1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO
. 09
- 18
- 00035
- CR



### ____________________ VANESSA ANN DAVIS , Appellant
V.
THE STATE OF TEXAS , Appellee

_______________________________________________________ ______________ On A ppeal from the 252nd District Court Jefferson County, Texas Trial Cause No
. 16
- 2 5447

________________________________________________________ _____________ MEMORANDUM OPINION
S eeking to overturn her conviction for intoxication manslaughter, Vanessa
Ann Davis argues the trial court abused its discretion by admitting evidence during the guilt

- innocence phase of her trial about the results of lab tests performed on her blood. According to Davis, because a respirato ry therapist drew her blood, the seizure was not authorized by the Texas Transportation Code

. She argues that respiratory therapists are not among the categories of professionals authorize d by2 Chapter 724 of the Texas Transportation Code to draw blood from a person who was driving a car

. 1 In her second issue, Davis argues that in assessing her sentence, the trial court improperly considered that she did not testify in her tria l , v iolatin g her right s under the Fifth Amendment not to testify against herself.
W e conclude the trial court did not abuse its discretion by admitting testimony
about the results of the tests on Davis’s blood

. T he evidence presented in a hearing on Davis’s motion to suppress shows that Davis’s blood was obtained by using a search warr ant , so the Transportation Code does not provide the provisions that
control whether the seizure of Davis’s blood was reasonable

. Second, w e conclude
that by failing to object to the trial court’s comment indicating the trial court wished
Davis had testifi ed during the punishment phase of her trial , Davis failed to properly preserve her complaint about whether the trial court improperly considered her failure to testify

. For these reasons, we affirm the trial court’s judgment

. Background Early o ne morning in July 2015, Davis was driving at a high rate of speed on Gulfway Drive in Port Arthur , Texas , when she lost control of her car
. Davis’s car collided with several objects, went airborne, and rolled over several times. Pamela Fields, a passenger in Davis’s car, was thrown from the car during the collision.

1 Tex. Transp. Code Ann. § § 724.001

- .0 64 (West 2011 & Supp. 2018).3 Fields died at the scene. In late July 201 6 , based on the fact that Fields was killed in the collision, a grand jury indicted Davis on a charge of intoxication manslaughter. 2
Her cas e was tried to a jury in January 2018. Officer Lane Cherry, a City of Port Arthur police officer, was one of the officers who was involved in the investigation of Davis’s wreck on the morning that
it occurred. Several hours after Davis arrived at Saint Elizabeth Hospital, Officer Cherry presented a search warrant to the hospital authorizing the police to seize samples of Davis’s blood. A respiratory therapist work ing at the hospital drew the samples

. Subsequently, Officer Cherry placed t he samples in to the Police Department’s evidence locker

. Several days later, t he samples were forwarded to the Department of Public Safety’s Crime Lab in Austin. Dana Baxter, a chemist employed by the Crime L ab in Austin , was one of the
witnesses who testified in Davis’s trial. According to Baxter, the analysis on Davis’s
blood showed that it contain ed cocaine and benzoylecgonine, which is a metabolite
of cocaine. Baxter testified that Davis either “took a whole bunch [of cocaine], or the sample was collected shortly after [she] used it.”

2 See Tex. Penal Code Ann. § 49.08 (a) (West 2011) (a person commits the offense of intoxication manslaughter if she operates a motor vehicle in a public place while intoxicated and, by reason of that intoxication, causes the death of another by accident or mistake).4 After jury selection, but before any witnesses testified, Davis moved to suppress the evidence related to the testing performed on her blood. She argu ed that
the evidence was inadmissible because a respiratory therapist had drawn her blood, suggesting that respiratory therapists are not among those expressly authorized by

s ection 724.017 of the Transportation Code to draw blood from individuals who have been operating cars

. 3 In response, the prosecutor argued that the Transportation Code’s provisions did not control whether the seizure was reasonable because the
search in Davis’s case had been conducted with a sear ch warrant

. Davis did not argue
that the evidence was irrelevant to whether she lost the normal use of her faculties. Additionally, Davis did not argue that probable cause did not exist to support the magistrate’s decision to issue a warrant that authorize d the police to obtain a sample
of her blood. 4
The trial court denied the motion, finding that the evi d ence presented in the hearing demonstrated that the respiratory therapist who took Davis’s blood was a “qualified technician

. ” Section 724.017 (a)(2) uses th e term “qualified technician”

3 See Tex. Transp. Code Ann. § 724.017(a) (West Supp. 201 8 ).

4 The warrant the magistrate issued authorized the police to direct a physician, registered nurse, medical laboratory technician, or other qualified person skilled in the taking of blood from the human body to obtai n the sample.5 but it does not describe the group of people who are authorized to draw blood by specific ally identifying the occupation s for persons who are “qualified technician s .” 5 During the trial, t he trial court allowed the jury to consider testimony from a
chemist at the Crime Lab showing that she tested Davis’s blood and found it to
contain cocaine . Based on the chemist’s testimony, along with other testimony and photographs showing that Davis lost control of her car, the jury found Davis guilty of intoxication manslaughter

. After she was found guilty of intoxication manslaughter, Davis elect ed to have the trial court decide her punishment

. T he trial court then heard Fields’s sister and
Davis’s niece testify in the punishment phase of her trial . After hearing the testimony and argument s from the parties’ attorneys, t he trial court assessed an eighteen

- year
sentence in Davis’s case

. 6 Immediately after pronouncing the sentence , the trial court
stated : “ A nother thing that’ s very important to me that I did not say that I want you

to know is I

-- I wish I had heard from you. I w ish I had seen something that I didn’ t

5 See id. § 724.017(a)(2) (West Supp. 2018).

6 Intoxication manslaughter is a second

- degree felony , punishable by a prison sentence of not less than two and no more than twenty years. See Tex. Penal Code Ann. § 12. 33 (West 2011) (Second Degree Felony Punishment); Id. § 49.08 (b) (West 2011 ) (generally prescribing the punishment for intoxication manslaughter as the punishment that is available for second

- degree felon ies ).6 see from you during this trial and during today. ” Davis neither objected to the trial

court ’s statement , nor did she move for a new trial. Analysis Admissibility of Evidence Related to Blood Test s
In her first issue, Davis argues the trial court erred by allowing the jury to
consider testimony that the State acquired by testing her blood. In her brief, Davis
argues the testimony about the results of her blood tests are inadmissible for one

reason: respiratory therapist s are not among those the Legislature authorized police
to use under the Transportation Code to draw a sample of a driver’s blood. 7 In its brief, the State argues that the search warrant issued b y the magistrate controlled
whether the police could legally seize a sample of Davis’s blood

. We review complaints about alleged err ors in admitting evidence using a n abuse

- of

- discretion standard. 8 If the trial court’ s decision to admit the evidence was

7 Section 724.017 authorizes the following groups to take b lood specimen s at the request of p eace officer s : “(1) a physician; (2) a qualified technician; (3) a registered professional nurse; (4) a licensed vocational nurse; or (5) a licensed or certified emergency medical technician

- intermediate or emergency medical technician

- parame d ic authorized to take a blood specimen [ by the medical director who employs them].” Tex. Transp. Code Ann. § 724.017 (West Supp. 2018) . The term “qualified techn ician” is not expressly defined by either the Penal Code or the Transportation Code.

8 Tillman v. State , 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); see also Carrasco v. State , 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).7 proper under any theory of law that applies to the case, its ruling will not be disturbed on appeal. 9 While still subject to the reasonableness requirements of the Fourth Amendment, Chapter 724 of the Texas Transportation Code defines the circumstances under which a peace officer may conduct a warrantless search to
obtain a specimen of a person’s blood

. 10 Officer Cherry, however, did not rely on
section 724.017 when he seized the samples of Davis’s blood

. I nstead, he obtained
the samples with a warrant , which authorized a “qualified person skilled in the taking of blood from the human body” to draw the samp les tested by the Crime Lab. Consequently, the terms of the search warrant, not section 724.017 of the Transportation Code, control led whether the police were authorized to have a respiratory therapist draw Davis’s blood

. 11

9 See Romero v. State , 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

10 See Tex. Transp. Code Ann. §§ 724.001

- .064; see also State v. Johnston , 336 S.W.3d 649, 660 (Tex. Crim. App. 2011).

11 See State v. Johnston , 336 S.W.3d at 661 ( “ Chapter 724 is inapplicable when there is a warrant to draw blood; therefore, compliance with Chapter 724 is not necessary to satisfy the Fourth Amendment. ” ) ; see also Sanchez v. State , 365 S.W.3d 681, 684 (Tex. Crim. App. 2012) (“[a]lthough a blood draw constitutes a search under the Fourth Amendme nt, the Constitution will not be offended if the draw occurs pursuant to a valid search warrant”).8 The testimony before the trial court shows that the respiratory therapist who
drew Davis’ s blood is authorized by the hospital to perform arterial blood draws

. The evidence also shows that she has twenty

- five years of experience in drawing
blood

. The respirat ory therapist testified that she regularly performs arterial blood
draws in her job at Saint Elizabeth Hospital. Because the evidence before the trial
court allowed the trial court to conclude that the warrant authorized the draw s that

are at issue in the appeal, the trial court did not abuse its discretion by admitting the
evidence showing that Davis’s blood contained cocaine

. We overrule Davis’s first
issue

. Davis’s Failure to Testify
In her second issue , Davis argues that during the punishment phase of her trial,
the trial court improperly considered that she did not testify in assessing her

sentence

. 12 Davis cites the trial court’s express statement about wanting to hear from
her to support her claim that the trial court violat ed her constitutional right s and that she was harmed by the error

.

12 See U.S. C ONST

. a mend. V; see also Tex. Const. art. I, § 10.9 But Davis did not object to the comment when it occurred, so she failed to preserve her complaint for our review on appeal. 13 Generally, a rev iewing court

cannot address the merits of an issue upon appeal unless the party followed the proper procedural steps to preserve the issu e for review. While the error preservation requirements in Rule 33.1 are not absolute, they generally apply to a defendant’s Fifth Amendment privilege not to testify

. 14 In Johnson , the Court of Criminal Appeals explained that “[t]he Fifth Amendment privilege against self

- incrimination
under a Marin analysis is a forfeitable privilege

. ” 15 Since the privilege can be
forfeited if not asserted , “ a trial judge has no independent duty to implement a
defenda nt’s Fifth Amendment privilege.” 16
W e conclude that by failing to object to the trial court’s comment, Davis failed to properly preserve her complaint for our review

. Because D avis raises issues that

13 See Tex. R. App. P. 33.1 (preserving error for appellate review requires the complaining party to show that he presented his complaint to the trial court by making a timely request, objection, or motion and that the trial court ruled on the request).

14 See Johnson v. State , 357 S.W.3d 653, 65 8 n.3 (Tex. Crim. App. 2012)

.
15 Id . (citing Marin v. State , 851 S.W.2d 275, 278

- 80 (Tex. Crim. App. 1993) )

.
16 Id

. ( citing Minnesota v. Murphy , 465 U.S. 420, 427 (1984) )

.10 are either without merit or not properly preserved for our review, the judgment the
trial court rendered is affirmed.
AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on September 5, 2018 Opinion Delivered November 14, 2018 Do Not Publish Before McKeithen, C.J., Horton and Johnson, JJ.