Texas Stamp


PD-0736-17 11/15/2017

1. “The Court of Appeals decided an important question of state law in a way that conflicts with applicable decisions of the Court of Criminal Appeals when it found the State’s opening argument to constitute error.”

2. “The Court of Appeals decided an important question of state law in a way that conflicts with applicable decisions of the Court of Criminal Appeals when it found the Appellant did not have to make a timely objection in order to preserve a claim of error related to the State’s opening argument.”

3. “The Court of Appeals has so far departed from the accepted and usual course of judicial proceedings in finding that an instruction to disregard would not have cured any potential prejudice in this case as to call for an exercise of the Court of Criminal Appeals’ power of supervision.”

Before Lee’s DWI trial began, the prosecutor disclosed to the defense that both Lee’s blood specimens (one a mandatory draw and a warrant draw) had been destroyed. The case proceeded to trial. In opening statement, the State told jurors that Lee had a blood alcohol level of .169. No objection was made, but Lee argued in his opening that the State would not be able to produce evidence of the blood results. The trooper testified about taking Lee for a blood draw and obtaining a warrant. Over objection, the State also elicited the phlebotomist’s testimony about drawing Lee’s blood. Another police officer testified to mistakenly authorizing the destruction of the blood evidence. When the State began its examination of the chemist, Lee requested a mistrial. The State argued that the lab results were admissible despite the destruction of the sample because the police department’s identifying numbers for Lee’s case had been recorded on the lab report. The chemist was initially allowed to testify in front of the jury about how he knew the blood was Lee’s, but after an out-of-presence hearing, the judge excluded the blood results. At the close of evidence, Lee again asked for a mistrial, arguing that disclosing the blood results in the State’s opening statement incurably tainted the jury. The judge denied the request for a mistrial. The jury instructions permitted the jury to convict Lee based on the loss-of-normal-use (and not alcohol concentration) definition of intoxication, and the State did not mention the blood results again.

On appeal, Lee argued that the trial court should have granted a mistrial. The court of appeals agreed and held that the results never should have been disclosed to the jury because the warrantless mandatory blood draw was inadmissible under any theory and the State had no way of knowing which of the two blood samples was the sole sample the lab had received and tested. 

The State relies on Code of Criminal Procedure Article 36.01 and argues that it is not error for a prosecutor to tell the jury what it expects to prove, even if such proof is not even offered later at trial. Consequently, it cannot be error to reference evidence that the State makes a good faith effort to introduce. The State contends that finding an opening statement erroneous if the evidence referenced is not actually admitted will unfairly impede the State’s ability to make an opening statement. The State also argues that Lee forfeited his mistrial objection by (1) failing to make it as soon as the grounds became apparent, and (2) failing to request an instruction to disregard, which it asserts, would have been effective.

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