### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00372
- CR

William Barr ie Bowlin , Appellant

v. The State of Texas , Appellee

FROM THE 22ND DISTRICT COURT OF HAYS COUNTY NO. CR
- 17
- 0993
- A , THE HONORABLE WILLIAM R. HENRY , JUDGE PRESIDING

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

William Barr ie Bowlin was charged with the felony off ense of driving while intoxicated with t wo prio r convictions for the same offense

. See Tex. Penal Code §§ 49.04, .09. The indict ment contained enhancement parag rap hs alleging tha t Bowlin had previously been convicted sequential ly of two felony offense s . See id. § 12.42. At the end of the guilt

- innoc ence ph ase, the jury found Bowlin guilty of t he charged offense. During the punishment phase, the trial court fou nd t h e en hancement allegations to be true and sentenced Bowlin to thirty
years ’ im prisonment. See id. In four issues on appeal, Bowlin challenges the sufficien cy of the evidence supporting his conviction and supporting the tr ial court ’ s finding of true f or o n e of the enhancement allegations and argues that the tria l court erred by admitting testimony from the
State ’ s expert witness and admitting his medical records. We will affirm the trial court ’ s judgment of conviction.2 BACKGROUND
O n November 30, 2016 , while in Hays County, T exa s, Bowlin was ar rested for driving while intoxicated

. Shortly after his a rrest, Bowl in was transported to an emergency

room to be treated for his heart condition. Bowlin was later indicted for felony driving whil e intoxicat ed wi th t wo prior convictions fo r the same offense from 2005 and 2009

. T he indictment also contained two enhancement paragraphs alleging that Bowlin had previously been sequentially convicted of the f elony offenses of driving while into xicated in 1983 and ag gr avated assaul t in 2009

. During trial, the State called the following witnesses : the investigating officer, the hospital lab manager , the hospital laboratory technician who tested Bowlin ’ s blood samples , the emergency physicia n who treated Bowlin , a nd a so cial worker for t he hospital. In ad dition, Bowlin ’ s hospital medical records and the investiga ting officer ’ s body

- camera rec ording were admitted into evidence. After the State fini shed its case, Bowlin called his friend Audrey Sulpizio as a witness

.

In his testimony, the investigating officer explained that he was driving along a loop that he patrols in Dripping Springs, Texas, when he noticed a disabled vehicle around 9:50
p.m . The officer recalled that the vehicle had not been ther e twenty to thi rt y minutes earlier when he passed the same area. The vehicle , a sports car with two se at s , was stuck on a curb

on a public r oad near H ighway 2 90 with its engine run ning and its headli ghts on. A man later identifie d as Bowlin w as standing near the vehicl e , a nd no one else was near or inside the car . T he officer approached Bowlin to speak with him and noticed the smell of a lcohol on Bowlin ’ s breat h and re d stains on Bowlin ’ s face and shirt

.

Bowlin to ld the officer that he was trying to turn his car around be fore h e got stuck , but Bowlin did not say that anyone else had been driving the car

. Bowlin admitted to the3

office r that he had “ a li t tle bit ” to drink that night and that his drinking might have contributed
to how his vehicle got stuck. Bow lin was con fu sed ab ou t where he was , initially stat ing that he was trying to reac h a hotel b ut then rep eatedly mentioning that he had just l eft and was try ing to get b ack to his fath er ’ s house in Midland, Texas. When asked where h e curr ently lives, Bowlin stated tha t he live s in Midlan d but later said that he lives in Au stin, Texas

. H is driver ’ s li ce nse listed a n Austin address . Bowlin to ld the officer that he believed that they were both currently in Odessa, Texas, and was surprised to learn that the y w ere in Drip pi ng Sprin g s. Similarly, Bowlin told the inv e stigating officer that he was ei ghty years old even though hi s driver ’ s lice nse i ndicated that he was in his sixties. When t he officer asked Bowlin to retrieve proof of insurance from inside the car , Bowlin pr o d uced a do cument relating to an air conditioner

. In his investi gation, the office r learn ed that the car w as r egistered to Bow lin and found a mostly empty wine bottle with a red liquid in the bottom resem bling the color o f the stains on Bowlin ’ s face and sh i rt

. The officer noticed several items in the pas senger sea t that would have ma d e i t difficult for anyone to s it th ere.

The officer asked Bowlin if he would submit to field

- sobr ie ty testing , and Bowlin stated that he would fai l the tests bu t agreed to t ry. Dur ing the horizontal

- gaze - nystagmus test, the officer noticed four o ut o f six possible indicators of intoxicat ion, and the officer had to repeatedly remind Bowlin to hold his head still during the test. During the walk

- and

- turn test, Bo wlin began wa lking before the officer finished the instructi ons. At that point, Bow lin asked for a br ea k and stated th at he wanted to go to a hotel. B a sed on his obs ervations, the officer decided to place Bowlin under arrest for driving while intoxi cated

. When the o fficer attem pted
to inquire whether Bo wlin woul d be willing to provide a breath sample, Bow li n started w heezing and stated that he needed to go to the hospital because of a heart condition. At that point , the4

officer called Emergency Medical Services ( “ EM S ” ) , w ho responded to the scene, evaluated Bowlin , an d recommended that Bowli n be taken t o the hospital

. The off icer released Bowlin for medical treatment and then returned to his patrol duties. During his cross

- examination, the officer admi tted that h e did not see Bowlin driving t hat n ight, did not see Bowlin in the drive r ’ s seat oth er than when the officer directed him to get in the vehicle , did not find any witnesses , and did not obtain any surveillance footage

.

The rec ording from the officer ’ s bod y camera is generally consistent with the officer ’ s test imony. In addition, t he re cor ding shows various items on the passeng er sea t and in the passenger - seat floorboard , including large storage containers

. T he recording documents that th e trunk was compl et ely fu ll and docum ents Bowlin telling the i nvestigating officer and EMS personnel that he was ei ghty years old and ninety

- nine years old.

Following the officer ’ s testimony, the lab manager for th e h ospital where Bowlin was treated test ified about a mac hi ne used by l ab technic ians for analy zing, a mong other things, alcohol concentration

. Ne xt, t he hospital lab technician testified that she tested Bowlin ’ s blood samples using the machine

. Additionally, t he emergency room physic ian w ho t reated Bowli n on th e nigh t i n question testified tha t during her treatment o f Bowlin, she o rdered that Bowlin ’ s blood samples be tested for alcohol three times

. T he three tests performed at 11:1 2 p.m., 1:14

a.m. , and 3:05 a.m. s howed blood

- alcohol co ncent rations of 2 94, 2 40 , and 2 13 mic ro grams per milliliter , respectively. Addition ally, the physician related that concentrations between 150 and 350 are toxic for medical purposes , that t he three results were all i n the toxic range , and that

con centrations a bove 350 can re su lt in a c oma . However, the physician also cautione d against using those types of medical test results for deciding if someone was legally intoxicated. The hospital social wo rker testifi ed that she talked with Bowlin a few hours after he arrived and that5

he admit ted to her that he had been drinking all day and that he drank “ a fifth

- and

- a - half of liquor . . . that night

. ”

When the State re sted, Bowlin called his friend Sulpizio , who testified that she went on a few dates with Bowl in in 2016, th at h e call ed her on the day in question b e cause he wanted t o show her his new car, and that she got into his car while the y were in Aust in. Next, Sulpizio rel ated that she noticed that “ there was something wrong ” with Bowlin because he was
p rovidi ng rando m an swers to her question s and that she to ld him to pull over and let her drive the

car. Fur ther, Sulpiz i o explained that she drove the car to Drip ping Springs , that Bowlin started arguing with her and told her to pull over, and that she dro ve the car ont o th e curb

. Su lpizio testified that s he left the area because she was mad at Bowli n and that she hitchhiked home.

During her cros s - examination, Sulpizio admitted that on the following day she
l earned that Bowlin had been arrested for drivi ng whi le intox icat ed but t es tified that she did not inform the police that s he had been drivi ng because she was still a ngry with Bowlin from thei r fig ht the night before and was angry enough to let him take the fall for a crime that he did not

com mit. Lat er, Su lpizio expla ined tha t she met up with Bowlin again in 201 7 when she was no long er ang ry with him and learned that he was either awaiting trial f or driving while intoxicated or being punished for the offense, but she testified t hat she still did not i nform the police t hat she dr ove the car because she thought the situatio n was being handled. When d iscussing her ride in Bowlin ’ s car, Sulpizio state d that there was “ not like a hu ge amount ” of stuff inside the car and that she did not have to hold anythi ng in her lap whil e she wa s sitting in the passen ger seat before driving

.

After considering the evidence presente d a t trial, the jury found Bowl in guilty of felony driving while intoxicated. During the punishment hearing, Bowlin pleaded not true to6

b oth e nhancement a llegations. A f ter Bowlin entered his plea s , an investi gator fo r the Hays County district attorney ’s office testified regarding effo rts that he undertook to determine whether Bowlin had been convicted of the offenses listed in the enhan ce ment p aragraphs , a nd a 1983 ju dg ment for felony driving while intoxicated , a 2009 judgmen t for aggravated ass a ult, a nd their accompanying paperwork were admitted as exhibits

. At the con clusion of the punishment hearing, the trial court f

ound the allegatio ns tru e and senten ced Bowlin t o thirty years ’ imprisonment. Bowlin appeals the tri al court ’ s judgment of conviction.

DISCUSSION
In four issue s on appeal, Bowlin contends that the trial court erred by allowing the lab manager to testify as an e xpert witn ess , that th e trial court er re d by admit ting in to evidence his medical records from his treatment at the hospital , th at the evidence presented reg arding the 2009 enhancement allegation was ins ufficient to link hi m to the off ense , and that the evidence is
i nsufficient to s upport his c on viction. Because the sufficiency challenge to the evidence of his conviction could result “in greater relief than his other issue [s] ,” we addre ss that issue first. See Medina v. State , 565 S.W.3d 868, 873 (Tex. App.

— Houston [14th Dist.] 2018, pet. ref ’ d)

. Sufficiency of th e Evidence

In his fo urth issue , Bowlin contends that the evidence is insufficien t to support his

co nviction. 1 As supp ort for th is argument, Bowlin notes that no ne of the State ’ s witn esses testified that t hey observed him driving the c ar , that no surveillance footage w as admitte d into

1 In his brief, Bowlin challenges the legal and factual sufficien cy of the evidence. Howe ver, t he Court of Criminal Appeals has held that the legal suffic iency standard set out in Jackson v. Virgin ia , 443 U. S. 307 , 319 (1979), is the only standard that a reviewing court should apply when dete rmining the sufficiency of t he evidence suppo rting a conviction

. Brooks v. State , 323 S.W.3d 893, 902 (Tex. Crim. Ap p. 2010).7

evidence showing him driving the car, and that the investigating of fi cer found him o utsi de of the car . Additionally, Bowlin asserts that the only witnes s to the events in que stion, Sulpi zio, testified t ha t she drove the car in Hays County on the night in que stion and caused the car to get stuck on the curb before leaving t he scene. Accordin gly , Bowlin urges that the evidence is insufficient to support hi s conviction and that th is Court s hould reverse hi s convi ction and render a judgme nt o f acqui ttal.

Under the Penal Code , an individual commits the offense of driving whil e i ntoxicat ed if he “ is int o xi cated while opera ting a moto r vehicle in a public plac e . ” See Tex. Penal Co de § 49.04

. When presenting h is argument s , Bowlin does not dispute that the evidence established that he was intoxicated on the night in question or that he and the vehic le were in a public place ; instead, he argues that the evidence d id not establish tha t he operate d his vehicle duri ng the relevant time period

. A lthough the Penal Code does not define the word “ operate, ” the Court of Criminal Appeals has explained that , for su ff icienc y reviews, “ a person ‘operates’ a vehicle when ‘the totalit y of the circ umstances [ ] demonstrate that t he defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle ’ s use.’ ” Kirsch v.
State , 357 S.W.3d 645, 650

- 51 (Te x. Crim. App. 2012) (quoting Denton v. State , 911 S.W.2d 388, 3 90 (Tex. Cri m. App. 1995)); se e Priego v. State , 457 S.W.3d 565, 569 (Tex. App.

— Texarkana 2015, pet. ref ’ d) (stating that term operating is interprete d broadly). Even though

“ dr iving does in volve operation ” of a motor vehicle, “ operation does not necessar ily involve driving. ” Denton , 9 11 S.W.2d at 389.

“Evidence is sufficient to support a criminal conviction if a rationa l jury could find each essent ial element of the offense b eyond a reasonable doubt.” Stahmann v. State , 602 S.W.3d 573, 57 7 (Tex. Crim. App. 2020) (citing Jackson v. V ir ginia , 443 U.S. 307, 3198

(1979)). In making this determination, “[w]e view the evidence in the light most favorable to the verdict and consider all of the admitte d evidence, regardless of whether it was proper ly admitted.” Id. “The j ury is the sole ju dg e of credibility and weight to be attached to the testimony of the witnesses.” Id. “Juries can draw reasonable infer ences from the evidence so
l ong as each infere nce is supported by the evidence produced at tr ial,” id. , an d are “free to apply

common se ns e, knowledge, and experience gained in the ordinary affairs of life in drawing reasonable inf

erences from the evidence ,” Eustis v. State , 191 S.W. 3d 879, 884 (Tex. App.

— Houston [14th Dist.] 2006, pet. ref ’ d). “ When the reco rd supports conflicting infere nc es, we presume that the jury resolved the conflicts in favor of the verdict and defer to that determination.” Merritt v. State , 368 S.W.3d 516, 5 25

- 26 (Tex. Crim. App. 2012).

Appellate courts must “determine wh ether the nec essary infer ences are reasonab le based upon the combined and cumulative force of all the evidence when viewed in the light

m ost favorable to the verdi ct.” Hooper v. State , 214 S .W.3d 9, 16

- 17 (Te x. Crim. App. 2007). Appellate courts must bear in mind that “direct and circumstantial ev id ence are treated equally” and that “[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of an actor” and “ can be sufficient” on its own “to establish guilt.” Kiffe v. Sta te , 361 S.W.3d 104 , 108 (Tex. App.

— Houston [1st Di st.] 2011, pet. ref ’ d). The evidence is legally insufficient if “the record contains no evidence, or merely a ‘m odicum’ of evidence, probati ve of an element of the offense” or if “the evidence conclu sively establishes a rea sonable doub t.” Id. at 107 (q uo ting Jackson , 443 U.S. at 320).

First , Bowlin told the investigating officer that he had been driving that night when he drove the car ov er the curb while trying to tu rn the car around

. Those admissions were recorded by t he officer ’ s body ca mera. Cf. F ol ey v. State , 327 S.W.3d 907, 91 5 (T ex. App.

—9

Cor pus Christi

- E dinburg 2010, pet. ref ’ d) ( overruling sufficiency challenge where d efenda nt

“ admitted that he had been driving ” ); Yocom v

. State , No. 02

- 03

- 0018 1

- CR, 2004 WL 7428 88,
at * 2 ( Tex. App.

— Fort Worth Ap r. 8, 2004, pet. ref ’ d) ( op., not desi gnated for publication) (determining that evidence was sufficient to esta blish that defen dant ope rated vehicle because, among other reasons, defendant admitted to driving his car “ to t he parking lot where he

was fou nd ” )

. Although Bowlin correctly points out tha t Sulpizio testified that she was the
p erson driving the car in Hay s County on the night in question, the jury was free to determ ine what, i f any, weight to give her testimony. I n performing its credibility de te rmination, the jury

c ould have considered Bowlin ’ s co nflicting admission that he was driving and other portions of Sulpizio ’ s testimony in which she testified that Bowlin ’ s car was not that cluttered on the inside and that she did not ha ve to hold anythi ng in her lap when sitting in the passen ger seat of the
two

- seater car and then compared that testimony with the video recording of Bowlin ’ s car sh owing the trunk ful l with various items and large sto rage con tai ners and other items o n the
passenger seat an d floorboard

. T he jury could have also considered oth er portions of Sulpizio ’ s testimony in which she admitted that sh e l earned that Bowlin was either being punished for drivin g w hile intoxicat ed or would be tried for that o ffense but did not ever inform th e police tha t she wa s the one driving that night. Cf. Rezaei v. State , No. 03

- 99

- 00303

- CR, 2000 WL 45550,
at * 4 (Tex . A pp.

— Austin Jan. 21, 2000, no pet.) (op., not desi gnated fo r publication) ( noting that when assessing cr edib ility of witness ’ s testim on y , factfinder could have considered that , until trial, witness , who was friend of appellant , “ did not tell the police or a nyone else that ap pellant did not participate in the burglary ” ).10 Moreover, other evidence was presented a t trial indicating t hat Bowli n operated the vehicle. T he investigating office r found Bowlin near the stuck vehicle . The vehicle ’ s engine was running, and the keys were in the ignition

. Cf. Murray v. State , 457 S.W.3d 446, 4 49 (Tex. Crim. App. 2 015) (c oncluding that “because Appella nt was the onl y person found in the area, a factfinder could have also reasonably inferred that Appellant drove his vehicle to the locat io n at which he was found”)

. The officer did not see anyone else near the car, an d the o fficer did not see the vehicle wh en he passed by the area twenty to thirty minutes earli er. Cf. Hearne v. State , 80 S.W.3d 677, 680 (Tex. App.

— Houston [1st Dist.] 200 2, no pet.) ( concluding that evidence was legally sufficient to establish operatio n of ve hicle where , among other reason s, no one othe r than defendant was found near scene )

. The car on ly had two seats, and the re were large o bjects on the passenger seat and f loorboar d , making it difficult for anyone other than the driver to be in the vehicle

. Further , Bowlin did not mentio n being a pass enger or anyone else driving the vehicle that night. Additionally , the car registration showed that Bowlin owned the ve hicl e.

Given our standard of review and in light of the evidence presented during tr ial as well as the reasonable infere nc es that the jury was free to make from that evidence, we must conclude that the evidence is sufficient to est ablish th at Bowlin operated his motor vehicle before the vehicle became stuck on the curb

. Accordingly, we o verrule Bowlin ’ s fourth issu e on app ea l.
Testimony from the Lab Manager

In his first issue on appeal, Bowlin contends that the trial court abus ed its disc retion by overr uling his objection to the lab man ager ’ s testifying

. O u tside the jury ’ s
presence , the lab manager explained th at her lab u s e s a machine called a Beckman Cou lter and disc usse d her exper ience with and knowledge of the m achin e and the test ing re sults that it11

pro duces , including re sults regarding blood

- alcohol concentrations

. The lab manag er explained that it is a widely accep t e d practice for labs to use this type of machin e . H o wever, the lab manager admitted that s he was trained to use the mac hine by coworkers rather than through official training with the company that makes the machines and that she did not have any speci fic
t r aining in blood toxicology . She testified that she did not know wha t the ch emical used in part of the testing was, the error rate for the machine, or a n y peer reviewe d articles discussin g the

re liability fo r the ma chine . She could not compare the mach in e ’ s testing results with gas chromatograp hy used in other alcohol testing. During the hearing , Bowlin argued that the lab
manager was not qualified to provide expert testimony regarding testing performed by the mach in e and that her testimony was unrel ia bl e . Accord ingly, Bowlin asserted that the lab manager should not be allowed to testify as an ex pert witness to provide the predicate for the admissi on of the results from the hospital machine ’ s blood

- alcohol testing

. The trial court den ied the objectio n , a nd Bowlin reasserts on appeal his prior challenges to the lab manager ’ s testim ony .

In her testimony befo re the jury, the lab man ager explained that she has a degree
in medical technology, that one of her re sponsibil ities is to ensure that the lab techn ic ia ns perform testing that complies with national regulations, that t he lab i s accredited by the American Society of Clinical Pathologists, that the hospital ’s lab use s a Beck man Cou l ter for analyzing alcohol concentra tion s , that she w a s trained to use th e machin e by individuals who received training from the machine ’s manufacturer , t hat the machine is calibrated by using known standards provided by the manufacturer, that she i s in charge of calibrating the machin e, tha t p hys icia ns rely on the results of t he testing, th at the machine was in good working order when the tests at issue were performed , and that the testing was in compliance with the laborato ry ’ s policies

. When describing the testing proce ss, the lab mana ger explained that the12

machine aspirates s ome of the sample, mi x es it with chem icals provided by the manufactu rer , and prints the results of the testing.

Even if the trial court abused its discretion by allowing the lab manager to testi fy,

we would be una ble to sustain Bowlin ’ s issue on appe al

. “ The erroneous admission of expe rt testimony is non

- consti tutional e rror. ” Sandoval v. State , 409 S.W.3d 259, 293 (T ex. App.

— Austin 2013, no pet.). Und er that standard, erro rs “must be disregar ded” if they did “n ot affect substantial rights.” Tex. R. A pp. P. 44.2(b). A defendant ’ s su bs tantial rights are affected “w hen the error had a substantial and injurious effect or influence in determining the jury ’ s verdict.” King v. State , 953 S.W.2d 26 6, 271 (Tex. Crim. App. 1997). If the reviewing court, “ af te r examining the record as a whole , has fair assurance that the error did not influence the jury, or had but a slight effect,” then the defendant ’ s substantial rights were not affected. S ee Motill a v. State , 78 S.W. 3d 352, 355 (Tex. Crim. App. 2002) (q uo ti ng Solomon v. State , 49 S.W.3d 35 6, 365 (Tex. Crim. App. 2001); Johns on v. State , 967 S.W.2d 410, 417 (Tex. Crim . App. 1998)). When analyzing the potential harm from the erroneous admission of ex pert testimony, app ellate courts may consider , among oth er th ings , the following :
(1) the stre ngth of the evidence o f the appell ant ’ s guilt; (2) whether the jury heard the same or substantially similar admissible evidence through another source; (3) the s trength or weakness of an expert ’ s conclusions, includin g wh ether the expert ’ s opinion was effe ctively refuted; and ( 4) whether t he State directed the jury ’ s attention to the expert ’ s testimony during arguments.

Sandoval , 409 S.W.3d at 293

- 94.

Regardi ng the evidence of Bowlin ’ s guilt, a s set out above, Bow lin w as co nvicted of driving while into xicated , and as set out above, ex t ens ive evidence was presented establish ing that Bowli n operated his vehicle o n the night in question

. See Tex. Penal Code § 49.04.13

Add ressing th e other elements, Bowlin did not dis pute at t rial that the r oadway was a public place as defined by the P enal Code

. S ee id. § 1.07(a)(4 0) ( “ ‘ P ublic place’ means any place to which the public or a substantial group of th e public has access and includes, bu t is not limited
to, streets [and] high ways . . . ” ) . Moreover, the evidence presented at trial demonstrated th at the road was near the intersection of a highway, tha t the road passed two sho pping centers with exits

on to the road, that ot her drivers were travell ing on the road , and that t here were n o barriers restricting entry to the road

. See Thacker v. State , No . 03

- 15

- 00079

- CR, 2015 WL 6841415,
at *5 (Tex. App.

— Aus tin Nov. 6, 2015, pet. ref ’ d) (mem. op., not de signa ted for publi cation) ; see also Shaub v. State , 99 S.W.3d 253, 256 (Tex. App.

— For t Worth 2003, no pet.) (noting that “the relevant inquiry is whether the pu blic has acces s to it ” ).

Turning to the intoxication element , overwhelming evidence was presented establishing that Bowli n was intoxicated during the time in questi on, which u nd er t he Penal Code occurs when a person does not have “ the normal use of m ental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dange rous drug, a comb ination of two or more of those substances, or any other subs ta nce into the body ” or has

“ an alcohol concentration of 0.08 or more

. ” Tex. Penal Code § 49.01(2).

Bowlin had r ed stain s on his mou th and shirt matching residue found in a wine bottle in th e car , and his bre ath smelled like alcohol

. See Cotton v . State , 6 86 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985) (stating that “od or of alcohol on the breath ” is evidence of intoxication) ; Priego , 457 S.W.3d at 570, 571 (upholding conviction because , amo ng other

reasons, ev idence showed that there was partially consumed b ottle of alcohol inside car and that defendant smelled like alc ohol)

. Bowlin repeatedly told the investigating officer that he had just left his father ’ s house in M id lan d and w as trying to return to that ho use, that he believed he was14

in Odessa , and tha t he l ived in Midland even though his driver ’ s license listed an Aus tin address

. Similarly, Bowlin appeared confused about his age and told the investigating officer and EMS
pers onnel that he w as decades olde r than what was reflected on his driver ’ s licens e. In addition, Bowlin ad mitted to drinking and told the investiga ting officer that his drinking might have played a role in his car g etting s tuck. W hen asked to retrieve proof of insurance , Bowlin i n stead produced a document pertaining to an air c on diti on er.

Additionally , Bowlin informed the officer th at he believed that he would fail the
fi eld

- sobriety tests , dis played four of six possible cues of intoxication during the horizontal gaze nystagmus test , h ad to be told re peatedly to hold his head still du ri ng the test , did not finish listening to the instruction s for t he walk

- and

- turn test before starting to walk, and subsequ ently aske d for a break from the testing

. See Kirsch v. Sta te , 306 S.W.3d 73 8, 745 (Tex. Crim. App. 2010) (listing “ inabilit y to per fo rm field sobriety tests or follow directions

. . . [and] any ad missions by the defendant concerning what, when, and how much he had been drinking” as “evidence th at would logically raise an inferenc e that the defendant was intoxicated”)

. Further , Bowlin t old the hospital ’ s social worker that he had been drinking all day and drank a f ifth and a half of liquor that night.

The evidence summarized above provides overwhelming evidence that Bowlin was intoxicat ed apart from the evidence pertain ing to t he resul ts of blood

- alcohol testing perf ormed at the hospital . Moreover , alt hough the lab ma nager ’ s testimony was presented to help establis h the reliability of the results of the blood

- alcohol testing and althoug h the resu lts of the testing pro duc ed bloo d

- alc oho l levels tha t were all considered toxic , we note that the treati ng physician warned against using the medical test results for the purpos e of det ermining whether Bowlin was legally i n toxicated either becau se his blood

- alcohol con centration was abo ve15

the l eg al limit or because the ingestion of alcohol caused him to suff er mental or physical
i mpairment. Specifically, the doctor testified tha t the test results use different unit s and a different scale than wh at would be used in determining i f someo ne was abo ve the 0.08 limit. Further, although the doctor agreed that the three test s produced results that qualifie d as to xic for medical p urposes , she explained that the level of physical or mental impairment woul d vary depending on t he pe rson and that so me people w ould not exhibit any symptoms of impairment at those levels

. In light of the preceding , we conclu de that the first factor weighs stro ngly in favor of a finding that Bowlin was not harmed

.

Tu rning to whether the jury heard similar ev idence through anoth er source , we note that the lab technic ian testified regarding some of the same topics that the lab manager did without objection

. Cf. Estrada v. State , 313 S.W.3d 274, 302 n.29 (Tex . Crim. App . 2010) (noting that err or in improper admission of evidence i s harmless if same or si milar evide nce is admitted w ithout objection dur ing tr ial). For example , the lab te chnician testified that she received training on how to use the Beckman Coulter machin e, that she was familiar with the alcohol testing that can be do ne on that machine , an d that she complied with the lab ’ s procedures fo r testing the samples. However, the lab ma nager also testified about topics that were not covered by other witnesses , inc luding describing how th e machine prod uces resul ts

.

T herefor e , we con clude that this factor w eighs in favor of a finding th at Bowlin

was harm ed

. Regardin g the strengths and w eakness es of the lab manager ’ s test imony , we note tha t the lab manage r provi ded a description of how the machine produces results by mixing an aspirated blood sample wit h chem icals provide d by the manufactu rer and explained that testing16

perform ed at the accredited lab complies with national standards, that physi cians rely on the

r esults produced by the m achine, th at the machine was calibrated an d in good working order on the day of the test ing , and that the testing complied with the laboratory ’ s policies . However, the lab manager ’ s description of how the results are determined was brief and did not set o ut the scien tific principles underlying th e testing process . Further, the lab man ager d id not describe the accuracy of the results and d id not provide an explanation regarding how the results produced by the machine could be u sed t o d etermine if the patie nt was intoxicated as that term is defin ed in the Penal Code. See Tex. Penal Code § 49. 01(2). Additionally, the lab manager ’ s opinion was undermine d by some of he r own testimony. For example, she testified that the lab no longe r

uses th e machin e that an alyzed Bowlin ’ s blood samples , that she ha d never testified about the reliability of the machine before , and that her training on the machine was provided by her coworkers rather than through formal training with the manufacturer

. Cf. Sandoval , 409 S.W.3d at 295 (noting that ex pert ’s testimony wa s “not particularly powerful ”). Similarly, as di scussed earlier, the treating physician high light ed problems with using the results of the medi cal tests as
pro of of legal intoxication and, thereby, questioned the probative val ue of the bl ood

- test result s for which the lab manager ’ s testimony was used as a pre dicate for admission

.

Accordingly, we conclude that this factor weighs in favor o f a finding that Bowlin was not harmed.

Turning to th e final fac tor, we note that the S t ate did not refer to th e l ab
manag er ’s testimony during its clos ing a rgument and only briefly mentioned the bl ood

- alc ohol testing

. C

f. id. (obs erving that State did not emphasize testimony from expert). Ins tead, the
State emphasiz ed the other evidence establishing Bowlin ’s gui lt an d attacked the credibility o f Sulpiz io ’s test imony. On the other hand, Bowlin informe d the jury during his opening argument17

that they will be watching a recording from the investi gating officer ’ s body ca mera on which Bowlin “ does not mak e any sense ” and c onceded that the jury may conclude b ased on the video that he was “publicly intoxicated. ” Similarly, during his closing argument, Bowlin conceded that he was “guilty of being into xicated in a public plac e ” but argued that he did not drive while he

wa s i nt oxicat ed. Further, Bowlin repeatedl y ass erted that the evidence established that he wa s highly intoxicated as part of his defensive strategy of arguing that he was too intoxicated to know whether he had dr iven that night when he admitted to the investig at ing officer that he had been driving

.

Therefore, this fin al factor also weighs in favor of a finding that Bowlin was not harmed. On this record and given our resolution of the factors abo ve, w e conclude that
any erro r from the admission of the lab m an ager ’ s t estimony did not have a substantial and inj uri ous effect in determining the ju ry ’ s verdict . For these reason s, we overrule Bowlin ’ s first issue on appeal.

Admissi on of Medical Records

I n h is sec ond issue on appeal, Bowlin contends t hat the tri al court abuse d its di scretion by o verruling his objection t o the admission of his medical records from the hospital , including the blood

- alcohol test results, durin g the te sti mony from his treati ng phys ician

. At trial , Bowlin argued that the admission of t he evidence violated his co nfront ation rights be cause he had not be en allowed to cross

- examine the nurse who drew the blood used in the alcohol testing

. See U.S. Const. a mend s . VI , XIV

. Bowl in assert s on appe al t hat the admission of his

m edical records v iolated his con frontation rights because they were prepared for the purpose of18

prosec u ti ng him and not for medical treatment and, therefore, were testimonial in nature

. Fu rther, Bowl in contends that th e e rroneous admiss ion of the evidence c onstitu ted con st itutional

error warra nting a re versal of his con viction

. See Tex. R. App. P. 44.2(a). 2

Under the Sixth Amendment, “ the accused shall enjoy the right .

. . to be confron ted with th e witnesse s against him[.]” U.S. C onst

. amend. VI. The U nited S tates Sup re me Court has explained that confrontation rights apply not only to in

- court testimony but also to out

- of

- court statements that are testimonial in nature. See Crawford v . Washingto n , 541 U.S. 36 , 59 (2004). T he Confrontation Clause prohi bits th e admissi on of testimonial hearsay unless two criter ia are met: the declarant is unavailable to testify, and the defendant had a prior opportunity to cross examine the declarant. Id. at 68. This rule app lies even if the statement falls within a “ f

irmly r ooted hea rs ay exception or bears particularized guarantees of trustworthiness.” Wall v. State , 184 S.W.3d 730, 735 (Tex. Crim. App. 2006). A determination regarding whe ther

a n ou t

- of

- court statement is t estim onial is a question of law. De La Paz v. Stat e , 273 S.W .3 d 671, 680 (Tex. Crim. App. 2008).

“Testimonial” statements are those made under circumstances l eading an objective witness to reasonably believe that the statements wo uld be avai lable for use at a later trial. See Wall , 184 S .W.3d at 7 35. St ated diffe re ntly , a statement is testi monial when the ci rcumstances demonstrate that the primary purpose of obtaining it is to establish past event s in order to further a criminal prosecution

. See De La Paz , 2 73 S.W.3d at 680. However, if the

2 In his brief, Bowlin contends t hat the State admitted during it s opening argument that t he purpose of taking Bow lin to the hos p ital was to have his blood d ra wn for law

- enforcement purposes. Ho wever , in the portion of the opening statement that Bowlin references, the S t ate described how the investigating of ficer initially approached Bowlin to see if he needed help b ut then realiz e d that he m a y have commit ted t he offense of driving while intoxica ted . The S t ate did not asse rt that the investigating officer arranged for Bowlin to go to the hospital f or the purpose of obtaining blood

- alcohol test ing to further the inves tigation.19

prim ary p urpose of th e statement is something other than to further a criminal prosec ution , “the Confrontation Clause does not require such statements to be subject to the crucible of cross

e xamination.” See Michigan v. Bryant , 562 U.S. 344, 361 (20 11). For example , medical re cord s prepared for th e primary purpose of treatment are not testimoni al

. S ee Berkley v. State , 298 S.W. 3d 712, 715 (Tex. App.

— San Antonio 2009, pet. ref ’ d)

.

As supp ort for his arguments that h is confront ation ri ght s were violated , Bowlin primarily re l ie s on the following opinion by the Unite d St ate s Supreme Court : Melendez

- Diaz v. Massachusetts , 557 U.S. 305 (2009). In that case, the trial court admitted certificate s reporting the results of forensic testing performed on material seized by the police. I d. at 307 . In particular, the police se ized pl astic ba g s containing a w hite pow der during a search of the defendant and sent the “ evidence to a state laboratory req u ired by law to conduct chemical

ana lysis upon police request. ” I d

. at 308. At trial, th e d efendan t objected to the admission of

s worn “ certificates of analysis ” from analys ts wi th the laboratory describing the results of testing perfo rmed on the substanc e . Id. at 308

- 09. The defendant a sserted that the C onfronta tion Clause require d the a na lys ts who performed the testing to testify , and th e trial court overruled the objection

. I

d. at 309. The Supreme Court determined that the certi ficates were really affidavits and were testimon ial sta tements , constitut ing a solemn declaration designed to e s tablish or prove a fact

. Id. at 310. Further, the Supreme Court explained that the affid avits were m ade under circumsta nces that would lead someone to believe tha t the document would be av ailable f or use at trial an d that the state law authorizing the a f fidavit s demonstrated that th e s ole purpose of the

a ffidavits was to provide evidence of the composition, we ight, and qu ality of the analy zed substan ces. Id. at 31 1. Accordingly, the Su preme Court determined that th e affidavits were20

testimo nial statem en t s, that the an alys t s were witnesses under the Sixth Amendment, and that the defendant was entitled to confront the analys ts absent a showing that they were unavaila ble and that the defendant had a pr ior opportunity to cross - examine them. Id. ; se e also Bu l lcoming v. New Me xico , 564 U.S. 647 , 661, 66 5 (2011) (concluding that forensic certification regarding blood

- alcohol t esting made by analys t working for “ a state la boratory required by law to assis t in police investig ations ” was testimon ial and that sta te violate d defendant ’ s confrontation rights b y not calling analys t w ho prepared certification because analys t s who write reports that pro sec ution int r oduces must be m ade available for confrontat ion )

.

The circumstanc es in this case differ significantly f r o m thos e present in Melend ez - Diaz . Here, th e reports were not pr epared at the directives of the police or at a lab oratory designed with the purpose of aiding polic e investig ation s. Instead, the investigating officer called EMS after Bowlin bega n experie n c ing a medical condition, and the investigat ing office r released Bowlin so that he could be treated at a nearby hospital. Further, the invest igating officer did no t go inside the hospital or interact with the treatin g personnel , and h e returned to his du t i es aft er Bowlin w en t to the hos pital

. More over, Bowlin ’ s treating physician explained that she order ed alcohol testing for the purpose of making medical decisions about how to proceed with t reatment

. Additionally, the alcohol testing was only one compo n e nt of the me dical records, and the remainder of the medica l records establish that the alcohol testing and other
assessments were per formed as part of Bowlin ’ s tre atment or di agnosis.

Acco rdingly, the medical r eco rds, including the re sults of blood tes ti ng pe rformed on Bowlin at the hospital, were cr eated for the primary purpose of me dical diagno sis and
t reatment and are, therefore, not testimonial. Cf. Melendez

- D iaz , 557 U.S. at 3 12 n.2 ( explaining that “ medical reports created for treatment p urposes ” a re no t testimonial). Th erefore, the21

admission of the medical records did not violate the Confrontation Clause. See Sullivan v. State , 248 S.W.3d 746, 750 (Tex. App.

— Houston [1st Dist.] 2008, n o pet.) (noting that nume rous Texas courts agree that medical re ports a re non - te stimonial) ; see also Garza v. Sta te , No. 13

- 19

- 00472

- CR, 2021 WL 822301 , at * 6 (Tex. App.

— Corpus Christi

– Edinburg Mar. 4, 2021, no pet. ) (mem. o p., not designated for publication) ( determini ng that def endant ’ s confrontation rights

were no t violate d by admissio n of medical records creat ed for medical purpose )

. 3

In any event, even if the records at issue could be considered testim onial in
nature, we w ould be unable to sustain Bowlin ’ s issue o n appe al. As set out above , Bowlin argues that hi s confr ontation rights were violated when the medi cal records were admitted into evidence because he was unable to cross

- examine the nurse who drew blood sample s for the alcohol testing. However, the Confr ontation Cl ause does not mandate “ that anyone whos e testi mony may be relevant in est ablishing the ch ain of custody, authenticity of the sample, or accuracy of the testing dev ice, must appear in person as part o f the prosec ution ’ s case. ” Melendez

- Diaz , 5 57 U.S. at 31 1 n.1. If the person who performe d a b l oo d dr aw did not play a role in the blood analysi s or contribute to the rep ort, the Confrontation Clause does not require

3 A s support , Bowlin also points to a n opinion from another intermediate court o f appeal s . See Kou v. State , 536 S.W.3d 535 (Tex. App.

— San Antonio 2017, p et. ref ’ d). In Kou , a se xual

- assault

- nurse examiner ( “ SAN E ” ) int erviewed a victim of all eged sexual abu se, took a swab from a lesion , a nd sent the sample to a lab for a herpes test. Id. at 539. During trial, the SANE testified that the test results show ed a pos itive herpes result, but the lab analys t did not testi fy. Id. at 544. Our siste r court determi ned that the lab results were te stimonial because they were reported to the SANE in a manner that would lead an objective witness to reasonably belie ve that the statement would be av ailable later for use at trial. Id

. ; see also id. (noting that informatio n here was not communicated by v ictim to SANE b ut by lab t echnician to SANE)

. When determining that the lab results were testimonial, our sister court noted th at the record did not show that the results wer e used for anything other than pro sec u tion. Id. at 545. In cont rast, in the cu rr ent cas e, Bowlin ’ s treating physician testified that she ordered the tests for purposes of medical treatment. Further, unlike in Kou , the lab technician who performed the bl ood tests was called as a witness and subject to cross - examination.22

the person who performed the bl ood dr aw to testify before the results may be admitt ed into evi dence. Adkins v. State , 418 S.W.3d 856 , 8 61 ( Tex. App.

— Houston [ 14th Dist.] 2013, pet.

r e f ’ d) ; see also Wil l its v. State , No. 08

- 17

- 00072

- CR, 2019 WL 364612, at * 6 (Tex. App.

— El Paso Jan. 30, 2019, no pet.) (op. , not d esignated for publication ) ; Alford v . State , No. 02

- 16

- 00030

- CR, 2017 WL 37 09 39 , a t * 1 (Tex. App.

— Fort Worth Jan. 26, 2017, pe t. ref ’ d) (mem. op ., not designated for publication).

In this case, the lab technician testified that she p erformed all the requested laboratory testing for Bowlin and that the reports show that she perf o r me d t he testing in question. Further, the lab te c hnician was subject to cross

- examination by Bow l in at trial. Under these circum stances , the Confrontati on C lause did not r equire the nurse who perf ormed the blood d raw to testify

. According l y, regardles s of wh ether the medical records were testimon ial, Bowlin ’ s confrontation rights were not violated. See Adkins , 418 S.W.3d at 862.

For these rea s ons, we over rule Bowlin ’ s second issue on appeal.

Enhan cement Allegation

In his third issue on app eal, Bo wli n challeng es the sufficiency of the evidence support ing the trial court ’ s finding of true pertai n ing to the second enhancement allegation regarding a 2009 conviction for aggravated assault. More specificall y, Bowlin argu es that the evidence link ing him to t h e prior offense was insuffi cient because no evidence was ad mitted during the punishment phas e regarding what his date of birth and social security number were . When presenting this argument , Bowlin ackno wledges that the inv estigator generally testif ied du ring the punishment hearing that the social securi ty number and date of birth listed in the 2009 ju dgment and paperwork w ere the same as his , but h e argues that th is testimony was con clusory23

and insuffici ent to support the trial court ’ s d e term ination

. F or these reasons, Bowlin contends that his judgment of conviction s hould be reversed and that the ca se should be remanded for further pro ceedings

.

“T o establish that a defen dant has been convicted of a prio r offense, the State must prove be yond a reaso nabl e doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction.” Flo wers v. State , 220 S.W.3d 919, 921 (Tex. Crim. A pp. 2007)

. “No specific document or mode of proof is req uired to prove these two elements. ” Id

. “Whi le

ev id ence of a certified copy of a final judgment and sentence may be a preferred and convenient means, the St ate may prove both of these el ements in a number of different way s,” including through the defenda nt ’ s stipulation or admission, thr ough testimo ny by a person who observed the defendant being convicted and can identify the defendant as the person previousl y convicted, or through docume ntary proof that contains sufficien t information to establish the ex istence of the prior conviction an d the defend ant ’ s i dentity as the person previously convicted. Id. at 921

- 22.

Links to the defendant can be shown through different me ans, including allowing the ju r y to compare photographs of the person previously convic ted with the appearance of the def endan t at tr ial o r providing identifying information for the pers on previ ousl y convicted “ such

as name , sex , height , eye color , hair color, and date of birth. ” See Williams v. State , 946 S.W.2d 886, 895 (Tex. App.

—

W aco 19 97, no pet.). N o “ best e viden ce ” rul e exists requi ri ng t hat a prior conviction be prov en by any particula r document or ty pe of evidence. Flowers , 220 S.W.3d
at 921. “In proving prior convictions, identity often includes the use of a combination of ident ifiers, and ‘[e]ach case is to b e jud ged on its ow n indiv idual merits.’ ” Henry v. State , 466 S.W.3d 294, 301 (Tex. A pp.

— Texarkana 2015) ( quoting Littles v. State , 726 S.W.2d 26,
3 2 (Tex. Crim. App. 1984) (op. on reh ’ g) ) , aff ’ d , 509 S.W.3d 915 ( Tex. Crim. App. 2016)

.24

“ The trier of fact must conside r the e vi d ence as a whole, as each piece of evidence may provide little meaning if considered in isolation. ” Henry v. State , 509 S.W.3d 915, 919 ( Tex. Cri m. App. 2016). Appellate court s review the s ufficiency of the evidenc e linking a defend ant t o a pri o r convic t i on u sed for enhancement purposes by considering all the evidence in the light
most favorable to the trial court ’ s determination and decid ing w he ther a rational trier of fact could have m ade th e determi nation beyond a reasonable doubt

. Se e id. If the ex is tence of the conviction and its link to the defendant can be found beyond a reasonable doubt, “then the various pieces used to complete the puzz le are necessarily legally sufficient to prove a prior

co nviction.” Flowers , 220 S.W.3d at 92 3. Pro vided tha t the proof of identity is sufficient, no error will be found on appeal. Littles , 726 S.W.2d at 32

.

Before the exhibit pertaining to the 2009 en h ancement was admitted, the trial court admitted as an exh ibit Bowl in ’ s booking sheet fo r the c urrent offense

. T he exhibit was certified as a true and correct copy by the Hays County jail records clerk. The booking sheet, like t he indictment, lists the na me “ William Barrie Bowlin. ” The in dictme nt and the medic al records admit ted during the guilt

- innocen ce phase li st Bowlin ’ s date of birth. Cf. Bush v. State , 642 S.W.2d 787 , 789 (Tex. Crim. App. 1982) (considering evidence from gui lt

- innocenc e when determ ining if e n hancement allegation was prove n). The booking sheet also list s Bowlin ’ s date of bi rth, so cial secu ri ty number, and state identification numb er ( SID ) given to individuals
in jails

. The exhibit pertaining to the 2009 e nhancement was admitted dur ing the testimony of t he investig ator. The exhibit con ta ins a 2009 judgment adju dicating guil t for t he offense o f aggravat ed assault and the accompanying paperwork. The trial court clerk c e rtified25

that the documents were “ true and correct ” copies of the documents in her office. See Flo wers , 220 S.W.3d at 92 1 (noting that certified copies of fina l judgm ent and se nt ence is “a preferred
and convenient” way of proving prior conviction) . The judgment and paperwork identify the defendant in that case as “ Will i am Barrie Bowlin ” and list the s ame birthda te , social se curity number, and SID number as thos e found in the bo ok ing sheet. Additionally , the investigator testified that the social security number, date of birth , and name a ppearing on the 2009 judgment

an d paperwork are the same as the so cial security number, d ate of birth, and name appearing in
B owlin ’ s booking r ep ort.

Finally, the 2 009 enhancement w as further linked to Bowlin through the testimony and other evidence pertaining to the 1983 enhancement c oncerning a felony conviction for driving while intoxicat ed. The judgment of conviction for t he 1983 offense and

a ccompanying paperwork list the defendant as “ William Barrie Bowlin ” and the defendant’s birthday as being the same as the birthday set out in the booking sheet in this case. Further, after d etailin g his training and qualification s in ma king “ink

- to

- ink” f ingerprint comparisons, the investigator explained that the fingerprint he examined in the 1983 paperwork matched one of Bowlin’s fingerprint s in his booking sheet. The 1983 offense is listed as a p rior offense in the paperwork f

or the 2009 enhancement , a nd t he cause number, year of conviction, and county of conviction for the 1983 offense listed in the 2009 paperwork match the information pro vided in the paperwork for the 1983 enhancement allegatio n .

Given our standard of rev iew and consideri ng the re as onable inferences that the trial court could have made from this evidence, see Eustis , 191 S.W.3d at 884 , we conclude that the t rial court could have reasonably determined that the individu al who is the subject of the 200 9 judgm e nt and paperwork was Bowl in and, accordingly, that the evidence is legally26

sufficient to lin k Bowlin to the felony conviction for aggravated assault serving as a basis for the second enhancement allegation , s ee Barne s v. State , 585 S.W.3d 643, 650 (Tex. A pp.

— Texarkana 201 9) (dete rm ining that prior convictions were sufficiently linked to defendant by certifi ed judgments bearing defendant ’ s name and additional lin king informatio n , including defen dant ’ s birthdate, socia l security number , or SID , and distingui shing those prior convict io ns from paperwork for others only containing defendant ’ s name and signature ), rev ’ d on other grounds , No. PD

- 1072

- 1 9, 2021 WL 476483 (Tex. Cri m. App. F e b. 10, 2021) (op., not designated for publication); Coop v. St ate, No. 04

- 97

- 00767

- CR, 2000 WL 36096, at * 1 (Tex. App.

— San Antonio Dec. 30, 1999, no pet.) (op., not designated for publication) ( referring to defendant ’ s SID number as evid ence linking defendant to prior convictions)

.

For these reasons, we over rule Bo wlin ’ s third is sue on appeal.

CONCLUSIO N Having overruled all of Bowlin ’ s issues on appeal, we affirm the trial court ’ s judgment of conviction.

________________________ __________________ Thomas J. Baker , Justice Before Justices Goodwin, Baker, and Triana Affirmed Filed: August 1 2 , 2022 Do Not Publish