William Barrie Bowlin v. the State of Texas ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00372-CR
William Barrie Bowlin, Appellant
v.
The State of Texas, Appellee
FROM THE 22ND DISTRICT COURT OF HAYS COUNTY
NO. CR-17-0993-A, THE HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING
MEMORANDUM OPINION
William Barrie Bowlin was charged with the felony offense of driving while
intoxicated with two prior convictions for the same offense. See Tex. Penal Code §§ 49.04, .09.
The indictment contained enhancement paragraphs alleging that Bowlin had previously been
convicted sequentially of two felony offenses. See id. § 12.42. At the end of the guilt-innocence
phase, the jury found Bowlin guilty of the charged offense. During the punishment phase,
the trial court found the enhancement allegations to be true and sentenced Bowlin to thirty
years’ imprisonment. See id. In four issues on appeal, Bowlin challenges the sufficiency of the
evidence supporting his conviction and supporting the trial court’s finding of true for one of the
enhancement allegations and argues that the trial court erred by admitting testimony from the
State’s expert witness and admitting his medical records. We will affirm the trial court’s
judgment of conviction.
BACKGROUND
On November 30, 2016, while in Hays County, Texas, Bowlin was arrested for
driving while intoxicated. Shortly after his arrest, Bowlin was transported to an emergency
room to be treated for his heart condition. Bowlin was later indicted for felony driving while
intoxicated with two prior convictions for the same offense from 2005 and 2009. The indictment
also contained two enhancement paragraphs alleging that Bowlin had previously been
sequentially convicted of the felony offenses of driving while intoxicated in 1983 and aggravated
assault in 2009. During trial, the State called the following witnesses: the investigating officer,
the hospital lab manager, the hospital laboratory technician who tested Bowlin’s blood samples,
the emergency physician who treated Bowlin, and a social worker for the hospital. In addition,
Bowlin’s hospital medical records and the investigating officer’s body-camera recording were
admitted into evidence. After the State finished its case, Bowlin called his friend Audrey
Sulpizio as a witness.
In his testimony, the investigating officer explained that he was driving along a
loop that he patrols in Dripping Springs, Texas, when he noticed a disabled vehicle around 9:50
p.m. The officer recalled that the vehicle had not been there twenty to thirty minutes earlier
when he passed the same area. The vehicle, a sports car with two seats, was stuck on a curb
on a public road near Highway 290 with its engine running and its headlights on. A man later
identified as Bowlin was standing near the vehicle, and no one else was near or inside the car.
The officer approached Bowlin to speak with him and noticed the smell of alcohol on Bowlin’s
breath and red stains on Bowlin’s face and shirt.
Bowlin told the officer that he was trying to turn his car around before he got
stuck, but Bowlin did not say that anyone else had been driving the car. Bowlin admitted to the
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officer that he had “a little bit” to drink that night and that his drinking might have contributed
to how his vehicle got stuck. Bowlin was confused about where he was, initially stating that he
was trying to reach a hotel but then repeatedly mentioning that he had just left and was trying to
get back to his father’s house in Midland, Texas. When asked where he currently lives, Bowlin
stated that he lives in Midland but later said that he lives in Austin, Texas. His driver’s license
listed an Austin address. Bowlin told the officer that he believed that they were both currently in
Odessa, Texas, and was surprised to learn that they were in Dripping Springs. Similarly, Bowlin
told the investigating officer that he was eighty years old even though his driver’s license
indicated that he was in his sixties. When the officer asked Bowlin to retrieve proof of insurance
from inside the car, Bowlin produced a document relating to an air conditioner. In his
investigation, the officer learned that the car was registered to Bowlin and found a mostly empty
wine bottle with a red liquid in the bottom resembling the color of the stains on Bowlin’s face
and shirt. The officer noticed several items in the passenger seat that would have made it
difficult for anyone to sit there.
The officer asked Bowlin if he would submit to field-sobriety testing, and Bowlin
stated that he would fail the tests but agreed to try. During the horizontal-gaze-nystagmus test,
the officer noticed four out of six possible indicators of intoxication, and the officer had to
repeatedly remind Bowlin to hold his head still during the test. During the walk-and-turn test,
Bowlin began walking before the officer finished the instructions. At that point, Bowlin asked
for a break and stated that he wanted to go to a hotel. Based on his observations, the officer
decided to place Bowlin under arrest for driving while intoxicated. When the officer attempted
to inquire whether Bowlin would be willing to provide a breath sample, Bowlin started wheezing
and stated that he needed to go to the hospital because of a heart condition. At that point, the
3
officer called Emergency Medical Services (“EMS”), who responded to the scene, evaluated
Bowlin, and recommended that Bowlin be taken to the hospital. The officer released Bowlin for
medical treatment and then returned to his patrol duties. During his cross-examination, the
officer admitted that he did not see Bowlin driving that night, did not see Bowlin in the driver’s
seat other than when the officer directed him to get in the vehicle, did not find any witnesses, and
did not obtain any surveillance footage.
The recording from the officer’s body camera is generally consistent with the
officer’s testimony. In addition, the recording shows various items on the passenger seat and in
the passenger-seat floorboard, including large storage containers. The recording documents that
the trunk was completely full and documents Bowlin telling the investigating officer and EMS
personnel that he was eighty years old and ninety-nine years old.
Following the officer’s testimony, the lab manager for the hospital where Bowlin
was treated testified about a machine used by lab technicians for analyzing, among other things,
alcohol concentration. Next, the hospital lab technician testified that she tested Bowlin’s blood
samples using the machine. Additionally, the emergency room physician who treated Bowlin on
the night in question testified that during her treatment of Bowlin, she ordered that Bowlin’s
blood samples be tested for alcohol three times. The three tests performed at 11:12 p.m., 1:14
a.m., and 3:05 a.m. showed blood-alcohol concentrations of 294, 240, and 213 micrograms per
milliliter, respectively. Additionally, the physician related that concentrations between 150 and
350 are toxic for medical purposes, that the three results were all in the toxic range, and that
concentrations above 350 can result in a coma. However, the physician also cautioned against
using those types of medical test results for deciding if someone was legally intoxicated. The
hospital social worker testified that she talked with Bowlin a few hours after he arrived and that
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he admitted to her that he had been drinking all day and that he drank “a fifth-and-a-half of
liquor . . . that night.”
When the State rested, Bowlin called his friend Sulpizio, who testified that she
went on a few dates with Bowlin in 2016, that he called her on the day in question because he
wanted to show her his new car, and that she got into his car while they were in Austin. Next,
Sulpizio related that she noticed that “there was something wrong” with Bowlin because he was
providing random answers to her questions and that she told him to pull over and let her drive the
car. Further, Sulpizio explained that she drove the car to Dripping Springs, that Bowlin started
arguing with her and told her to pull over, and that she drove the car onto the curb. Sulpizio
testified that she left the area because she was mad at Bowlin and that she hitchhiked home.
During her cross-examination, Sulpizio admitted that on the following day she
learned that Bowlin had been arrested for driving while intoxicated but testified that she did not
inform the police that she had been driving because she was still angry with Bowlin from their
fight the night before and was angry enough to let him take the fall for a crime that he did not
commit. Later, Sulpizio explained that she met up with Bowlin again in 2017 when she was no
longer angry with him and learned that he was either awaiting trial for driving while intoxicated
or being punished for the offense, but she testified that she still did not inform the police that
she drove the car because she thought the situation was being handled. When discussing her
ride in Bowlin’s car, Sulpizio stated that there was “not like a huge amount” of stuff inside the
car and that she did not have to hold anything in her lap while she was sitting in the passenger
seat before driving.
After considering the evidence presented at trial, the jury found Bowlin guilty
of felony driving while intoxicated. During the punishment hearing, Bowlin pleaded not true to
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both enhancement allegations. After Bowlin entered his pleas, an investigator for the Hays
County district attorney’s office testified regarding efforts that he undertook to determine whether
Bowlin had been convicted of the offenses listed in the enhancement paragraphs, and a 1983
judgment for felony driving while intoxicated, a 2009 judgment for aggravated assault, and their
accompanying paperwork were admitted as exhibits. At the conclusion of the punishment hearing,
the trial court found the allegations true and sentenced Bowlin to thirty years’ imprisonment.
Bowlin appeals the trial court’s judgment of conviction.
DISCUSSION
In four issues on appeal, Bowlin contends that the trial court erred by allowing the
lab manager to testify as an expert witness, that the trial court erred by admitting into evidence
his medical records from his treatment at the hospital, that the evidence presented regarding the
2009 enhancement allegation was insufficient to link him to the offense, and that the evidence is
insufficient to support his conviction. Because the sufficiency challenge to the evidence of his
conviction could result “in greater relief than his other issue[s],” we address that issue first. See
Medina v. State, 565 S.W.3d 868, 873 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d).
Sufficiency of the Evidence
In his fourth issue, Bowlin contends that the evidence is insufficient to support his
conviction.1 As support for this argument, Bowlin notes that none of the State’s witnesses
testified that they observed him driving the car, that no surveillance footage was admitted into
1
In his brief, Bowlin challenges the legal and factual sufficiency of the evidence.
However, the Court of Criminal Appeals has held that the legal sufficiency standard set out in
Jackson v. Virginia, 443 U.S. 307, 319 (1979), is the only standard that a reviewing court should
apply when determining the sufficiency of the evidence supporting a conviction. Brooks v. State,
323 S.W.3d 893, 902 (Tex. Crim. App. 2010).
6
evidence showing him driving the car, and that the investigating officer found him outside of
the car. Additionally, Bowlin asserts that the only witness to the events in question, Sulpizio,
testified that she drove the car in Hays County on the night in question and caused the car to
get stuck on the curb before leaving the scene. Accordingly, Bowlin urges that the evidence is
insufficient to support his conviction and that this Court should reverse his conviction and render
a judgment of acquittal.
Under the Penal Code, an individual commits the offense of driving while
intoxicated if he “is intoxicated while operating a motor vehicle in a public place.” See Tex.
Penal Code § 49.04. When presenting his arguments, Bowlin does not dispute that the evidence
established that he was intoxicated on the night in question or that he and the vehicle were in a
public place; instead, he argues that the evidence did not establish that he operated his vehicle
during the relevant time period. Although the Penal Code does not define the word “operate,”
the Court of Criminal Appeals has explained that, for sufficiency reviews, “a person ‘operates’ a
vehicle when ‘the totality of the circumstances [ ] demonstrate that the defendant took action to
affect the functioning of his vehicle in a manner that would enable the vehicle’s use.’” Kirsch v.
State, 357 S.W.3d 645, 650-51 (Tex. Crim. App. 2012) (quoting Denton v. State, 911 S.W.2d
388, 390 (Tex. Crim. App. 1995)); see Priego v. State, 457 S.W.3d 565, 569 (Tex. App.—
Texarkana 2015, pet. ref’d) (stating that term operating is interpreted broadly). Even though
“driving does involve operation” of a motor vehicle, “operation does not necessarily involve
driving.” Denton, 911 S.W.2d at 389.
“Evidence is sufficient to support a criminal conviction if a rational jury could
find each essential element of the offense beyond a reasonable doubt.” Stahmann v. State,
602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307, 319
7
(1979)). In making this determination, “[w]e view the evidence in the light most favorable to
the verdict and consider all of the admitted evidence, regardless of whether it was properly
admitted.” Id. “The jury is the sole judge of credibility and weight to be attached to the
testimony of the witnesses.” Id. “Juries can draw reasonable inferences from the evidence so
long as each inference is supported by the evidence produced at trial,” id., and are “free to apply
common sense, knowledge, and experience gained in the ordinary affairs of life in drawing
reasonable inferences from the evidence,” Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref’d). “When the record supports conflicting inferences, we
presume that the jury resolved the conflicts in favor of the verdict and defer to that
determination.” Merritt v. State, 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012).
Appellate courts must “determine whether the necessary inferences are reasonable
based upon the combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).
Appellate courts must bear in mind that “direct and circumstantial evidence are treated equally”
and that “[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of
an actor” and “can be sufficient” on its own “to establish guilt.” Kiffe v. State, 361 S.W.3d 104,
108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). The evidence is legally insufficient if
“the record contains no evidence, or merely a ‘modicum’ of evidence, probative of an element of
the offense” or if “the evidence conclusively establishes a reasonable doubt.” Id. at 107 (quoting
Jackson, 443 U.S. at 320).
First, Bowlin told the investigating officer that he had been driving that night
when he drove the car over the curb while trying to turn the car around. Those admissions were
recorded by the officer’s body camera. Cf. Foley v. State, 327 S.W.3d 907, 915 (Tex. App.—
8
Corpus Christi-Edinburg 2010, pet. ref’d) (overruling sufficiency challenge where defendant
“admitted that he had been driving”); Yocom v. State, No. 02-03-00181-CR, 2004 WL 742888,
at *2 (Tex. App.—Fort Worth Apr. 8, 2004, pet. ref’d) (op., not designated for publication)
(determining that evidence was sufficient to establish that defendant operated vehicle because,
among other reasons, defendant admitted to driving his car “to the parking lot where he
was found”).
Although Bowlin correctly points out that Sulpizio testified that she was the
person driving the car in Hays County on the night in question, the jury was free to determine
what, if any, weight to give her testimony. In performing its credibility determination, the jury
could have considered Bowlin’s conflicting admission that he was driving and other portions of
Sulpizio’s testimony in which she testified that Bowlin’s car was not that cluttered on the inside
and that she did not have to hold anything in her lap when sitting in the passenger seat of the
two-seater car and then compared that testimony with the video recording of Bowlin’s car
showing the trunk full with various items and large storage containers and other items on the
passenger seat and floorboard. The jury could have also considered other portions of Sulpizio’s
testimony in which she admitted that she learned that Bowlin was either being punished for
driving while intoxicated or would be tried for that offense but did not ever inform the police that
she was the one driving that night. Cf. Rezaei v. State, No. 03-99-00303-CR, 2000 WL 45550,
at *4 (Tex. App.—Austin Jan. 21, 2000, no pet.) (op., not designated for publication) (noting that
when assessing credibility of witness’s testimony, factfinder could have considered that, until
trial, witness, who was friend of appellant, “did not tell the police or anyone else that appellant
did not participate in the burglary”).
9
Moreover, other evidence was presented at trial indicating that Bowlin operated
the vehicle. The investigating officer found Bowlin near the stuck vehicle. The vehicle’s engine
was running, and the keys were in the ignition. Cf. Murray v. State, 457 S.W.3d 446, 449 (Tex.
Crim. App. 2015) (concluding that “because Appellant was the only person found in the area, a
factfinder could have also reasonably inferred that Appellant drove his vehicle to the location at
which he was found”). The officer did not see anyone else near the car, and the officer did not
see the vehicle when he passed by the area twenty to thirty minutes earlier. Cf. Hearne v. State,
80 S.W.3d 677, 680 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (concluding that evidence
was legally sufficient to establish operation of vehicle where, among other reasons, no one other
than defendant was found near scene). The car only had two seats, and there were large objects
on the passenger seat and floorboard, making it difficult for anyone other than the driver to be in
the vehicle. Further, Bowlin did not mention being a passenger or anyone else driving the
vehicle that night. Additionally, the car registration showed that Bowlin owned the vehicle.
Given our standard of review and in light of the evidence presented during trial as
well as the reasonable inferences that the jury was free to make from that evidence, we must
conclude that the evidence is sufficient to establish that Bowlin operated his motor vehicle before
the vehicle became stuck on the curb. Accordingly, we overrule Bowlin’s fourth issue on appeal.
Testimony from the Lab Manager
In his first issue on appeal, Bowlin contends that the trial court abused its
discretion by overruling his objection to the lab manager’s testifying. Outside the jury’s
presence, the lab manager explained that her lab uses a machine called a Beckman Coulter and
discussed her experience with and knowledge of the machine and the testing results that it
10
produces, including results regarding blood-alcohol concentrations. The lab manager explained
that it is a widely accepted practice for labs to use this type of machine. However, the lab
manager admitted that she was trained to use the machine by coworkers rather than through
official training with the company that makes the machines and that she did not have any specific
training in blood toxicology. She testified that she did not know what the chemical used in part
of the testing was, the error rate for the machine, or any peer reviewed articles discussing the
reliability for the machine. She could not compare the machine’s testing results with gas
chromatography used in other alcohol testing. During the hearing, Bowlin argued that the lab
manager was not qualified to provide expert testimony regarding testing performed by the
machine and that her testimony was unreliable. Accordingly, Bowlin asserted that the lab manager
should not be allowed to testify as an expert witness to provide the predicate for the admission
of the results from the hospital machine’s blood-alcohol testing. The trial court denied the
objection, and Bowlin reasserts on appeal his prior challenges to the lab manager’s testimony.
In her testimony before the jury, the lab manager explained that she has a degree
in medical technology, that one of her responsibilities is to ensure that the lab technicians
perform testing that complies with national regulations, that the lab is accredited by the
American Society of Clinical Pathologists, that the hospital’s lab uses a Beckman Coulter for
analyzing alcohol concentrations, that she was trained to use the machine by individuals who
received training from the machine’s manufacturer, that the machine is calibrated by using
known standards provided by the manufacturer, that she is in charge of calibrating the machine,
that physicians rely on the results of the testing, that the machine was in good working order
when the tests at issue were performed, and that the testing was in compliance with the
laboratory’s policies. When describing the testing process, the lab manager explained that the
11
machine aspirates some of the sample, mixes it with chemicals provided by the manufacturer,
and prints the results of the testing.
Even if the trial court abused its discretion by allowing the lab manager to testify,
we would be unable to sustain Bowlin’s issue on appeal. “The erroneous admission of expert
testimony is non-constitutional error.” Sandoval v. State, 409 S.W.3d 259, 293 (Tex. App.—
Austin 2013, no pet.). Under that standard, errors “must be disregarded” if they did “not affect
substantial rights.” Tex. R. App. P. 44.2(b). A defendant’s substantial rights are affected “when
the error had a substantial and injurious effect or influence in determining the jury’s verdict.”
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the reviewing court, “after
examining the record as a whole, has fair assurance that the error did not influence the jury, or
had but a slight effect,” then the defendant’s substantial rights were not affected. See Motilla v.
State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Solomon v. State, 49 S.W.3d 356,
365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).
When analyzing the potential harm from the erroneous admission of expert testimony, appellate
courts may consider, among other things, the following:
(1) the strength of the evidence of the appellant’s guilt; (2) whether the jury heard
the same or substantially similar admissible evidence through another source;
(3) the strength or weakness of an expert’s conclusions, including whether the
expert’s opinion was effectively refuted; and (4) whether the State directed the
jury’s attention to the expert’s testimony during arguments.
Sandoval, 409 S.W.3d at 293-94.
Regarding the evidence of Bowlin’s guilt, as set out above, Bowlin was convicted
of driving while intoxicated, and as set out above, extensive evidence was presented establishing
that Bowlin operated his vehicle on the night in question. See Tex. Penal Code § 49.04.
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Addressing the other elements, Bowlin did not dispute at trial that the roadway was a public
place as defined by the Penal Code. See id. § 1.07(a)(40) (“‘Public place’ means any place to
which the public or a substantial group of the public has access and includes, but is not limited
to, streets [and] highways . . . ”). Moreover, the evidence presented at trial demonstrated that the
road was near the intersection of a highway, that the road passed two shopping centers with exits
onto the road, that other drivers were travelling on the road, and that there were no barriers
restricting entry to the road. See Thacker v. State, No. 03-15-00079-CR, 2015 WL 6841415,
at *5 (Tex. App.—Austin Nov. 6, 2015, pet. ref’d) (mem. op., not designated for publication);
see also Shaub v. State, 99 S.W.3d 253, 256 (Tex. App.—Fort Worth 2003, no pet.) (noting that
“the relevant inquiry is whether the public has access to it”).
Turning to the intoxication element, overwhelming evidence was presented
establishing that Bowlin was intoxicated during the time in question, which under the Penal
Code occurs when a person does not have “the normal use of mental or physical faculties by
reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a
combination of two or more of those substances, or any other substance into the body” or has
“an alcohol concentration of 0.08 or more.” Tex. Penal Code § 49.01(2).
Bowlin had red stains on his mouth and shirt matching residue found in a
wine bottle in the car, and his breath smelled like alcohol. See Cotton v. State, 686 S.W.2d 140,
142 n.3 (Tex. Crim. App. 1985) (stating that “odor of alcohol on the breath” is evidence of
intoxication); Priego, 457 S.W.3d at 570, 571 (upholding conviction because, among other
reasons, evidence showed that there was partially consumed bottle of alcohol inside car and that
defendant smelled like alcohol). Bowlin repeatedly told the investigating officer that he had just
left his father’s house in Midland and was trying to return to that house, that he believed he was
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in Odessa, and that he lived in Midland even though his driver’s license listed an Austin address.
Similarly, Bowlin appeared confused about his age and told the investigating officer and EMS
personnel that he was decades older than what was reflected on his driver’s license. In addition,
Bowlin admitted to drinking and told the investigating officer that his drinking might have
played a role in his car getting stuck. When asked to retrieve proof of insurance, Bowlin instead
produced a document pertaining to an air conditioner.
Additionally, Bowlin informed the officer that he believed that he would fail the
field-sobriety tests, displayed four of six possible cues of intoxication during the horizontal gaze
nystagmus test, had to be told repeatedly to hold his head still during the test, did not finish
listening to the instructions for the walk-and-turn test before starting to walk, and subsequently
asked for a break from the testing. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App.
2010) (listing “inability to perform field sobriety tests or follow directions . . . [and] any
admissions by the defendant concerning what, when, and how much he had been drinking” as
“evidence that would logically raise an inference that the defendant was intoxicated”). Further,
Bowlin told the hospital’s social worker that he had been drinking all day and drank a fifth and a
half of liquor that night.
The evidence summarized above provides overwhelming evidence that Bowlin
was intoxicated apart from the evidence pertaining to the results of blood-alcohol testing
performed at the hospital. Moreover, although the lab manager’s testimony was presented to
help establish the reliability of the results of the blood-alcohol testing and although the results of
the testing produced blood-alcohol levels that were all considered toxic, we note that the treating
physician warned against using the medical test results for the purpose of determining whether
Bowlin was legally intoxicated either because his blood-alcohol concentration was above
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the legal limit or because the ingestion of alcohol caused him to suffer mental or physical
impairment. Specifically, the doctor testified that the test results use different units and a
different scale than what would be used in determining if someone was above the 0.08 limit.
Further, although the doctor agreed that the three tests produced results that qualified as toxic for
medical purposes, she explained that the level of physical or mental impairment would vary
depending on the person and that some people would not exhibit any symptoms of impairment at
those levels.
In light of the preceding, we conclude that the first factor weighs strongly in favor
of a finding that Bowlin was not harmed.
Turning to whether the jury heard similar evidence through another source, we
note that the lab technician testified regarding some of the same topics that the lab manager
did without objection. Cf. Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010)
(noting that error in improper admission of evidence is harmless if same or similar evidence is
admitted without objection during trial). For example, the lab technician testified that she
received training on how to use the Beckman Coulter machine, that she was familiar with the
alcohol testing that can be done on that machine, and that she complied with the lab’s procedures
for testing the samples. However, the lab manager also testified about topics that were not
covered by other witnesses, including describing how the machine produces results.
Therefore, we conclude that this factor weighs in favor of a finding that Bowlin
was harmed.
Regarding the strengths and weaknesses of the lab manager’s testimony, we note
that the lab manager provided a description of how the machine produces results by mixing an
aspirated blood sample with chemicals provided by the manufacturer and explained that testing
15
performed at the accredited lab complies with national standards, that physicians rely on the
results produced by the machine, that the machine was calibrated and in good working order on
the day of the testing, and that the testing complied with the laboratory’s policies. However, the
lab manager’s description of how the results are determined was brief and did not set out the
scientific principles underlying the testing process. Further, the lab manager did not describe the
accuracy of the results and did not provide an explanation regarding how the results produced by
the machine could be used to determine if the patient was intoxicated as that term is defined in
the Penal Code. See Tex. Penal Code § 49.01(2). Additionally, the lab manager’s opinion was
undermined by some of her own testimony. For example, she testified that the lab no longer
uses the machine that analyzed Bowlin’s blood samples, that she had never testified about the
reliability of the machine before, and that her training on the machine was provided by her
coworkers rather than through formal training with the manufacturer. Cf. Sandoval, 409 S.W.3d
at 295 (noting that expert’s testimony was “not particularly powerful”). Similarly, as discussed
earlier, the treating physician highlighted problems with using the results of the medical tests as
proof of legal intoxication and, thereby, questioned the probative value of the blood-test results
for which the lab manager’s testimony was used as a predicate for admission.
Accordingly, we conclude that this factor weighs in favor of a finding that Bowlin
was not harmed.
Turning to the final factor, we note that the State did not refer to the lab
manager’s testimony during its closing argument and only briefly mentioned the blood-alcohol
testing. Cf. id. (observing that State did not emphasize testimony from expert). Instead, the
State emphasized the other evidence establishing Bowlin’s guilt and attacked the credibility of
Sulpizio’s testimony. On the other hand, Bowlin informed the jury during his opening argument
16
that they will be watching a recording from the investigating officer’s body camera on which
Bowlin “does not make any sense” and conceded that the jury may conclude based on the video
that he was “publicly intoxicated.” Similarly, during his closing argument, Bowlin conceded that
he was “guilty of being intoxicated in a public place” but argued that he did not drive while he
was intoxicated. Further, Bowlin repeatedly asserted that the evidence established that he was
highly intoxicated as part of his defensive strategy of arguing that he was too intoxicated to
know whether he had driven that night when he admitted to the investigating officer that he
had been driving.
Therefore, this final factor also weighs in favor of a finding that Bowlin was not
harmed.
On this record and given our resolution of the factors above, we conclude that
any error from the admission of the lab manager’s testimony did not have a substantial and
injurious effect in determining the jury’s verdict. For these reasons, we overrule Bowlin’s first
issue on appeal.
Admission of Medical Records
In his second issue on appeal, Bowlin contends that the trial court abused its
discretion by overruling his objection to the admission of his medical records from the hospital,
including the blood-alcohol test results, during the testimony from his treating physician. At
trial, Bowlin argued that the admission of the evidence violated his confrontation rights because
he had not been allowed to cross-examine the nurse who drew the blood used in the alcohol
testing. See U.S. Const. amends. VI, XIV. Bowlin asserts on appeal that the admission of his
medical records violated his confrontation rights because they were prepared for the purpose of
17
prosecuting him and not for medical treatment and, therefore, were testimonial in nature.
Further, Bowlin contends that the erroneous admission of the evidence constituted constitutional
error warranting a reversal of his conviction. See Tex. R. App. P. 44.2(a).2
Under the Sixth Amendment, “the accused shall enjoy the right . . . to be
confronted with the witnesses against him[.]” U.S. Const. amend. VI. The United States
Supreme Court has explained that confrontation rights apply not only to in-court testimony but
also to out-of-court statements that are testimonial in nature. See Crawford v. Washington,
541 U.S. 36, 59 (2004). The Confrontation Clause prohibits the admission of testimonial hearsay
unless two criteria are met: the declarant is unavailable to testify, and the defendant had a prior
opportunity to cross examine the declarant. Id. at 68. This rule applies even if the statement falls
within a “firmly rooted hearsay exception or bears particularized guarantees of trustworthiness.”
Wall v. State, 184 S.W.3d 730, 735 (Tex. Crim. App. 2006). A determination regarding whether
an out-of-court statement is testimonial is a question of law. De La Paz v. State, 273 S.W.3d 671,
680 (Tex. Crim. App. 2008).
“Testimonial” statements are those made under circumstances leading an
objective witness to reasonably believe that the statements would be available for use at a later
trial. See Wall, 184 S.W.3d at 735. Stated differently, a statement is testimonial when the
circumstances demonstrate that the primary purpose of obtaining it is to establish past events in
order to further a criminal prosecution. See De La Paz, 273 S.W.3d at 680. However, if the
2
In his brief, Bowlin contends that the State admitted during its opening argument that
the purpose of taking Bowlin to the hospital was to have his blood drawn for law-enforcement
purposes. However, in the portion of the opening statement that Bowlin references, the State
described how the investigating officer initially approached Bowlin to see if he needed help but
then realized that he may have committed the offense of driving while intoxicated. The State did
not assert that the investigating officer arranged for Bowlin to go to the hospital for the purpose
of obtaining blood-alcohol testing to further the investigation.
18
primary purpose of the statement is something other than to further a criminal prosecution,
“the Confrontation Clause does not require such statements to be subject to the crucible of cross
examination.” See Michigan v. Bryant, 562 U.S. 344, 361 (2011). For example, medical records
prepared for the primary purpose of treatment are not testimonial. See Berkley v. State,
298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009, pet. ref’d).
As support for his arguments that his confrontation rights were violated, Bowlin
primarily relies on the following opinion by the United States Supreme Court: Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009). In that case, the trial court admitted certificates reporting
the results of forensic testing performed on material seized by the police. Id. at 307. In
particular, the police seized plastic bags containing a white powder during a search of the
defendant and sent the “evidence to a state laboratory required by law to conduct chemical
analysis upon police request.” Id. at 308. At trial, the defendant objected to the admission of
sworn “certificates of analysis” from analysts with the laboratory describing the results of testing
performed on the substance. Id. at 308-09. The defendant asserted that the Confrontation Clause
required the analysts who performed the testing to testify, and the trial court overruled the
objection. Id. at 309.
The Supreme Court determined that the certificates were really affidavits and
were testimonial statements, constituting a solemn declaration designed to establish or prove a
fact. Id. at 310. Further, the Supreme Court explained that the affidavits were made under
circumstances that would lead someone to believe that the document would be available for use
at trial and that the state law authorizing the affidavits demonstrated that the sole purpose of the
affidavits was to provide evidence of the composition, weight, and quality of the analyzed
substances. Id. at 311. Accordingly, the Supreme Court determined that the affidavits were
19
testimonial statements, that the analysts were witnesses under the Sixth Amendment, and that the
defendant was entitled to confront the analysts absent a showing that they were unavailable and
that the defendant had a prior opportunity to cross-examine them. Id.; see also Bullcoming v.
New Mexico, 564 U.S. 647, 661, 665 (2011) (concluding that forensic certification regarding
blood-alcohol testing made by analyst working for “a state laboratory required by law to assist in
police investigations” was testimonial and that state violated defendant’s confrontation rights by
not calling analyst who prepared certification because analysts who write reports that prosecution
introduces must be made available for confrontation).
The circumstances in this case differ significantly from those present in
Melendez-Diaz. Here, the reports were not prepared at the directives of the police or at a
laboratory designed with the purpose of aiding police investigations. Instead, the investigating
officer called EMS after Bowlin began experiencing a medical condition, and the investigating
officer released Bowlin so that he could be treated at a nearby hospital. Further, the investigating
officer did not go inside the hospital or interact with the treating personnel, and he returned to his
duties after Bowlin went to the hospital. Moreover, Bowlin’s treating physician explained that
she ordered alcohol testing for the purpose of making medical decisions about how to proceed
with treatment. Additionally, the alcohol testing was only one component of the medical
records, and the remainder of the medical records establish that the alcohol testing and other
assessments were performed as part of Bowlin’s treatment or diagnosis.
Accordingly, the medical records, including the results of blood testing performed
on Bowlin at the hospital, were created for the primary purpose of medical diagnosis and
treatment and are, therefore, not testimonial. Cf. Melendez-Diaz, 557 U.S. at 312 n.2 (explaining
that “medical reports created for treatment purposes” are not testimonial). Therefore, the
20
admission of the medical records did not violate the Confrontation Clause. See Sullivan v. State,
248 S.W.3d 746, 750 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (noting that numerous
Texas courts agree that medical reports are non-testimonial); see also Garza v. State, No. 13-19-
00472-CR, 2021 WL 822301, at *6 (Tex. App.—Corpus Christi–Edinburg Mar. 4, 2021, no pet.)
(mem. op., not designated for publication) (determining that defendant’s confrontation rights
were not violated by admission of medical records created for medical purpose).3
In any event, even if the records at issue could be considered testimonial in
nature, we would be unable to sustain Bowlin’s issue on appeal. As set out above, Bowlin
argues that his confrontation rights were violated when the medical records were admitted into
evidence because he was unable to cross-examine the nurse who drew blood samples for the
alcohol testing. However, the Confrontation Clause does not mandate “that anyone whose
testimony may be relevant in establishing the chain of custody, authenticity of the sample, or
accuracy of the testing device, must appear in person as part of the prosecution’s case.”
Melendez-Diaz, 557 U.S. at 311 n.1. If the person who performed a blood draw did not play a
role in the blood analysis or contribute to the report, the Confrontation Clause does not require
3
As support, Bowlin also points to an opinion from another intermediate court of
appeals. See Kou v. State, 536 S.W.3d 535 (Tex. App.—San Antonio 2017, pet. ref’d). In Kou,
a sexual-assault-nurse examiner (“SANE”) interviewed a victim of alleged sexual abuse, took a
swab from a lesion, and sent the sample to a lab for a herpes test. Id. at 539. During trial, the
SANE testified that the test results showed a positive herpes result, but the lab analyst did not
testify. Id. at 544. Our sister court determined that the lab results were testimonial because they
were reported to the SANE in a manner that would lead an objective witness to reasonably
believe that the statement would be available later for use at trial. Id.; see also id. (noting that
information here was not communicated by victim to SANE but by lab technician to SANE).
When determining that the lab results were testimonial, our sister court noted that the record did
not show that the results were used for anything other than prosecution. Id. at 545. In contrast,
in the current case, Bowlin’s treating physician testified that she ordered the tests for purposes of
medical treatment. Further, unlike in Kou, the lab technician who performed the blood tests was
called as a witness and subject to cross-examination.
21
the person who performed the blood draw to testify before the results may be admitted into
evidence. Adkins v. State, 418 S.W.3d 856, 861 (Tex. App.—Houston [14th Dist.] 2013, pet.
ref’d); see also Willits v. State, No. 08-17-00072-CR, 2019 WL 364612, at *6 (Tex. App.—
El Paso Jan. 30, 2019, no pet.) (op., not designated for publication); Alford v. State, No. 02-16-
00030-CR, 2017 WL 370939, at *1 (Tex. App.—Fort Worth Jan. 26, 2017, pet. ref’d) (mem. op.,
not designated for publication).
In this case, the lab technician testified that she performed all the requested
laboratory testing for Bowlin and that the reports show that she performed the testing in question.
Further, the lab technician was subject to cross-examination by Bowlin at trial. Under these
circumstances, the Confrontation Clause did not require the nurse who performed the blood
draw to testify. Accordingly, regardless of whether the medical records were testimonial,
Bowlin’s confrontation rights were not violated. See Adkins, 418 S.W.3d at 862.
For these reasons, we overrule Bowlin’s second issue on appeal.
Enhancement Allegation
In his third issue on appeal, Bowlin challenges the sufficiency of the evidence
supporting the trial court’s finding of true pertaining to the second enhancement allegation
regarding a 2009 conviction for aggravated assault. More specifically, Bowlin argues that the
evidence linking him to the prior offense was insufficient because no evidence was admitted
during the punishment phase regarding what his date of birth and social security number were.
When presenting this argument, Bowlin acknowledges that the investigator generally testified
during the punishment hearing that the social security number and date of birth listed in the 2009
judgment and paperwork were the same as his, but he argues that this testimony was conclusory
22
and insufficient to support the trial court’s determination. For these reasons, Bowlin contends
that his judgment of conviction should be reversed and that the case should be remanded for
further proceedings.
“To establish that a defendant has been convicted of a prior offense, the State
must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant
is linked to that conviction.” Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).
“No specific document or mode of proof is required to prove these two elements.” Id. “While
evidence of a certified copy of a final judgment and sentence may be a preferred and convenient
means, the State may prove both of these elements in a number of different ways,” including
through the defendant’s stipulation or admission, through testimony by a person who observed
the defendant being convicted and can identify the defendant as the person previously convicted,
or through documentary proof that contains sufficient information to establish the existence of the
prior conviction and the defendant’s identity as the person previously convicted. Id. at 921-22.
Links to the defendant can be shown through different means, including allowing
the jury to compare photographs of the person previously convicted with the appearance of the
defendant at trial or providing identifying information for the person previously convicted “such
as name, sex, height, eye color, hair color, and date of birth.” See Williams v. State, 946 S.W.2d
886, 895 (Tex. App.—Waco 1997, no pet.). No “best evidence” rule exists requiring that a prior
conviction be proven by any particular document or type of evidence. Flowers, 220 S.W.3d
at 921. “In proving prior convictions, identity often includes the use of a combination of
identifiers, and ‘[e]ach case is to be judged on its own individual merits.’” Henry v. State,
466 S.W.3d 294, 301 (Tex. App.—Texarkana 2015) (quoting Littles v. State, 726 S.W.2d 26,
32 (Tex. Crim. App. 1984) (op. on reh’g)), aff’d, 509 S.W.3d 915 (Tex. Crim. App. 2016).
23
“The trier of fact must consider the evidence as a whole, as each piece of evidence may provide
little meaning if considered in isolation.” Henry v. State, 509 S.W.3d 915, 919 (Tex. Crim.
App. 2016).
Appellate courts review the sufficiency of the evidence linking a defendant to a
prior conviction used for enhancement purposes by considering all the evidence in the light
most favorable to the trial court’s determination and deciding whether a rational trier of fact
could have made the determination beyond a reasonable doubt. See id. If the existence of the
conviction and its link to the defendant can be found beyond a reasonable doubt, “then the
various pieces used to complete the puzzle are necessarily legally sufficient to prove a prior
conviction.” Flowers, 220 S.W.3d at 923. Provided that the proof of identity is sufficient, no
error will be found on appeal. Littles, 726 S.W.2d at 32.
Before the exhibit pertaining to the 2009 enhancement was admitted, the trial
court admitted as an exhibit Bowlin’s booking sheet for the current offense. The exhibit was
certified as a true and correct copy by the Hays County jail records clerk. The booking sheet,
like the indictment, lists the name “William Barrie Bowlin.” The indictment and the medical
records admitted during the guilt-innocence phase list Bowlin’s date of birth. Cf. Bush v. State,
642 S.W.2d 787, 789 (Tex. Crim. App. 1982) (considering evidence from guilt-innocence
when determining if enhancement allegation was proven). The booking sheet also lists Bowlin’s
date of birth, social security number, and state identification number (SID) given to individuals
in jails.
The exhibit pertaining to the 2009 enhancement was admitted during the
testimony of the investigator. The exhibit contains a 2009 judgment adjudicating guilt for the
offense of aggravated assault and the accompanying paperwork. The trial court clerk certified
24
that the documents were “true and correct” copies of the documents in her office. See Flowers,
220 S.W.3d at 921 (noting that certified copies of final judgment and sentence is “a preferred
and convenient” way of proving prior conviction). The judgment and paperwork identify the
defendant in that case as “William Barrie Bowlin” and list the same birthdate, social security
number, and SID number as those found in the booking sheet. Additionally, the investigator
testified that the social security number, date of birth, and name appearing on the 2009 judgment
and paperwork are the same as the social security number, date of birth, and name appearing in
Bowlin’s booking report.
Finally, the 2009 enhancement was further linked to Bowlin through the
testimony and other evidence pertaining to the 1983 enhancement concerning a felony conviction
for driving while intoxicated. The judgment of conviction for the 1983 offense and
accompanying paperwork list the defendant as “William Barrie Bowlin” and the defendant’s
birthday as being the same as the birthday set out in the booking sheet in this case. Further, after
detailing his training and qualifications in making “ink-to-ink” fingerprint comparisons, the
investigator explained that the fingerprint he examined in the 1983 paperwork matched one of
Bowlin’s fingerprints in his booking sheet. The 1983 offense is listed as a prior offense in the
paperwork for the 2009 enhancement, and the cause number, year of conviction, and county of
conviction for the 1983 offense listed in the 2009 paperwork match the information provided in
the paperwork for the 1983 enhancement allegation.
Given our standard of review and considering the reasonable inferences that the
trial court could have made from this evidence, see Eustis, 191 S.W.3d at 884, we conclude
that the trial court could have reasonably determined that the individual who is the subject of
the 2009 judgment and paperwork was Bowlin and, accordingly, that the evidence is legally
25
sufficient to link Bowlin to the felony conviction for aggravated assault serving as a basis for
the second enhancement allegation, see Barnes v. State, 585 S.W.3d 643, 650 (Tex. App.—
Texarkana 2019) (determining that prior convictions were sufficiently linked to defendant by
certified judgments bearing defendant’s name and additional linking information, including
defendant’s birthdate, social security number, or SID, and distinguishing those prior convictions
from paperwork for others only containing defendant’s name and signature), rev’d on other
grounds, No. PD-1072-19, 2021 WL 476483 (Tex. Crim. App. Feb. 10, 2021) (op., not
designated for publication); Coop v. State, No. 04-97-00767-CR, 2000 WL 36096, at *1 (Tex.
App.—San Antonio Dec. 30, 1999, no pet.) (op., not designated for publication) (referring to
defendant’s SID number as evidence linking defendant to prior convictions).
For these reasons, we overrule Bowlin’s third issue on appeal.
CONCLUSION
Having overruled all of Bowlin’s issues on appeal, we affirm the trial court’s
judgment of conviction.
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Triana
Affirmed
Filed: August 12, 2022
Do Not Publish
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