AFFIRM; and Opinion Filed March 26, 2014.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-00496-CR

AQUILINO ABONZA MEDINA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court No. 2

Dallas County, Texas

Trial Court Cause No. MB10-31605

MEMORANDUM OPINION

Before Justices FitzGerald, Fillmore, and Evans 

Opinion by Justice Fillmore

A jury found appellant Aquilino Abonza Medina guilty of misdemeanor driving while 

intoxicated (DWI). The trial court assessed punishment of 180 days’ confinement and a fine of 

$1,200. The trial court suspended Medina’s confinement and placed him on community 

supervision for a period of twenty-four months. In a single issue, Medina asserts the trial court 

erred by admitting testimony of a toxicologist concerning Medina’s blood alcohol concentration. 

Medina argues the emergency room technician who drew Medina’s blood was not qualified to do 

so under section 724.017 of the transportation code, and, therefore, the proper evidentiary 

foundation for testimony concerning Medina’s blood alcohol concentration was not laid. We 

affirm the trial court’s judgment.
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Background

On the night of November 11, 2010, Ashley Carol Heidebrink observed a Hummer 

hitting a curb, going fast, and travelling on the wrong side of the road. Heidebrink thought the 

driver of the Hummer was either drunk or having a medical emergency. Heidebrink did not see 

anyone other than a male driver in the Hummer. Heidebrink called 9-1-1 and followed the 

Hummer. The Hummer stopped at a gas station, and the driver exited the vehicle. Although 

Medina’s girlfriend, Blanca Estella Cazares, testified that she was the driver of the Hummer that 

night, Heidebrink identified Medina at trial as the driver of the Hummer. Heidebrink testified 

that after Medina urinated on a gas pump, he went into the convenience store at the gas station. 

Heidebrink observed that Medina appeared to have trouble walking. While Medina was in the 

convenience store, Heidebrink walked to the Hummer and did not see anyone in the vehicle. As 

Medina was exiting the convenience store, police officers arrived at the scene.

Grand Prairie police officer Nathan McDonald testified at trial. McDonald was 

dispatched to the gas station with regard to a report that an individual had been driving erratically 

at a high rate of speed and on the wrong side of the road. Upon making contact with Medina, 

McDonald observed Medina’s eyes were glassy and bloodshot, his speech was slurred, his breath 

smelled of alcoholic beverage, the zipper of his pants was down, and he had urinated on himself. 

Based on the number of clues exhibited by Medina during McDonald’s attempt to administer the 

horizontal gaze nystagmus sobriety test, McDonald formed an opinion that Medina was

intoxicated. Medina refused to perform further field sobriety tests. McDonald placed Medina 

under arrest and transported him to jail. McDonald obtained a search warrant for a specimen of 

Medina’s blood.

Grand Prairie police officer Crystal Ziegler transported Medina to Baylor Medical Center 

at Irving, Texas, (Baylor) to have the search warrant for Medina’s blood executed. Ziegler 
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testified she observed the drawing of Medina’s blood by Danny Galvez. Ziegler testified she 

received the blood drawn by Galvez and transported Medina back to jail.

Galvez, an emergency room medical technician at Baylor, testified that at the time of 

trial, he was attending school to become a nurse. Galvez testified that he is a qualified medical 

technician based on his education, on-the-job training, and certification as a paramedic. Before 

working at Baylor, Galvez was a medic in the United States Marine Corps for four years. His 

qualification to become a Marine medic included education and training in drawing blood and 

starting and administering intravenous patient lines. As a Marine medic, he drew blood more 

than one thousand times. When he completed his paramedic training, he received a paramedic 

certification. Galvez testified that in order to work in the emergency room, one has to be a 

paramedic or emergency medical technician, or have experience as a medic in the military. As a 

medical technician at Baylor, Galvez is responsible for starting intravenous lines, administering

intravenous medications, drawing blood, and administering shots. Galvez testified that drawing 

blood and working with intravenous lines was a major aspect of his job at Baylor, and to satisfy 

Baylor’s competency “packet” for drawing blood, he was required to have performed a minimum 

of one hundred blood draws.

In the early hours of November 12, 2010, Galvez drew blood from Medina. Galvez

testified concerning the steps he took in drawing the blood and that he followed the applicable

procedures implemented by Baylor and the police department when drawing Medina’s blood. 

Medina also testified concerning the procedures utilized in labeling the tubes containing the 

blood drawn from Medina and that he provided the blood drawn from Medina to Ziegler. 

Aria McCall, a forensic toxicologist with the Southwestern Institute of Forensic Sciences,

testified regarding analysis of the blood alcohol content of Medina’s blood specimen drawn at 

Baylor. McCall testified Medina’s blood alcohol content was 0.16 grams of ethanol per 100 
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milliliters of blood, in excess of the legal limit of .08. Medina objected to admission of McCall’s 

testimony as to Medina’s blood alcohol concentration, because emergency room technician 

Galvez was not qualified to draw Medina’s blood under section 724.017 of the transportation 

code, and, therefore, the proper evidentiary foundation for McCall’s testimony had not been laid. 

Medina acknowledged Galvez had “lots of experience” and “tremendous training,” but objected 

to Galvez’s qualifications under the transportation code because Galvez was not a licensed 

phlebotomist or licensed technician. The trial court overruled Medina’s objection, finding 

Galvez was “a qualified technician in the eyes of this Court.”

A jury found Medina guilty of misdemeanor DWI. Medina filed this appeal.

Analysis

On appeal, Medina does not challenge whether the police had justification for his 

detention, arrest, or search warrant. In his sole issue, Medina contends the State failed to lay the 

proper predicate for the admission of the blood test results because the person who drew 

Medina’s blood pursuant to the search warrant was not qualified to do so under section 724.017 

of the transportation code. At the time Medina’s blood was drawn, section 724.017 provided:

(a) Only a physician, qualified technician, chemist, registered professional 

nurse, or licensed vocational nurse may take a blood specimen at the request or 

order of a peace officer under this chapter. The blood specimen must be taken in 

a sanitary place.

* * *

(c) In this section, “qualified technician” does not include emergency medical 

services personnel.

Act of April 21, 1995, 74th Leg., R.S., ch. 165, § 1 Tex. Gen. Laws 1025, 1822 (amended 2013) 

(current version at TEX. TRANSP. CODE ANN. § 724.017 (West Supp. 2013)).

1

 According to 

 1 Effective September 1, 2013, section 724.017 was amended in pertinent part as follows:

(a) Only the following may take a blood specimen at the request or order of a peace officer under this chapter:

(1) a physician;

(2) a qualified technician;

(3) a registered professional nurse;
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Medina, the trial court erred by admitting McCall’s testimony concerning Medina’s blood 

alcohol concentration because Medina’s blood sample was not taken by a qualified technician as 

required by section 724.017.

A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of 

discretion. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). An abuse of discretion 

occurs when the trial court’s decision lies outside the zone of reasonable disagreement. Id.

Texas’s implied consent statute governs the State’s ability to obtain a breath or blood 

sample from a person arrested for an intoxication-related offense and provides that an arrested 

suspect has impliedly consented to the taking of a sample in certain circumstances. See 

generally TEX. TRANSP. CODE ANN. §§ 724.001–724.064 (West 2011 & Supp. 2013); see also 

State v. Johnston, 336 S.W.3d 649, 660 (Tex. Crim. App. 2011) (chapter 724 of transportation 

code contains Texas’s implied consent statutes and governs State’s ability to obtain breath or 

blood sample from DWI suspect when there is no warrant). The statute limits the ability of 

police officers to obtain a blood sample when the arrested suspect expressly refuses, as Medina 

 (4) a licensed vocational nurse; or

(5) a licensed or certified emergency medical technician-intermediate or emergency medical technicianparamedic authorized to take a blood specimen under Subsection (c).

(a-1) The blood specimen must be taken in a sanitary place.

* * *

(c) A licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic 

may take a blood specimen only if authorized by the medical director for the entity that employs the technicianintermediate or technician-paramedic. The specimen must be taken according to a protocol developed by the medical 

director that provides direction to the technician-intermediate or technician-paramedic for the taking of a blood specimen at 

the request or order of a peace officer. In this subsection, “medical director” means a licensed physician who supervises 

the provision of emergency medical services by a public or private entity that:

(1) provides those services; and

(2) employs one or more licensed or certified emergency medical technician-intermediates or 

emergency medical technician-paramedics.

* * *

(c-2) If a licensed or certified emergency medical technician-intermediate or emergency medical 

technician-paramedic takes a blood specimen at the request or order of a peace officer, a peace officer must:

(1) observe the taking of the specimen; and

(2) immediately take possession of the specimen for purposes of establishing a chain of custody.

See Act of May 15, 2013, 83rd Leg., R.S., ch. 247, §§ 1, 2, 2 Tex. Gen. Laws 991, 991–92 (amended 2013) (current version at TEX. TRANSP.

CODE ANN. § 724.017 (West Supp. 2013)). The blood draw at issue occurred prior to the September 1, 2013 effective date of the amendments; 

accordingly, we use and refer to the statute in force at the time of the blood draw at issue. See Perry v. State, 902 S.W.2d 162, 163 (Tex. App.-–

Houston [1st Dist.] 1995, pet. ref’d) (trial court correctly applied statute in effect at time offense was committed).
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did here. See TEX. TRANSP. CODE ANN. §§ 724.012(b), 724.013 (West 2011).

2

 However, where, 

as here, a valid search warrant is obtained for a blood sample, the requirements of chapter 724 do 

not apply. See Beeman v. State, 86 S.W.3d 613, 615, 616 (Tex. Crim. App. 2002) (“[I]f the state 

has a valid search warrant, it has no need to obtain the suspect’s consent” and “consent, implied 

or explicit, becomes moot”); Stovall v. State, No. 03-10-00552-CR, 2011 WL 5865235, at *6 

(Tex. App.-–Austin Nov. 23, 2011, no pet.) (“When a valid search warrant is obtained for a 

blood or breath sample, the requirements of chapter 724 do not apply because there is no need to 

obtain the arrested suspect’s consent.”) (citing Beeman, 86 S.W.3d at 616).3 Accordingly, 

Medina’s single issue on appeal, which hinges on the applicability of section 724.017 of the 

transportation code, is without merit.

Even if we analyzed Medina’s blood draw under the Fourth Amendment 

“reasonableness” standard, the trial court did not abuse its discretion in admitting McCall’s 

testimony concerning Medina’s blood alcohol concentration. See U.S. CONST. amend. IV. First, 

the Supreme Court has determined that, for the general population, a blood test is a reasonable 

means for analyzing an individual’s alcohol level. Schmerber v. California, 384 U.S. 757, 771 

(1966); see also Johnston, 336 S.W.3d at 659. In the absence of any record evidence that a 

venipuncture blood draw would not be reasonable in Medina’s case due to a verifiable medical 

condition, we presume that the choice to administer the test is reasonable. See Johnston, 336 

S.W.3d at 660. Second, compliance with section 724.017 of the transportation code is one non-

 2 See also State v. Baker, No. 12-12-00092-CR, 2013 WL 5657649, at *4 (Tex. App.—Tyler Oct. 16, 2013, pet. granted) (mem. op., not 

designated for publication) (“[I]n the absence of a valid search warrant or actual consent, full compliance with Chapter 724 [of the transportation 

code] is required. . . .”).

3 See also Tex. Dep’t of Pub. Safety v. Lee, No. 03-11-00532, 2012 WL 3793261, at *2 n.5 (Tex. App.-–Austin Aug. 31, 2012, no pet.) 

(mem. op., not designated for publication) (“The implied consent statute does not affect an officer’s right to obtain a search warrant for the blood 

draw.”) (citing Beeman, 86 S.W.3d at 615–16); Martin v. State, No. 10-10-00426-CR, 2012 WL 3242666, at *2 n.1 (Tex. App.-–Waco Aug. 9, 

2012, pet. ref’d) (mem. op., not designated for publication) (citing Beeman, 86 S.W.3d at 616, for “holding that Chapter 724 is inapplicable when 

there is a warrant to draw blood and that compliance with Chapter 724 is not necessary to satisfy the Fourth Amendment”); Dye v. State, No. 08-

02-00018-CR, 2003 WL 361289, at *1 (Tex. App.—El Paso Feb. 20, 2003, no pet.) (mem. op., not designated for publication) (“In Beeman, the 

court held that [transportation code] sections 724.012 [regarding taking of a specimen] and 724.013 [regarding taking of a specimen if a person 

refuses], do not prohibit conducting a blood test pursuant to a search warrant. When a valid search warrant has been obtained, sections 724.012 

and 724.013 become moot.”) (citing Beeman, 86 S.W.3d at 614–15, 616).
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exclusive means for establishing the reasonableness of the “manner of performance” of the blood 

draw. Id. at 661. The evidence at trial established Galvez was an emergency room medical 

technician who was attending school to become a nurse. Galvez testified regarding his education 

and experience, certification as a paramedic, and training in drawing blood and starting 

intravenous patient lines. He testified that, in his four years as a Marine medic, he drew blood 

more than one thousand times. Galvez further testified that, as a medical technician at Baylor, 

drawing blood was a major aspect of his job and to satisfy the hospital’s competency “packet,” 

he had to perform a minimum of one hundred blood draws. Galvez’s testimony established he 

was familiar with procedures for drawing a blood sample and had drawn blood on many 

occasions. Indeed, Medina’s counsel acknowledged to the trial court that Galvez had “lots of 

experience” and “tremendous training.” On this record, Galvez was a “qualified technician” 

entitled to draw Medina’s blood under the standards of section 724.017. See Krause v. State, 405 

S.W.3d 82, 83–86 (Tex. Crim. App. 2013) (hospital employee who was trained to draw blood, 

whose primary duty at the hospital for six years was to draw blood, who took between fifty to 

one hundred blood draws per day, and knew how to use the kit and equipment provided by the 

police officers to take blood specimens was qualified within the meaning of section 724.017); 

State v. Bingham, 921 S.W.2d 494, 496 (Tex. App.—Waco 1996, pet. ref’d) (“The commonsense interpretation of the term ‘qualified technician,’ . . . must include a phlebotomist who a 

hospital or other medical facility has determined to be qualified in the technical job of 

venesection or phlebotomy, i.e., the drawing of blood.”).4

 Further, Medina’s blood draw 

 4 See also Meier v. State, No. 05-08-00486, 2009 WL 765490, at *2 (Tex. App.-–Dallas Mar. 25, 2009, no pet.) (not designated for 

publication) (determination of whether someone is a “qualified technician” under section 724.017 depends on that individual’s education, 

training, and experience; evidence of phlebotomist’s extensive education, training, and experience established she was a qualified technician 

under section 724.017, and trial court did not abuse its discretion when it overruled appellant’s objection to admission into evidence of blood 

alcohol test results); Edwards v. State, No. 11-11-00135-CR, 2013 WL 6178582, at *3 (Tex. App.—Eastland Nov. 21, 2013, no pet.) (mem. op., 

not designated for publication) (trial court did not abuse its discretion in determining medical technologist who drew appellant’s blood was a 

“qualified technician” under transportation code section 724.017 where technician had earned Bachelor of Science degree in medical technology, 

was trained to draw blood, and worked for hospital for seventeen years where his duties included drawing and testing blood); Goin v. State, No. 

02-11-00031-CR, 2011 WL 6260875, at *6 (Tex. App.—Fort Worth Dec. 15, 2011, pet. ref’d) (mem. op., not designated for publication) (trial 
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occurred at Baylor Medical Center at Irving, Texas. Medina does not argue on appeal that the 

medical environment in which his blood was taken was unsafe or that the manner of performance 

of the blood draw was inconsistent with accepted medical practices or presented an “unjustified 

element of personal risk of infection or pain.” Johnston, 336 S.W.3d at 663. Accordingly, under 

the totality of the circumstances in this record, the manner of performance of Medina’s blood 

draw was reasonable.

We conclude the trial court did not abuse its discretion in admitting McCall’s testimony 

concerning Medina’s blood alcohol concentration. We resolve Medina’s sole issue against him. 

Having resolved Medina’s sole issue against him, we affirm the trial court’s judgment.

Do Not Publish

TEX. R. APP. P. 47

130496F.U05

 court did not abuse its discretion by determining that phlebotomist was qualified under section 724.017 of the transportation code and by 

admitting the blood specimen drawn after his arrest); Finley v. State, No. 06-10-00218-CR, 2011 WL 6395158, at *6–7 (Tex. App.—Texarkana 

Dec. 20, 2011, pet. ref’d) (mem. op., not designated for publication) (“We note that Section 724.017 of the Texas Transportation Code, in 

including ‘qualified technician’ among those authorized to draw blood, makes no requirement that the technician be licensed or certified, only 

that they are qualified to perform the task.”).

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

AQUILINO ABONZA MEDINA, Appellant

No. 05-13-00496-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court 

No. 2, Dallas County, Texas,

Trial Court Cause No. MB10-31605.

Opinion delivered by Justice Fillmore, 

Justices FitzGerald and Evans participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 26th day of March, 2014.

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE