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

at Fort Worth

___________________________ No. 02

- 18

- 00030

- CR

________________________ ___

On Appeal from County Court at Law N o. 1

Wise County, Texas Trial Court No. CR

- 75652

Bef ore Sudderth, C.J.; Birdwell and Womack , JJ. Memorandum Opinion by Justice Womack 

### J ENNIFER 

### E LAINE 

### M C 

### G UIRE 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. I NTRODUCTION A jury convicted Jennifer Elaine McGu ire of driving while intoxicated with an
alcohol con centration of 0.15 o r more. See Tex. Penal Code Ann. § 49.04(a), (d). The
trial court sentenced her to 365 day s ’ confin ement and a $ 750 fine , suspended imposition of the confinement portion of the sentence , and placed her on community supervision for eighteen months. See Tex. Code Crim . Proc. Ann. ar t. 42A.053(a)(1). McGuire challenges her conviction in a single point, arguing that the trial court abused its discretion by admitting th e results of her blood test

. Conclu di ng that
McGuire fa iled to preserve her sole point , w e affirm.
II. B ACKGROUND
In the early morning of A pril 14, 2016 , Pat rick Garcia , a trooper with the Texas
D epartment of Public Safety (DPS ) , was di spatched to the s cene of a moto r vehicle
accident that had occurred on H ig hway 81 just north of the Decatur city limits. After
arrivin g on scene, Trooper Garcia conducted an investigation , which led him to
conclude that McGuire had been the driver of the vehicle that contributed to the
accident

. Al so b ased upon his investigation, Trooper Garcia determined that
McGuire was intoxicated , s o he arrested her and took her to jail

. A fter they arrived at the jail, Trooper Garcia asked McGuire to consent to a blood draw, and when she ref used, he obtained a warrant to get the s a mple without
her consent

. Trooper Garcia then drove Mc Guire to the h ospital , where a3

phlebotomist drew a sample of McGuire ’ s b lood

. Trooper Garcia took custody of the
drawn blo od , and the next day, he mailed the sample to a DPS crime lab for analysis. Trooper G arcia received the results of the crime lab ’ s analysis , whic h showed the
al cohol concentra tion in McGuire ’ s blood sampl e to be 0.187.
III. D ISCUSSION The trial court admitted a copy of the DPS crime lab ’ s report of the results of its analysis of McGu ire ’ s blood sample, and Trooper Garcia also testified regarding
those resu lts. In her sole point, McGuire co ntends that the tria l court should have
excluded the resu lts of the DPS crime lab ’ s analysis of her blood sam ple under rule of
evidence 702 because the evidence did not show that a proper techni que was used to d raw the samples and because Trooper Garcia did not qualify as an expert to testify
about those results

. We conclude McGuire failed to preserve this complaint.
A
. Relevant Events a t Trial
McGuire did not file a pretrial motion to suppr ess . At trial , the S tate called Trooper Garcia , and during the pro secutor ’ s direct examination of Tr ooper Garci a, the prosecutor offered State ’ s Exhibit 2 , which was a copy of the results of the DPS
crime lab ’ s anal ysis of McGu ire ’ s blood sample with an at tach ed article 38.4 1 certificate of analysi s fro m the lab anal yst who had analyzed the sample. See Tex.
Code Crim. Proc. Ann. art. 38.41. McGuire ’ s counsel lodge d the following objection,
wh ich the trial court overruled:4

[McGuire ’ s Counsel

]: I ’ d object. I don ’ t think a p r oper predicate has been laid, Judge, and I don ’ t know that I have seen the Business Records Affidavit, but certainly wasn ’ t kept in [Trooper Garcia ’ s] regular course of business, Your Honor. I don ’ t think he ’ s a proper witness to predicate the document e i ther. The prosecutor requested per mission to publish the exh ibit to the jury , which the trial court granted without objection from McGuire

. The pr osecutor showed the exhibit to T rooper Garcia, who confi rmed that it

was a copy of the results from the a n alysis of McGuire ’ s blood sample that he had
received from the DPS crime lab

. The followin g exchange then oc curred: [Prosecutor

]: Okay. And what were the results of the blood withdrawn from the Defendant ’ s arm? [Trooper Garcia]: Her BAC

-- her blood a lcohol concentration was .187 grams of alcohol per 100 millili ters of blood.
McGuire did not o bject to this testimony when the pro secutor elicited it

. After the prosecutor concluded his examination of Trooper Garcia and
McGuire ’ s counsel concluded h is cross

- examination, Trooper Garcia was excused,
and the State r ested

. The trial cou rt e xcused the jury for a break and then took up an objection outside the jury ’ s presence: [McGuire ’ s Counsel

]: I just have something before the jury comes in, Judge. The r e are objections to the lab report. I know there is a Chain of Custody Affidavit, but Trooper Garcia is the only one that actually testified. H e has no personal knowledge of what actually happened. The report itself contains hearsay within hearsay. Al s o, the manner of extraction of the blood, the method of extraction was neve r proven and no evidence that it was done in a

-- in the manner that i s scientifically accepted and approved. There is no connection or evidence of what was5

tested and scientific

- - the underlying scientific means of the

-- of the extraction were never pro ven, Ju dge.
THE COURT: Okay. I ’ ll overrule. [McGuire ’ s Counsel

]: Thanks. And chain of custody also the additional objection.
THE COURT: I ’ ll overrule.
B. Applicable Law To preserve a complaint for our review, a party must have presented to the trial

c ourt a timely request, objection, or motion stating the specif ic ground s , if not apparent from the context, for the desired ruling

. Tex. R. App. P. 33.1 ( a) ( 1); Thomas v. St a te , 505 S.W.3d 916 , 924 (Tex. Crim. App. 2016 )

. Further, the party must obtain an express or implicit adverse trial

- court ruling or object to t he trial court’s refusal to
rule

. Tex. R. App. P. 33.1 ( a) ( 2); Everitt v. State , 407 S.W.3d 259, 2 62

– 63 (Tex. C r im. App. 2013) ; Martinez v. State , 17 S.W.3d 677, 686 (Tex. Crim. App. 2000)

. For an objection to be timely, it generally must be lodged as soo n as the basis for the objection becomes apparent

. Tex. R. Evid. 103 ( a) ( 1); London v. State , 490 S.W.3d 503,
5 0 7 (Tex. Crim. App. 2016). Further, a party must object each time objectionable evi dence is offered unless the party has obtained a running objec tion or has requested a hearing outside the presence of the jury

. See Geuder v. State , 115 S.W.3d 11, 13 (Tex. Crim. App. 2003);
Lumsden v. State , 564 S. W.3d 858, 888 (Tex. App.

— Fort Worth 2018 , pet. ref ’d) , cert. denied , 139 S. Ct. 2018 (2019)

. And a pa rty wil l also forfeit error in the admission of6

objected

- to evidence if it fail s to object to testimony about t h at evidence

. See Lumsden , 564 S.W.3d at 888.
C. Applicatio n Even if we construe d the objection McGuire raised to State ’ s Exhibit 2 when the prosecutor offered it as an objection based o n rule 702, she did not obtain a running objection or request a hear i ng outside of the jury ’ s pres ence , and she did not object when Trooper Garcia sub sequent ly tes tified that the DPS crime lab ’ s analysis

o f her bloo d sample reflected that she ha d an a lc ohol co ncentration of 0.187. By failing to do so, she forfeited error i n the admission of those results

. See Lumsden , 564 S.W.3d at 888 ; French v. Stat e , No. 05

- 99

- 01015

- CR , 2000 WL 10271 9, at *1 (Tex. App.

— Dallas Jan. 3 1, 2000, no pet.) (mem. op. , not designated for publication)

. And
even if we cons trued the objection McG u ire raised after the State res ted as a rule 702 objection to the trial court ’ s ad mission of both State ’ s Exhibit 2 and Trooper Garc ia ’ s testimony abou t that exhibit , that objection came too late to preserve error. See Tex.
R. Evid. 103 ( a) ( 1); London , 490 S.W.3d at 507 ; Fren c h , 2000 WL 102719, at *1

. Accordingly, we conclude McGuire f ailed to preserve her sole point. We therefore

ov errul e it.
I V. C ONCLUSION We have concluded tha t McGuire failed to preserve her sol e appellate point
and have therefore ove r ruled it. Accordingly, we affirm the trial court ’ s judgment. See Tex. R. App. P

. 43.2(a).7 /s/ Dana Womack
Dana Womack Justice
Do Not Publish Te x. R. App. P. 47.2(b)
Delivered: August 2 8 , 2019