Opinion
No. 13-08-00653-CR
Memorandum Opinion delivered and filed July 23, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b)
On appeal from the County Court at Law No. 2 of Nueces County, Texas.
Before Justices RODRIGUEZ, GARZA, and VELA.
MEMORANDUM OPINION
Appellant, Douglas Sander, was charged by information with driving while intoxicated based on his involvement in a motor vehicle accident. See Tex. Penal Code Ann. § 49.04 (Vernon 2003). Sander pleaded not guilty to the charges. A jury found Sander guilty of the offense, and the trial court assessed punishment at 180 days' confinement in a Nueces County Jail and imposed a $1,000 fine. The trial court's sentence was suspended and Sander was placed on community supervision for one year. By two issues, Sander contends that the trial court committed reversible error by admitting: (1) hearsay statements of the driver of the other car involved in the accident; and (2) the results of a blood test taken at the local hospital. We affirm.
I. Factual and Procedural Background
On December 28, 2007, at approximately 11:30 p.m., Officer Victor Casares of the Corpus Christi Police Department was dispatched to a minor two-car accident in Corpus Christi, Texas. Upon arrival, Officer Casares found two wrecked vehicles in the roadway. Officer Casares spoke to Sander and the driver of the other car involved in the accident to discover what had happened. At trial, Officer Casares testified, over objection, that the driver of the other car told him that she was driving eastbound on Lipes Boulevard and that, when she attempted to make a left-turn on Spanishwood, Sander attempted to "overtake her and struck her vehicle." While speaking to Sander at the scene, Officer Casares noticed that Sander smelled of alcohol and immediately requested backup. Officers Anthony Sanders and Armando Vasquez arrived at the scene shortly thereafter. Officer Vasquez performed three field sobriety tests on Sander to determine if he was intoxicated. Officer Vasquez noticed that Sander: (1) had trouble standing; (2) slurred his speech; and (3) had glossy eyes. Sander admitted that he was the driver of one of the vehicles involved in the accident and that he had drunk alcohol before the accident. Based on the observations made by Officers Vasquez and Casares and on Sander's poor performance on the field sobriety tests, it was determined that Sander was intoxicated, and he was subsequently arrested. Because Sander was involved in an automobile accident, Officer Vasquez took Sander to Bay Area Hospital to be checked for injuries. While at the hospital, Officer Vasquez requested that Sander provide law enforcement with a blood sample to accurately determine whether he was intoxicated. Officer Vasquez then read Sander various warnings and instructions pertaining to the collection of the blood sample; Sander agreed to provide the blood sample. Gerald Schroepfer, a registered nurse at the Bay Area Hospital, took Sander's blood sample. Officers Sanders and Raymond Harrison were both present during the collection of Sander's blood sample. Officer Sanders signed a document indicating that he was a witness to the blood draw. Schroepfer testified that he made notations on the vial of blood and that the vial was dated December 28, 2007, at 12:39 a.m. Schroepfer further testified that, once the blood was collected, he wrapped up the container and handed it over to law enforcement. Efrain Perez, a forensic scientist with the Texas Department of Public Safety Crime Laboratory ("TDPS Crime Lab"), testified that the vial of blood was received on January 4, 2008. Perez noted that, upon receipt of blood samples, technicians are trained to immediately place the vials in the refrigerator at a specified temperature in the locked evidence vault. Perez analyzed the blood sample on January 10, 2008, and based on his analysis, Sander had a blood alcohol concentration of 0.22 grams of alcohol per 100 millimeters of blood on the evening of the accident, which was over the legal limit. Perez further testified that it appeared that Sander's blood sample had been treated with anticoagulants — potassium oxalate and sodium fluoride — to prevent coagulation and degradation of the sample from occurring. On January 28, 2008, Sander was charged by information with driving while intoxicated, a class B misdemeanor, and was subsequently convicted of the offense. See Tex. Penal Code Ann. § 49.04 (Vernon 2003). Sander's right to appeal was certified by the trial court on October 15, 2008. This appeal ensued.II. Standard Of Review
Both of Sander's issues pertain to the trial court's admission of certain evidence. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex.Crim.App. 2007). A trial court's decision will be upheld unless it lies outside the "zone of reasonable disagreement." Id.III. Analysis
A. Hearsay Statements
In his first issue, Sander asserts that the trial court committed reversible error by admitting hearsay statements made by Officer Casares at trial. Specifically, Sander complains about Officer Casares's recounting of the statements of the other driver involved in the accident regarding the details of the accident and, in particular, the other driver's assertion that Sander had been driving the car that had hit her. The State counters by arguing that Sander made a premature objection, which did not preserve error and that, even if error had been preserved, such error would have been harmless.1. Preservation of Error
The following exchange is the basis for Sander's complaint:Q: [State's counsel] Did you also speak with the other driver that night?
A: [Officer Casares] Yes.
Q: And what happened with her?
A: She gave me her side of the story?
Q: And can you tell the jury in your opinion as to your investigation what happened?
[Counsel for Sander]: Well, once again, I'm going to object. He's saying he talked to both sides. So anything that he says now would be hearsay from those people.
THE COURT: Your objection's overruled. You may answer, sir.
A: The driver, number two, the female, said she was driving eastbound on Lipes and she was going to make a left on the street, I think it was Spanishwood. I'd have to review my report to be exact. And she said the number one driver, which is the defendant, tried to overtake her and struck her vehicle.Sander contends that this exchange resulted in the admission of inadmissible hearsay testimony. He further urges that this testimony was the only evidence that the State provided to corroborate earlier testimony pertaining to Sander's admission that he was the driver of one of the vehicles involved. See Coleman v. State, 704 S.W.2d 511, 512 (Tex.App.-Houston [1st Dist.] 1986, pet. ref'd) ("[T]he corpus delicti of drunken driving consists of the fact that someone operated a motor vehicle in a public place while intoxicated. The accused's confession cannot, itself, establish such fact."). As a result, Sander argues that Officer Casares's testimony about what the other driver told him was inadmissible hearsay testimony, and because the State failed to corroborate Sander's admission that he was the driver, the State failed to prove that Sander was the driver of the vehicle. The State argues that the question immediately preceding Sander's objection did not call for inadmissible hearsay. It further argues that the question was merely designed to elicit Officer Casares's opinion about what had happened that evening. Because the question was not designed to elicit inadmissible hearsay, the State asserts that Sander's objection was premature and, therefore, did not preserve error. We agree. To preserve an error for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. Trevino v. State, 174 S.W.3d 925, 927 (Tex.App.-Corpus Christi 2005, pet. ref'd) (citing Tex. R. App. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App. 2000) (en banc)). "All a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Id. (quoting Keeter v. State, 175 S.W.3d 756, 760 (Tex.Crim.App. 2005)). The State's question to Officer Casares about his opinion regarding the investigation was not designed to elicit hearsay testimony; it was designed to allow Officer Casares to comment on his investigation and how Sander became a suspect. See Osbourn v. State, 92 S.W.3d 531, 536-37 (Tex.Crim.App. 2002) (noting that the testimony of a police officer based on his experience is admissible as a lay opinion); Ventroy v. State, 917 S.W.2d 419, 422 (Tex.App.-San Antonio 1996, pet. ref'd) (stating that a police officer can testify as both a lay and expert witness based on personal knowledge and experience from many previous accident investigations); see also Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App. 1995); Lee v. State, 29 S.W.3d 570, 577 (Tex.App.-Dallas 2000, no pet.) ("Police officers may testify to explain how the investigation began and how the defendant became a suspect."). Because the State's question of Officer Casares was not designed to elicit hearsay testimony, we conclude that Sander's objection was premature. We are mindful that after the trial court overruled Sander's objection, Officer Casares went on to testify as to the statements made to him by the other driver. However, Sander neither re-asserted his objection during or after Officer Casares's testimony as to the statements made by the other driver nor moved to strike the testimony. See Tex. R. App. P. 33.1(a)(1); see also Dinkins, 894 S.W.2d at 355 (stating that an objection should be made as soon as the ground for the objection becomes apparent, and if a question clearly calls for an objectionable response, the objection should be made before the witness responds); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991) (providing that if it was not possible to make a timely objection and the evidence is actually admitted, the defense must object as soon as the objectionable nature of the evidence became apparent and move to strike the evidence). Because we have found that Sander's objection was premature, we conclude that Sander has not preserved this issue for appeal.