Stephen Wayde Meade v. the State of Texas

Opinion filed July 27, 2023
In The
Eleventh Court of Appeals
__________
No. 11-22-00025-CR
__________
STEPHEN WAYDE MEADE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR26662
MEMORANDUM OPINION
The jury convicted Appellant, Stephen Wayde Meade, of felony driving while
intoxicated. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b) (West Supp. 2022). The
trial court assessed his punishment at confinement for a term of thirty years in the
Institutional Division of the Texas Department of Criminal Justice.
In this appeal, we must determine whether the trial court erred when it allowed
a witness during the State’s case-in-chief—who tested positive for COVID-19
shortly before trial—to testify via two-way remote teleconferencing. We conclude
that the State satisfied the requirements for remote testimony under the Sixth
Amendment, as articulated in Haggard v. State, 612 S.W.3d 318, 325 (Tex. Crim.
App. 2020), and we affirm.
Background Facts
On December 14, 2018, Appellant crashed his Chevrolet pickup into the back
of a GMC Yukon. Brownwood Police Department Officers Kayla Moore and
Joshua Holmes were dispatched to the scene. With Appellant’s permission, Officer
Moore entered the pickup to retrieve his insurance card. When Officer Moore
opened the door to the pickup, however, she detected the strong odor of alcohol
emitting from the vehicle. She also noticed a 32-ounce cup that smelled like alcohol
within the pickup. Appellant admitted to drinking three hours prior to the accident.
Officer Moore observed that Appellant had a “disheveled look,” “glossy eyes,” and
slurred speech. She then administered standardized field sobriety tests to determine
if Appellant was intoxicated. As a result of her investigation, Officer Moore arrested
Appellant for driving while intoxicated.
It is undisputed that, following his arrest, Appellant consented to provide a
blood sample. Appellant was then taken to a hospital where his blood was drawn by
phlebotomist Sharon Hope. Appellant’s blood sample was later tested by Sarah
McGregor, a forensic scientist with the Texas Department of Public Safety.
McGregor’s test results indicated that Appellant had a blood alcohol level of 0.217.
Prior to jury selection, the State announced that Hope had tested positive for
COVID-19 on the previous Saturday, and it requested that she be allowed to “testify
via Zoom.” After some discussion, the trial court inquired as to whether the parties
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wanted an immediate ruling or whether the issue could be taken up at a later time.
In response, the State and Appellant each agreed that the issue could be taken up at
a later time. Subsequently, after a hearing relating to the chain of custody of the
blood sample, the trial court admitted the physical blood sample and related
materials but reserved the question of whether the lab results themselves were
admissible. The case then proceeded to trial.
In an effort to establish the intoxication element of the offense, the State
sought to prove that Appellant’s blood alcohol concentration was in excess of 0.08.
See TEX. PENAL CODE §§ 49.04(a), 49.01(2)(B) (West 2011). The State offered into
evidence the laboratory results of a blood alcohol test that was performed by
McGregor.
When McGregor was asked about the results of the test, counsel for Appellant
objected that there was no evidence that the blood sample at issue had been obtained
by a person who was qualified to perform the procedure. As a result of this
objection, the State sought to call Hope to testify via Zoom, a computer application
that features remote two-way teleconferencing. The trial court then proceeded with
a hearing to determine whether Hope would be allowed to testify before the jury via
two-way teleconferencing. Hope testified remotely at the hearing, over the objection
of counsel for Appellant.
Following the hearing, counsel for Appellant objected to remote testimony
from Hope, arguing that it violated Appellant’s rights under the Confrontation
Clause in the Sixth Amendment. The trial court overruled the objection. Hope then
briefly testified before the jury, describing her qualifications as a phlebotomist, the
process by which she took the blood sample, and the cleanliness of the area where
the blood sample was drawn.
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Analysis
In his sole issue on appeal, Appellant complains that the trial court erred
when it allowed Hope to testify via remote two-way teleconferencing.
At the time of trial, in January 2022, testimony by teleconferencing was
permissible as a result of the COVID-19 pandemic under the supreme court’s Forty-
Fifth Emergency Order Regarding the COVID-19 State of Disaster, 660 S.W.3d 84,
86 (Tex. 2021). However, the order provided that the use of teleconferencing is
“[s]ubject to constitutional limitations.” Id. at 85. As such, the question presented
in this case is whether the trial court violated Appellant’s constitutional rights when
it allowed Hope to testify through remote teleconferencing.
Appellant maintains that the use of remote teleconferencing in this instance
violates his right to confront his accusers under the Sixth Amendment. The
Confrontation Clause states that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST.
amend VI. It provides criminal defendants with the right to physically confront those
who testify against them. Coy v. Iowa, 487 U.S. 1012, 1016 (1988) (the
Confrontation Clause “guarantees the defendant a face-to-face meeting with
witnesses appearing before the trier of fact”). However, the right to a face-to-face
meeting is not absolute. Maryland v. Craig, 497 U.S. 836, 849–50 (1990). In order
to apply an exception to the face-to-face meeting rule, the trial court must find that
(1) the circumstances requiring the exception further an “important public policy,”
and (2) the reliability of the testimony is otherwise assured. Craig, 497 U.S. at 850;
Haggard, 612 S.W.3d at 325.
With regard to the question of reliability, a key inquiry is whether the method
of testimony preserves the salutary effects of face-to-face confrontation that are
relevant to a Sixth Amendment analysis. Stevens v. State, 234 S.W.3d 748, 782
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(Tex. App.—Fort Worth 2007, no pet.). Thus, the courts must consider: (1) whether
the statement is given under oath, (2) whether the witness is subject to cross-
examination, (3) whether the jury can observe the demeanor of the witness, and
(4) the reduced risk that a witness will wrongfully implicate innocent defendants
when testifying in their presence. Craig, 497 U.S. at 845-46; Stevens, 234 S.W.3d
at 782; Dies v. State, 649 S.W.3d 273, 283 (Tex. App.—Dallas 2022, pet. ref’d).1
In this instance, the evidence showed that Hope had tested positive for
COVID-19 on the Saturday before trial. At the time of her testimony, she was
suffering from fatigue and body aches. She was not scheduled to be out of
quarantine for another week, and her physician considered her to be contagious until
that time.
The trial court found that it was necessary for Hope to testify through two-
way video telecommunication to avoid exposing the virus to jurors, court personnel,
the court reporter, clerks, bailiffs, the defendant, the attorneys, and members of the
public. It further found that Hope would still be subject to cross-examination, that
the technology involved was familiar for the court and everyone involved, that
Appellant would be able to sit with counsel and confer with him during the
testimony, and that her testimony would—in any event—likely be very brief. The
trial court further rejected the option to continue the case because it was concerned—
particularly in light of the COVID-19 pandemic—that the jury might not be able to
return at a later time.
The trial court’s findings are consistent with the requirements of Craig and
Haggard. Specifically, they reflect that the use of two-way testimony ensured the
health and safety of all trial participants, furthering an important public policy. See
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In Dies v. State, the Dallas Court of Appeals reviewed the trial court’s decision to permit a witness
that was in quarantine because of an exposure to COVID-19 to testify remotely. 649 S.W.3d at 276.
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Dies, 649 S.W.3d at 283 (“To the extent that two-way video testimony ensured the
health and safety of all trial participants during [the COVID-19] pandemic, it
furthered an important public policy of protecting the public.”).
Furthermore, the method of two-way telecommunication using Zoom was
consistent with the salutary effects of face-to-face confrontation. See Craig, 497
U.S. at 845-46. Specifically, it permitted a statement to be given (1) under oath
which was (2) subject to cross-examination in a manner in which (3) the jury could
observe the demeanor of the witness. Id.; see also Dies, 649 S.W.3d at 283 (holding
that a similar two-way video feed also satisfied the salutary effects articulated in
Craig). Because Hope’s testimony was limited to authenticating the blood sample,
and because Officer Moore had already identified Appellant as the person from
whom Hope took the blood sample, there was also a limited risk that she would
wrongly implicate an innocent defendant. See Dies, 649 S.W.3d at 283.
Appellant argues that the trial court could have postponed the trial until Hope
was available to testify in person. He also complains that the State created the issue
that confronted the trial court by not asking for a continuance prior to jury selection.
The record shows that the trial court took these factors into consideration but
nonetheless concluded that, given the risk that the jury could not return at a later date
and the relatively minor impact that Hope’s testimony would have in the case, it was
appropriate to proceed. Under such circumstances, it was not error for the trial court
to proceed with remote testimony from Hope.
Additionally, even if the trial court erred in allowing Hope to testify by two-
way video teleconferencing, such error was harmless. “A denial of physical, face-
to-face confrontation is reviewed for harmless error.” Haggard, 612 S.W.3d at 328
(citing Coy, 487 U.S. at 1021). “Constitutional error is harmful unless a reviewing
court determines beyond a reasonable doubt that the error did not contribute to the
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conviction.” Id. (citing TEX. R. APP. P. 44.2(a)). “In the context of the denial of
physical confrontation,. . . . harm must be determined based on ‘the remaining
evidence.’” Id. (citing Coy, 487 U.S. at 1021-22).
We first note that Hope’s testimony was not necessary to establish any
elements of the offense. See Coy, 487 U.S. at 1021; Ellison v. State, 494 S.W.3d
316, 325 (Tex. App.—Eastland 2015, pet. ref’d). In order to prove Appellant’s
blood alcohol level at the time of the incident, the State was required to establish a
chain of custody between the blood draw and the testing that was performed by
McGregor. Durrett v. State, 36 S.W.3d 205, 208 (Tex. App.—Houston [14th Dist.]
2001, no pet.). Proof of the beginning and the end of the chain of custody will
support admission of the evidence unless there is a showing of tampering or
contamination. Id. Moreover, the State, through testimony, proved the element of
intoxication by means other than Appellant’s blood alcohol level being over the legal
limit; namely, the State proved that Appellant did not have the normal use of his
mental or physical faculties by reason of the introduction of alcohol into his body.
See PENAL CODE § 49.01(2)(A).
In this case, Officer Moore testified that the blood draw was performed in her
presence, and she positively identified the blood sample that was in evidence as the
same one that was drawn on the day of the accident. Likewise, Kimberly Holland,
a corporal for the criminal investigation division for the Brownwood Police
Department, offered testimony regarding the manner in which the department retains
evidence and confirmed that she retrieved the blood sample from an assistant police
chief prior to bringing it to court. This evidence was uncontroverted by Appellant,
and there was no suggestion of tampering or other mishandling of the evidence while
it was in the possession of the Brownwood Police Department. Given these
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circumstances, Hope’s testimony was not necessary to authenticate or establish the
chain of custody for the blood sample.
At trial, Appellant argued that Hope’s testimony was necessary because the
State was required to satisfy the requirements of section 724.017(a) and (a-1) of the
Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 724.017(a), (a-1) (West
2022). Chapter 724 provides that, for purposes of certain alcohol-related offenses,
including driving while intoxicated, a defendant is deemed to have consented to a
blood draw when several conditions are met. Id. § 724.011(a). Among those
conditions are requirements that: (a) someone with appropriate qualifications
conducts the blood draw and (b) the specimen is “taken in a sanitary place.” Id.
§ 724.017(a), (a-1). These provisions ensure that the process of procuring the
evidence did not constitute an unreasonable search or seizure under the Fourth
Amendment. See Schmerber v. California, 384 U.S. 757, 767 (1966) (Fourth
Amendment protects suspects against medical procedures that are made by
unqualified personnel).
Appellant’s contention that the State was required to show compliance at trial
with Section 724.017(a) and (a-1) is incorrect. See State v. Robinson, 334 S.W.3d
776, 779 (Tex. Crim. App. 2011); Duran v. State, No. 09-18-00361-CR, 2020 WL
5805951, at *3 (Tex. App.—Beaumont Sept. 30, 2020, no pet.) (mem. op., not
designated for publication). Appellant had the burden to produce evidence of a
statutory violation. See Robinson, 334 S.W.3d at 779; Duran, 2020 WL 5805951,
at *3. Only if Appellant produced evidence of a statutory violation would the State
have the burden to prove statutory compliance. Robinson, 334 S.W.3d at 779;
Duran, 2020 WL 5805951, at *3. Here, Appellant did not show a statutory violation.
In summary, while Hope’s testimony may have been relevant to a motion to
suppress, it was not independently necessary to establish any of the elements of the
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offense. Furthermore, her testimony was uncontested and limited to issues that were
duplicative of other testimony. Under such circumstances, we conclude beyond a
reasonable doubt that, even if the trial court erred in admitting her testimony via
remote video-teleconferencing, such an error did not contribute to the conviction.
See Ellison, 494 S.W.3d at 325. We overrule Appellant’s sole issue on appeal.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
July 27, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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