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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 Appeal from the 252nd District Court 

Jefferson County, Texas

Trial Cause No. 16-25447

________________________________________________________ _____________

MEMORANDUM OPINION

Seeking 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 respiratory 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 authorized by 
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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 trial, violating her

rights under the Fifth Amendment not to testify against herself.

We conclude the trial court did not abuse its discretion by admitting testimony 

about the results of the tests on Davis’s blood. The evidence presented in a hearing 

on Davis’s motion to suppress shows that Davis’s blood was obtained by using a 

search warrant, so the Transportation Code does not provide the provisions that 

control whether the seizure of Davis’s blood was reasonable. Second, we conclude 

that by failing to object to the trial court’s comment indicating the trial court wished 

Davis had testified 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 one 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-.064 (West 2011 & Supp. 2018).
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Fields died at the scene. In late July 2016, based on the fact that Fields was killed in 

the collision, a grand jury indicted Davis on a charge of intoxication manslaughter.2

Her case 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 working at the hospital drew the 

samples. Subsequently, Officer Cherry placed the samples into the Police 

Department’s evidence locker. Several days later, the samples were forwarded to the 

Department of Public Safety’s Crime Lab in Austin. 

Dana Baxter, a chemist employed by the Crime Lab 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 contained 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). 
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After jury selection, but before any witnesses testified, Davis moved to 

suppress the evidence related to the testing performed on her blood. She argued that 

the evidence was inadmissible because a respiratory therapist had drawn her blood, 

suggesting that respiratory therapists are not among those expressly authorized by

section 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 search 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 authorized the police to obtain a sample 

of her blood.4

The trial court denied the motion, finding that the evidence presented in the 

hearing demonstrated that the respiratory therapist who took Davis’s blood was a 

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

 3 See Tex. Transp. Code Ann. § 724.017(a) (West Supp. 2018).

 

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 obtain the sample.
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but it does not describe the group of people who are authorized to draw blood by 

specifically identifying the occupationsfor persons who are “qualified technicians.”5

During the trial, the 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 elected to have 

the trial court decide her punishment. The trial court then heard Fields’s sister and 

Davis’s niece testify in the punishment phase of her trial. After hearing the testimony 

and arguments from the parties’ attorneys, the trial court assessed an eighteen-year 

sentence in Davis’s case.

6 Immediately after pronouncing the sentence, the trial court 

stated: “Another 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 wish 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 felonies).
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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 Tests

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 therapists 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 by the magistrate controlled 

whether the police could legally seize a sample of Davis’s blood.

We review complaints about alleged errors in admitting evidence using an 

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 blood specimens at 

the request of peace officers: “(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-paramedic 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 technician” 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). 
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proper under any theory of law that applies to the case, itsruling 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. Instead, 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 samples tested by the Crime Lab.

Consequently, the terms of the search warrant, not section 724.017 of the 

Transportation Code, controlled whether the police were authorized to have a 

respiratory therapist draw Davis’s blood.

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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 Amendment, the Constitution will not be offended if the 

draw occurs pursuant to a valid search warrant”). 
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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 respiratory 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 draws 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 violated her constitutional rights and that 

she was harmed by the error. 

 

12 See U.S. CONST. amend. V; see also Tex. Const. art. I, § 10.
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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 reviewing court 

cannot address the merits of an issue upon appeal unless the party followed the 

proper procedural steps to preserve the issue 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 

defendant’s Fifth Amendment privilege.”16

We conclude that by failing to object to the trial court’s comment, Davis failed 

to properly preserve her complaint for our review. Because Davis 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, 658 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)). 
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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.