IN THE TENTH COURT OF APPEALS
No. 10-12-00372-CR
MARK BRADLEY GRAVES, Appellant v.
THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2011-2140-C1
MEMORANDUM OPINION
In two issues, appellant, Mark Bradley Graves, challenges his conviction for
enhanced driving while intoxicated, a second-degree felony. See TEX. PENAL CODE ANN.
§§ 12.42(a), 49.04, 49.09 (West Supp. 2012). We affirm.
I. BACKGROUND
At about 2:00 p.m., on August 1, 2011, David Monthey, the Chief of Police for
Mart, Texas, responded to a one-car accident located on Rice Road, just outside of
Riesel, Texas. Chief Monthey observed a vehicle still running but turned sideways in a ditch. Appellant and a female passenger occupied the vehicle. Chief Monthey asked
appellant to turn off and exit the vehicle. Appellant turned off but refused to exit the
vehicle. Chief Monthey recalled that he spoke to appellant through a two-inch crack on
the driver’s side window and that there was a strong odor of alcohol emanating from
the vehicle. Because appellant refused to exit the vehicle, Chief Monthey waited for
backup.
Texas Department of Public Safety Troopers Chad Buenger and Gerald Rogers
responded to the scene of the accident. Trooper Buenger testified that he saw a W.L.
Weller whiskey bottle just outside appellant’s door and that the whiskey bottle did not
have any dust on it. Trooper Buenger believed that the whiskey bottle was appellant’s.
Troopers Buenger and Rogers and Police Chief Monthey once again requested that
appellant exit the vehicle, which appellant refused. It was only after Trooper Buenger
removed his taser from its holster that appellant exited the vehicle. Trooper Buenger
noted that the vehicle “reeked of alcohol, [appellant’s] eyes were bloodshot, and he just
seemed very uncooperative.” Trooper Rogers attempted to administer field-sobriety
tests. Appellant stated that he is legally blind in one eye and refused to complete the
horizontal-gaze-nystagmus test. Based on his experience, Trooper Buenger testified
that appellant’s uncooperative nature was indicative of someone who was intoxicated.
Trooper Rogers did not administer the walk-and-turn and one-leg stand tests because
they were situated on a gravel road with loose rocks, which would have affected the
results of the tests. Appellant was subsequently arrested and taken to jail.
Graves v. State Page 2 Upon arriving at the jail, appellant refused to provide police with a breath
specimen. Instead, he cursed at the officers, requested that they shoot him, and
threatened to fight Trooper Buenger. After discovering that he had at least two prior
DWI convictions, appellant was taken to the hospital for a blood draw. Appellant
informed Trooper Buenger that they would “not be taking his blood, that he would
fight us for it.” A blood draw was eventually conducted by Gaylon Freeman, an
Emergency Room Technician at the Hillcrest Hospital emergency room, while four
troopers held appellant down.1
Appellant’s blood was analyzed two days after the accident. The blood-alcohol
content of appellant’s blood was 0.29 grams of alcohol per 100 milliliters of blood,
which is more than three times the legal limit of 0.08.
At the conclusion of the evidence, the jury found appellant guilty of the charged
offense, including an enhancement paragraph referencing two prior DWI convictions in
Nueces County and McLennan County, Texas. After pleading true to another DWI
conviction in San Patricio County, Texas, appellant was sentenced to twenty years’
confinement in the Institutional Division of the Texas Department of Criminal Justice
with a $10,000 fine. This appeal followed.
II. MOTION TO SUPPRESS
In his first issue, appellant contends that the results from the blood test should
have been suppressed because the blood sample was forcibly taken without a warrant
1Freeman has been trained at Hillcrest in phlebotomy and conducts approximately fifteen to twenty blood draws a day at the hospital.
Graves v. State Page 3 and because the State failed to show that a warrant could not be obtained. Essentially,
appellant argues that the trial court abused its discretion in denying his motion to
suppress. In making this argument, appellant relies heavily on the United States
Supreme Court’s recent decision in Missouri v. McNeely, 2013 U.S. LEXIS 3160, 133 S. Ct.
1552, 185 L. Ed. 2d 696 (Apr. 17, 2013).
In analyzing this issue, we first look to see what appellant pleaded in his motion
to suppress and what he argued at the suppression hearing. In his motion to suppress,
appellant argued that the blood-test results should be suppressed because he did not
consent and because he was not given statutory warnings under section 724.015 of the
Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 724.015 (West Supp. 2012).
Appellant also argued that the blood sample was not taken within a reasonable period
of time and that the sample was not done by a qualified technician in a sanitary place,
as required by section 724.017 of the Texas Transportation Code. See id. § 724.017 (West
2011).
At the suppression hearing, appellant focused his argument on whether the
sample was taken by a qualified technician. Appellant did not argue the other points
raised in his motion to suppress, nor did he make the argument asserted on appeal—
that the blood-test results should be suppressed because they were forcibly taken
without a warrant and because the State failed to show that a warrant could not be
obtained. Ostensibly, what we have is a situation where appellant’s complaints on
appeal do not comport with those made in the trial court.
Graves v. State Page 4 To preserve error for appellate review, a complaining party must make a timely
and specific objection. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349
(Tex. Crim. App. 2002). Texas courts have held that points of error on appeal must
correspond or comport with objections and arguments made at trial. Dixon v. State, 2
S.W.3d 263, 273 (Tex. Crim. App. 1998); see Wright v. State, 154 S.W.3d 235, 241 (Tex.
App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not comport with the
issue raised on appeal, the appellant has preserved nothing for review.” Wright, 154
S.W.3d at 241; see Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding
that an issue was not preserved for appellate review because appellant’s trial objection
“does not comport with” the issue he raised on appeal); Ibarra v. State, 11 S.W.3d 189,
197 (Tex. Crim. App. 1999) (same).
Because appellant’s appellate complaints do not comport with those made in the
trial court, we cannot say that appellant has preserved this issue for review. See TEX. R.
APP. P. 33.1(a)(1); see also Resendiz, 112 S.W.3d at 547; Wilson, 71 S.W.3d at 349; Dixon, 2
S.W.3d at 273. Accordingly, we overrule appellant’s first issue.
III. SUFFICIENCY OF THE EVIDENCE ESTABLISHING A FELONY OFFENSE
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IN THE TENTH COURT OF APPEALS
No. 10-12-00372-CR
MARK BRADLEY GRAVES, Appellant v.
THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2011-2140-C1
MEMORANDUM OPINION
In two issues, appellant, Mark Bradley Graves, challenges his conviction for
enhanced driving while intoxicated, a second-degree felony. See TEX. PENAL CODE ANN.
§§ 12.42(a), 49.04, 49.09 (West Supp. 2012). We affirm.
I. BACKGROUND
At about 2:00 p.m., on August 1, 2011, David Monthey, the Chief of Police for
Mart, Texas, responded to a one-car accident located on Rice Road, just outside of
Riesel, Texas. Chief Monthey observed a vehicle still running but turned sideways in a ditch. Appellant and a female passenger occupied the vehicle. Chief Monthey asked
appellant to turn off and exit the vehicle. Appellant turned off but refused to exit the
vehicle. Chief Monthey recalled that he spoke to appellant through a two-inch crack on
the driver’s side window and that there was a strong odor of alcohol emanating from
the vehicle. Because appellant refused to exit the vehicle, Chief Monthey waited for
backup.
Texas Department of Public Safety Troopers Chad Buenger and Gerald Rogers
responded to the scene of the accident. Trooper Buenger testified that he saw a W.L.
Weller whiskey bottle just outside appellant’s door and that the whiskey bottle did not
have any dust on it. Trooper Buenger believed that the whiskey bottle was appellant’s.
Troopers Buenger and Rogers and Police Chief Monthey once again requested that
appellant exit the vehicle, which appellant refused. It was only after Trooper Buenger
removed his taser from its holster that appellant exited the vehicle. Trooper Buenger
noted that the vehicle “reeked of alcohol, [appellant’s] eyes were bloodshot, and he just
seemed very uncooperative.” Trooper Rogers attempted to administer field-sobriety
tests. Appellant stated that he is legally blind in one eye and refused to complete the
horizontal-gaze-nystagmus test. Based on his experience, Trooper Buenger testified
that appellant’s uncooperative nature was indicative of someone who was intoxicated.
Trooper Rogers did not administer the walk-and-turn and one-leg stand tests because
they were situated on a gravel road with loose rocks, which would have affected the
results of the tests. Appellant was subsequently arrested and taken to jail.
Graves v. State Page 2 Upon arriving at the jail, appellant refused to provide police with a breath
specimen. Instead, he cursed at the officers, requested that they shoot him, and
threatened to fight Trooper Buenger. After discovering that he had at least two prior
DWI convictions, appellant was taken to the hospital for a blood draw. Appellant
informed Trooper Buenger that they would “not be taking his blood, that he would
fight us for it.” A blood draw was eventually conducted by Gaylon Freeman, an
Emergency Room Technician at the Hillcrest Hospital emergency room, while four
troopers held appellant down.1
Appellant’s blood was analyzed two days after the accident. The blood-alcohol
content of appellant’s blood was 0.29 grams of alcohol per 100 milliliters of blood,
which is more than three times the legal limit of 0.08.
At the conclusion of the evidence, the jury found appellant guilty of the charged
offense, including an enhancement paragraph referencing two prior DWI convictions in
Nueces County and McLennan County, Texas. After pleading true to another DWI
conviction in San Patricio County, Texas, appellant was sentenced to twenty years’
confinement in the Institutional Division of the Texas Department of Criminal Justice
with a $10,000 fine. This appeal followed.
II. MOTION TO SUPPRESS
In his first issue, appellant contends that the results from the blood test should
have been suppressed because the blood sample was forcibly taken without a warrant
1Freeman has been trained at Hillcrest in phlebotomy and conducts approximately fifteen to twenty blood draws a day at the hospital.
Graves v. State Page 3 and because the State failed to show that a warrant could not be obtained. Essentially,
appellant argues that the trial court abused its discretion in denying his motion to
suppress. In making this argument, appellant relies heavily on the United States
Supreme Court’s recent decision in Missouri v. McNeely, 2013 U.S. LEXIS 3160, 133 S. Ct.
1552, 185 L. Ed. 2d 696 (Apr. 17, 2013).
In analyzing this issue, we first look to see what appellant pleaded in his motion
to suppress and what he argued at the suppression hearing. In his motion to suppress,
appellant argued that the blood-test results should be suppressed because he did not
consent and because he was not given statutory warnings under section 724.015 of the
Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 724.015 (West Supp. 2012).
Appellant also argued that the blood sample was not taken within a reasonable period
of time and that the sample was not done by a qualified technician in a sanitary place,
as required by section 724.017 of the Texas Transportation Code. See id. § 724.017 (West
2011).
At the suppression hearing, appellant focused his argument on whether the
sample was taken by a qualified technician. Appellant did not argue the other points
raised in his motion to suppress, nor did he make the argument asserted on appeal—
that the blood-test results should be suppressed because they were forcibly taken
without a warrant and because the State failed to show that a warrant could not be
obtained. Ostensibly, what we have is a situation where appellant’s complaints on
appeal do not comport with those made in the trial court.
Graves v. State Page 4 To preserve error for appellate review, a complaining party must make a timely
and specific objection. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349
(Tex. Crim. App. 2002). Texas courts have held that points of error on appeal must
correspond or comport with objections and arguments made at trial. Dixon v. State, 2
S.W.3d 263, 273 (Tex. Crim. App. 1998); see Wright v. State, 154 S.W.3d 235, 241 (Tex.
App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not comport with the
issue raised on appeal, the appellant has preserved nothing for review.” Wright, 154
S.W.3d at 241; see Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding
that an issue was not preserved for appellate review because appellant’s trial objection
“does not comport with” the issue he raised on appeal); Ibarra v. State, 11 S.W.3d 189,
197 (Tex. Crim. App. 1999) (same).
Because appellant’s appellate complaints do not comport with those made in the
trial court, we cannot say that appellant has preserved this issue for review. See TEX. R.
APP. P. 33.1(a)(1); see also Resendiz, 112 S.W.3d at 547; Wilson, 71 S.W.3d at 349; Dixon, 2
S.W.3d at 273. Accordingly, we overrule appellant’s first issue.
III. SUFFICIENCY OF THE EVIDENCE ESTABLISHING A FELONY OFFENSE
In his second issue, appellant asserts that there is insufficient evidence to
establish a felony offense because the State failed to proffer a certified copy of
appellant’s prior DWI conviction in Nueces County, Texas.
The record reflects that appellant was charged by indictment with DWI under
section 49.04 of the Texas Penal Code. See TEX. PENAL CODE ANN. § 49.04. Also
included in the indictment was an enhancement paragraph that referenced two prior
Graves v. State Page 5 DWI convictions allegedly occurring in Nueces County and McLennan County. And
pursuant to sections 12.42(a) and 49.09(b)(2), the charged offense was enhanced to a
second-degree felony.2 See id. §§ 12.42(a), 49.09(b)(2). In support of the enhancement
allegation contained in the indictment, the State tendered copies of the judgment and
sentence for both of the alleged DWI convictions—both of which referred to appellant
and contained his fingerprints.
In order to prove a defendant was convicted of a prior offense for enhancement
purposes, the State must prove beyond a reasonable doubt that (1) a prior conviction
exists, and (2) the person identified for the conviction is the defendant. Flowers v. State,
220 S.W.3d 919, 921-22 (Tex. Crim. App. 2007). No specific document or mode of proof
is required to prove these two elements, and there is no “best evidence” rule that
requires the fact of a prior conviction to be proven with any particular document. Id.
The State may prove the required elements in a number of different ways, including
“documentary proof (such as a judgment) that contains sufficient information to
establish both the existence of a prior conviction and the defendant’s identity as the
person convicted.” Id. (citing Doby v. State, 454 S.W.2d 411, 413-14 (Tex. Crim. App.
1970)).
Don Marshall, an investigator with the District Attorney’s Office of McLennan
County, testified that the complained-of judgment and sentence, State’s exhibit 7,
depicted appellant’s September 9, 2000 conviction for “Operating a Motor Vehicle in a
The two prior DWI offenses alleged in the indictment elevated the charged offense to a third- 2
degree felony pursuant to section 49.09(b)(2) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2012). The charged offense was further enhanced by appellant’s DWI conviction in San Patricio County, Texas, on April 23, 2010. See id. § 12.42(a) (West Supp. 2012).
Graves v. State Page 6 Public Place While Intoxicated” and was a certified copy of a public document.
Marshall also noted that the fingerprints on the Nueces County judgment and sentence
matched appellant’s known fingerprints. Subsequently, State’s exhibit 7 was admitted
into evidence without an objection from appellant. Because appellant did not object in
the trial court regarding State’s exhibit 7, we find that appellant has waived his
complaints in this issue. See TEX. R. APP. P. 33.1; see also Wilson, 71 S.W.3d at 349.
Nevertheless, even if appellant had properly preserved this issue, we find that the
record evidence sufficiently establishes appellant’s prior DWI conviction in Nueces
County and appellant’s identity as the person convicted. See Flowers, 220 S.W.3d at 922;
see also Doby, 454 S.W.2d at 413-14. We overrule appellant’s second issue.
IV. CONCLUSION
Having overruled both of appellant’s issues on appeal, we affirm the judgment
of the trial court.
AL SCOGGINS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed July 18, 2013 Do not publish [CR25]
Graves v. State Page 7