## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 19

- 00243

- CR

______ _____________________

On Appeal from County Crimina l Court No. 4

Denton County, Texas Trial Court No. CR

- 2018

- 020 22

- D
Before Sudderth, C.J.; Gabriel and Bassel, JJ. Memoran dum Opinion by Chief Justice Sudderth 

### M I CHALE 

### A LLEN 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. Introduction
A j ury convicted Appellant M ichale Allen of mis demeanor dri ving while intoxicated (DWI) , an d the trial cour t assessed his punishment at 150 days ’
confinement. During the trial, the trial court admitted evidence t hat Allen’s blood teste d positive for methamphe tamine , and i n a single point , Allen asks us to determine
whether “ a cursory statem ent from a hospital supervisor th at a phlebotomis t is qualified to draw blood render[s] that p hlebot omist a ‘ qualified technician ’ under Texas Transp ortat

ion Code Section 7 2 4.017. ” 1 See Krause v. State , 405 S.W.3d 82, 8 5 (Tex. Crim. App. 2013) ( stating that a phleb o tomist “ is a technicia n who draws
blood ” ) ; Torres v. State , 109 S.W.3d 602, 605 (Tex. App.

— Fort Worth 2003, no pet.) ( “ Because a phlebotom ist is not listed among those occupations which automat ically qualify under [Section 72 4.017( a)] , a phlebotomist must be proven to be ‘ quali fied ’ before a blood sample he or she takes satisfies the statute. ” ). In part of its response, the State asserts tha t we need not reach this point
because the evide nce to prove Allen ’ s intoxicati on

— his driving behav

io r, his

1 Sectio n 724.017(a) lists the 5 catego ries of individuals who may take a blood speci men u n der Chapter 724 at the request or order of a peace office r: a physician, a

“ qualified technician, ” a registered professional nurse, a licensed vocational nurse, o r a lice ns ed or certifie d emergency medica l technician

- intermediate or emergency medical te c hn ician

- paramedic. See Tex. Tran sp. Code Ann. § 724.017(a)

.3

interactio n s with police officer s, his performance on standardized field sobriety tests, and expert testim ony abo ut the effects of controlled substa nces on the human body

— i s sufficient to support his conviction . Because we con clude that the Stat e is correct,

we ove rrule Al len ’ s sole poi nt without reaching the merits and affirm th e trial court ’ s judgment.
II . Discussion In determining the likelihood that a nonconstitutional error 2 adversely affec ted the jury’s decision, we rev iew the record as a whole, including an y testimony or physica l evidence admit ted for the jury’s con side ration, the nature of the evidence supporting the verdict, and the charact er of the alleged error and how it might be

cons idered in connection with other evidence in the cas e. Motilla v. Stat e , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also c onsi der the jury instructions, the State’s theory and any defensive theories, whether the State emphasized the error, closing arguments, and even voir dire, if applicable. Hale y , 173 S.W.3d at 51 8

– 19;
Motilla , 78 S.W. 3d at 355

– 56.

2 We apply Tex as Rule of Appellate Procedure 44.2(b), which requires us to disregard any nonconstitut ional er ror that does no t affect the app el lant’s substantial rights. Tex. R. App. P. 44.2( b). A n error that has a “substant ial and injurious effect or influence in det ermining the jury’s verdict” affects a substantial right. Haley v. State , 173 S.W.3d 5 10, 518 (Tex. Crim. App. 2005); King v. St ate , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) ( citi ng Kotteakos v. United States , 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial right if we have “ fair assurance that the error did not influence the jury, or had but a slight effect.” Solomon v. Sta te , 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. S tate , 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).4

A
. Opening Statements During opening statements, the prosecutor told the jur y that the evidence
woul d show that around 9 p.m. on July 26, 2017, a n of f

- duty ambulance driver sa w

som eo ne driving errati c ally on I

- 35E in D enton County . The amb ulance driver called
911 and fo llowed the vehicle

. The police were dispatched and pursued the vehicle
north across the county line to a g as station in Cooke County. At the gas statio n , the police pu t the driver, identifi ed as Allen, through st andardized field sobriety tests , and
after h is ar rest, Allen consented to a blood draw, which re v eale d the presence of methamphetamine in his body

. The defen s e ’ s opening statement fo c used on the fact that the jury would not hear from the ambul ance driver

. D efense counsel told the jur ors that they would
have to find Allen no t guilty , even though they were “ going to think he ’ s guilty , ”
because there would be no one to cross

- examine wh o saw Allen operat e the motor vehicle i n Denton Co unty.
B
. Evidence
T he tr ial c ou rt admitted the recording of the 911 call into evidence . In that recording, the ambulance driver reported his concerns about Allen ’ s driving

. 3 He also
identifie d the Denton County exi ts that he pas sed while following Allen ’ s veh icle
northbound on I

- 35E a nd told the 911 dispatcher that Allen ’ s speed fluctuated

3 Allen does not complain o n appeal about th e trial court ’ s overruling his objections to the admission of the 911 recording

.5

between 10 miles per hou r and 75 mile s per hour , that Allen had been “ all over the
road ” and “ swerving si d e t o side pretty good ” in his lane, and that Al len had been crossing over the line.
Denton P olic e Officers Scott Owen, Cory McConnel , and Travi s Nicholas
testified th at dis patch had received the 911 call at around 9 p.m. and that other officers had already stopped Allen b y the time they met him at a gas station at the
V alley View exit in Cooke Co unty
. The tria l court admitted into evidence the officers ’
dashboard and body camera footage

. T he video f

ootage sho wed that Allen had trouble following the directions to

e xit his vehicle and that he got tangled up in his seatbelt when he tried to get out of
the car. Once Allen successfully emerged from his v ehicle, he cha tted a nimatedly
with the polic e , making frequent hand, a rm, and body gestures while the y led him t o a clear area away from the as sorted patrol vehicles

. 4 Allen told Officer Nicholas abou t his conversation wit h the ambulance driver , who had tried to check on him, 5 and

4 T he stop of Allen ’ s vehi cl e was a felony traffic stop, with n ume rous police uni t s in attendance and police offic ers a iming weapons at hi s vehicle.

5 During th e 911 call, the ambulance driver told the dispatcher that he had pulled the erratic driv er over to ask if anything wa s wr on g but th at the d river could not under stand a n ything he was saying , so he h ad continued to follow hi m and called 911

.6

explained that he had not known that the police wer e pursuing him when he stopped

at the gas station. 6
Allen told Officer Nicholas that he and his friend had stopped for ga s , bu t when Officer Nicholas asked, “ W here ’ s your frien d? ” Allen said, “ I ’ m here b y myself. ” The video footage showed that no one else was in the vehicle with him at

t he time of the stop

. Allen had a difficult time answering question s about where he was coming
from

— e ven after he was given prompt s, such as “ a house, a restauran t ? ”

— and where he was going. Allen , who told th e police that he lived in North Dallas, finally said, “ I
had been d riving ” and had been goi ng t o get gas
. He continued to move around and
ge sticulate during the conv ersat ion

. Officer McConnel said that sober people can normally answer such si mple questions with relative ease but that Allen struggled

. T he dashboard and body camera footage supported Offic er McConnel ’ s testimony

. The of ficers ask ed Allen whether he had any health c onditions , whether he was
under a doctor ’ s care, whether he was taking any prescription medication, and
whether he c oul d walk or stand normally

. W hen Officer Nicholas ask ed Allen if he
had con sumed an y a l c ohol o r ill egal d rugs that eveni ng, Allen denied that he had

c onsumed any

. He told the of ficers that he took Benadryl and Risper dal “ to calm

6 One of t he dashboard videos shows that at the time Allen ’ s vehicle exited the inter state, he was being followed by at leas t two pol ice ve hicles with lights and sirens,
as w ell as a red a mbulan ce.7

[him] dow n ” but tha t he was not under a doctor ’ s care . Allen also told them that he
ha d been diagnosed with bipolar s chizophrenia and d epression and that he had taken
his me dication the day before

. 7 Allen told Officer Nicho las that he heard voices and
music. Officer N icholas said that , with regard to voices, Allen could have been talking about hearing the other police off i cers at the scene , but Officer Nicholas d id

n ot recall hearing any music.
Officer Nicholas administere d s tandardized field so briety tests 8 to Allen , who
had difficulty following the test directions. Officer Nicholas s tated that he tried to conduct t he HG N test first but gave up after several attempts because Allen “ could not focus on [the] sti mulus an d . . . his c once ntration kept dr ifting away. ” Duri ng the

7 When d efense counsel question ed Officer Owen about the distinction between intoxication

— lacking nor mal mental or phy sical fa culties as e vidence of intoxication

— and me ntal illness , Officer O wen cl arified that he did not think that lacking the nor mal use of menta l faculties because of a mental health condition qualifie d as being intoxicated

.

8 Officer N icholas sa id that under no rmal cir cumstances, a person should be able to perform the tests

— used t o test balance and cog nitive skills for si gn s of intoxic ation

—

w ith no c omplications

. H e des cribed the horizontal gaze nystagmus ( HGN), walk

- and

- turn , and one

- leg stand test s and stated tha t a person ’ s meeting a minimum number of clues fro m each test wou ld result in a con clusio n that the person was intoxicated. T he walk

- and

- t urn and on e

- leg stand tests were “ divided attention ” test s , in which the subject is asked to perf orm a serie s of actions to test his memory and per formance ability

. The walk

- an d

- tur n test requires the subject to walk in a st rai ght line by taking nine heel

- to

- toe steps while keeping eyes focused on the feet and counting the steps aloud ; it ca n result in u p to 8 clues , with a decision point o f 2 clues

. The one

- le g stand tes t requi res th e subject t o lift a foot six inches off the ground and count until instructed to stop; it can res ult in up to 4 clues, with a decision point of 2 clues.8

HGN tes t , Allen complained that his fee t were tir ed and asked to take his shoes off , which th e police allowed him to do.
Before the walk

- and

- turn test, Allen aske d to put his sho es ba ck on, which the police also allowed him to do. Alle n ’ s performance on the wal k

- and

- turn test res ulted
in 4 clue s indicating possible intoxication , and his performan ce on the one

- leg stand

test resulted in 2 clues. Of ficer Owen , who was certified as a field s obriety te s t
p ractitioner , note d Allen ’ s i nability t o per form the walk

- and

- turn test a nd to maintain
his balance while trying to per form the o ne

- leg stand test: “ [T] he subject did not stand on one leg. In stead, he basically was marching. ”
Officer McCo n nel said that signs that someone may be i ntoxicated on a
sti mulant included erra tic behavior, prof use sweating, and t he inability to stop moving , and Officer Owen described Allen ’ s b eha vior during the stop as consistent
with having in gested meth amp hetamine

. Offi cer Nicholas testified that he had ru led
out alcohol as the cause of Allen ’ s int o xication and attributed it to some type of dr ug . A ll three offic ers descr ibed Allen as sweating profusely , making jittery , twit chy, and fidgety movements , and being u na ble to focus or rel ax . Officer Owen further noted
that bot h driving on I

- 35 E at speeds varying fro m 10 to 75 miles an hour and

swer ving side to side within a la n e and over lanes could indicate in tox ication

. B ased on the totality of the investigation, Officer Nich olas c oncluded that Allen was9

intoxicated , placed Allen under arrest , 9 a n d obtained hi s consent to giv e a blood
sp eci m en. 10
Officer s McConnel and Nicho l as observed the phlebotomist , Crystal Horner, perform All en ’ s blood d raw at the hospital

. Kim berly Sutton , the hospital ’ s laborato ry manager at the time of trial , testifi ed that Horner , who had wo r ked at th e hospital for two years under her su pervision , n o longer worked there

. Sutton said that
Horner ha d been a qualified technician to co llect blood and state d that a phle botomist was only required t o hav e a high school dip l oma and to complete two w e eks of on

the

- job training in logistics becaus e “ they com e usually knowing how to collect blood already

. ” Sutton , who was not pr esent for Allen ’ s blo od draw, said that she was not

“ priv y to ” the circumstances of Horner ’ s departur e from the h ospital

. The body camera footag e show ed Horner draw the blood in the t u bes provided by the of ficers
and hand th e blood samples t o Officer Nicholas, w ho shook them to make sure the anticoagulants and preservatives c ontained therein were well

- distributed. The body camera footage of Allen at the hospital showed tha t he had bec o me calm and very quiet by that time

.

9 Allen incurr ed additional c harges ari sing out of the same incident that were tr ied se parate ly

— p osse ss ion of a controlled substance and evading arrest or detention with a vehicle

.

10 Officer Nicholas had to as k Allen several time s f or a clear answe r to the blood draw inquiry because Allen was mumbl ing under his breath.10

S heryl Pe yton, a forensic toxicologist wit h the Texas Depa rtment of Public Safety, testifi ed that sh e had tested Allen ’ s blood sample

. D efense counsel objected to
the admission of the blood ki t and Peyton ’ s to x icolog y report

— State ’ s Exh ib its 8 and 9, respectively

— ar guing that the S tate had fail ed to provide a proper predicate for the
blood d raw with regard to the phle bo to mist ’ s qualifications, am ong other things , but

t he trial court overruled Allen ’ s objections and ad m itte d the exhibits into evidence.
Pe yton then testified that Allen ’ s blood had tested posit ive for methamphet amine at . 21 mill igr ams per liter . She also testified, o ver defense
counsel ’ s objections, about the effect of me thamphetamine on the b ody

. 11 Sp e cifically, Pe yton testi fied that at levels of .01

– .05 milligrams per liter , on e would

see a focused and e u phoric individual with an ability to stay alert but that once the

met hamphetamine level rose ab ove the ther apeutic range, “ yo u get different reaction s : j ittery, talka tive, extremely talkative, inability to f ocus. ” In terms of driving beha vior,
P eyton said that a driver on methamphetamine would be “ consistently d riving over
the median and over th e side on the shoulder , ” slowing down, and speeding up. And
if the driver was “ o n their way down ” from a h igh, the me thamphe tam ine would act as a dep ressan t, making the individual seem extremely le thargic.

11 Allen does not complain on app eal ab out the admission of this testimo ny.11

Defense witness Ch ar lie Fost e r, a former

- police

- of ficer

- turned

- con sultant, 12
testified about his training in DWI detecti on and th e standardized field sobr iety tests.
He stat ed that the National Highway Traffic Safety Administration had hired the
Southern California Res e arch I nst itute (SCRI) to develop the standardized field sobriety tests in the 19 70s , that S CRI was the only entity to have v alidate d the t ests, and that SCRI o nly validated the tests for the detection of alco hol, not impa irment by
narcotics. He opined that someone wit h a mental condition, such as a bipol ar schizophrenic who had not taken his m e dication, “ cer tainly could h ave a difficulty

-- a very difficult time learning ” the test s. Foster re vi ewed the police report and Offic er Nicholas ’ s testing , noted that the police had indicated that Allen ’ s eyes were

“ normal, ” i.e., not dilated, and he st a ted that if a pers on were under the inf luence o f methamphetamine, his pupils would be dilated. O n cross

- examination, Foster described the signs of i ntoxication by methamphetamine as including excitedness,

e xag gerated re flexes, al ertness, and talkati venes s . C . J ury Charge The jury charge defined “ intoxicated ” as “ not having the norm al use of mental or physical facul ties b y reason of the in troduction of a controlled substance, a drug, a dangerous drug, or a combination of two or m ore of th ose substances i nto the body ”

12 Foster had been a police officer in North Texas for 28 years

— wit h the last several years exclusively in DWI enforcement

— before beginning his twelve

- year consult ing c a reer.12

and i nformed the jur ors that to find Allen guilty, they ha d to find that he operated a motor vehicle in Denton County on or a bout July 26, 2017, that he did so in a public place, and that he did so while intoxicated , but the jury d id no t hav e to agree on the

me thod of intoxication.
D
. Closing Arguments
Duri ng closing arguments , the prosecut or ar gued that the St ate had prove n all
of the DWI elements and that the jury should consider Allen ’ s behavior in the videos,
confirmed by the la b rep o rt , to c onclude that he had been intoxicated

. She also
argue d that the jury should consider th e 911 call er ’ s recita tion of the places he and Allen p assed in Denton County and Allen ’ s admission on the video that the 911 c aller
had stopped him for a welln e s s ch eck for proof th at Allen had commit ted the offense
in Den ton County. The pr osecutor referred the jury to the officers ’ descriptio ns of Allen as consistent with into xica tion caused by methamphetamine : “ The swea ting, the inability to f

ollow instructi o ns, not having any concentration, those driving b ehaviors

. . . 10 miles an hour, 55 miles an hour, 65 miles an hour, 75 m i les an hour, all over the road. Not only consistent with methamphetamine but just consistent with someone
who is int ox icated. ” The prose c utor also argued that Foster, a s a d efense exp ert, would always h ave some explanation regarding why s o meone might have sy mptoms of intoxication but not be intoxicated.13

Defense c ounsel res ponded that “ [t]his woul d be a fairly de cent [DWI] case if i t was being tried in Cooke Co unty ” and argued that the State had failed to prove t hat
Allen had op erated a motor vehicle in Denton County because none of the testifying
witnesses saw him drive in Denton County

. He argued, “ What my client is guilty of is
d r iving an aut om ob il e in Cooke County while he i s bip olar schizophren ic and off his
meds

. ” He argued that there was no evidence of alco hol and “ really no evidence of
intoxicat ion on metham phetami ne ” because th e p h lebotomist did no t testify

. He also
argue d that the results of the standard ized field sob r iety t ests did not matter when they were not certified to test any thing besides intoxication by alcohol.
In rebuttal, the prosecutor told the jury to c onsi der the 911 recording to
determine that the State h ad met its burden t o pr ove that Allen had co mmitted a DWI in Denton County and to consider Allen ’ s b ehavior while driving and while interacting with the polic e , coupled with his lab test, to find that he had been
intoxicated

. E . Anal ysis
Base d on our r e view of the r ecord as a whole , we conclude that the t rial c ourt ’ s admission of the blood test results over Allen ’ s objection to the phlebotomist ’ s
q ualifications did no t ad versely affect Allen ’ s substantial rights . The jury heard the
911 rec ord ing that A l len had dri ven over lines and at a n inconsist ent velocity while on
I

- 35E and saw firsthand ev idence of Allen ’ s behavior

— jittery, talkative, and
unfoc used initially and then le thargic at the hospital

— fro m the officer s ’ dashbo ard14

and bod y camera footage , al l of wh ich matched both Officer Owe n ’ s and Pe yton ’ s testimony about the effects of met hamphetamine on a person
. The jury was therefore
entitled to dis b elieve Allen ’ s assert ions to police in the recording s that he had not

consum ed any i llegal drugs and , ev e n without the b lood test results, the jury could
have found t hat Allen ’ s behavio r reflect ed intoxication

— and , specifically,

met ham phetamine intoxication

— r ather than mental i llness. Accordingly, w e overrule
Allen ’ s sole point

. III. Co ncl usion Having ove r ruled Allen ’ s sole po int, we affir m the t rial court ’ s judgment.

/ s/ Bonnie Sudderth Bonnie Sudderth Chief Justice
Do Not Publish Tex. R. A pp. P. 4 7.2(b)
Deli vered : October 29, 2020