No. 14-14-00402-CR

In the 

Court of Appeals 

For the 

Fourteenth District of Texas 

At Houston 



No. 1900496

In the County Criminal Court at Law No. 15 

Of Harris County, Texas 



GREG SALDINGER 

Appellant

V.

THE STATE OF TEXAS

Appellee 



STATE’S APPELLATE BRIEF 



DEVON ANDERSON

District Attorney 

Harris County, Texas 

ERIC KUGLER

Assistant District Attorney 

Harris County, Texas 

TBC No. 796910 

kugler_eric@dao.hctx.net 

LAUREN MARFIN

RYAN MCLEARAN

Assistant District Attorneys 

Harris County, Texas 

1201 Franklin, Suite 600 

Houston, Texas 77002 

Tel: (713) 755-5826 

FAX: (713) 755-5809 

Counsel for Appellee

ORAL ARGUMENT REQUESTED ONLY IF GRANTED TO APPELLANT

ACCEPTED

14-14-00402-CR

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

12/24/2014 9:36:23 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 12/24/2014 9:36:23 AM CHRISTOPHER A. PRINE Clerk
i

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral 

argument is granted to the appellant.

IDENTIFICATION OF THE PARTIES

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Eric Kugler  Assistant District Attorney on appeal

Lauren Marfin; Ryan McLearan  Assistant District Attorneys at trial

Appellant or criminal defendant:

Greg Saldinger

Counsel for Appellant:

Jose Ceja  Counsel on appeal

Grant Scheiner  Counsel at trial 

Trial Judge:

Hon. Jean Spradling Hughes; Hon. Jim Anderson  Presiding Judges
ii

TABLE OF CONTENTS

Page

STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF FACTS ........................................................................................1

REPLY TO APPELLANT’S FIRST AND SECOND POINTS OF ERROR...........2

A. A prospective juror who is more likely to believe a police officer than 

another citizen is not challengeable for cause because such a position does not 

constitute an unequivocal belief that a police officer would never lie while 

testifying.................................................................................................................5

B. The appellant failed to preserve his second point of error for review by 

showing that the trial court prevented him from asking a particular proper 

question. .................................................................................................................7

C. Even if the trial court erred in refusing to allow the appellant to voir dire on 

the issues of police credibility and proof beyond a reasonable doubt, the 

appellant was not harmed by the limitation because those subjects had already 

been thoroughly covered during the voir dire........................................................9

REPLY TO APPELLANT’S THIRD POINT OF ERROR ....................................13

A. The blood search warrant and supporting affidavit were admissible because 

the appellant made the existence of probable cause an issue before the jury......15

B. The appellant was not harmed by the admission of the blood search warrant 

and supporting affidavit because the same information was admitted elsewhere 

during the trial. .....................................................................................................17

CONCLUSION........................................................................................................20

CERTIFICATE OF SERVICE AND COMPLIANCE ...........................................21
iii

INDEX OF AUTHORITIES

CASES

Allridge v. State, 

762 S.W.2d 146 (Tex. Crim. App. 1988), 

cert. denied, 489 U.S. 1040 (1989)........................................................................8

Anderson v. State,

633 S.W.2d 851 (Tex. Crim. App. 1982)...............................................................5

Annis v. State, 

578 S.W.2d 406 (Tex. Crim. App. 1979)...................................................... 11, 18

Barajas v. State, 

93 S.W.3d 36 (Tex. Crim. App. 2002)...................................................................7

Baxter v. State, 

66 S.W.3d 494 (Tex. App.—

Austin 2001, pet. ref’d) ........................................................................................16

Brasher v. State, 

139 S.W.3d 369 (Tex. App.—

San Antonio 2004, pet. ref’d).................................................................................7

Briddle v. State,

742 S.W.2d 379 (Tex. Crim. App. 1987)...............................................................6

Cain v. State, 

947 S.W.2d 262 (Tex. Crim. App. 1997)...............................................................9

Coffin v. State, 

885 S.W.2d 140 (Tex. Crim. App. 1994).............................................................15

Cotton v. State, 

686 S.W.2d 140 (Tex. Crim. App. 1985)...................................................... 11, 17

Dhillon v. State, 

138 S.W.3d 583 (Tex. App.—

Houston [14th Dist.] 2004, no pet.)........................................................................9

Easley v. State, 

424 S.W.3d 535 (Tex. Crim. App. 2014)...............................................................9
iv

Faulder v. State, 

745 S.W.2d 327 (Tex. Crim. App. 1987), 

cert. denied, 519 U.S. 995 (1996)..........................................................................8

Foster v. State, 

779 S.W.2d 845 (Tex. Crim. App. 1989).............................................................15

Green v. State, 

934 S.W.2d 92 (Tex. Crim. App. 1996)...............................................................15

Guzman v. State, 

955 S.W.2d 85 (Tex. Crim. App. 1997)...............................................................15

Hernandez v. State,

563 S.W.2d 947 (Tex. Crim. App. 1978)...........................................................5, 7

Johnson v. State, 

967 S.W.2d 410 (Tex. Crim. App. 1998)...................................................... 11, 17

King v. State, 

953 S.W.2d 266 (Tex. Crim. App. 1997).............................................................11

Lacy v. State, 

424 S.W.2d 929 (Tex. Crim. App. 1967).............................................................16

Lane v. State, 

822 S.W.2d 35 (Tex. Crim. App. 1991).............................................................5, 7

Leal v. State, 

13-00-457-CR, 2001 WL 892834 (Tex. App.—

Corpus Christi July 5, 2001, no pet.) .....................................................................6

Loredo v. State, 

159 S.W.3d 920 (Tex. Crim. App. 2004)...............................................................8

Maxwell v. State, 

253 S.W.3d 309 (Tex. App.–

Fort Worth 2008, pet. ref’d).......................................................................... 12, 18

Mohammed v. State, 

127 S.W.3d 163 (Tex. App.—

Houston [1st Dist.] 2003, pet. ref’d) ..................................................................8, 9

Montgomery v. State, 

810 S.W.2d 372 (Tex. Crim. App. 1990).............................................................15

Moody v. State,

827 S.W.2d 875 (Tex. Crim. App. 1992)...............................................................6
v

Morales v. State, 

32 S.W.3d 862 (Tex. Crim. App. 2000)...............................................................12

Morgan v. Illinois, 

504 U.S. 719 (1992)...............................................................................................7

Motilla v. State, 

78 S.W.3d 352 (Tex. Crim. App. 2002)........................................................ 11, 17

Nance v. State,

807 S.W.2d 855 (Tex. App.—

Corpus Christi 1991, pet. ref’d) .............................................................................6

Pratt v. State, 

748 S.W.2d 483 (Tex. App.—

Houston [1st Dist.] 1988, pet. ref’d) ....................................................................15

Sells v. State, 

121 S.W.3d 748 (Tex. Crim. App. 2003)...............................................................8

State v. Ross, 

32 S.W.3d 853 (Tex. Crim. App. 2000)...............................................................15

Wainwright v. Witt,

469 U.S. 412 (1985)...............................................................................................6

Williams v. State,

773 S.W.2d 525 (Tex. Crim. App. 1988)...............................................................6

STATUTES

TEX. CODE CRIM. PROC. art. 35.16(a)(9) (West 2010)...............................................5

RULES

TEX. R. APP. P. 33.1(a)(1)(A) ....................................................................................8

TEX. R. APP. P. 39....................................................................................................... i

TEX. R. APP. P. 44.2(b).............................................................................................17

TEX. R. APP. PROC. 44.2(b) ......................................................................................17
TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The appellant was charged with DWI committed on June 6, 2013 (CR – 6). 

He pled “not guilty” to the charge, and the case was tried to a jury (CR – 240). 

The jury found him guilty and assessed punishment at two years of probation on 

February 12, 2014 (CR – 240). The appellant filed notice of appeal on March 11, 

2014, and the trial court certified that he had the right to appeal (CR – 247, 253).

STATEMENT OF FACTS

On the night of June 6, 2013, Kenneth Troost with the Houston Police 

Department was on patrol when he saw the appellant drive through a stop sign 

without stopping at the intersection of Lake Hills Drive and Big Springs (RR. III –

27-29). Troost pulled the appellant over and observed that the appellant had a 

strong odor of an alcoholic beverage on his breath, slurred speech, and red and

glassy eyes (RR. III – 32-33). There was an open bottle of wine in a cooler behind 

the driver’s seat (RR. III – 44). Troost administered some field sobriety tests on 

the appellant and noted several signs of intoxication, and he believed that the 

appellant was intoxicated (RR. III – 34-42, 77, 112). 
2

Officer Troost took the appellant down to the police station for further 

investigation, where he handed the appellant over to Officer Robert Klementich 

(RR. III – 45, 89-107). The appellant continued to demonstrate his intoxication to 

Klementich through his performance on the field sobriety tests (RR. III – 89-107, 

153-154). Finally, Officer Joel Quezada stepped in to finish up the investigation 

(RR. III – 110-111). 

The appellant refused Quezada’s request to provide a specimen to determine 

whether there was alcohol in his body, so Quezada applied for and received a 

search warrant (RR. III – 109-110, 156-157). The appellant’s blood was drawn 

pursuant to the warrant at 10:30 p.m. (RR. III – 161-163, 175-176). His blood 

alcohol level at that time was 0.191, which is more than twice the legal limit (RR. 

III – 244) (St. Ex. 14). A conservative estimation of his blood alcohol level at the 

time of the traffic stop would have been between a 0.20 and 0.22 (RR. III – 247-

248). 

REPLY TO APPELLANT’S FIRST AND SECOND 

POINTS OF ERROR

In his first point of error, the appellant claims that the trial court erred in 

failing to strike for cause prospective jurors who stated that they were more likely 

to believe a police officer than another citizen. (App’nt Brf. 11-13). This point of 
3

error lacks merit because the question did not require a strike for cause and 

because the appellant was not harmed by the trial court’s refusal to strike those 

prospective jurors. His related second point of error complains that the trial court 

erred in restricting his examination of the prospective jurors regarding both the 

credibility of police officers and the concept of proof beyond a reasonable doubt. 

(App’nt Brf. 15-18). But this point fails because it was not preserved and any 

restriction was harmless.

During the court’s voir dire of the jury, the judge talked extensively about 

the credibility of police officers and the concept of proof beyond a reasonable 

doubt (RR. II – 9-11, 18-20, 35-38). The prosecutor also addressed the second 

issue, and the appellant was able to observe the reactions of the prospective jurors 

during both of those voir dires (RR. II – 51-52, 62, 70-71). When the prosecutor 

attempted to conduct a poll at the end of voir dire, the trial court stated, “You’ve 

gone past your time. If you did that 15 minutes ago, I’m with you. If you’re going 

to take that big, long poll, you’re way late for that.” (RR. II – 71-72). During the 

appellant’s voir dire, he did address some specific factual scenarios that could 

amount to a reasonable doubt (RR. II – 88, 89). 

At the end of the appellant’s voir dire, he attempted to ask the prospective 

jurors one final question of whether they would be “more predisposed to believe a 

police officer or a person accused.” (RR. II – 99). The trial court told the appellant
4

that “the State went over without their poll, so your poll is ending, and just close it. 

You’re past your time, well past your time. I stopped the State, I’ll be stopping 

you.” (RR. II – 99-100). Nevertheless, the appellant asked the jurors, “How many 

people would be, without even knowing the background of the police officer, not 

knowing anything about him, before he even testifies, would be more likely to 

believe what a police officer says than what a citizen says?” (RR. II – 100). One of 

the prospective jurors noted that it was a loaded question, and the appellant 

conceded as much (RR. II – 101). Nevertheless, the appellant asked the jurors to 

say their numbers for the record, and thirteen jurors responded (RR. II – 101-102). 

While the appellant noted that prospective juror number one “would be more 

apt to believe a police officer than an ordinary witness,” he never asked to strike 

that prospective juror (RR. II – 108-109). Nevertheless, the trial court responded:

You asked that and the jurors appropriately said it’s a loaded 

question. Even the jury called you on it. I will not strike those jurors 

based on your question, which one do you take first. No matter what

answer they give, they’re automatically strikable. Pick one or the 

other. You have to pick one or the other in your question. It’s the 

way you worded it. I would not strike jurors based on your wording 

of that question.

(RR. II – 108). The appellant asked for “additional time to question the panel on 

that topic,” but the trial court denied the request (RR. II – 109). The appellant then 

moved “to strike all of those jurors who, by raising their hand and stating their 

numbers, committed that they are more apt to believe a police officer than a citizen 
5

accused without knowing anything about the police officer’s background or before 

he even testifies.” (RR. II -109). The trial court denied that request (RR. II – 109). 

The appellant also requested additional peremptory strikes, which was denied (RR. 

II – 110-111). Finally, the appellant requested additional time to voir dire on 

“proof beyond a reasonable doubt,” and the trial court denied that request (RR. II –

102).

A. A prospective juror who is more likely to believe a police 

officer than another citizen is not challengeable for cause 

because such a position does not constitute an unequivocal 

belief that a police officer would never lie while testifying.

According to Article 35.16(a)(9) of the Code of Criminal Procedure, a juror 

may be excused for cause if “he has a bias or prejudice in favor of or against the 

defendant.” TEX. CODE CRIM. PROC. art. 35.16(a)(9) (West 2010). The 

unequivocal belief by a venireman that a police officer would never lie while 

testifying has been found to constitute a bias against the defendant under Article 

35.16(a)(9). Lane v. State, 822 S.W.2d 35, 44 (Tex. Crim. App. 1991); Hernandez 

v. State, 563 S.W.2d 947, 950 (Tex. Crim. App. 1978). Otherwise, the trial court 

has discretion to determine whether bias or prejudice actually exists to such a 

degree that a prospective juror is disqualified and that a challenge for cause should 

be sustained. See Anderson v. State, 633 S.W.2d 851, 854 (Tex. Crim. App. 1982); 
6

Leal v. State, 13-00-457-CR, 2001 WL 892834, at *1-2 (Tex. App.—Corpus 

Christi July 5, 2001, no pet.) (not designated for publication). 

Bias is an inclination toward one side of an issue, rather than to the other, 

which leads to the natural inference that a juror will not act with impartiality. Id. at 

853. A trial court’s refusal to sustain a defendant’s challenge for cause is reviewed 

in light of all the prospective juror’s answers. Williams v. State, 773 S.W.2d 525, 

537 (Tex. Crim. App. 1988); Nance v. State, 807 S.W.2d 855, 866 (Tex. App.—

Corpus Christi 1991, pet. ref’d). 

Prospective jurors should be excused for cause only if their views would 

prevent or substantially impair the performance of their duties as jurors. 

Wainwright v. Witt, 469 U.S. 412, 424 (1985); Moody v. State, 827 S.W.2d 875, 

888 (Tex. Crim. App. 1992). In deciding the propriety of the trial court’s ruling on 

challenges for cause during voir dire, this Court must keep in mind that the trial 

judge has had the opportunity to observe the tone of voice and demeanor of the 

prospective juror in determining the precise meaning intended, while appellate 

courts have only the cold record. Briddle v. State, 742 S.W.2d 379, 384 n. 1 (Tex.

Crim. App. 1987).

In the present case, the prospective jurors merely affirmed that they would 

be “more likely to believe what a police officer says than what a citizen says.” 

(RR. II – 100). Such is a perfectly rationale position based on the additional 
7

training and screening that police officers must endure coupled with the additional 

professional sanctions faced by police officers for perjury. Moreover, such an 

answer is not equivalent to the unequivocal belief that a police officer would never 

lie while testifying. Lane, 822 S.W.2d at 44; Hernandez, 563 S.W.2d at 950. 

Therefore, the trial court did not abuse its discretion in denying the challenges for 

cause.

B. The appellant failed to preserve his second point of error 

for review by showing that the trial court prevented him 

from asking a particular proper question.

Voir dire plays a critical function in assuring that a criminal defendant’s 

constitutional right to an impartial jury will be honored. Morgan v. Illinois, 504 

U.S. 719, 729 (1992). “[P]art of the guarantee of a defendant’s right to an 

impartial jury is an adequate voir dire to identify unqualified jurors.” Id. Thus, 

counsel must be diligent in eliciting pertinent information from prospective jurors 

during voir dire in an effort to uncover potential prejudice or bias, and counsel has 

an obligation to ask questions calculated to bring out information that might 

indicate a juror’s inability to be impartial. Brasher v. State, 139 S.W.3d 369, 373 

(Tex. App.—San Antonio 2004, pet. ref’d). 

Nevertheless, a trial court has broad discretion over the process of selecting 

a jury. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002); Allridge v. 
8

State, 762 S.W.2d 146, 167 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1040 

(1989). Without this discretion, voir dire could go on forever without reasonable 

limits. Faulder v. State, 745 S.W.2d 327, 334 (Tex. Crim. App. 1987), cert. denied, 

519 U.S. 995 (1996). 

In order to preserve his complaint for appellate review, an appellant must 

show that the trial court prevented him from asking particular proper questions. 

Sells v. State, 121 S.W.3d 748, 755–66 (Tex. Crim. App. 2003); Mohammed v. 

State, 127 S.W.3d 163, 170 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). 

That the trial court generally disapproved of an area of inquiry from which proper 

questions could have been formulated is not enough for an appellate court to 

determine error because the trial court might have allowed a proper question had it 

been submitted for the court’s consideration. Id.; see TEX. R. APP. P. 33.1(a)(1)(A). 

To preserve error for review, an appellant must make the trial court aware of any 

objections or complaints at a time when there is an opportunity for the trial court to 

cure or respond to the complaints. Loredo v. State, 159 S.W.3d 920, 923 (Tex.

Crim. App. 2004). 

In the present case, the appellant told the trial court that he wanted 

“additional time to question the panel on that topic [of police credibility]” and on 

“proof beyond a reasonable doubt,” but he did not inform the trial court of any 

specific questions that he wanted to ask (RR. II – 102, 109). Therefore, the 
9

appellant failed to preserve his complaint for appellate review. See Dhillon v. State, 

138 S.W.3d 583, 590 (Tex. App.—Houston [14th Dist.] 2004, no pet.); 

Mohammed, 127 S.W.3d at 170. His second point of error should be overruled.

C. Even if the trial court erred in refusing to allow the 

appellant to voir dire on the issues of police credibility and

proof beyond a reasonable doubt, the appellant was not 

harmed by the limitation because those subjects had 

already been thoroughly covered during the voir dire.

The Court of Criminal Appeals has stated that, “except for certain federal 

constitutional errors labeled by the Supreme Court as ‘structural,’ no error, whether 

it relates to jurisdiction, voluntariness of a plea, or any other mandatory 

requirement, is categorically immune to a harmless error analysis.” Cain v. State, 

947 S.W.2d 262, 264 (Tex. Crim. App. 1997). In Easley v. State, 424 S.W.3d 535, 

539 (Tex. Crim. App. 2014), the court of criminal appeals held that while there 

may be instances in which a judge’s limitation on voir dire is “so substantial” as to 

rise to the level of a constitutional error, such instances are generally the exception 

rather than the rule. The Easley court affirmed the appellate court’s application of 

the more lenient non-constitutional harm analysis under Rule 44.2(b) to the trial 

court’s erroneous refusal to allow the defendant’s counsel to void dire on 

comparative burdens of proof. Id. The high court agreed with the lower court’s 

holding that the trial court’s error did not rise to the level of a constitutional error 
10

because defense counsel was not “foreclosed from explaining the concept of 

beyond a reasonable doubt and exploring the veniremembers’ understanding and 

beliefs of reasonable doubt by other methods.” Id. The correct inquiry to 

determine whether the error was of a constitutional nature, therefore, was not 

whether defense counsel was prevented from exercising his “preferred method” of 

questioning, but rather whether he was “precluded from discussing and explaining 

the beyond-a-reasonable-doubt standard.” See id., 424 S.W.3d at 542.

The appellant claims that he is entitled to the constitutional harm analysis 

because he was not allowed to address the topic of reasonable doubt “at all.” 

(App’nt Brf. 18). The appellant, however, confuses a limitation based on time with 

a limitation based on content. According to the trial court, the appellant was 

treated the same as the State with regard to the time allowed for voir dire (RR. II –

99-100). It was the appellant’s decision on how to allocate that time. The trial 

court never ruled that the topic of reasonable doubt was off-limits. In fact, the 

concept of reasonable doubt had already been explored by the trial court, the 

prosecutor, and the appellant himself (RR. II – 9-11, 18-20, 51-52, 62, 70-71, 88, 

89). Therefore, even if there were error in this case, the appellant is entitled only 

to a non-constitutional harm analysis under Rule 44.2(b).

Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any 

non-constitutional “error, defect, irregularity, or variance that does not affect 
11

substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b). A substantial right 

is affected when an error has a substantial, injurious effect or influence in 

determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. 

App. 1997). If, on the record as a whole, it appears the error “did not influence the 

jury, or had but a slight effect,” this Court must consider the error harmless and 

allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. 

App. 1998).

The weight of the evidence of the defendant’s guilt is a relevant factor in 

conducting a harm analysis under Rule 44.2(b). Motilla v. State, 78 S.W.3d 352, 

360 (Tex. Crim. App. 2002). In the present case, the evidence against the appellant 

was very strong. A credible police officer testified that the appellant drove through 

the stop sign without stopping, had a strong odor of an alcoholic beverage on his 

breath, had slurred speech, had glassy eyes, and had an open bottle of wine behind 

the driver’s seat (RR. III – 27-29, 32-33, 44). See Cotton v. State, 686 S.W.2d 140, 

142 n.3 (Tex. Crim. App. 1985) (enumerating nonexclusive list of signs recognized 

as evidence of intoxication, including slurred speech, bloodshot eyes, odor of 

alcohol on the person, unsteady balance, and staggered gait). That officer believed 

that the appellant was intoxicated (RR. III – 44). See Annis v. State, 578 S.W.2d 

406, 407 (Tex. Crim. App. 1979) (reasoning that an officer’s testimony that a 

person was intoxicated provided sufficient evidence to establish the element of 
12

intoxication). The appellant demonstrated several signs of intoxication and refused 

to provide a sample to determine his level of intoxication; nevertheless, the police 

were able to obtain a sample, which showed that he was well over the legal limit

(RR. III – 34-42, 77, 89-110, 112, 153-157, 244-248) (St. Ex. 14). See Maxwell v. 

State, 253 S.W.3d 309, 318 (Tex. App.–Fort Worth 2008, pet. ref’d) (“when so 

reviewing the evidence, including the evidence of appellant’s refusal to perform 

field sobriety tests, we conclude the evidence is also factually sufficient to support 

the jury’s verdict.”).

Another relevant factor in a harm analysis under Rule 44.2(b) is “the 

character of the alleged error and how it might be considered in connection with 

other evidence in the case.” Motilla, 78 S.W.3d at 359 (quoting Morales v. State, 

32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). In the present case, as stated 

previously, the appellant had already touched on the meaning of beyond a 

reasonable doubt, at least as it applied to the accuracy of a blood test (RR. II – 88, 

89). Furthermore, both the trial court and the prosecutor addressed the issue of 

reasonable doubt in more depth, and the appellant was able to observe the reactions 

and answers of the prospective jurors during those exchanges (RR. II – 9-11, 18-

20, 51-52, 62, 70-71). Finally, the appellant’s closing argument did not depend on 

the credibility of a police officer or proof beyond a reasonable doubt; rather, it 

seemed to be based on supposed outrage that police could obtain a search warrant 
13

for blood and that the police crime lab could make a mistake in analyzing it (RR. 

III – 349-361). Therefore, the appellant was not harmed by the trial court’s alleged 

refusal to allow him to voir dire on the issues of police credibility and proof 

beyond a reasonable doubt. His second point of error should be overruled and the 

conviction affirmed.

REPLY TO APPELLANT’S THIRD POINT OF ERROR

In his third and final point of error, the appellant claims that the trial court 

erred in admitting the search warrant and affidavit over a hearsay objection. 

(App’nt Brf. 18-21). This point lacks merit because the appellant made the 

existence of probable cause an issue before the jury. Nevertheless, the appellant 

was not harmed by the admission of the blood search warrant and supporting 

affidavit because the same substantive information was admitted during the trial

During the appellant’s opening statement, which was given prior to the 

State’s first witness, the appellant repeatedly attacked the probable cause that was 

developed by the three police officers and had been used to secure the search 

warrant for the appellant’s blood (RR. III – 11-21). The appellant claimed during 

opening that he was “a 63-year-old male, 6-foot-3, tall, and skinny...sitting in a 

doctor’s office...cardio stenosis...prostate cancer...didn’t have a full night’s 

sleep...played golf in the hot sun” all in an effort to show that his poor health 
14

mistakenly led the police officers to believe that he was intoxicated (RR. III – 12, 

14, 18, 19). He characterized his situation as being “arrested by the police, who 

may have initially thought that he was intoxicated, but he wasn’t. He just flat out 

wasn’t.” (RR. III – 20) (emphasis added). 

During the State’s direct examination of Officer Quezada, the prosecutor 

offered the search warrant and supporting affidavit into evidence (RR. III – 157). 

The appellant objected to it as hearsay, but the trial court overruled the objection 

(RR. III – 157, 159) (St. Ex. 15). 

Once again, during closing argument, the appellant continued to attack the 

probable cause used to secure the search warrant (RR. III – 349-361). The 

appellant specifically asked the jury, “If I run into the police, if there is a police

encounter, will they take the time to really understand what is going on? I don’t 

think they did that here. I don’t think they even tried to do that.” (RR. III – 350). 

He claimed that “If you’re 65, it’s pretty clear that they shouldn’t ask you to do 

field sobriety tests at all. There are other things they can do....But with Mr. 

Saldinger they jumped the gun a little bit, and they took him to a police station.” 

(RR. III – 351). Finally, the appellant concluded, “If there is a villa[i]n in this 

story, I think the villa[i]n is that we’re such slaves to this system that we’ve set up 

where we go and get warrants and pull blood from people whether they like it or 

not.” (RR. III – 360).
15

The trial court’s ruling on the admissibility of evidence is subject to an abuse 

of discretion standard on appeal. See Coffin v. State, 885 S.W.2d 140, 149 (Tex. 

Crim. App. 1994). An abuse of discretion occurs when the trial court acts without 

reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 

380 (Tex. Crim. App. 1990). A reviewing court should not reverse a trial judge 

whose ruling was within the “zone of reasonable disagreement.” Green v. State, 

934 S.W.2d 92, 101 (Tex. Crim. App. 1996). The reviewing court must view the 

evidence in the light most favorable to the trial court’s ruling, giving the trial court 

almost total deference on its findings of historical fact that find support in the 

record. Guzman, 955 S.W.2d at 89; State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. 

App. 2000). When the trial court does not file findings of fact, this Court must 

assume that the trial court made implicit findings that support its ruling, so long as 

those implied findings are supported by the record. Id.

A. The blood search warrant and supporting affidavit were 

admissible because the appellant made the existence of 

probable cause an issue before the jury.

A search warrant and supporting affidavit are hearsay and generally 

inadmissible. See Foster v. State, 779 S.W.2d 845, 857 (Tex. Crim. App. 1989); 

Pratt v. State, 748 S.W.2d 483, 484 (Tex. App.—Houston [1st Dist.] 1988, pet. 

ref’d). But there are exceptions in which search warrants or affidavits may be 
16

admissible over a hearsay objection. Baxter v. State, 66 S.W.3d 494, 498 n.2 (Tex.

App.—Austin 2001, pet. ref’d). For example, if a defendant makes probable cause 

an issue before a jury, hearsay evidence is admissible. Id. (citing Lacy v. State, 424 

S.W.2d 929, 931 (Tex. Crim. App. 1967) (“An issue of probable cause for 

appellant’s search without a warrant was made before the jury—which fact 

distinguishes the case from the above cases cited by appellant. Such testimony was 

therefore admissible on the issue of probable cause, although such issue was not 

submitted to the jury in the charge.”)).

The appellant claims that “probable cause was never disputed.” (App’nt Brf. 

19). But he repeatedly made probable cause an issue before the jury by 

questioning whether the police officers were mistaken in their belief that the 

appellant was intoxicated (RR. III – 12, 14, 18, 19, 20). He confirmed his 

intentions behind such statements during closing argument when he claimed that 

the police “jumped the gun a little bit” when they took him down to the station 

(RR. III – 351). Thus, the appellant made the existence of probable cause an issue 

before the jury, and the trial court did not abuse its discretion in admitting the 

blood search warrant and its supporting affidavit. See Baxter, 66 S.W.3d at 498 

n.2; Lacy, 424 S.W.2d at 931. The appellant’s third point of error should be 

overruled.
17

B. The appellant was not harmed by the admission of the 

blood search warrant and supporting affidavit because the 

same information was admitted elsewhere during the trial.

Even if the trial court erred in admitting the blood search warrant and 

supporting affidavit into evidence, this Court must apply Rule 44.2(b) of the Texas 

Rules of Appellate Procedure and determine whether the admission of the evidence 

affected the appellant’s substantial rights. TEX. R. APP. P. 44.2(b); TEX. R. EVID.

103(a).

As stated previously, Rule 44.2(b) of the Texas Rules of Appellate 

Procedure provides that any non-constitutional “error, defect, irregularity, or 

variance that does not affect substantial rights must be disregarded.” TEX. R. APP.

PROC. 44.2(b). If, on the record as a whole, it appears the error “did not influence 

the jury, or had but a slight effect,” this Court must consider the error harmless and 

allow the conviction to stand. Johnson, 967 S.W.2d at 417.

The weight of the evidence of the defendant’s guilt is a relevant factor in 

conducting a harm analysis under Rule 44.2(b). Motilla, 78 S.W.3d at 360. And 

the evidence against the appellant was very strong. A credible police officer 

testified that the appellant drove through the stop sign without stopping, had a 

strong odor of an alcoholic beverage on his breath, had slurred speech, had glassy 

eyes, and had an open bottle of wine behind the driver’s seat (RR. III – 27-29, 32-

33, 44). See Cotton, 686 S.W.2d at 142 n.3. That officer believed that the 
18

appellant was intoxicated (RR. III – 44). See Annis, 578 S.W.2d at 407. The 

appellant demonstrated several signs of intoxication and refused to provide a 

sample to determine his level of intoxication; nevertheless, the police were able to 

obtain a sample, which showed that he was well over the legal limit (RR. III – 34-

42, 77, 89-110, 112, 153-157, 244-248) (St. Ex. 14). See Maxwell, 253 S.W.3d at 

318. Thus, even without the warrant, the appellant’s conviction was a certainty.

Another relevant factor in a harm analysis under Rule 44.2(b) is “the 

character of the alleged error and how it might be considered in connection with 

other evidence in the case.” Motilla, 78 S.W.3d at 359. In the present case, the 

same information contained in the blood search warrant and supporting affidavit 

was admitted elsewhere during the trial. The search warrant itself simply 

commanded any peace officer to search the appellant’s body for blood samples (St. 

Ex. 15). But Officer Quezada testified that Magistrate Nicholas ruled that there 

was enough probable cause for a search warrant (RR. III – 160). 

The search warrant affidavit began by stating Quezada’s qualifications, it 

then related the facts of the stop and the investigation that Quezada had learned by 

talking with Troost and Klementich, then it discussed the appellant’s refusal to 

give a sample to Quezada, and it concluded with the appellant’s identification (St. 

Ex. 15). But that same information was admitted without objection during the 

trial. Quezada testified extensively about his training, background, and
19

qualifications (RR. III – 147-149). Troost testified concerning his stop of the 

appellant and initial observations before handing the case over to Klementich, who 

also testified concerning his administration of the field sobriety tests (RR. III – 89-

107). Finally, Quezada testified concerning the appellant’s performance on some 

additional sobriety tests as well as the appellant’s refusal to provide a sample as 

required by law (RR. III – 152-156). 

The appellant claims that the facts in the search warrant affidavit “with 

respect to the officer’s prior knowledge of the accuracy of blood testing appear 

nowhere else in the record.” (App’nt Brf. 21). Those assertions by Officer 

Quezada were specifically that:

I am familiar with the methods in the State of Texas used to 

obtain samples for alcohol impairment or impairment caused by the 

introduction of other substances into the body, that being breath, 

blood, or urine samples. I have found these forensic tests to be 

reliable in supporting my opinions and observations on consumed 

substances and levels of impairment.

(St. Ex. 15). While Quezada did not repeat that testimony on the witness stand at 

trial, the toxicology expert testified that the blood test results in the present case 

were “accurate and valid.” (RR. III – 244, 308). Furthermore, Quezada testified 

that all of the information he had gathered during his investigation, including that 

received from officers Klementich and Troost, was included in the search warrant 

affidavit (RR. III – 175). Finally, neither of the parties referred to the search 

warrant as substantive evidence except when the appellant used it to impeach 
20

Officer Qezada with inconsistencies between the affidavit, the offense report, and 

the testimony of other officers at trial (RR. III – 180-184). Therefore, the appellant

was not harmed by the admission of the blood search warrant and the supporting 

affidavit. His third point of error should be overruled and the conviction affirmed.

CONCLUSION

It is respectfully submitted that all things are regular and the conviction 

should be affirmed.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Eric Kugler

ERIC KUGLER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002-1923

(713) 755-5826

kugler_eric@dao.hctx.net

TBC No. 796910
21

CERTIFICATE OF SERVICE AND COMPLIANCE

This is to certify that: (a) the word count function of the computer program 

used to prepare this document reports that there are 5,772 words in it; and (b) a 

copy of the foregoing instrument will be served by efile.txcourts.gov to:

Jose Ceja

Attorney at Law

2211 Norfolk #735

Houston, Texas 77098

Jose.Ceja@scheinerlaw.com

/s/ Eric Kugler

ERIC KUGLER

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002-1923

(713) 755-5826

TBC No. 796910

Date: December 24, 2014