## NO. 12

- 15

- 00205

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LARRY BARTON BROWN,

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE §

§

§ APPEA L FROM THE 420TH

JUDICIAL DISTRICT COURT

NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION

Larry Barton Brown appeals his conviction for felony driving while intoxicated, for

which he was sentenced to imprisonment for thirty

- five years. Appellant raises three issues

challenging the trial court’s admission of certain evidence, the trial court’s questioning of a

witness, and the sufficiency of the evidence. We affirm.

B ACKGROUND

Appellant was charged by indictment with felony driving while intoxicated. He pleaded

“not guilty,” and the matter proceeded to a jury trial.

At trial, the evidence showed that Sergeant Keith Hawkins of the Nacogdoches Police

Department responded to a call regarding a possible disturbance in Appellant’s van. After

stopping App ellant, Hawkins became suspicious that Appellant was intoxicated. Officer

Jonathan Durham arrived at the scene and administered standardized field sobriety tests to

Appellant. Based on the results of these tests, Durham believed that Appellant was intoxic ated

beyond the legal limit.

Appellant was subsequently taken to the hospital where he voluntarily gave a blood

specimen. An analysis of the specimen showed that it contained around 0.159 grams of alcohol

per 100 milliliters of blood, almost twice the le gal limit.2

Ultimately, the jury found Appellant “guilty” of driving while intoxicated, and the trial

court assessed his punishment at imprisonment for thirty

- five years. This appeal followed.

A DMISSIBILITY OF E VIDENCE

In his first issue, Appellant compl ains about the admissibility of the blood analysis

results.

Standard of Review

Generally, we review a trial court’s decision to admit evidence under an abuse of

discretion standard. See Martin v. State , 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). We

mus t uphold the trial court’s ruling if it is reasonably supported by the record and is correct

under any theory of law applicable to the case. Willover v. State , 70 S.W.3d 841, 845 (Tex.

Crim. App. 2002). We will not reverse a trial court’s ruling admittin g evidence unless that ruling

falls outside the zone of reasonable disagreement. See Burden v. State , 55 S.W.3d 608, 615

(Tex. Crim. App. 2001).

Analysis

At trial, Appellant objected to the admission of the blood evidence on the grounds that

the State di d not prove the person who drew the blood was qualified to do so under

transportation code section 724.017. That section reads as follows:

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

chapter:

(1) a physic ian;

(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 under Subsection ( c).

T EX

. T RANSP

. C ODE A NN

. § 724.017(a) (West Supp. 2016).

Durham testified that he observed the blood draw. It was performed by Khadiga Khatun,

whom he knew to be a licensed phlebotomist at the hospital. Durham had previously observed

Khatun draw bloo d hundreds of times. Khatun testified that she had worked at the hospital

drawing blood for almost four years. She had a certification from a nearby community college.

Khatun had performed more than 5,000 blood draws, 500 of which were for DWI cases. She

described for the jury the procedure she used to take specimens in DWI cases.3

On appeal, Appellant argues that the trial court erred by admitting the blood evidence

over his objection. The State contends that transportation code chapter 724, entitled “Im plied

Consent,” is inapplicable because Appellant’s consent was not only implied, but express. We do

not address this argument because we agree with the State’s other contention

— that the trial court

did not abuse its discretion in determining

, based on Kh atun’s and Durham’s testimony, that

Khatun was a qualified technician under section 724.017 and therefore admitting the blood

evidence. See Krause v. State , 405 S.W.3d 82, 86 (Tex. Crim. App. 2013). Accordingly, we

overrule Appellant’s first issue.

D UE P ROCESS

In Appellant’s second issue, he argues that the trial court violated his right to due process

by asking questions of Khatun.

Standard of Review and Applicable Law

Due process requires a neutral and detached hearing body or officer. Gagnon v.

Sc arpelli , 411 U.S. 778, 786, 93 S. Ct. 1756, 1761, 36 L. Ed. 2d 656 (1973). A trial court’s

questioning of a witness for the purpose of clarifying an issue before the court does not offend

due process, so long as the court maintains an impartial attitude. Brewer v. State , 572 S.W.2d

719, 721 (Tex. Crim. App. [Panel Op.] 1978). In the absence of a clear showing of bias, we will

presume that the trial court’s actions were correct. Brumit v. State , 206 S.W.3d 639, 645 (Tex.

Crim. App. 2006).

Analysis

On th e first break in trial after Khatun’s testimony, the trial court sent the jury out and

called Khatun back into the courtroom. The following exchange took place:

TRIAL COURT: I just had a few more questions for you just to make sure I understand what you

were testifying about. You understand that you’re still under oath, correct?

KHATUN: Yes, sir.

TRIAL COURT: You said that you were

— that you graduated from Angelina Community

College?

KHATUN: Yes, sir.

TRIAL COURT: And what was your degree or certif ication in?

KHATUN: (Tendering.)4 TRIAL COURT: Says “phlebotomy specialist”

— witness has handed me a certificate

— on April

the 4 th of 2011; is that correct?

KHATUN: Yes, sir.

TRIAL COURT: That’s when you graduated?

KHATUN: Yeah.

TRIAL COURT: And, the n, when you graduated there, did you go to work right away?

KHATUN: No. I did my internship over there, in the hospital. That’s how they hire me over

there.

TRIAL COURT: You did intern

— internship where?

KHATUN: In Nacogdoches Memorial Hospital and then

—

TRIAL COURT: While you were a student or after you graduated?

KHATUN: We have to do a clinical. And then I

— I was doing my practice over there. And

then that’s how I got my job over there.

TRIAL COURT: So, what

— do you remember about when you were hired by Memorial Hospital?

KHATUN: Since 2000

— 2011.

TRIAL COURT: That’s when you were hired

—

KHATUN: Yeah.

TRIAL COURT:

—

by Memorial Hospital?

KHATUN: Yeah.

TRIAL COURT: And what did they hire you to do? What’s your job, when they hired

—

KHATUN: Just tak ing blood, and that’s it.

TRIAL COURT: Phlebotomist?

KHATUN: Yeah.

TRIAL COURT: So that’s all you do there?

KHATUN: Yeah.

TRIAL COURT: Okay. And you’ve been doing that since 2011?

KHATUN: Yes, sir.

TRIAL COURT: And when you said that you had drawn b lood about 5,000 times, was that just at

Memorial Hospital; or is that including your clinical or your internship before

—

KHATUN: Oh, actually, more than 5,000 the whole, you know, since 2012, you know. And5 maybe 5,000 for DWI. I mean, 500. Sorry.

TRIAL COURT: Right. But when you say

— those 5,000, is that just at Memorial Hospital?

KHATUN: Yes.

TRIAL COURT: That’s not counting any other blood draws you did while you were a student or

other places?

KHATUN: Yeah. I mean, we have to, like, had a hundred in state before we start doing it in

the hospital.

TRIAL COURT: So a hundred in the classroom

- type

—

KHATUN: Yes.

TRIAL COURT:

— or clinical setting?

KHATUN: Yes.

TRIAL COURT: Before you were hired by the hospital?

KHATUN: Yes.

TRIAL COURT: Have you wor ked at any other hospitals besides Memorial

—

KHATUN: No, sir. This is

— that’s the only hospital I work.

Khatun was excused, and the trial court stated, “I just wanted to make sure I was clear on

a legal

— legal sufficiency basis, not outside the factual s ufficiency issues that may or may not

exist so . . . .” Based on the trial court’s statements, it apparently questioned Khatun for the

permissible purpose of clarifying the issue of her qualification to draw blood. See Brewer , 572

S.W.2d at 721. Further more, the record does not suggest that the trial court failed to maintain an

impartial attitude. See id. Therefore, we presume that the trial court’s actions were correct. See

Brumit , 206 S.W.3d at 645. Accordingly, we overrule Appellant’s second issue

.

E VIDENTIARY S UFFICIENCY

In Appellant’s third issue, he argues that without the blood evidence, the evidence is

insufficient to support the jury’s finding that he was intoxicated. We have previously concluded

that the blood evidence was properly admitt ed. Therefore, we overrule Appellant’s third issue.6 D ISPOSITION

Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s

judgment.

J AMES T. W ORTHEN

Chief Justice

Opinion delivered August 31, 2016

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 31 , 2016

NO. 12

- 15

- 00205

- CR

LARRY BARTON BROWN,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 420th District Court

of Nacogdoches County, Texas (Tr.Ct.No. F1421059)

THIS CAUSE came to be heard on the appellate record and briefs filed

herein, and the same being considered, it is the opinion of this court that there was no error in the

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be in all things affirmed , and that this decision be certified to the court

below for observance.

J ames T. Wor then , Chief Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.