Kevin Brook Kugley v. State

                                   NUMBER 13-99-254-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI B EDINBURG

KEVIN BROOK KUGLEY,                                                        Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

On appeal from County Criminal Court at Law No. 14

of Harris County, Texas

                                   O P I N I O N

           Before Chief Justice Valdez and Justices Dorsey and Baird^[1]

                                   Opinion by Justice Baird   

Appellant was charged by information with the offense of driving while intoxicated (DWI).  A jury convicted appellant of the charged offense and assessed punishment at sixty days confinement and a $2,000.00 fine, both probated.  Appellant raises five points of error.  We affirm.

I.

The first point of error contends the prosecution was barred by the statute of limitations.  Appellant was initially charged with the instant offense on January 27, 1994.  Five years later on February 8, 1999, the State=s motion to dismiss that information was granted, and the instant information was filed.

The statute of limitations for the offense of DWI is two years.  Tex. Code Crim. Proc. Ann. art. 12.02 (Vernon 1977). Because no tolling provision was alleged in the subsequent information, the instant offense was ostensibly barred. The statute of limitations is treated as a defense.  Proctor v. State, 967 S.W.2d 840, 844 (Tex. Crim. App. 1998).  The Proctor Court held the defense created by the statute of limitations:

is forfeited if not asserted at or before the guilt/innocence stage of trial. Before trial, a defendant may assert the statute of limitations defense by filing a motion to dismiss under Article 27.08(2) of the Texas Code of Criminal Procedure. At trial, the defendant may assert the defense by requesting a jury instruction on limitations if there is some evidence before the jury, from any source, that the prosecution is limitations‑barred. If there is some such evidence and the defendant requests a jury instruction on the limitations defense, then the State must prove beyond a reasonable doubt that the prosecution is not limitations‑barred.

Id.

In the instant case, appellant orally raised the issue but did not file a written motion.^[2]  Exceptions to the substance of an information must be made in writing.  Tex. Code Crim. Proc. Ann. art. 27.10 (Vernon 1989). Since appellant=s motion was oral, rather than written, we hold the trial judge did not err in denying it.  State v. Abrego, 974 S.W.2d 177, 179 (Tex. App.BSan Antonio 1998, no pet.) (reversing trial court's granting of defendant's oral motion to quash).  Additionally, the defense was neither asserted at trial nor did appellant request a jury instruction on the limitations defense. For these reasons the first point of error is overruled.

II.

The second point of error contends the trial judge erred in admitting the results of a hospital blood test after appellant refused a peace officer=s request for a blood sample.  The instant prosecution involved a collision between appellant=s vehicle and a marked patrol vehicle driven by an officer of the City of Houston Police Department.

Officer J. Garza, also of the Houston Police Department, was dispatched to the scene of the collision where he interviewed appellant.  Garza formed the opinion that appellant was intoxicated, and informed appellant of the right to refuse to give a sample of his breath or blood.  Appellant refused to provide either specimen.  Appellant was subsequently transported to a hospital where Larry Renfro, a nurse, drew a sample of appellant=s blood.  The trial judge found Renfro was operating under the directives of the attending physician and not law enforcement, and that Renfro drew the blood for medical diagnosis. 

When an accused contends that evidence has been seized from him in violation of his constitutional or statutory rights, he bears the initial burden of proving that the government or a private party acting at the behest of the government has seized the evidence in question without a warrant.  Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App.1986). We have held under similar circumstances that no seizure occurred.  Clark v. State, 933 S.W.2d 332, 333 (Tex. App.BCorpus Christi 1996, no pet.).  Consistent with this precedent, we hold appellant has failed to satisfy his initial burden of proving that hospital personnel were acting as instruments or agents of the police when they drew and tested his blood specimen.  Because there is no evidence the drawing and testing of appellant=s blood was done by a law enforcement official or a private citizen acting as an agent of the State, appellant=s federal and state constitutional rights against unreasonable search and seizure were not implicated.  The second point of error is overruled.

III.

The third point of error contends the trial judge erred in finding Garza had sufficient probable cause to arrest appellant.  We review this point under an abuse of discretion standard of review.  Oles v. State, 993 S .W.2d 103, 106 (Tex. Crim. App. 1999).  During his interview with appellant, Garza noticed that appellant had blood shot eyes, and a strong odor of alcohol on his breath. Garza administered the horizontal gaze nystagmus test which appellant failed.  Additionally, Garza saw bottles of beer inside of the vehicle which he determined appellant had been driving.  In light of this evidence, we cannot say the trial court abused its discretion in finding Garza had probable cause to arrest appellant.  The third point of error is overruled.

IV.

The fourth point of error contends the trial judge erred in admitting into evidence the results of an analysis of appellant=s blood.  Pamela Newman was an employee assigned to the laboratory at Ben Taub hospital.  In that capacity, she placed a vial of blood purportedly taken from appellant into a machine.  The machine then ran eight different analyses of that blood. The results were then printed.  Newman testified the results of the Aalcohol test@ were 0.191.  Subsequently, a printout of the tests performed was admitted into evidence as State=s exhibit 12A. This point of error has two components: (a) the hearsay nature of the evidence; (b) the belief that the evidentiary predicate B chain of custody was not sufficient to establish the blood was appellant=s.^[3]

 "Hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."  Tex. R. Evid. 801(d).  A "declarant" is defined as "a person who makes a statement."  Tex. R. Evid. 801(b).  Although a machine is not a person, the printout may be hearsay if it merely regurgitates data entered by humans. Stevenson v. State, 920 S.W.2d 342, 343 (Tex. App.BDallas 1996, no pet.); Murray v. State, 804 S.W.2d 279, 283‑84 (Tex. App.BFort Worth 1991, pet. ref'd).  However, if the machine generates its own data, it is not hearsay. Stevenson, 920 S.W.2d at 343‑44; Murray, 804 S.W.2d at 284.  Newman testified that she did not enter any data.  The machine independently performed all of the tests, and generated the complained of result.  Therefore, the results were not hearsay.

In advancing his second argument, appellant relies on Beck v. State, 651 S.W.2d 827 (Tex. App.BHouston [1st Dist.] 1983, no pet.), which established the rule that where the State shows the beginning and end of an evidentiary chain of custody, gaps in between go to weight, rather than admissibility of the evidence, but if the State fails to show the beginning, or the end, of the custody chain, then the issue is one of admissibility, not weight.  Id. at 829.  As noted in section II, supra, appellant=s blood was taken by Renfro.  Renfro testified the blood was drawn between 3:15 and 3:25 a.m., on December 4, 1993. Newman testified the machine tested the blood at 5:57 a.m., the same day.  This testimony clearly establishes both the beginning and end of the chain of custody.

For these reasons, we reject both arguments advanced by appellant in connection with this point of error. Accordingly, the fourth point of error is overruled.

V.

The fifth point of error contends the trial court erred in admitting Frank Hwa to offer an opinion of appellant=s blood alcohol content at the time of his operation of a motor vehicle.  Hwa was a chemist with the Houston Police Department and a technical supervisor for the Texas Breath-Alcohol Testing Program whose duties included analyzing blood and urine for alcohol and controlled substances.  Using the blood alcohol content result discussed in part IV, supra, Hwa, using various factors for his extrapolation, opined appellant=s blood alcohol contend was 0.16 at the time he operated a motor vehicle.  According to Hwa, the only way appellant=s blood alcohol content could have been less than 0.10 at the time of the collision discussed in part II, supra, was if appellant consumed four drinks immediately before the collision. 

In support of this point of error, appellant relies solely on the panel opinion in Mireles v. Texas Dep't of Pub. Safety. However, that opinion was subsequently withdrawn and superseded by the en banc opinion of the San Antonio Court of Appeals.  993 S.W.2d 426, 443 (Tex. App.BSan Antonio 1999) (text of superseded en banc opinion), aff'd, 9 S.W.3d 128 (Tex.1999).  As the State notes, these latter two opinions were released prior to the filing of appellant=s brief.  By citing an opinion that has been withdrawn and superseded, appellant has failed to provide authority supporting this point of error.  It is, therefore, inadequately briefed.  Tex. R. App. P. 38.1(h); Sanders v. State, 963 S.W.2d 184, 191 (Tex. App.BCorpus Christi 1998, pet. ref'd).  The fifth point of error is overruled.

The judgment of the trial court is affirmed.

CHARLES F. BAIRD

Justice

Do Not Publish. 

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 20th day of June, 2002.

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^[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

^[2]  In denying the motion, the trial judge referred to it as the AMotion to Quash the Pleadings.@  We have diligently searched the clerk=s record to find this motion in written form. While we have found several written motions, none of them bear this title, nor do any of them raise the limitations issue.  Additionally, we note that neither appellant=s nor the State=s brief cites us to a written motion.

^[3]  Specifically, the fourth point of error states: AThe trial court committed reversible error in allowing into evidence the results of an instrument analysis of the blood of appellant which results were hearsay as to the witness testifying to the results.@