Opinion filed July 27, 2023

In The

Eleventh Court of Appeals __________

No. 11-22-00025-CR

__________

STEPHEN WAYDE MEADE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR26662

M E M O R A N D U M O P I N I O N

The jury convicted Appellant, Stephen Wayde Meade, of felony driving while 

intoxicated. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b) (West Supp. 2022). The 

trial court assessed his punishment at confinement for a term of thirty years in the 

Institutional Division of the Texas Department of Criminal Justice.
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In this appeal, we must determine whether the trial court erred when it allowed 

a witness during the State’s case-in-chief—who tested positive for COVID-19 

shortly before trial—to testify via two-way remote teleconferencing. We conclude 

that the State satisfied the requirements for remote testimony under the Sixth 

Amendment, as articulated in Haggard v. State, 612 S.W.3d 318, 325 (Tex. Crim. 

App. 2020), and we affirm.

Background Facts

On December 14, 2018, Appellant crashed his Chevrolet pickup into the back 

of a GMC Yukon. Brownwood Police Department Officers Kayla Moore and 

Joshua Holmes were dispatched to the scene. With Appellant’s permission, Officer 

Moore entered the pickup to retrieve his insurance card. When Officer Moore 

opened the door to the pickup, however, she detected the strong odor of alcohol

emitting from the vehicle. She also noticed a 32-ounce cup that smelled like alcohol

within the pickup. Appellant admitted to drinking three hours prior to the accident. 

Officer Moore observed that Appellant had a “disheveled look,” “glossy eyes,” and 

slurred speech. She then administered standardized field sobriety tests to determine

if Appellant was intoxicated. As a result of her investigation, Officer Moore arrested 

Appellant for driving while intoxicated.

It is undisputed that, following his arrest, Appellant consented to provide a 

blood sample. Appellant was then taken to a hospital where his blood was drawn by 

phlebotomist Sharon Hope. Appellant’s blood sample was later tested by Sarah 

McGregor, a forensic scientist with the Texas Department of Public Safety. 

McGregor’s test results indicated that Appellant had a blood alcohol level of 0.217. 

Prior to jury selection, the State announced that Hope had tested positive for 

COVID-19 on the previous Saturday, and it requested that she be allowed to “testify 

via Zoom.” After some discussion, the trial court inquired as to whether the parties 
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wanted an immediate ruling or whether the issue could be taken up at a later time. 

In response, the State and Appellant each agreed that the issue could be taken up at 

a later time. Subsequently, after a hearing relating to the chain of custody of the 

blood sample, the trial court admitted the physical blood sample and related 

materials but reserved the question of whether the lab results themselves were 

admissible. The case then proceeded to trial.

In an effort to establish the intoxication element of the offense, the State 

sought to prove that Appellant’s blood alcohol concentration was in excess of 0.08. 

See TEX. PENAL CODE §§ 49.04(a), 49.01(2)(B) (West 2011). The State offered into 

evidence the laboratory results of a blood alcohol test that was performed by 

McGregor. 

When McGregor was asked about the results of the test, counsel for Appellant

objected that there was no evidence that the blood sample at issue had been obtained 

by a person who was qualified to perform the procedure. As a result of this 

objection, the State sought to call Hope to testify via Zoom, a computer application 

that features remote two-way teleconferencing. The trial court then proceeded with

a hearing to determine whether Hope would be allowed to testify before the jury via 

two-way teleconferencing. Hope testified remotely at the hearing, over the objection 

of counsel for Appellant.

Following the hearing, counsel for Appellant objected to remote testimony 

from Hope, arguing that it violated Appellant’s rights under the Confrontation 

Clause in the Sixth Amendment. The trial court overruled the objection. Hope then

briefly testified before the jury, describing her qualifications as a phlebotomist, the 

process by which she took the blood sample, and the cleanliness of the area where 

the blood sample was drawn.
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Analysis

 In his sole issue on appeal, Appellant complains that the trial court erred 

when it allowed Hope to testify via remote two-way teleconferencing.

At the time of trial, in January 2022, testimony by teleconferencing was 

permissible as a result of the COVID-19 pandemic under the supreme court’s FortyFifth Emergency Order Regarding the COVID-19 State of Disaster, 660 S.W.3d 84, 

86 (Tex. 2021). However, the order provided that the use of teleconferencing is 

“[s]ubject to constitutional limitations.” Id. at 85. As such, the question presented 

in this case is whether the trial court violated Appellant’s constitutional rights when 

it allowed Hope to testify through remote teleconferencing.

Appellant maintains that the use of remote teleconferencing in this instance 

violates his right to confront his accusers under the Sixth Amendment. The 

Confrontation Clause states that “[i]n all criminal prosecutions, the accused shall 

enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. 

amend VI. It provides criminal defendants with the right to physically confront those 

who testify against them. Coy v. Iowa, 487 U.S. 1012, 1016 (1988) (the 

Confrontation Clause “guarantees the defendant a face-to-face meeting with 

witnesses appearing before the trier of fact”). However, the right to a face-to-face 

meeting is not absolute. Maryland v. Craig, 497 U.S. 836, 849–50 (1990). In order 

to apply an exception to the face-to-face meeting rule, the trial court must find that 

(1) the circumstances requiring the exception further an “important public policy,”

and (2) the reliability of the testimony is otherwise assured. Craig, 497 U.S. at 850;

Haggard, 612 S.W.3d at 325.

With regard to the question of reliability, a key inquiry is whether the method 

of testimony preserves the salutary effects of face-to-face confrontation that are 

relevant to a Sixth Amendment analysis. Stevens v. State, 234 S.W.3d 748, 782 
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(Tex. App.—Fort Worth 2007, no pet.). Thus, the courts must consider: (1) whether 

the statement is given under oath, (2) whether the witness is subject to crossexamination, (3) whether the jury can observe the demeanor of the witness, and 

(4) the reduced risk that a witness will wrongfully implicate innocent defendants

when testifying in their presence. Craig, 497 U.S. at 845-46; Stevens, 234 S.W.3d 

at 782; Dies v. State, 649 S.W.3d 273, 283 (Tex. App.—Dallas 2022, pet. ref’d).

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In this instance, the evidence showed that Hope had tested positive for 

COVID-19 on the Saturday before trial. At the time of her testimony, she was 

suffering from fatigue and body aches. She was not scheduled to be out of 

quarantine for another week, and her physician considered her to be contagious until 

that time.

The trial court found that it was necessary for Hope to testify through twoway video telecommunication to avoid exposing the virus to jurors, court personnel, 

the court reporter, clerks, bailiffs, the defendant, the attorneys, and members of the 

public. It further found that Hope would still be subject to cross-examination, that 

the technology involved was familiar for the court and everyone involved, that 

Appellant would be able to sit with counsel and confer with him during the 

testimony, and that her testimony would—in any event—likely be very brief. The 

trial court further rejected the option to continue the case because it was concerned—

particularly in light of the COVID-19 pandemic—that the jury might not be able to 

return at a later time.

The trial court’s findings are consistent with the requirements of Craig and 

Haggard. Specifically, they reflect that the use of two-way testimony ensured the 

health and safety of all trial participants, furthering an important public policy. See

1

In Dies v. State, the Dallas Court of Appeals reviewed the trial court’s decision to permit a witness 

that was in quarantine because of an exposure to COVID-19 to testify remotely. 649 S.W.3d at 276. 
6

Dies, 649 S.W.3d at 283 (“To the extent that two-way video testimony ensured the 

health and safety of all trial participants during [the COVID-19] pandemic, it 

furthered an important public policy of protecting the public.”).

Furthermore, the method of two-way telecommunication using Zoom was 

consistent with the salutary effects of face-to-face confrontation. See Craig, 497 

U.S. at 845-46. Specifically, it permitted a statement to be given (1) under oath 

which was (2) subject to cross-examination in a manner in which (3) the jury could 

observe the demeanor of the witness. Id.; see also Dies, 649 S.W.3d at 283 (holding

that a similar two-way video feed also satisfied the salutary effects articulated in 

Craig). Because Hope’s testimony was limited to authenticating the blood sample, 

and because Officer Moore had already identified Appellant as the person from 

whom Hope took the blood sample, there was also a limited risk that she would 

wrongly implicate an innocent defendant. See Dies, 649 S.W.3d at 283.

Appellant argues that the trial court could have postponed the trial until Hope 

was available to testify in person. He also complains that the State created the issue 

that confronted the trial court by not asking for a continuance prior to jury selection.

The record shows that the trial court took these factors into consideration but 

nonetheless concluded that, given the risk that the jury could not return at a later date

and the relatively minor impact that Hope’s testimony would have in the case, it was 

appropriate to proceed. Under such circumstances, it was not error for the trial court 

to proceed with remote testimony from Hope.

Additionally, even if the trial court erred in allowing Hope to testify by twoway video teleconferencing, such error was harmless. “A denial of physical, faceto-face confrontation is reviewed for harmless error.” Haggard, 612 S.W.3d at 328 

(citing Coy, 487 U.S. at 1021). “Constitutional error is harmful unless a reviewing 

court determines beyond a reasonable doubt that the error did not contribute to the 
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conviction.” Id. (citing TEX. R. APP. P. 44.2(a)). “In the context of the denial of 

physical confrontation,. . . . harm must be determined based on ‘the remaining 

evidence.’” Id. (citing Coy, 487 U.S. at 1021-22).

We first note that Hope’s testimony was not necessary to establish any 

elements of the offense. See Coy, 487 U.S. at 1021; Ellison v. State, 494 S.W.3d

316, 325 (Tex. App.—Eastland 2015, pet. ref’d). In order to prove Appellant’s 

blood alcohol level at the time of the incident, the State was required to establish a 

chain of custody between the blood draw and the testing that was performed by 

McGregor. Durrett v. State, 36 S.W.3d 205, 208 (Tex. App.—Houston [14th Dist.] 

2001, no pet.). Proof of the beginning and the end of the chain of custody will 

support admission of the evidence unless there is a showing of tampering or 

contamination. Id. Moreover, the State, through testimony, proved the element of 

intoxication by means other than Appellant’s blood alcohol level being over the legal 

limit; namely, the State proved that Appellant did not have the normal use of his 

mental or physical faculties by reason of the introduction of alcohol into his body. 

See PENAL CODE § 49.01(2)(A).

In this case, Officer Moore testified that the blood draw was performed in her 

presence, and she positively identified the blood sample that was in evidence as the 

same one that was drawn on the day of the accident. Likewise, Kimberly Holland, 

a corporal for the criminal investigation division for the Brownwood Police 

Department, offered testimony regarding the manner in which the department retains

evidence and confirmed that she retrieved the blood sample from an assistant police 

chief prior to bringing it to court. This evidence was uncontroverted by Appellant, 

and there was no suggestion of tampering or other mishandling of the evidence while 

it was in the possession of the Brownwood Police Department. Given these 
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circumstances, Hope’s testimony was not necessary to authenticate or establish the 

chain of custody for the blood sample.

At trial, Appellant argued that Hope’s testimony was necessary because the 

State was required to satisfy the requirements of section 724.017(a) and (a-1) of the

Texas Transportation Code. See TEX. TRANSP.CODE ANN. § 724.017(a), (a-1) (West 

2022). Chapter 724 provides that, for purposes of certain alcohol-related offenses, 

including driving while intoxicated, a defendant is deemed to have consented to a 

blood draw when several conditions are met. Id. § 724.011(a). Among those 

conditions are requirements that: (a) someone with appropriate qualifications 

conducts the blood draw and (b) the specimen is “taken in a sanitary place.” Id. 

§ 724.017(a), (a-1). These provisions ensure that the process of procuring the 

evidence did not constitute an unreasonable search or seizure under the Fourth 

Amendment. See Schmerber v. California, 384 U.S. 757, 767 (1966) (Fourth 

Amendment protects suspects against medical procedures that are made by 

unqualified personnel).

Appellant’s contention that the State was required to show compliance at trial 

with Section 724.017(a) and (a-1) is incorrect. See State v. Robinson, 334 S.W.3d 

776, 779 (Tex. Crim. App. 2011); Duran v. State, No. 09-18-00361-CR, 2020 WL 

5805951, at *3 (Tex. App.—Beaumont Sept. 30, 2020, no pet.) (mem. op., not 

designated for publication). Appellant had the burden to produce evidence of a 

statutory violation. See Robinson, 334 S.W.3d at 779; Duran, 2020 WL 5805951, 

at *3. Only if Appellant produced evidence of a statutory violation would the State 

have the burden to prove statutory compliance. Robinson, 334 S.W.3d at 779; 

Duran, 2020 WL 5805951, at *3. Here, Appellant did not show a statutory violation.

In summary, while Hope’s testimony may have been relevant to a motion to 

suppress, it was not independently necessary to establish any of the elements of the 
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offense. Furthermore, her testimony was uncontested and limited to issues that were 

duplicative of other testimony. Under such circumstances, we conclude beyond a 

reasonable doubt that, even if the trial court erred in admitting her testimony via 

remote video-teleconferencing, such an error did not contribute to the conviction.

See Ellison, 494 S.W.3d at 325. We overrule Appellant’s sole issue on appeal.

This Court’s Ruling

We affirm the judgment of the trial court.

JOHN M. BAILEY

CHIEF JUSTICE

July 27, 2023

Do not publish. See TEX. R. APP. P. 47.2(b). 

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.