TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00153-CR
v.
The State of Texas, Appellee
NO. 98-0197-2, HONORABLE ROBERT F. B. MORSE, JUDGE PRESIDING
BACKGROUND
On November 22, 1997, Deputies James Thomsen and Steve Hall of the Williamson County Sheriff's Department stopped Cunningham after witnessing him fail to stop at an intersection. During the course of the stop, they suspected Cunningham was driving while intoxicated. After administering a series of field sobriety tests, the deputies arrested Cunningham for DWI and transported him to the Williamson County Jail. There Cunningham consented to have his alcohol concentration measured by the Intoxilyzer Instrument Model No. 5000. The results of the test as indicated on the intoxilyzer slip were "0.117" and "0.118."
The State charged Cunningham with the offense of DWI, alleging two theories of guilt pursuant to the definition of "intoxicated" in the Texas Penal Code. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, sec. 1.01, § 49.01, 1993 Tex. Gen. Laws 3586, 3696 (Tex. Penal Code Ann. § 49.01(2), since amended by Act of May 28, 1999, 76th Leg., R.S., ch. 234, sec. 1, § 49.01(2), 1999 Tex. Gen. Laws 1082, 1082 (reducing the statutory limit on alcohol concentration from 0.10 to 0.08)). (1) The State alleged that Cunningham unlawfully drove a motor vehicle in a public place while intoxicated because: (1) he did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body; and (2) he did then and there have an alcohol concentration of 0.10 or more. See Tex. Penal Code Ann. § 49.01(2).
Cunningham's first two points of error arise from events that occurred during the State's presentation of its case-in-chief. The State's first witness, Deputy James Thomsen, testified to the state of Cunningham's mental and physical faculties and his performance of the field sobriety tests on November 22, 1997. To impeach Deputy Thomsen's credibility, Cunningham introduced in evidence, without requesting a limiting instruction, the probable cause affidavit Deputy Thomsen prepared on November 22, 1997. The probable cause affidavit contained, among other things, the following notation: "{x} breath test, results 1. 0.117 2. 0.118."
The State called as its last witness Deputy Curtis Wallace, a certified intoxilyzer operator with the Williamson County Sheriff's Department who administered Cunningham's intoxilyzer test on November 22, 1997. Deputy Wallace testified that he had successfully completed a forty-hour course to become an intoxilyzer operator and that he had also received instruction on how to operate the Intoxilyzer Instrument Model No. 5000, the specific model used to administer Cunningham's test. His testimony also established that the State had licensed him to be an intoxilyzer operator and that the Department of Public Safety (DPS) had certified him as a qualified operator of the Intoxilyzer Instrument Model No. 5000. Deputy Wallace described the procedure he followed in running a reference sample and in testing Cunningham's level of intoxication. Deputy Wallace also identified the intoxilyzer slip that was produced by the intoxilyzer instrument following the administration of the test.
After Deputy Wallace was excused, the State offered the intoxilyzer slip in evidence. Cunningham stated that he had no objection to the intoxilyzer slip's admission as long as the State provided the expert testimony necessary to explain the results. Cunningham referred to the State's burden to lay a proper predicate before intoxilyzer test results may be admitted in evidence. To establish this predicate, the State must: (1) establish that the machine functioned properly on the day of the test as evidenced by the running of a reference sample; (2) show the existence of periodic supervision over the machine and its operation by one who understands the scientific theory of the machine; and (3) prove the result of the test through a witness qualified to translate and interpret the result. See Harrell v. State, 725 S.W.2d 208, 209-10 (Tex. Crim. App. 1986) (emphasis added).
The expert scheduled by the State to interpret the intoxilyzer test results was Tony Ortiz, a chemist/toxicologist and technical supervisor with the DPS. A technical supervisor is designated by rule to provide expert testimony concerning all aspects of breath alcohol testing, including but not limited to the certification of techniques, methods, and programs under that person's supervision. See 37 Tex. Admin. Code §§ 19.3(h), .7(y)(7) (1999). The technical supervisor's primary function is to provide technical, administrative, and supervisory expertise in safeguarding the scientific integrity of the breath alcohol testing program's acceptability for evidential purposes. See id. § 19.7(y).
The State contended that while it would normally need to present expert testimony to establish the predicate necessary to admit the test results contained in the intoxilyzer slip, such testimony was not necessary in this case because the results were already in evidence through Cunningham's admission of the probable cause affidavit. The State further argued that because Cunningham did not request a limiting instruction when he offered the probable cause affidavit, the affidavit and the intoxilyzer results contained therein had become part of the general evidence of the case. Because the results were already in evidence, the State contended that it only needed to lay a proper business records predicate, which had already been established by Deputy Wallace's testimony. Agreeing with the State's position, the trial court admitted the intoxilyzer slip in evidence after overruling Cunningham's objection and motion to strike. The State then rested its case-in-chief without calling its expert witness, Tony Ortiz, to the stand.
Cunningham moved for an instructed verdict of not guilty as to the theory that he had an alcohol concentration of 0.10 grams or more of alcohol per 210 liters of breath. He contended that there was no evidence before the jury explaining that the numbers contained in the probable cause affidavit or in the intoxilyzer slip represented the measure of alcohol concentration in grams of alcohol per 210 liters of breath. (2) Cunningham concluded that this lack of evidence would not support a jury finding that he was driving with an alcohol concentration in excess of 0.10 grams of alcohol per 210 liters of breath. The trial court denied the motion for instructed verdict.
At the close of both parties' cases, the trial court submitted the following definition of "intoxicated" to the jury: "'Intoxicated' means not having the normal use of physical or mental faculties by reason of the introduction of alcohol into the body, or having an alcohol concentration of 0.10 grams or more per 210 liters of breath." Cunningham objected to the portion of the jury instruction that defined "intoxicated" as "having an alcohol concentration of 0.10 grams or more per 210 liters of breath" on the same grounds presented in his motion for instructed verdict. Again, the court overruled his objection. Without waiving his objection, Cunningham then requested a special verdict requiring the jury to make separate findings on his guilt or innocence under each theory. Cunningham proposed that one verdict be based on the theory that he was intoxicated because his physical or mental faculties were impaired by alcohol consumption and that the second verdict be based on the theory that he was intoxicated because his alcohol concentration exceeded 0.10 grams of alcohol per 210 liters of breath. The trial court overruled Cunningham's request for a special verdict and submitted a general charge allowing the jury to convict on either theory. The jury returned a verdict of guilty on the general charge. (3)
DISCUSSION
In three points of error, Cunningham asks this Court to overturn the jury's verdict and grant his request for a new trial, alleging that the trial court: (1) abused its discretion by admitting the intoxilyzer slip in evidence; (2) abused its discretion by denying Cunningham's motion to strike the intoxilyzer slip; and (3) reversibly erred by submitting an instruction in the court's charge authorizing the jury to convict on a theory that had no evidentiary support, namely that Cunningham had an alcohol concentration of 0.10 grams or more of alcohol per 210 liters of breath.
Admissibility of the Evidence
We begin by addressing Cunningham's first two points of error and determining whether the intoxilyzer slip was admissible evidence. The standard of review for determining whether a trial court errs in admitting evidence is abuse of discretion. See Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999). A trial court abuses its discretion when it applies an erroneous legal standard. See DuBose v. State, 915 S.W.2d 493, 497-98 (Tex. Crim. App. 1996). To admit intoxilyzer test results in evidence, the party offering the evidence must first lay the proper predicate by: (1) establishing that the machine functioned properly on the day of the test as evidenced by the running of a reference sample; (2) showing the existence of periodic supervision over the machine and its operation by one who understands the scientific theory of the machine; and (3) proving the result of the test through a witness qualified to translate and interpret the result. See Harrell, 725 S.W.2d at 209-10.
Our review of the record reveals that the State did not satisfy the last prong of the predicate. Deputy Wallace, the certified intoxilyzer operator, did not translate or interpret the results, nor was he shown by his testimony to be qualified to do so. Technical Supervisor Tony Ortiz, the expert designated by rule, (4) would have been qualified to analyze the results in accordance with the third prong of the predicate had the State chosen to call him as a witness. Because the State did not elicit testimony from this witness or any other witness qualified to interpret the results, the intoxilyzer slip should not have been admitted.
The State argues that because Cunningham failed to request a limiting instruction as to the test results contained in the probable cause affidavit, he waived any objection to the predicate necessary for admission of the intoxilyzer slip in evidence. We disagree.
The State relies on Green v. State to support its argument. See 942 S.W.2d 149 (Tex. App.--Fort Worth 1997, no pet.). In a trial for sexual assault of a child, Green testified to the commission of an extraneous offense to support his defense that the sexual assault allegations had been made in retaliation for a family disagreement. See id. at 150. Green did not object or request a limiting instruction at the time of his testimony but requested that a limiting instruction be included in the jury charge. See id. The court of appeals upheld the trial court's denial of Green's request for a limiting instruction and found that the evidence was admissible for all purposes because Green failed to request a limiting instruction at the time evidence of the extraneous offense was first admitted. See id. at 151.
The instant case is distinguishable from Green. The evidence at issue in Green was of an extraneous offense. See id. at 150. The State is not required to satisfy a predicate prior to admission of an extraneous offense in evidence. In contrast, to admit the results of an intoxilyzer test in evidence, the State must satisfy the three-part predicate set out in Harrell, 725 S.W.2d at 209-10. Green does not address whether a party who fails to request a limiting instruction waives all its objections in the case of scientific evidence that requires a predicate. Thus, Green does not support the State's argument that Cunningham's failure to request a limiting instruction as to the probable cause affidavit waived any objections to the State's failure to lay a predicate for the admission of the intoxilyzer slip. Furthermore, the defendant in Green made no objection to the admission of evidence of the extraneous offense, nor did he contend on appeal that the evidence was erroneously admitted. See Green, 942 S.W.2d at 150. In the instant case, Cunningham did make a timely and proper objection to the admission of the intoxilyzer slip and now complains on appeal that his objection was erroneously overruled.
We believe that the facts of Harrell are more on point with the facts of the instant case. In Harrell, the certified intoxilyzer operator testified that he administered an intoxilyzer test to Harrell and that the machine produced a result of "0.13". See Harrell, 725 S.W.2d at 209. Harrell did not object to this testimony. He objected later in the trial during the testimony of the technical supervisor on the grounds that the State had failed to lay a proper predicate. The State argued on appeal that because Harrell did not object during the intoxilyzer operator's testimony about the intoxilyzer test result, he did not preserve his complaint for appeal. See id.
The court of criminal appeals disagreed. It found that Harrell did not need to object during the intoxilyzer operator's testimony. See id. at 210. The intoxilyzer operator had only testified to the first prong of the predicate and was not qualified to testify to the last two. The court stated that an objection during this testimony would have been meaningless since the intoxilyzer operator was not qualified to provide the information necessary to address the objection and satisfy the last two prongs of the predicate. The court found that the objection was timely and properly made during the testimony of the technical supervisor, who was the only witness qualified to explain and interpret the intoxilyzer test result, thus satisfying the remainder of the predicate.
The court of criminal appeals in Harrell required the State to establish each prong of the predicate even though the intoxilyzer result "0.13" was already in evidence through the testimony of the certified intoxilyzer. See id. at 209-10. At the time of Harrell's objection, the State had only satisfied the first prong of the predicate through the intoxilyzer operator's testimony. The fact that the intoxilyzer results were already in evidence did not excuse the State from establishing the remaining two prongs through a qualified expert witness.
Similarly, in the instant case, the intoxilyzer results were already in evidence when Cunningham objected to the State's admission of the intoxilyzer slip on the ground that the third prong of the predicate had not been established. It is important to note that the probable cause affidavit contained only the following notation: "{x} breath test, results 1. 0.117 2. 0.118." It included no information explaining the significance of the numbers contained therein or indicating that they were a measure of alcohol concentration in grams of alcohol per 210 liters of breath. Nor did the State put on a witness qualified to provide this information. Prior to Cunningham's objection, the State had failed to establish the third prong of the predicate by supplying an expert qualified to testify that the numbers "0.117" and "0.118" represented Cunningham's alcohol concentration measured in grams of alcohol per 210 liters of breath. Therefore, the intoxilyzer slip was inadmissible. As in Harrell, the fact that the test results were already in evidence does not excuse the State from satisfying each prong of the predicate. The trial court abused its discretion in admitting the intoxilyzer slip and in denying Cunningham's motion to strike. Accordingly, Cunningham's first two points of error are sustained.
Error in the Charge
Even if we assume that the test results were properly before the jury, the court's charge was erroneous because it authorized the jury to convict on a theory that was unsupported by the evidence, i.e., that the alcohol concentrations referenced in the test results were linked to a measure of grams of alcohol in 210 liters of breath. It is error for the trial court in its charge to authorize conviction on a theory that has no evidentiary support. See Stanley v. State, 625 S.W.2d 320, 321 (Tex. Crim. App. 1981); Ferguson v. State, 2 S.W.3d 718, 720-21 (Tex. App.--Austin 1999, no pet.); Resendez v. State, 860 S.W.2d 605, 608 (Tex. App.--Corpus Christi 1993, pet. ref'd). As discussed, the State presented no testimonial or documentary evidence explaining to the jury what the numbers "0.117" and "0.118" signified. Without such evidence, the court was unauthorized to submit a charge that would allow the jury to use these numbers to convict Cunningham on the theory that his alcohol concentration exceeded 0.10 grams of alcohol per 210 liters of breath, considering that there was no evidence that these numbers represented such a measure. We sustain Cunningham's third point of error.
Harm Analysis
Having determined that the trial court erred in admitting the intoxilyzer slip and in charging the jury on a theory for which there was no evidence, we must determine whether these errors resulted in sufficient harm to warrant a reversal of the conviction. There are two well-established standards that we apply when reviewing harm that may have been caused by an erroneous admission of evidence and harm that may have been caused by an error in the jury charge.
First, a violation of the evidentiary rules that results in erroneous admission of evidence is a nonconstitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Tate v. State, 988 S.W.2d 887, 890 (Tex. App.--Austin 1999, pet. ref'd). In this case, the trial court admitted the intoxilyzer slip even though the State failed to establish the requisite predicate set out in Harrell. This amounted to a violation of a common law evidentiary rule. See Harrell, 725 S.W.2d at 209-10. Thus, the trial court's erroneous admission of the intoxilyzer slip was nonconstitutional error.
In the case of nonconstitutional error, reversal is required only if the trial court's error affected Cunningham's substantial rights. See Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. See King, 953 S.W.2d at 271. A criminal conviction should not be overturned for nonconstitutional error if the appellate 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. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
Second, article 36.19 of the Code of Criminal Procedure governs appellate review of error in a jury charge. See Tex. Code Crim. Proc. Ann. art. 36.19 (West 1981). If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is "calculated to injure the rights of the defendant." Id. This means that the accused must show some harm from the error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). In other words, an error that has been properly preserved by objection will require reversal as long as the error is not harmless. See id. Because Cunningham properly objected to the jury charge at trial, the trial court's ruling must be reversed upon a finding of "some harm" attributable to the charge error. Almanza, 686 S.W.2d at 171.
We find that the combination of both the erroneous admission of the intoxilyzer slip and the erroneous submission of the jury charge harmed Cunningham. The trial court's errors allowed the State to argue and the jury to speculate that the test results indicated that Cunningham's alcohol concentration exceeded 0.10 grams of alcohol per 210 liters of breath as set out in the court's charge. The State produced no expert testimony to establish that "0.117" and "0.118" were indeed a measure of Cunningham's alcohol concentration in grams per 210 liters of breath. Such testimony would have allowed the jury to make a valid comparison between the test results and the statutory limit of 0.10 in the jury charge, both of which are measured in grams of alcohol per 210 liters of breath. Only then could the jury have convicted Cunningham of DWI on the theory that Cunningham's alcohol concentration exceeded the statutory limit. Absent such testimony, the jury was allowed to convict Cunningham on the basis of two unexplained numbers. In light of these facts, we are confident that the trial court's erroneous admission of the evidence had a substantial and injurious influence in determining the jury's verdict. Furthermore, we hold that the charge error harmed Cunningham because the jury was allowed to convict him on a theory hat was not supported by evidence.
CONCLUSION
In summary, the State failed to satisfy the third prong of the Harrell predicate when it neglected to put on testimony by a qualified expert that the numbers in the intoxilyzer slip represented Cunningham's alcohol concentration measured in grams of alcohol per 210 liters of breath. As a result, the trial court erred in ruling that the intoxilyzer slip was admissible. Because this evidence was not properly before the jury, the trial court further erred in submitting a charge that allowed the jury to convict on the basis that Cunningham's alcohol concentration exceeded 0.10 grams of alcohol per 210 liters of breath, a theory that had no evidentiary support. Applying the appropriate standards of review for harm analysis, we conclude that Cunningham was harmed by these errors. The trial court's judgment is reversed, and the cause is remanded for a new trial.
Mack Kidd, Justice
Before Justices Jones, Kidd, and Patterson
Reversed and Remanded
Filed: April 27, 2000
Do Not Publish
1. All references to section 49.01 of the Texas Penal Code will be to the version that existed prior to the 1999 amendments.
2. The numbers in the probable cause affidavit and in the intoxilyzer slip appeared without any notation to indicate that they were a measure of grams of alcohol per 210 liters of breath.
3. At the hearing on his motion for new trial, Cunningham introduced affidavit evidence that only four out of six jurors found him guilty on the theory that alcohol consumption had impaired his physical and mental faculties, while all six jurors found him guilty on the theory that his alcohol concentration exceeded 0.10 grams of alcohol per 210 liters of breath.
4. See 37 Tex. Admin. Code §§ 19.3(h), .7(y) (1999).
. Code Crim. Proc. Ann. art. 36.19 (West 1981). If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is "calculated to injure the rights of the defendant." Id. This means that the accused must show some harm from the error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). In other words, an error that has been properly preserved by objection will require reversal as long as the error is not harmless. See id. Because Cunningham properly objected to the jury charge at trial, the trial court's ruling must be reversed upon a finding of "some harm" attributable to the charge error. Almanza, 686 S.W.2d at 171.
We find that the combination of both the erroneous admission of the intoxilyzer slip and the er