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COURT OF CRIMINAL APPEALS OF TEXAS f) p 'Q j|\[ /\

AUSTIN TEXAS

PD-1575-14

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BLAS HERNANDEZ,JR., Appellant

03 2015

THE STATE OF TEXAS, Appellee

On Appeal from the 40th District Court

Ellis County, Texas

Trial Court Cause No.36567CR

ULtU IN

COURT OF CRIMINAL APPEALS

mar os i::'j

Abel Acosta, Clerk

PETITION FOR DISCRETIONARY REVIEW (PDR)
TABLE OF CONTENTS

COVER SHEET 1

TABLE OF CONTENTS .2

INDEX OF AUTHORITIES 3

STATEMENT REGARDING ORAL ARGUMENT 4

STATEMENT OF THE CASE 5

STATEMENT OF PROCEDURAL HISTORY 6

GROUNGS FOR REVIEW 6

ARGUMENT 6

ARGUMENT ON GROUND ONE 6

it it ~j-

•• ii • g

M ii 9

ii ii 10

ARGUMENT ON GROUND TWO 10"

11

n ii 12

ARGUMENT ON GROUND THREE 12

13

ii n 14

PRAYER FOR RELIEF 14

UNSWORN DECLARATION 15

CERTIFICATE OF SERVICE 15
INDEX OF AUTHORITIES

TEX.C.CRIM.P. ART. 35.03 8

Jasper v. State, 61 S.W.3d 413 9

Butler v. State, 830 S.W. 2d 125 9

TEX.C.CRIM.P. ART.35.16, 35.16(a), 35.19 9

TEX.GOVN'T CODE §62.110 (c) 9

Rule App. Pro. Rule 44.2(b) 9

Gray v. State, 174 S.W. 3d 794 9

28 U.S.C.A. § 1861 9

U.S. v. Carter, 568 F.2d 453 9

TEX.TRANSPORTATION CODE §724.012 10

Chapman v. California, 386 U.S. 18, 23-24 10

Mapp v. Ohio, 367 US 643, 654 10

Weeks v. U.S., 232 U.S. 383 10

U.S. v. Wade, 388 US 218 10

Untied State v. Brown, 482 F. 2d 124.6-- 11

United States v. Lane, 591 F.2d 261 11

Basden v. State, 897 S.W.2d 319 12

TEX.CCP. ART 42.08 12

In re: Russell, 60 S.W. 3d 875 13

Rhodes v. State, 175 S.W. 3d 348 13
STATEMENT REGARDING ORAL ARGUMENT

The Appellant in this case hereby waives oral argument. The

issues within this Petition can be viewed by reviewing the records

of the prior proceedings. Should this Court be of the opinion

justice would be better served by granting oral argument, Appellant

agrees with this Court's opinion thereto.
STATEMENT OF THE CASE

Appellant, was convicted of driving while intoxicated, third

or more offense, in the Trial Court out of Ellis County, Texas,

40th District Court, Trial Court Cause No.36567CR. The jury assessed

punishment at confinement for life. The trial court ordered the

life sentence in this case to run consecutively to the life sentence

that Appellant was on parole for at the time of trial. In Appellant's

ApDeal Brief, the counsel for Appellant asserted three points

of error on appeal. The first being that the court erred when

it excused a juror, Second for the court's denial of my motion

to suppress evidence, Third for sentencing me to serve consecutive

life sentences.
STATEMENT OF PROCEDURAL HISTORY

The Opinion in this case was handed down on October 9, 2014.

There was no motion for rehearing filed in this case.

GROUNDS FOR REVIEW

GROUND ONE: DID THE TRIAL COURT ABUSE ITS.DISCRETION WHEN IT

DISMISSED JUROR NUMBER THREE?

GROUND TWO: IS TEXAS TRANSPORTATION CODE §724.012 CONSTITUTIONAL?

GROUND THREE: DID THE TRIAL JUDGE ABUSE HIS DISCRETION BY STACKING

APPELLANT'S SENTENCE UNDER TEX.C.CRIM.P. ART.42.08?

ARGUMENT

ON GROUND ONE: Appellant contends in his first point of error

that the trial Court erred when it excused Eva Sauceda from

the jury. Appellant's trial attorney told the trial court that

Appellant did not have the jury cards in his possession during

voir dire (.R.R. Volume 3, Page 8, Lines 21-25). Furthermore,

Appellant's trial attorney told the trial Court that the jurors

were chosen by him, not by Appellant, who was not even consulted,

and had no kind of for knowledge of the information. Appellant was
not aware that the juror, Mrs. Sauceda, was a relative of the

long time family friends contacted by Appellant's mother (R.R.

Volume 3, Page 9, Lines 1-9).

The message then stated that Leo and Carmen Sauceda need

to come to court and that Appellant's mother needed to inform

them to do so (R.R. Volume 3, Page 9, Lines 10-18). The Court

then determined that the State was seeking to excuse juror Sauceda

from the panel. The Appellant objected (R.R. Volume 3, Page

10, Lines 4-15). The Court then determined that an interpreter,

who was licensed, had been in the courtroom earlier and was

possibly still available (R.R. Volume 3, Page 11, Lines 10-23).

The Court then had an in-camera hearing in the chambers with

juror Sauceda. The only other person present was the Court Reporter

(R.R. Volume 3, Page 11, Lines 24-25, Page 12, Lines 1-25).

Mrs. Sauceda stated that she was juror number 3. She also stated

to the Court in the chambers her husband answered a knowck on

the door and saw a young woman with three children who was looking

for Eva Sauceda. She stated that the woman said that her brother

wanted to make sure that Eva Sauceda was present tomorrow (R.R.

Volume 3, Page 13, Lines 2-25).

The juror could not say for sure whether or not she believed

that the person who visited her was the sister of the Appellant.

It seemed to her that this person was a relative of the Appellant

but she was not sure. But she also said that her last name was

Sauceda and her husband had lived in that house his whole life.

Her husband's family knows a lot of people (R.R. Volume 3, Page

14, Lines 1-20). The witness then asked the Judge if the jury

information cards, which had been copied, had personal information
on them. The Court verified that it woulh have included her husband's

name (R.R. Volume 3, Page 15, Lines 4-25, Page 16, Lines 1-2).

i

The juror stated she did not know Appellant and did not know

any member of his family (R.R. Volume 3,Page 16, Lines 7-14).

She stated her husband had not seen her when he came to the door

and hand not seen Appellant in a long time and had no connection

with Appellant or his family (R.R. Volume 3, Page 17, Lines 9-

25). The Court went over with the juror the range of punishment

and he asked her if she felt any kind of expectation, concern,

or any pressure or intimidation. She replied that the night before

she had been afraid but on the day in question she was more at

ease. She said she assumed that Appellant was incarcerated because

he came in with an officer but she stated.that she had two children.

Even after all the Court's efforts to lead the juror into

saying something which would warrant the Court's excusing her,

the juror still made the following statement: When the Court

asked her if she thought she should be excused she stated that

she didn't mind serving (R.R. Volume 3, Page 19, Lines 5-25,

Page 20, Lines 1-8).

The Court all but told the juror that all she had to say to

be excused is this and that. This is misleading the juror and

in doing so, violating Appellant's Constitutional, rights.

Article 35.03 of the Texas Code of Criminal Procedure provides

that the court shall hear and determine, excuses offered for not

serving as a juror and that," if the court considers the excuse

8
sufficient," the court shall discharge the prospective juror.

Jasper v. State, 61 S.W. 3d 413, 423 (Tex. Crim. App. 2001).

The Appellant contends that the juor in question never requested

the Court to remove her from the jury. She even stated that she

didn't mind serving on the jury, as a juror. The Legislature

has only provided for three instances in which prospective juror

is disqualified from jury service abinitio; all other prospective

jurors are presumptively qualified to serve as jurors, although

they may, in fact, harbor disabilities. Vernon's Ann. Tex. C.C.P.

Art. 35.16, 35.16(a), 35.19. Butler v. State, 830 S.W. 2d 125.

The Appellant contends the Trial Judge error in excusing

veniremember for reasons not supported in the three instances

the Legislature provided for in disqualifying a juror, in violation

of ststute, and in doing so,the act was not harmless. The violation

of statute affected composition of venire, and thus, subverted

in some fashion the process of assembling the venire. V.T.C.A.

Governmet CODE § 62.110 (c); Rules App. Proc., Rule 44.2(b)

Gray v. State, 174 S.W. 3d 794, rehearing en banc denied, and

petition for discretionary review granted, reversed 233 S.W.

3d 295, review dismissed as moot, on remand 2008 WL 5751952 PDR

dismissed as untimely filed.

Chief policy of Federal Jury Selection Act is to ensure random

selection of jurors on objective standards. 28 U.S.CA.§ 1861.

U,S, V. Carter, 568 F. 2d 453.
Appellant would argue to this Honorable Court Of Criminal

Appeals that the Trial Court was in error in excusing over objection

juror number three, Eva Saucela, because Eva Sauceda had not

been influenced and she was not afraid as a result of possibly

having an encounter with a relative of Appellant.

ON GROUND TWO: Appellant would contend the the Texas Transporta

tion Code § 724.012(b)(3)(B) is unconstitutional. The mandatory

blood draw of Appellant's blood without his consent violates

the Appellant's rights to be free of illegal search and seizure

pursuant to the U.S. Constitution Amendments 4,8,and 14. Forcing

Appellant to provide blood against his will violates Appellant's

rights. There was no warrant signed by a Judge authorizing the

blood to be drawn from Appellant and therefore, the draw was

illegal, as is to Texas ststute mandating it. Also violated

was Appellant's 5th amendment right under the U.S. Constitution.

Appellant would assert evidence obtained illegally my not

be introduced at trial to prove guilt otherwise reversal is

due. Chapman v. California, 386 U.S. 18, 23-24 (1967), This

is part of the judicially created exclusionary Rule which applies

to state ourts for Fourth Amendment violations through Mapp

v. Ohio, 367 US 643, 654-55 (1961), and to the federal government

through Weeks v. U.S., 232 US 383, 398 (1914). The rule also

applies to evidence obtained in violation of the Fifth Amendment

as well. U.S. v. Wade, 388 US 218, 237-39 (1967); Messiah v.

U.S., 377 US 201, 206-07 (1964).

Appellant would further assert that under the fruit of the

10
poisonous tree doctrine the blood taken from Appellant should

not have been used at trial at all. The Texas controversial

law allowing a mandatory warrantless blood draw without consent

is unconstitutional. This Court has already, ruled in a 5-4 decision

earlier this year that its unconstitutional. Therefore, anything

after the constitutional violation should be void under said

doctrine. Had there been no illegally obtaind evidence (blood)

then there would be the issue of the state not being able to

prove ALL elements of the offense charged.

Appellant would further assert that not only was the blood

illegally drawn. The chain of custody was botched in many ways.

This allowed for the evidence to be tampered with without answer.

United States v. Brown 482 F.2d 1226 (8th Cir. 1973); United

States v. Lane, 591 F. 2d 961 (DC Cir. 1986),

Evidence in this case had to be retested because of the move

of Ms. Medina. The witness stated that the evidence was resubmitted

to her lab on June 4th, 2012 (R.R. Volume 4, Page 19, Lines 2-

13). The Appellant objected to the question and answer of the

results to be given of the analysis for the reasons stated outside

the presence of the jury. The Court overruled the objection (R.R.

Volume 4, Page 20, Lines 6-13). The witness then testified that

this result was 0.205 grams of alchol per 100 milliliters of

blood. The witness then stated that the legal limit for intoxication

in the State of Texas is 0.08 grams of alchol and that the blood

analyzed in this case exceeded the legal limit in Texas (R.R.

11
Volume 4, Page 21, Lines 7-19).

ON GROUND THREE: The trial Court eroniously cumulated the sentence

which was life, with the sentence Appellent was currently serving.

The Texas Court of Criminal Appeals has explained that "[t]he

obvious intent of Art 42.08(b) is to deter inmates from committing

crimes during their incarceration and to more harshly punish

those inmates who are not deterred." Basden v. State, 897 S.W.

2d 319, 321 (Tex.Crim. App. 1995). (emphasis added), Before the

Legislature enacted Art. 42.08(b), inmates who committed a crime

while serving a sentence in the TDCJ-ID, and were convicted of

that crime while still serving their sentence, were often allowed

to serve two sentences concurrently.

HOUSE COMM. ON LAW ENFORCEMENT, BILL ANALYSIS, TEX..S.B. 186,

69th Leg. R.S. (1985). Inmates therefore, had no effective incentive

to refrain from engaging in criminal conduct while serving their

sentences, as they suffered no actual consequences(other than

loss of good time) for their later crimes, because their subsequent

sentence often ran concurrently with their original sentence.

Id. The House Committee on Law Enforcement, explained that it

intended Art. 42.08(b) to provide inmates with a strong incentive

to refrain from engaging in criminal conduct WHILE SERVING A

SENTENCE IN TDC

Art. 42.08 of the Texas Code Of Criminal Procedure does not

specifically define the term "INMATE". The Tex.C.Crim.App. has,

however, held that the plain meaning of the term " INMATE " is

" a 'person confined to a prison, penitentiary, or the like,'"

12
In re Russell, 60 S.W. 3d 875, 877 (Tex.Cr.App. (2001) (quoting

Black's Law Dictionary 788 (6th ed. 1990)).

Rhodes v. State, 175 S.W. 3d 348 (Tex.App. Hou. 2004); The'

literal language'of Art. 4208 "While the defendant was an inmate

in the institutional division" is subject to two possible interpertetions : it can require stacking only for offenses an inmate commits

while physically housed in the TDC, or it could require stacking

for any offense an inmate commits during the time he is an inmate i

processed into the institutional division, and actually serving

a sentence in the institutional division, but who commits the

offense in another location.

The trial Court abused its discretion by stacking Appellant's

life sentence against the literal language of Art. 42.08 of the

Texas Code of Criminal Procedure. This violates Appellant's rights

under the United States Constitution Amendments 5,8,11,and 14.

After the jury returned its verdict of life during the punishment

stage of the trial, the Court preceded to sentence Appellant.

The Court sentenced Appellant serve life in prison with credit

for 304 days previously served. Then, without argument or discussion,

the Court stated that the sentence is going to be cumulative

and it would run consecutively with the current life sentence

that Appellant was released on parole for (R.R. Volume 5, Page

63, Lines 5-16). Appellant was not given any chance to argue

13
why the sentence should not be stacked or made cumulative. The

Statute used to justify the stacking of Appellant's sentence

was put in place to deter inmates from acts which the TDC, could

not otherwise get a grip on by using removeal of good time. Its

very clear what the Statute was put in place to do. This Court

has further done pains,to make sure this is understood.

PRAYER FOR RELIEF

WHEREFORE, Appellant,respectfully moves this Honorable Court

to see the harm caused by the many violations of Appellant's

Constitutional Rights in this case at bar. Appellant is praying

this Court will grant this Petition and revers and remand this

case with orders for a new trial, or to order the charges be

dismissed against Appellant. Should this Court not wish to do

this for any reason, Appellant would respectfully move this Court

to order a new punishment stage in the trial proceedings. Appellant

requests any relief this Court may deem just in addressing the

merits of this case, which Appellant may be entitled to by law,

and/or to reach the ends of justice in this matter.

Respectfully submitted,

BLAS HERNANDEZ ,'JR .,

APPELLANT, PRO Se 'V

ELLIS UNIT

1697 FM 980

HUNTSVILLE, TEXAS 77343

cc :bh/file

'HfrSVZht

14
UNSWORN DECLARATION

I, Bias Hernandez, Jr., swear under the penalty of perjury

that the foregoing statements made in this PDR are true and correct

to the best of my knowledge and understanding.

Executed on this the 24th day of February 2015.

BLAS HERNANDEZ^ JR.

APPELLANT, PRO SE

CERTIFICATE OF SERVICE

This is to certify that a true and correct original copy of

the foregoing PDR has been mailed to the Clerk of the Texas Court

of Criminal Appeals, and the State Prosecution Attorney, by U.S.

Mail system, mailed on this the 37^ day of February 2015.

BLAS HERNANDEZ, JR.

APPELLANT, PRO SE

15
Opinion filed October 9, 2014

In The

eietoenti) Court of Appeals;

No. 11-12-00293-CR

BLAS HERNANDEZ, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 40th District Court

Ellis County, Texas

Trial Court Cause No. 36567CR

MEMORANDUM OPINION

The jury convicted Bias Hernandez, Jr. of driving while intoxicated, third or

more offense.1 The jury assessed his punishment at confinement for life. The trial

court ordered the life sentence in this case to run consecutively to the life sentence

that Appellant was on parole for at the time of trial. Appellant asserts, in three

points of error on appeal, that the trial court erred when it excused a juror, denied

]See TEX. PENAL CODE ANN. §§ 49.04, 49.09(West Supp. 2014).
his motion to suppress evidence, and sentenced him to serve consecutive sentences.

We affirm.

I. Evidence at Trial

Kathleen Hoggatt testified that, around 4:00 a.m. on November 1, 2011, she

was asleep in her home in Waxahachie, when she was awakened by a loud noise.

Hoggatt went to the window and saw that someone driving a red pickup had

crashed into her vehicle and was leaving the scene. After she called the police,

Hoggatt went outside and found a case of beer in the front yard. Hoggatt also saw

that her mailbox had been turned over, and she noticed that the impact ofthe crash

had moved both her vehicle and her husband's vehicle.

Chris Eadler, an officer with the Waxahachie Police Department, testified

that he was dispatched to the hit-and-run accident at Hoggatt's home on

November 1, 2011. After Officer Eadler arrived at the scene, he noticed that

Hoggatt's vehicle was badly damaged and that her husband's vehicle had been

struck so hard that it had been pushed into the yard. Officer Eadler also observed

that a brick mailbox had been knocked off its pedestal.

Officer Eadler immediately began searching for the hit-and-run driver in the

area surrounding Hoggatt's home. Because Hoggatt reported that the driver left

the scene traveling north, Officer Eadler searched for a vehicle with damage to its

front and left side. Officer Eadler quickly encountered a red pickup with a broken

headlight and a crushed front bumper. The bumper was pushed so hard into the

pickup's front left tire that smoke was coming from the tire.

Officer Eadler caught up to the pickup, activated his overhead lights, and

called for assistance. The pickup came to a stop, and Officer Eadler asked the

driver to step out of his vehicle. Officer Eadler then identified the driver as

Appellant and placed him under arrest. As Officer Eadler handcuffed Appellant,

Officer Eadler noticed that Appellant's breath had a strong odor of alcohol, that his

2
eyes were bloodshot, that his speech was slurred, and that he had an unsteady

balance.

Ron Turbeville, a sergeant with the Waxahachie Police Department, testified

that he responded to Officer Eadler's call for assistance on November 1, 2011.

Sergeant Turbeville stated that he recognized Appellant when he arrived at the

scene and that, at that time, he was aware of Appellant's two previous driving

while intoxicated (DWI) convictions. Based on Appellant's previous convictions,

Sergeant Turbeville asked another officer to transport Appellant to the hospital for

a mandatory blood draw.

Sergeant Turbeville took pictures of Appellant's pickup, and he noted that

its condition indicated that it had recently been in a collision with another vehicle.

The pickup's front left side was crumpled, and its left headlight was broken. The

pickup's bumper was crushed into its left front tire, and it had a distinct smell of

burning rubber. Sergeant Turbeville also noted that he found a partially consumed

twelve-pack of beer inside the pickup.

Abe Partington, an officer with the Waxahachie Police Department, testified

that he assisted Officer Eadler with Appellant's arrest. Officer Partington noticed

that Appellant's breath had a strong odor of alcohol, that his eyes were bloodshot,

and that his speech was slurred. Officer Partington was aware of Appellant's two

previous DWI convictions, and based on those convictions, Officer Partington

realized that a mandatory blood draw was required in this case. Officer Partington

then transported Appellant to Baylor Medical Center. The camera in Officer

Partington's patrol car recorded Appellant while he was inside the vehicle. On the

recording, Appellant's speech is clearly slurred, and he admitted that he had

consumed five beers.

After Officer Partington arrived at Baylor Medical Center, Appellant

submitted to field sobriety tests in the hospital's parking lot. During the horizontal

3
gaze nystagmus test, Appellant displayed the maximum number of intoxication

clues. Appellant also underwent the walk-and-turn test and the one-leg stand test.

At the conclusion of the tests, Officer Partington determined that Appellant was

"very intoxicated."

Officer Partington could not recall if Appellant agreed to or refused to

provide a breath sample. On the police dash-cam video, Appellant initially appears

to consent to a breathalyzer test, but later in the video, Appellant refuses to consent

to take a breathalyzer test or consent to provide a blood sample. Officer Partington

advised Appellant ofthe statutory warnings related to a refusal to provide samples

and filled out form TLE-51. The forms do not reflect that Appellant voluntarily

provided a sample of his blood.

Ryan Smith, a phlebotomist at Baylor Medical Center, testified that she drew

a sample of Appellant's blood on November 1, 2011. Smith noted that she signed

the affidavit the police gave her at that time. Although the affidavit includes a

section for notarization, that section was never completed. Chris Youngkin, a

forensic scientist with the Texas Department of Public Safety, testified that he

analyzed the blood sample taken from Appellant on November 1, 2011. Youngkin

explained that the sample contained 0.205 grams of alcohol per 100 milliliters of

blood, more than 2.5 times the legal limit.

The grand jury indicted Appellant with the offense of driving while

intoxicated, third or more offense. Appellant pleaded "not guilty" to the charged

offense, and the case proceeded to trial. At the start of the second day of trial,

2The TLE-51 form is an outdated form that was previously used to document a mandatory blood

draw in accordance with Section 724.012(b)(1) of the Texas Transportation Code. Tex. Transp. CODE

ANN. § 724.012(b)(1) (West 2011) (applicable to situations where the person arrested for DWI was

involved in an accident and the arresting officer reasonably believes that, as a direct result of that

accident, another individual has died, has suffered serious bodily injury, or has suffered bodily injury and

been transported to a medical facility for treatment).
Appellant moved to suppress the results of his blood draw based on Officer

Partington's use of the wrong form and Smith's incomplete affidavit. The State

argued that the errors in the forms did not negate Officer Partington's statutory

authority and duty to obtain a sample of Appellant's blood. The trial court denied

Appellant's motion.

II. Issues Presented

Appellant contends in three points of error that the trial court erred (1) when

it excused Juror Eva Sauceda, (2) when it denied his motion to suppress evidence

related to his blood alcohol level, and (3) when it ordered his life sentence in this

case to run consecutively to the life sentence he was on parole for at the time of

trial.

III. Standard ofReview

We review a trial court's ruling on a motion to suppress under a bifurcated

standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.

2000). We give great deference to the trial court's determination of the historical

facts that are supported by the record. Guzman v. State, 955 S.W.2d 85, 87 (Tex.

Crim. App. 1997). We also give deference to the trial court's rulings on mixed

questions of law and fact when those rulings turn on an evaluation of credibility

and demeanor. Id. We review de novo the trial court's rulings that do not turn on

an evaluation of credibility and demeanor. Id.

IV. Analysis

A. Excused Juror

Appellant contends in his first point of error that the trial court erred when it

excused Eva Sauceda from the jury. We hold that Appellant waived this issue on

appeal because he failed to object to the trial court's decision at the time it was

made. See Tex. R. App. P. 33.1(a)(1) (stating that "[a]s a prerequisite to presenting

a complaint for appellate review, the record must show that... the complaint was

5
made to the trial court by a timely request, objection, or motion"). Even if

Appellant had preserved this issue, we would hold that the trial court did not abuse

its discretion when it dismissed the juror.

Article 35.03 of the Texas Code of Criminal Procedure provides that the

court shall hear and determine excuses offered for not serving as a juror and that,

"if the court considers the excuse sufficient," the court shall discharge the

prospective juror. Tex. Code Crim. Proc. Ann. art. 35.03, § 1 (West 2006). The

Court of Criminal Appeals has repeatedly held that a trial court has broad

discretion over the process of selecting a jury and may excuse prospective jurors

for good reasons. Jasper v. State, 61 S.W.3d 413, 423 (Tex. Crim. App. 2001);

Wright v. State, 28 S.W.3d 526, 533 (Tex. Crim. App. 2000); Black v. State, 26

S.W.3d 895, 899 (Tex. Crim. App. 2000). This authority continues even after an

individual juror has been sworn and exists until the entire jury is empaneled and

sworn. Wright, 28 S.W.3d at 533.

After the jury had been selected but before it had been sworn, Sauceda

informed the court that, around 7:30 or 8:00 p.m. the night before, a young woman

knocked on the front door of Sauceda's home. The woman asked to speak with

Sauceda, and after Sauceda arrived at the door, the woman said, "[M]y brother

wants me to tell you to make sure you're there tomorrow." The woman identified

her brother by name, and Sauceda and her husband realized that the woman was

Appellant's sister. Sauceda's husband immediately told the woman that her

behavior was illegal and asked her to leave.

When the trial court asked Sauceda if she felt any type of expectation,

concern, fear, pressure, or intimidation, the following exchange took place:

[SAUCEDA]: Yesterday, I was scared. Today, I woke up with

a little bit more ease about the situation. But, I mean, I just don't

understand how they could, you know, other than him looking over
the shoulder get my address and then - -1 don't know if he was locked

up, but I assume because he came in with the bailiff now. But - - and

then relay that to someone that would come to my house. I have two

children. That to me is - -

THE COURT: I understand. Ms. Sauceda, we don't want to

put you or any juror in this county on any case, whether it's a criminal

case, a civil case, a family law matter, in any form of fear or concern

or intimidation. Do you think this is the kind of case where it might

be best if we excused you from it?

[SAUCEDA]: Maybe so. I mean, I don't mind serving on it if

that's what y'all need, but either way, I mean, I don't know.

THE COURT: Do you think it might alleviate some of your

fear, frankly?

[SAUCEDA]: Yes, but I would like - - I would hope that it

would be investigated, you know, to what he - - or what happened

yesterday to someone to get away with - -

THE COURT: No, I assure you that it will be investigated.

You mentioned you were scared yesterday in part because you have

two children, in part because she came to your house and made

contact, and there's a belief that she was related to the defendant in

some form or fashion, correct?

[SAUCEDA]: Uh-huh.

THE COURT: And you mentioned you woke up this morning

feeling a little bit better, but if you tell me you still possess a concern,

if you possess some fear, I'm going to go ahead and excuse you.

[SAUCEDA]: Okay.

THE COURT: You just tell me.

[SAUCEDA]: Yes.

Sauceda clearly expressed some fear or concern to serving as a juror in this case,

and the trial court reasonably believed that her apprehension could affect the
integrity ofthe trial. We hold that the trial court acted within its discretion when it

released Sauceda from jury service. We overrule Appellant's first point of error.

B. Compliance with Chapter 724 ofthe Texas Transportation Code

Appellant argues in his second point of error that the trial court erred when it

denied his motion to suppress evidence of his blood alcohol level. Appellant

suggests that Officer Partington's use of the wrong form and the phlebotomist's

incomplete affidavit show that the evidence should have been excluded.3

Section 724.012(b)(3)(B) ofthe Texas Transportation Code requires a peace

officer to take a blood or breath specimen from a driver arrested for DWI who

refuses to consent to the specimen if, "at the time of the arrest, the officer

possesses or receives reliable information from a credible source that the person"

has, on two or more occasions, been convicted or put on community supervision

for DWI. Transp. § 724.012(b)(3)(B). Form THP-51, now used to document a

mandatory blood draw, allows an officer to specify that he is acting in accordance

with Section 724.012(b)(3)(B) ofthe Texas Transportation Code.

Officer Partington used form TLE-51, which was an earlier version of form

THP-51. By signing form TLE-51, Officer Partington agreed to the following

statement:

Acting in my capacity as a peace officer, I have arrested the

above-named person for an offense under Chapter 49 of the Texas

Penal Code, such person was the operator of a motor vehicle or

watercraft, involved in an accident that I reasonably believed occurred

as a result of the offense. When I arrested the above-named person, I

reasonably believed that a person had died or would die as a result of

the accident, and the above-named person has prior to the issuance of

this order refused my request to voluntarily give an appropriate

specimen or specimens under the authority of Tex. Transp. Code Ann.

Ch. 724.

3We note thatAppellant does not challenge the constitutionality of the statute that authorized his

blood draw. See TRANSP. § 724.012(b)(3)(B).

8
At trial, Officer Partington admitted that the form's statement was factually

incorrect and that he did not read the form before he signed it.

Although Appellant argues that Officer Partington's use of form TLE-51

requires exclusion of any evidence related to his blood alcohol level, he cites no

authority for his proposition. We have found no case law that directly addresses

Appellant's contention, but we note that Chapter 724 does not require

documentation of an officer's decision to order a mandatory blood draw.

Section 724.031 requires a defendant who refuses to submit to a blood draw to sign

a written statement indicating that the request was made, that warnings were given,

and that the defendant refused to provide a blood specimen. Section 724.032

requires the police officer to file an accompanying written refusal report. See

Transp. ch. 724 (West 2011 & Supp. 2014); see also Transp. §§ 724.031,

724.032.

Officer Partington testified that, at the time of Appellant's arrest, he was

aware of Appellant's previous DWI convictions and aware that those convictions

authorized a mandatory blood draw.4 Officer Partington also stated that, upon

Appellant's refusal to provide a blood or breath sample,5 he gave Appellant the

warnings contained in Section 724.015. See Transp. § 724.015. According to

Officer Partington, he gave the warnings to Appellant while they were inside the

hospital, and after Appellant received the warnings, Appellant voluntarily provided

the blood sample.

Additional evidence presented attrial confirmed thatAppellant has been convicted of theoffense

of DWI on three prioroccasions. Appellant does not challenge the existence of the convictions on appeal.

5The State argues that Appellant voluntarily provided a blood sample in this case. The video

from Officer Partington's patrol car shows that Appellant originally consented to provide a breath sample

but later withdrew that consent and refused to voluntarily provide a breath or blood sample. As of the

time that Appellant and the officer exited the car, the blood draw was being referred to as a mandatory

blood draw.
We hold that any error caused by Officer Partington's use of the TLE-51

form was cured by the officer's testimony. We also reject Appellant's claim that

Smith's affidavit was required to be notarized in order for evidence of his blood

alcohol level to be admissible. Appellant has cited no authority for his position,

and we have found none. We hold that the affidavit's lack of notarization did not

require the exclusion of evidence relating to Appellant's blood alcohol level.

Furthermore, even if we were to hold that the trial court erred in admitting

the evidence, which we do not, the State adduced additional evidence that clearly

established Appellant's intoxication. A vehicle similar to Appellant's was seen

leaving the scene of a hit-and-run accident, and Appellant's vehicle was quickly

located in the immediate area. Appellant's vehicle had significant damage that

indicated a recent collision, and an open twelve-pack of beer was found inside the

vehicle.

At the time of Appellant's arrest, several officers noticed that Appellant

smelled strongly of alcohol, that his speech was slurred, and that his balance was

unsteady. On the video taken from Officer Partington's patrol vehicle, Appellant

admits to drinking five beers, and his speech is clearly slurred. Finally, Appellant

showed signs of intoxication on all three standardized field sobriety tests. In light

of the overwhelming evidence that Appellant was driving while intoxicated on the

night of his arrest, any error in the admission of evidence related to his blood

alcohol level did not influence the jury or had but a slight effect and should be

disregarded. See Tex. R. App. P. 44.2.

We hold that the trial court did not err when it denied Appellant's motion

to suppress evidence of his blood alcohol level given that any errors in the

documentation of Appellant's blood draw were cured by the testimony of those

involved. We overrule Appellant's second point of error.

10
C. Consecutive Sentences

Appellant argues in his final point of error that the trial court erred when it

ordered his life sentence in this case to run consecutively to the life sentence he

was on parole for at the time oftrial. Appellant claims that the punishment is cruel

and unusual because the trial court decided to stack his sentences without any

argument or discussion. We find that Appellant has waived this issue on appeal by

failing to object to his sentence at the time it was pronounced. See Tex. R.

App. P. 33.1(a); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th

Dist.] 2001, pet. refd) ("The constitutional right to be free from cruel and unusual

punishment may be waived.").

Even if Appellant had preserved error, we would find that his sentence was

within the trial court's authority. Stacking otherwise valid and proportionate

sentences for separate crimes does not make them disproportionate. Crim. Proc.

art. 42.08(a) (stating that, when the same defendant has been convicted in two or

more cases, "in the discretion of the court, the judgment in the second and

subsequent convictions may either be that the sentence imposed or suspended shall

begin when the judgment and the sentence imposed or suspended in the preceding

conviction has ceased to operate, or that the sentence imposed or suspended shall

run concurrently with the other case or cases"); Smith v. State, 575 S.W.2d 41, 41

(Tex. Crim. App. 1979) ("Normally, the trial judge has absolute discretion to

cumulate sentences."). Moreover, the act of cumulating sentences so that they run

consecutively has been held not to constitute cruel and unusual punishment. See,

e.g., Stevens v. State, 667 S.W.2d 534, 538 (Tex. Crim. App. 1984); Bairdv. State,

455 S.W.2d 259 (Tex. Crim. App. 1970); Quintana v. State, 111 S.W.2d 474, 480

(Tex. App.—Corpus Christi 1989, pet. refd).

11
We hold that the trial court did not err when it ordered Appellant's life

sentence in this case to run consecutively to the life sentence he was on parole for

at the time of trial, as the action was within the court's discretion. We also reject

Appellant's claim that his punishment is cruel and unusual because the trial court

denied him the opportunity to present argument or discussion on the matter. A trial

court is not required to explain its decision to impose a sentence that is within the

statutory guidelines and is supported by the evidence. Furthermore, Appellant was

not entitled to argue against the court's decision after it was announced. And,

although he was free to file a motion for new trial urging such a complaint, he

failed to do so. We overrule Appellant's final point of error.

V. This Court's Ruling

We affirm the judgment ofthe trial court.

October 9, 2014

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.

12

MIKE WILLSON

JUSTICE