"Normally, the trial judge has absolute discretion to cumulate sentences."
How later courts described this case
- "Normally, the trial judge has absolute discretion to cumulate sentences."
Written by the judges who cited it.
The opinion
IS1S-H
COURT OF CRIMINAL APPEALS OF TEXAS f) p 'Q j|\[ /\
AUSTIN TEXAS
PD-1575-14
*Un
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 interperte-
tions : 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 ., 'HfrSVZht
APPELLANT, PRO Se 'V
ELLIS UNIT
1697 FM 980
HUNTSVILLE, TEXAS 77343
cc :bh/file
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 of the 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 of the 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 of the 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) of the 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) of the 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 that Appellant 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 at trial confirmed thatAppellant has been convicted of the offense
of DWI on three prior occasions. 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 of trial. 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. ref d).
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 of the trial court.
MIKE WILLSON
JUSTICE
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