NUMBER 13-11-00694-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

WILLIAM SMITH A/K/A

BILL SMITH, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 94th District Court 

of Nueces County, Texas.

 

MEMORANDUM OPINION ON REHEARING

Before Justices Garza, Benavides, and Perkes

Memorandum Opinion on Rehearing by Justice Perkes

On July 29, 2013, this Court issued a memorandum opinion affirming appellant’s 

conviction for driving while intoxicated. See Smith v. Texas, No. 13-11-00694-CR, slip 

op. (Tex. App.—Corpus Christi July 29, 2013, no pet. h.) (mem. op., not designated for 

publication), http://www.13thcoa.courts.state.tx.us/opinions/pdfOpinion.asp?OpinionID=
2

21170. On August 28, 2013, after being granted an extension, appellant filed a motion 

for rehearing. After due consideration, we deny the motion for rehearing but sua sponte 

withdraw our previous opinion and judgment and substitute the following opinion and 

accompanying judgment in their place. See TEX. R. APP. P. 19.1. 

Appellant William Smith a/k/a Bill Smith appeals his conviction for driving while 

intoxicated—third offense,

1

a third-degree felony enhanced to a habitual felony offender. 

See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2011). The trial court 

found appellant guilty and, on finding two prior felony conviction enhancements to be 

true,

2

assessed punishment at twenty-five years imprisonment. See id. § 12.42(d). By 

four issues, appellant complains the trial court erred by: (1) refusing to appoint a new

attorney on the day of trial; (2) admitting blood sample evidence; (3) allowing fingerprint 

expert testimony and admitting prior judgments authenticated thereby; and (4) finding that 

the evidence was sufficient to show two prior felony convictions. We affirm. 

I. BACKGROUND3

State trooper David Anguiano stopped appellant’s vehicle because appellant was 

driving without wearing a seat belt. Upon approaching appellant’s vehicle, Officer 

Anguiano “smelled the strong odor of some sort of alcoholic beverage coming from him” 

 

1

Appellant was previously convicted of two offenses relating to the operation of a motor vehicle 

while intoxicated: (1) On March 10, 2006, in Cause No. 63519, in the County Court at Law of San Patricio 

County, Texas; and (2) On March 28, 2008 in Cause No. 2007-9764-3 in the County Court at Law No. 3 of 

Nueces County, Texas.

2

Appellant was also previously convicted of two felony offenses for burglary of a habitation: 

(1) On June 7, 1989, in Cause No. 88-CR-1586-A, in the 28th District Court of Nueces County, Texas; and 

(2) On February 19, 1992, in Cause No. 2870-1, in the 156th District Court of Live Oak County, Texas. 

3

Because this is a memorandum opinion and the parties are familiar with the facts, we will not 

recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for 

it. See TEX. R. APP. P. 47.4. We have reordered appellant’s issues on appeal for clarity. 
3

and saw “alcohol containers spread out throughout the vehicle.” Officer Anguiano 

observed that appellant’s movements were slow and that he had glassy, blood-shot eyes. 

Officer Anguiano administered five field sobriety tests; appellant failed three of them. 

Officer Anguiano arrested appellant for driving while intoxicated. 

Officer Anguiano testified that appellant made “a statement to the fact that it was a 

felony D.W.I. for him.” Officer Anguiano “ran [appellant’s] information” with his in-car 

computer and verified appellant’s criminal history with the communications operator. 

Upon learning appellant had two previous D.W.I. convictions, Officer Anguiano believed 

he was authorized by law to obtain a mandatory blood draw. Appellant did not give his 

consent, and no warrant was obtained. The blood draw was taken about one hour after 

appellant was stopped. 

Anna Marie Quintanilla testified that she worked as a medical technologist at 

Northwest Regional Hospital and that part of her duties include collecting blood and 

testing specimens. She stated that she is a licensed medical technologist with twenty 

years of experience, and that she is qualified to draw blood specimens. She explained 

the standard procedures. She testified that she collected appellant’s blood sample and 

that the blood sample was taken using reliable hospital procedures recognized by the 

scientific community and as required by State regulations. 

Emily Bonvino, a Department of Public Safety forensic scientist, testified regarding 

the blood test results. Appellant’s blood sample contained .21 grams of alcohol per 100 

milliliters of blood. 
4

II. FAILURE TO APPOINT NEW TRIAL COUNSEL

By his fourth issue, appellant contends the trial court erred “by forcing appellant to 

trial with appointed counsel to whom appellant objected.” Appellant’s issue inquires

whether appointed counsel had a duty to timely relay appellant’s request for new counsel 

to the court and whether appellant is entitled to rely on appointed counsel in discharging 

his duties. Appellant, however, does not cite any authority that supports his argument for 

reversal based upon defense counsel’s alleged duty to notify the trial court concerning 

appellant’s desire for the appointment of other counsel. 

We review a trial court’s ruling on a motion for withdrawal and replacement of 

appointed counsel under an abuse of discretion standard. King v. State, 29 S.W.3d 556, 

566 (Tex. Crim. App. 2000) (en banc). As expressed in King: 

[T]he right to counsel may not be manipulated so as to obstruct the judicial 

process or interfere with the administration of justice. Further, personality 

conflicts and disagreements concerning trial strategy are typically not valid 

grounds for withdrawal. A trial court has no duty to search for counsel 

agreeable to the defendant.

Id. (citations omitted).

Once a trial court appoints an attorney to represent an indigent defendant, the 

defendant has been accorded the protections provided under the Sixth and Fourteenth 

Amendments to the United States Constitution and Article 26.04 of the Texas Code of 

Criminal Procedure, and the defendant then carries the burden of proving entitlement to a 

change of counsel. See U.S. CONST. amend. VI, XIV; TEX. CODE CRIM. PROC. ANN. art. 

26.04 (West 2011); Barnett v. State, 344 S.W.3d 6, 24 (Tex. App.—Texarkana 2011, pet. 

ref’d) (citing Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976)); see also Hill v. 
5

State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985); Watkins v. State, 333 S.W.3d 771, 

775 (Tex. App.—Waco 2010, pet. ref’d); Maes v. State, 275 S.W.3d 68, 71 (Tex. 

App.—San Antonio 2008, no pet.) (noting that defendant is responsible for “making the 

trial court aware of his dissatisfaction with counsel, stating his grounds for his 

dissatisfaction, and offering evidence in support of his complaint”). A defendant may not 

wait until the day of trial to demand different counsel or to request counsel be dismissed 

so he may retain other counsel. Webb, 533 S.W.2d at 784; Gilmore v. State, 323 S.W.3d 

250, 264 (Tex. App.—Texarkana 2010, pet. ref’d). 

During a break in the State’s first witness’s testimony, appellant informed the trial 

court that “everything has happened so fast lately, and I really—I didn’t feel that I was 

being represented in the way that I need to be.” Appellant stated he was present under 

duress because he was not being represented in the manner he preferred and that his 

attorney refused to “relieve himself” despite appellant’s persistent requests. The record

is otherwise silent in that regard. The trial court denied appellant’s motion to dismiss his 

attorney and to appoint a new one, noting that the case was “seven months old” and that 

appellant had never written the trial court or in any other manner communicated his

alleged duress prior to that moment. 

We hold that appellant’s conclusory and untimely claim that his attorney was not 

satisfactorily representing him did not show appellant was entitled to a change of counsel. 

See Hill, 686 S.W.2d at 187; Watkins, 333 S.W.3d at 775; Maes, 275 S.W.3d at 71. The 

trial court did not abuse its discretion by denying his day-of-trial request. See Webb, 533 

S.W.2d at 784; Gilmore, 323 S.W.3d at 264. We overrule appellant’s fourth issue. 
6

III. BLOOD SAMPLE EVIDENCE

By his first issue, appellant argues the trial court erred by admitting a blood sample 

that was allegedly taken in violation of the Fourth Amendment of the United States 

Constitution and section 724 of the Texas Transportation Code. See U.S. CONST. 

amend. IV; TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011). 

A. Constitutionality of Blood Draw

Appellant challenges the constitutionality of the Texas implied consent statute, 

under which the officer seized a specimen of appellant’s blood. See TEX. TRANSP. CODE 

ANN. § 724.012(b)(3)(B) (West 2011). Appellant argues that the United States 

Supreme Court’s recent holding in Missouri v. McNeely, which was decided while this 

appeal was pending,4invalidates his blood draw because “the State did not meet its 

burden of demonstrating an exigent circumstance existed . . . .” See 133 S.Ct. 1552,

1567–68 (2013) (McNeely addressed exigency, holding that the dissipation of alcohol, 

without more, does not constitute exigent circumstances). See id. at 1563, 1568. We 

disagree. 

The withdrawal of a blood specimen is a search and seizure under the Fourth 

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

Amendment to the United States Constitution protects the right to be free from 

unreasonable searches. U.S. CONST. amend. IV. A warrantless search or seizure is 

per se unreasonable, unless it falls under a recognized exception to a warrant. Katz v. 

United States, 389 U.S. 347, 357 (1967); Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. 

 

4

After the United States Supreme Court’s holding in Missouri v. McNeely, 133 S. Ct. 1552 (2013), 

we granted appellant’s requested leave to amend or supplement his brief to include the issue of whether the 

blood seizure violated the Fourth Amendment, which appellant did not argue in his original brief.
7

App. 2000). It is well settled that one of the established exceptions to a warrant 

requirement is a search conducted pursuant to consent. See Schneckloth v. 

Bustamonte, 412 U.S. 218, 219 (1973). 

The Texas Court of Criminal Appeals has noted, “The implied consent law does 

just that—it implies a suspect’s consent to a search in certain instances. This is 

important when there is no search warrant, since it is another method of conducting a 

constitutionally valid search.” Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 

2002) (en banc). 

The implied consent law expands on the State’s search capabilities by 

providing a framework for drawing DWI suspects’ blood in the absence of a 

search warrant. It gives officers an additional weapon in their investigative 

arsenal, enabling them to draw blood in certain limited circumstances even 

without a search warrant.

Id. at 616; see Aviles v. State, 385 S.W.3d 110, 115 (Tex. App.—San Antonio, pet. ref’d) 

(holding warrantless blood draw pursuant to section 724.012(b)(3)(B) of the Texas 

Transportation Code does not violate the Fourth Amendment). 

McNeely clarified exigency; it did not invalidate Texas’ implied consent statute. It 

is noteworthy that in Section III of McNeely, Justice Sotomayor, although writing for a 

four-person minority in that section of the opinion, implicitly characterized implied consent 

statutes, including a specific reference to section 724.012(b) of the Texas Transportation 

Code, see 133 S.Ct. 1566 n.9, as collateral to the exigency concerns underlying the issue 

before the Supreme Court. See id. at 1566–67.

We overrule appellant’s first subissue to the extent he contends that McNeely

rendered 724.012(b) of the Texas Transportation Code unconstitutional. 
8

B. Compliance With Blood Draw Statute

Appellant contends the trial court erred by admitting the blood sample evidence 

because the sample was allegedly not taken by a qualified technician as required by the 

Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 724.017 (West 2011).5 

This issue was not preserved for our review. See TEX. R. APP. P. 33.1. Quintanilla, the 

medical technologist who collected appellant’s blood sample, testified, without objection, 

regarding her qualifications and the collection of appellant’s blood.6 Appellant thus failed 

to preserve his issue by failing to object to Quintanilla’s qualifications at trial.7 See TEX.

R. APP. P. 33.1. Even if we were to consider this issue, however, the Texas Court of 

Criminal Appeals recently affirmed that a medical technologist such as a phlebotomist is a 

technician who draws blood. See Krause v. State, No. PD-0819-12, 2013 WL 1890731, 

at *3 (Tex. Crim. App. May 8, 2013); see also State v. Bingham, 921 S.W.2d 494, 496 

(Tex. Crim. App. 1996); Torres v. State, 109 S.W.3d 602, 606 (Tex. App.—Fort Worth 

2003, no pet.); Cavazos v. State, 969 S.W.2d 454, 456 (Tex. App.—Corpus Christi 1998, 

pet. ref'd). We overrule appellant’s second subissue. 

 

5

“Only a physician, qualified technician, chemist, registered professional nurse, or licensed 

vocational nurse may take a blood specimen . . . .” TEX. TRANSP. CODE ANN. § 724.017(a) (West 2011). 

“‘[Q]ualified technician’ does not include emergency services personnel.” Id. § 724.017(c). 

6

The day before Quintanilla testified, appellant objected to the admission of the sample because, 

in part, “There’s no evidence that a qualified technician drew this blood.” The State responded that 

Quintanilla was going to testify the next day, and the court carried the objection. The court later admitted 

the specimen, and overruled appellant’s repeated objection to the extent that appellant argued “the 

phlebotomist or whoever drew this blood is not at this time here to testify . . . .” These objections focused 

on the absence of testimony and not Quintanilla’s personal qualifications, which appellant now challenges.

 

7

 Appellant did later challenge Quintanilla’s qualifications in his directed verdict and closing 

argument but only on the grounds that Quintanilla did not satisfy the standards for an expert witness 

established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In addition to being 

untimely, this contention does not comport with the issue on appeal—that Quintanilla did not qualify under 

the Texas Transportation Code. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) 

(“The legal basis of a complaint raised on appeal cannot vary from that raised at trial.”).
9

Having overruled appellant’s two subissues, we overrule appellant’s first issue.

IV. ADMISSIBILITY OF EXPERT OPINION 

By his second issue, appellant argues the trial court erred by allowing the 

fingerprint expert’s testimony and admitting prior judgments into evidence based thereon. 

Specifically, appellant asserts that an expert in fingerprint identification must testify (1) 

regarding his particular techniques and their acceptance in the community to establish 

reliability; and (2) regarding specific matching markings he finds to identify fingerprints 

rather than summarily state he found matching characteristics. Appellant specifically 

complains the trial court erred by: (1) overruling appellant’s objection to and allowing the 

fingerprint expert’s testimony during the guilt-innocence phase of trial; and (2) admitting 

two prior judgments, which the fingerprint expert linked to appellant by comparing the 

prints on the two prior judgments to appellant’s fingerprints, during the sentencing phase. 

The admission of expert testimony is reviewed on appeal for an abuse of 

discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010) (citing Lagrone 

v. State, 942 S.W.2d 602, 616 (Tex. Crim. App. 1997)). The proponent of scientific 

evidence must persuade the trial court through clear and convincing evidence that the 

proposed evidence is reliable by establishing: (1) the underlying scientific theory is valid;

(2) the technique applying the theory is valid; and (3) the technique was properly applied 

on the occasion in question. Somers v. State, 368 S.W.3d 528, 536 (Tex. Crim. App. 

2012); Kelley v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992); see also Russeau v. 

State, 171 S.W.3d 871, 883 (Tex. Crim. App. 2005) (stating that fingerprint comparison 

theory is reliable and admissible). On appeal, appellant does not challenge the first 
10

element, but asserts “there is no evidence from which the trial court could determine the 

technique or methodology applying the theory was valid or the technique was properly 

applied in this case.” Appellant, however, did not raise these concerns in the trial court.

During the guilt-innocence phase, appellant objected to the expert’s testimony on 

the grounds that “I don’t believe that the expert’s opinion is rationally based upon human 

perception . . . .” During the sentencing phase, appellant objected to the admission of 

the two prior judgments because “the [expert’s] testimony wasn’t specific enough 

regarding the comparison points, plus there’s no written reports.” Neither objection 

comports with appellant’s argument on appeal. Appellant’s issues therefore have not 

been preserved for review on appeal. See TEX. R. APP. P. 33.1; Heidelberg v. State, 144 

S.W.3d 535, 537 (Tex. Crim. App. 2004) (“The legal basis of a complaint raised on appeal 

cannot vary from that raised at trial.”). Even if we were to consider such arguments, 

however, we do not find the trial court abused its discretion. The record reflects that 

Deputy Flores established the reliability of his techniques and comparisons and that he 

sufficiently testified concerning the commonality of features and physical characteristics 

he found in his fingerprint comparisons. We overrule appellant’s second issue. 

V. SUFFICIENCY OF EVIDENCE TO PROVE PRIOR FELONIES

By his third issue, appellant argues the evidence is insufficient to show that he 

committed the two prior felonies alleged in the indictment. 

We review the evidence in the light most favorable to the prosecution to determine 

whether any rational trier of fact could have found the essential elements of the 

enhancement paragraphs to be true beyond a reasonable doubt. Jaynes v. State, 216 
11

S.W.3d 839, 845 (Tex. App.—Corpus Christi 2006, no pet.); see Brooks v. State, 323 

S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 

U.S. 307, 319 (1979)). The factfinder is the sole judge of the credibility of the witnesses 

and the weight to be given their testimony. Jaynes, 216 S.W.3d at 845 (citing Westbrook 

v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 

(Tex. Crim. App. 2000)). We give deference to the factfinder’s decisions about the 

weight and credibility of the evidence. Id. Although appellant contests the admissibility 

of some of the evidence, we must consider all the evidence in conducting our review. Id. 

To establish that a defendant has been convicted of a prior offense, the State must 

prove beyond a reasonable doubt (1) a prior conviction exists, and (2) the defendant is 

linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). 

No specific document or mode of proof is required to prove these two elements. Id. A 

certified copy of a final judgment and sentence is one method of proving them. See id. 

The factfinder “fits the pieces of the jigsaw puzzle together and weighs the credibility of 

each piece,” looking to the totality of the evidence to determine whether both elements 

are proven beyond a reasonable doubt. See id. at 923. 

The State alleged in the indictment that appellant had two prior convictions: 

(1) “Burglary of a Habitation, on June 7, 1989, in Cause No. 88-CR-1586-A,” from the 28th 

District Court of Nueces County; and (2) “Burglary of a Habitation, on February 19, 1992, 

in Cause No. 2870-1” from the 156th District Court of Live Oak County, Texas. During 

the sentencing phase, the trial court admitted State’s Exhibit Numbers 3, 5, and 6. 

State’s Exhibit 3 was a fingerprint card with appellant’s prints that Fred Flores, a Nueces 
12

County deputy sheriff and fingerprint identification expert, took from appellant. State’s 

Exhibits 5 and 6 were the earlier judgments’ “pen packs.” 

State’s Exhibit 5 contained a certified copy of a felony conviction and sentence for 

burglary of a habitation in cause number 2870-1, rendered by the 156th District Court of 

Live Oak County, Texas on February 19, 1992. The defendant’s name on the judgment 

is “William Perry Smith,” and the exhibit included pictures of the defendant and 

fingerprints. State’s Exhibit 6 contained certified copies of two judgments, including a 

felony conviction and a sentence for burglary of a habitation in cause number 

88-CR-1586-A, rendered by the 28th District Court of Nueces County, Texas on June 7, 

1989. The defendant in the judgment is “William Smith,” and the exhibit included the 

defendant’s picture and fingerprints. Flores testified that “[a]fter comparing the known 

fingerprints of the Defendant William Bill Smith [appellant] to the pen packets in Exhibits 6 

and 5, it was determined based on . . . that comparison, that they’re one in the same 

individual, William Bill Smith.” 

Texas law has long recognized that matching an accused’s fingerprints to a set of 

fingerprints in a “pen packet” is sufficient to prove that the accused is the person 

convicted in the prior conviction. See Littles v. State, 726 S.W.2d 26, 32 (Tex. Crim. 

App. 1984) (en banc); Cole v. State, 484 S.W.2d 779, 784 (Tex. Crim. App. 1972); Allen v. 

State, 451 S.W.2d 484, 484 (Tex. Crim. App. 1970); Williams v. State, 356 S.W.3d 508, 

517 (Tex. App.—Texarkana 2011, pet. ref’d); Cleveland v. State, 814 S.W.2d 140, 142 

(Tex. App.—Houston [14th Dist.] 1991, no pet.); Lancaster v. State, 734 S.W.2d 161, 165 

(Tex. App.—Fort Worth 1987, pet. ref’d). Additionally, allowing the factfinder to compare 
13

photographs included in pen packets with the defendant can alone be sufficient to prove 

the defendant is the same person as the one in the photograph. Forward v. State, No. 

11-11-00060-CR, 2013 WL 1248287, at *4 (Tex. App.—Eastland Mar. 28, 2013, no 

pet.) (citing Littles, 726 S.W.2d at 31–32).

After viewing the evidence in the light most favorable to the prosecution, we hold 

that a rational factfinder could have found that two prior convictions existed and that 

appellant was the person convicted. See Jaynes, 216 S.W.3d at 845. We overrule 

appellant’s third issue. 

VI. CONCLUSION

We affirm the trial court’s judgment. 

GREGORY T. PERKES

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 

31st day of October, 2013.