Pitcock, Geoffrey Kevin, PD-1125-15

Background

On August 29, 2009, Pitcock was stopped after an officer observed a traffic violation; officers observed signs of intoxication and arrested him after he refused field tests.
At the station Pitcock refused a blood draw; police obtained a warrant and three vials of blood were taken and later tested at the Fort Worth crime lab.
The lab analyst (Jason Allison) testified about the blood test results; the prosecution introduced the lab report into evidence over Pitcock’s hearsay and confrontation objections and despite a chain-of-custody objection.
The jury convicted Pitcock of DWI; the court assessed 60 days’ jail (suspended), 15 months’ probation, and a $1,000 fine. Pitcock appealed.
The Eleventh Court of Appeals affirmed, assuming error in admitting the lab report but holding any error harmless under Texas Rule of Appellate Procedure 44.2(b), noting (1) other officer testimony of intoxication, (2) Pitcock’s own testimony admitting the .15 result, and (3) that chain-of-custody was adequately proved.

Issues

Issue	Plaintiff's Argument (Pitcock)	Defendant's Argument (State)	Held
Admissibility of lab report (hearsay / Confrontation)	Lab report was hearsay and Confrontation Clause evidence; admission was erroneous and harmful because the report could have driven a per-se conviction distinct from impairment evidence.	If error occurred it was nonconstitutional and harmless given other properly admitted evidence and Pitcock’s testimony about the .15 result.	Court of Appeals: Even if admission was error, it was harmless under Tex. R. App. P. 44.2(b); conviction affirmed.
Chain of custody for blood vials	The State failed to establish the end of the chain of custody; missing identification of a signature on the custody form undermines admissibility.	Lab testimony and officer testimony established beginning and internal chain; any gaps go to weight, not admissibility.	Court of Appeals: Chain of custody sufficiently established; trial court did not abuse discretion admitting the vials.
Officer testimony alleged speculation	Officer Shiderly’s testimony interpreting Pitcock’s statement (“take me to jail for what I did”) was speculative about defendant’s mental state.	Testimony was an interpretation of the officer’s perceptions (lay opinion under Rules 602/701) and was helpful to the jury.	Court of Appeals: Admission was within trial court’s discretion; not speculative under Rules 602/701.
Harmless-error standard applicable	Erroneous admission of the lab report had substantial and injurious effect; appellate court should have grave doubt and reverse.	Admission (if error) was nonconstitutional and harmless under Rule 44.2(b) given the record.	Court of Appeals: Applied nonconstitutional harmless-error test and found no reversal warranted.

Key Cases Cited

Bagheri v. State, 119 S.W.3d 755 (Tex. Crim. App. 2003) (discussing per-se vs. impairment theories in DWI and prejudice when per-se evidence may have driven the verdict)
Kotteakos v. United States, 328 U.S. 750 (U.S. 1946) (harmless-error framework: whether error had substantial and injurious influence or left grave doubt)
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (appellate review must assess erroneously admitted evidence in context of entire record)
O'Neal v. McAninch, 513 U.S. 432 (U.S. 1995) (definition of "grave doubt" in harmless-error analysis)
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) (nonconstitutional evidentiary errors ordinarily reviewed under Rule 44.2(b))
Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001) (reviewing court’s duty to assess harm from context of the record)
King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) (substantial-and-injurious-effect standard for reversible error)
Webb v. State, 36 S.W.3d 164 (Tex. App.–Houston [14th Dist.] 2000) (treating uncertain harm as harmful under O'Neal)