested or analyzed the substance. While the reviewer had
signed off on the report, “there was no indication that she actually saw the tests
being performed or participated in them.” Id. at 635‒36. The Court of Criminal
Appeals held that the defendant’s Sixth Amendment right was violated because
the evidence was testimonial and the defendant did not have an opportunity to
confront the analyst who made the testimonial statement. Id. at 637‒38
(“Without having the testimony of the analyst who actually performed the tests, or
at least one who observed their execution, the defendant has no way to explore
the types of corruption and missteps the Confrontation Clause was designed to
protect against.”).
In Adkins, the trial court admitted a blood test report certifying the
defendant’s BAC after his arrest. 418 S.W.3d at 859‒60. At trial, the State
called the analyst who performed the test and the officer that witnessed the blood
draw; however, the defendant argued that this was insufficient under the
Confrontation Clause because the State failed to call the nurse who actually drew
the blood. Id. at 861. The court of appeals held that the Confrontation Clause
was not violated because “[t]he analyst who tested [the defendant’s] blood and
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-13-00597-CR
LAJUAN L. HALL APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY TRIAL COURT NO. 1192679
MEMORANDUM OPINION1
A jury convicted Appellant Lajuan L. Hall of driving while intoxicated, and
the trial court sentenced him to 90 days’ confinement and a fine of $800. In a
single point, Hall argues that his Sixth Amendment right to confrontation was
violated when the trial court admitted evidence of a blood test without requiring
1 See Tex. R. App. P. 47.4. the State to call the phlebotomist who performed the blood draw as a witness.
We will affirm.
In October 2009, Hall was driving home on I-30 when he collided with
another vehicle. After continuing for about a quarter-mile, Hall and the other
driver stopped and exited their vehicles. Hall immediately told the other driver
that “[h]e had been drinking,” admitted fault for the accident, and told the other
driver to call the police. When the police arrived, Officer King, an officer in the
Arlington DWI unit, “immediately detected the odor of an alcoholic beverage
coming from [Hall’s] breath and person” and noticed that his eyes were
bloodshot. Hall once again admitted to drinking prior to the accident and told
Officer King that he was on his way home from a club in Dallas. Officer King
then asked Hall to perform a series of standardized field sobriety tests, and Hall
eventually agreed. She had Hall perform three tests: the horizontal gaze
nystagmus test, the walk-the-line test, and the one-leg-stand test. On these
three tests, Hall scored a total of fourteen clues, indicating to Officer King that he
was intoxicated, and she placed him under arrest.
At the police station, Hall was placed in the intoxilyzer room, where he was
read a statutory warning and asked for a sample of his breath or blood. After
refusing this request, Officer King obtained a warrant and transported Hall to
Arlington Memorial Hospital, where LaKeisha Dallas, a phlebotomist, performed
the blood draw. Officer King personally observed Dallas draw blood from Hall
and certified that everything was done according to standard procedure. Joyce
2 Ho, a lab manager for the Tarrant County Medical Examiner’s Office Toxicology
Department, tested Hall’s blood sample and reported Hall’s blood alcohol
concentration (BAC) to be approximately .16.
In his only point, Hall argues that “[t]he trial court erred when it allowed the
[S]tate to admit the results of [his] blood test without providing him an opportunity
to confront the individual who extracted the blood sample.”
The standard of review for a trial court’s admission of evidence is abuse of
discretion, and wide discretion is afforded to the trial judge. See Green v. State,
934 S.W.2d 92, 101‒02 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200,
(1997); see also Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007);
Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). The trial court’s
decision should be reversed on appeal only if there is a showing of a clear abuse
of discretion. See Theus, 845 S.W.2d at 881; Lajoie v. State, 237 S.W.3d 345,
352 (Tex. App.—Fort Worth 2007, no pet.). Therefore, only if the court’s decision
falls outside the “zone of reasonable disagreement” has it abused its discretion.
See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Montgomery
v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.1991) (op. on reh’g).
The Sixth Amendment’s Confrontation Clause states, “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI. This makes testimonial
evidence inadmissible at trial unless the witness who made the testimonial
statement: (1) takes the stand to be cross-examined, or (2) is unavailable and
3 the defendant had a prior opportunity to cross-examine him. Burch v. State, 401
S.W.3d 634, 636 (Tex. Crim. App. 2013) (citing Crawford v. Washington, 541
U.S. 36, 57, 124 S. Ct. 1354, 1367 (2004)). “[T]estimonial statements are those
‘that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later
trial.’” Adkins v. State, 418 S.W.3d 856, 861‒62 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d) (quoting Burch, 401 S.W.3d at 636). “Forensic reports are
testimonial statements.” Id. at 862; see Burch, 401 S.W.3d at 636‒67.
In Bullcoming v. New Mexico, the prosecution provided a forensic lab
report demonstrating that the defendant’s BAC exceeded the legal limit. See 131
S. Ct. 2705, 2709 (2011). Instead of calling the analyst who tested the
defendant’s blood and certified the report, the prosecution called a surrogate
analyst to testify. Id. The Supreme Court held that the lab report constituted a
testimonial statement by the analyst who tested the sample, and the
Confrontation Clause required that the defendant have an opportunity to cross-
examine that analyst. See id. at 2710 (“The accused’s right is to be confronted
with the analyst who made the certification, unless that analyst is unavailable at
trial, and the accused had an opportunity, pretrial to cross-examine that particular
scientist.”).
In Burch, the trial court admitted a lab report that the State had offered
certifying that a substance found in the defendant’s possession was cocaine.
401 S.W.3d at 635. The State called the person who reviewed the report but not
4 the person who tested or analyzed the substance. While the reviewer had
signed off on the report, “there was no indication that she actually saw the tests
being performed or participated in them.” Id. at 635‒36. The Court of Criminal
Appeals held that the defendant’s Sixth Amendment right was violated because
the evidence was testimonial and the defendant did not have an opportunity to
confront the analyst who made the testimonial statement. Id. at 637‒38
(“Without having the testimony of the analyst who actually performed the tests, or
at least one who observed their execution, the defendant has no way to explore
the types of corruption and missteps the Confrontation Clause was designed to
protect against.”).
In Adkins, the trial court admitted a blood test report certifying the
defendant’s BAC after his arrest. 418 S.W.3d at 859‒60. At trial, the State
called the analyst who performed the test and the officer that witnessed the blood
draw; however, the defendant argued that this was insufficient under the
Confrontation Clause because the State failed to call the nurse who actually drew
the blood. Id. at 861. The court of appeals held that the Confrontation Clause
was not violated because “[t]he analyst who tested [the defendant’s] blood and
signed the report testified at trial and was subjected to cross-examination.” Id. at
862.
In State v. Guzman, the trial court granted the defendant’s motion to
suppress after the State offered into evidence blood test results without giving
the defense an opportunity to confront the nurse who performed the blood draw.
5 439 S.W.3d 482, 484‒85 (Tex. App.—San Antonio 2014, no pet.). The court of
appeals, however, reversed, holding that the decision in Bullcoming does not
extend “to a person who only performs a blood draw and has no other
involvement in the analysis or testing of a blood sample.” Id. at 488 (noting that
the nurse performed only the blood draw, was not involved in the analysis or
testing of the blood sample, and did not provide any statement appearing within
or accompanying the blood test results).
Here, Hall is correct that the blood test results are testimonial, but his
inability to cross-examine Dallas, the phlebotomist who drew his blood, did not
violate his right to confrontation because Dallas was not involved in the analysis
of Hall’s blood specimen, nor did she provide any statement that appeared within
or accompanied the blood test results. See Guzman, 439 S.W.3d at 484‒85;
Adkins, 418 S.W.3d at 862. In Adkins and Guzman, the courts focused on the
availability of the analyst who certified the forensic reports to determine whether
or not the defendant’s right to confrontation had been violated.2 See Guzman,
439 S.W.3d at 484‒85; Adkins, 418 S.W.3d at 862. Likewise, here, Joyce Ho
2 Hall distinguishes this case from Adkins in two ways. First, he asserts that the court was provided with a video recording of the blood draw in that case. This fact is not dispositive, however, because no video evidence was available in Guzman and the court in Adkins did not draw on this fact to support its reasoning. Second, he argues that the court in Adkins was “more focused on the third prong of the Kelly standard” rather than the issue of confrontation. We disagree. The Adkins court focused on the admissibility of the evidence under the Kelly standard and the Confrontation Clause, giving sufficient attention to both arguments.
6 analyzed Hall’s blood sample, testified at trial regarding the accuracy of the blood
test results, and provided a detailed explanation of the blood-testing procedure.
Thus, it was Ho, not Dallas, who had “personal knowledge about whether the
test[] [was] done correctly or whether the . . . results [were fabricated].” See
Adkins, 418 S.W.3d at 862.
Hall contends that Officer King was a “surrogate” witness, given the
Supreme Court’s reasoning in Bullcoming, and asserts that she could not validly
testify regarding the blood draw, “being that she lacked the training and authority
to conduct blood draws herself.” While Hall has a constitutional right to confront
the persons involved in the preparation of tests and reports arising from the
analysis of his blood, “the Confrontation Clause does not require ‘that anyone
whose testimony may be relevant in establishing the chain of custody,
authenticity of the sample, or accuracy of the testing device, must appear in
person as part of the prosecution’s case.’” Adkins, 418 S.W.3d at 862 (quoting
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1, 129 S. Ct. 2527, 2532
n.1 (2009)). Moreover, Officer King cannot be considered a “surrogate” witness
for Dallas because Hall never had any right to cross-examine Dallas under the
Confrontation Clause.
Because Hall had the opportunity to cross-examine the analyst who tested
the blood and generated the forensic report, the requirements of the
Confrontation Clause were satisfied. See Bullcoming, 131 S. Ct. at 2710; Burch,
401 S.W.3d at 637‒38; Guzman, 439 S.W.3d at 488 (“[A]ppellee’s rights under
7 the Confrontation Clause will not be violated by the unavailability of the nurse
who merely performed the blood draw.”). Accordingly, the trial court did not
abuse its discretion by admitting evidence of Hall’s blood test without requiring
the State to call the phlebotomist who performed the blood draw as a witness.
We overrule Hall’s only issue and affirm the trial court’s judgment.
/s/ Bill Meier BILL MEIER JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: July 16, 2015