Opinion filed April 25, 2013



### In The 

# Eleventh Court of Appeals

___________



### No. 11

- 11

- 00 126

- C R

__________

BRAVLIO DELACRUZ GONZALES A/K/A

BRAVITO GONZALES

, Appellant

V.

THE STATE OF TEXAS

, Appellee

On Appeal from the 104 th District Court

Taylor County , Texas

Trial Court Cause No. 17520B

M E M O R A N D U M O P I N I O N

The jury convicted Appellant, Bravlio Del acruz Gonzales a/k/a Bravito Gonzales, of the

felony offense of driving while intoxicated. See T EX

. P ENAL C ODE A NN

. § 49.09(b)(2) (West

Supp. 2012 ). Upon finding the enhancement allegation to be true, the jury assessed Appellant’s

punishment at confinement for fifteen years and a fine of $5,000. We affirm.

Appellant presents two issues for review. In these issues, Appellant contends that the

trial court erred in permitting two expert witness es to testify at trial when the State had not

designated either witness as an expert. One of these witnesses was Stephanie Rollins, a forensic

specialist who compared Appellant’s known fingerprints to the finge rprint s o n the judgments2 from two prior DWI convictions that were alleged in the indictment as elements of the offense of

felony DWI and also to the fingerprints in a pen packet from the attempted burglary conviction

that was alleged as an enhancement in t he indictment

. The other expert was Herman Carrel, a

forensic scientist employed by the Texas Department of Public Safety . Carrel worked in the

Abilene crime lab and performed a blood alcohol analy sis on blood drawn from Appellant after

his arrest for DW I in this case

.

The record shows that the trial court had granted Appellant’s pretrial motion requesting

the designation of all expert witnesses , along with their qualifications and a description of their

contemplated testimony. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 39.14(b) (West Supp. 2012 ).

Although the State provided Appellant with a list of witnesses that included both Rollins and

Carrel, the State did not designate Rollins and Carrel as expert s . Over Appellant’s objection at

trial that the State had not complied with the court’s order requiring the designation of expert

witnesses , the trial court permitted the expert testimony of both Rollins and Carrel. The trial

court specifically stated that Appellant was not surprised or harmed by the State’s fa ilure to

designate Rollins as an expert.

We review the trial court’s decision to permit Rollins and Carrel to testify as experts

under an abuse of discretion standard. See Wood v. State , 18 S.W.3d 642, 649

– 50 (Tex. Crim.

App. 2000). In determining wheth er the trial court abused its discretion, we consider whether the

State’s actions constituted bad faith and whether Appellant could have reasonably anticipated the

witnesses’ testimony. See id. ; Martinez v. State , 867 S.W.2d 30, 39 (Tex. Crim. App. 1993).

Appellant does not contend that the State acted in bad faith in failing to designate its experts, and

nothing in the record indicates any bad faith on the part of the State . The prosecutor who tried

this case inherited it from another prosecutor and was not aware of the trial court’s order to

designate expert witnesses. Furthermore , the record shows that the State had provided Appellant

with a list of witnesses that contained Rollins’s and Carrel ’s names along with other discovery

,

includ ing C arrel’s alcohol analysis lab report . T he State had also permitted defense counsel full

access to the State’s file prior to trial. Carrel’s testimony as an expert should have been

anticipated by Appell ant based upon the contents of the lab report , which indicates that Carrell is

a “Forensic Scientist II” and that his analysis showed that Appellant’s blood sample contained

0.12 grams of alcohol per 100 milliliters of blood. Furthermore, Appellant could have

reasonably anticipated that the State would call a fingerprint expert to meet its burden to prove3 Appellant’s identity as the person who had committed the prior offenses alleged in the

indictment. See Irvine v. State , 857 S.W.2d 920, 927 (Tex. App.

— H ouston [1st Dist.] 1993, pet.

ref’d). Accordingly, we cannot hold that the trial court abuse d its discretion in allowing Rollins

and Carrel to testify. We overrule both of Appellant’s issues on appeal.

We affirm t he judgment of the trial court.

JIM R. WRIGHT

CHIEF JUSTICE

April 25, 2013

Do not publish. See T EX

. R. A PP

. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.