Affirmed and Memorandum Opinion filed June 19, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00526-CR
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NATHAN THOMAS BAIRD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 9
Harris County, Texas
Trial Court Cause No. 1395895
M E M O R A N D U M O P I N I O N
Nathan Thomas Baird appeals from a conviction for driving while intoxicated on grounds that the trial court erred in (1) overruling appellant=s objection to the introduction of evidence seized following an arrest without probable cause; (2) admitting breath test results after the State failed in its burden to show the reliability of the scientific evidence; and (3) denying a mistrial based upon the erroneous admission of the breath test results. We affirm.
Background
At approximately 1 a.m. on August 13, 2006, appellant and another motorist were driving their respective vehicles on Highway 6 at 80 miles per hour (and accelerating) in a posted 45-mile-per-hour zone. Deputy J. K. Burton clocked the vehicles and followed them, catching up to the vehicles at a stop light. He followed one car through the light and pulled it over in a gas station. Deputy Burton arrested that driver, who was driving on a suspended license.
While Deputy Burton was arresting the first driver, appellant pulled into the gas station because Ahe figured the officer was trying to stop him too.@ Officer Burton spoke with appellant and immediately smelled alcohol on appellant=s breath. Deputy Burton told appellant to remain in place until he had finished arresting the first driver.
Deputy S. Rigdon arrived at this point, and Deputy Burton asked for his assistance in determining if appellant was, in fact, intoxicated. Deputy Rigdon believed appellant to be intoxicated and placed him under arrest.
Appellant was taken to the Clay Road substation where Deputy Burton completed his investigation. Deputy Burton subjected appellant to the horizontal gaze nystagmus test, and appellant exhibited all six indicators of intoxication. Appellant agreed to take a breath test.
Because the Intoxilyzer at the Clay Road substation was inoperable, appellant was transferred to the Jersey Village Police Department nearby. Additional sobriety tests were administered but were inconclusive. Appellant admitted having consumed three jumbo margaritas at Los Cucos restaurant, averaging approximately 16 ounces each.
Appellant then agreed to take two breath tests using an Intoxilyzer 5000. The first test read 0.154 grams per 210 liters, and the second test read 0.155 grams per 210 liters. Appellant=s alcohol concentration was determined to be above the legal limit of .08 grams per 210 liters. Based upon appellant=s alcohol concentration at 2:58 a.m., appellant=s alcohol level was estimated to be between .11 and .15 at the time he was arrested at 1:40 a.m.
Appellant was charged by information with the misdemeanor offense of driving while intoxicated. On May 25, 2007, appellant was found guilty by a jury and the trial court assessed punishment at 180 days in the Harris County Jail, probated for 18 months.
Standard of Review: Admission of Evidence and Probable Cause
We review a trial court=s denial of a motion to suppress evidence for an abuse of discretion. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999); Goudeau v. State, 209 S.W.3d 713, 715 (Tex. App.CHouston [14th Dist.] 2006, no pet.). When the trial court denies a motion to suppress, we review the factual findings for clear error and the application of those facts to the law de novo. Carmouche, 10 S.W.3d at 327. We recognize that a trial court must be given wide latitude in admitting and excluding evidence. See Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). If the trial court=s evidentiary ruling is within the zone of reasonable disagreement, we must affirm its decision. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
An officer has probable cause to conduct a traffic stop when a traffic violation is committed in his presence. State v. Gray, 158 S.W.3d 465, 469 (Tex. Crim. App. 2005). A police officer may make an arrest, without a warrant, for any offense committed in his presence or within his view. Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). ADuring an investigation of a traffic violation, if an officer develops a reasonable suspicion that another violation has occurred, the scope of the initial investigation expands to include the new offense.@ Goudeau, 209 S.W.3d at 719.
A trial court=s judgment should be upheld if the ruling is reasonably supported by the record on any theory of law applicable to the case, even if the theory was not presented in the trial court. See Gray, 158 S.W.3d at 467; Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003).
Analysis: Admission of Evidence and Probable Cause
Appellant argues that the State lacked an objectively reasonable, articulable reason for pulling appellant over on the night of August 13, 2006. Therefore, appellant contends the trial court erred in overruling his objection to the admission of evidence gathered as a result of an illegal arrest.
Appellant was arrested following Deputy Burton=s observation that he was engaged in drag racing. As the State noted in its opening statement, Deputy Burton believed appellant had committed the criminal offense of Adriving recklessly and drag racing on a public roadway.@ Deputy Burton possessed the necessary probable cause to seize and arrest appellant.[1] See Gray, 158 S.W.3d at 469.
Gray is instructive in this regard. The trial court suppressed evidence based upon lack of probable cause where the officer, following a tip, believed the defendant was carrying drugs. Id. at 467. The officer waited until defendant turned a corner without signaling, and then initiated a traffic stop. Id. Having received permission to search the vehicle, the officer did so; after an initial search failed to uncover drugs, the officer called for a drug dog to come to the scene for a second search. Id. The detention took over an hour, but drugs were eventually found. Id. The appellate court reversed the trial court=s suppression of the drugs as evidence because the police had an objectively reasonable basis to legally seize and arrest defendant following a traffic violation. Id. at 468. The Court of Criminal Appeals agreed and stated: AThe fact that the officer may have had another subjective motive for seizing [defendant] would not have made an objectively reasonable seizure unlawful . . . .@ Id. at 469.
In the case before us, the initial detention was premised upon the drag racing offense; this was a crime under the Texas Transportation Code. Tex. Transp. Code Ann. '545.420(a)(5) (Vernon Supp. 2007); see Gray, 158 S.W.3d at 469 (an officer may arrest a person for a violation of the rules of the road). Drag racing has been defined as Atwo or more vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other.@ See Tex. Transp. Code Ann. '545.420(b)(1)(A) (Vernon Supp. 2007). Officer Burton testified that it was his observation, given the manner in which the two individual drivers were driving their vehicles, that they were engaged in a drag race. He had legal authority to arrest appellant on that basis, rendering appellant=s seizure and arrest legal.
Appellant=s first issue is overruled.
Standard of Review: Scientific Evidence
Appellant next contends that the trial court erred in admitting breath test results because those results were not scientifically reliable. Scientific testimony must be both reliable and relevant in helping the jury reach a conclusion in a case. Kelly v, State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992) (establishing the Kelly test for the admission of scientific evidence used in Texas: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question@); see Reynolds v. State, 204 S.W.3d 386, 389-90 (Tex. Crim. App. 2006) (citing Kelly, 824 S.W.2d at 573, and adopting the Kelly test for analysis of the admittance of all scientific evidence).
Analysis: Scientific Evidence
Appellant contends that the trial court erred in admitting breath test results after the State failed to establish the reliability of this scientific evidence. Appellant=s attack on the admissibility of the breath test is based upon the third Kelly element: A[T]he technique must have been properly applied on the occasion in question.@ Reynolds, 204 S.W.3d at 389-90 (citing Kelly, 824 S.W.2d at 573); see also Hartman v. State, 946 S.W.2d 60, 64 (Tex. Crim. App. 1997) (Aunlike the first two prongs of the Kelly test, the third prong . . . must necessarily be decided on a case-by-case basis@) (Keller J., concurring and dissenting). Appellant contends that the State failed to show the sample was at the required temperature, and therefore was unreliable. Appellant=s complaint fails.
In Reynolds, the Texas Court of Criminal Appeals modified the Kelly test to harmonize the Transportation Code and Rule 702 as they pertain to the admission of alcohol concentration results from the Intoxilyzer 5000. Reynolds, 204 S.W.3d at 390-91. The court stated:
[W]hen evidence of alcohol concentration as shown by the results of analysis of breath specimens taken at the request or order of a peace officer is offered in the trial of a DWI offense, (1) the underlying scientific theory has been determined by the legislature to be valid; (2) the technique applying the theory has been determined by the legislature to be valid when the specimen was taken and analyzed by individuals who are certified by, and were using methods approved by the rules of, DPS; and (3) the trial court must determine whether the technique was properly applied in accordance with the department=s rules, on the occasion in question.
Id.
Reynolds instructs that the trial court need only perform a gatekeeper function centered on the third element, and that compliance with section 724.016 of the Transportation Code satisfies this third element. Id. at 390 n.26; see also Stevenson v. State, 895 S.W.2d 694, 696 (Tex. Crim. App. 1995). The Transportation Code Aauthorizes the Department of Public Safety to adopt rules approving satisfactory techniques or methods.@ Tex. Transp. Code '724.016(b)(1) revisor=s note 2 (Vernon 1999). The Department of Public Safety has set forth the requirements for breath alcohol testing procedures in the Texas Administrative Code. See 37 Tex. Admin. Code ' 19.4 (2006) (Dep=t of Pub. Safety, Approval of Techniques, Methods, and Programs).
There is a presumption of admissibility when these procedures prescribed by the Department of Public Safety are followed. Reynolds, 204 S.W.3d at 390 (scientific evidence is presumed to satisfy the Kelly test); Stevenson, 895 S.W.2d at 696 (Intoxilyzer test presumed admissible when statutory requirements for proper procedure are followed); see also Mireles v. Tex. Dept. Of Pub. Safety, 9 S.W.3d 128, 131-32 (Tex. 1999) (the Texas Legislature has recognized the scientific theory and technique behind the breath tests, and prescribed the procedures to use).
Appellant contends that he has rebutted this presumption, but in so doing cites to an older version of the Texas Administrative Code and to a provision not in effect at the time of his arrest. While a previous code provision required that the sample mixture be maintained at a known temperature, that provision had been discarded at the time of appellant=s arrest.[2] See 30 Tex. Reg. 5729 (2005) ('' 19.1-19.7 were substantially revised, and 19.3 became 19.4). Under the new provision, the known temperature requirement no longer applies. See Tex. Admin. Code ' 19.4(c). Appellant does not contend that the current procedures were violated, and the State proffered evidence of compliance with the procedures mandated in the current code. See generally Gamez v. State, No. 04-02-00087, 2003 WL 145554 (Tex.App.B San Antonio Jan. 22, 2003, no pet.) (mem.op.) (nothing in breath alcohol testing regulations requires the State to take the subject=s body temperature).
The State=s expert witness on the Intoxilyzer 5000, Vicki Amszi, testified that significant deviation in the temperature would produce errant sample readings, and errant sample readings would cause the Intoxilyzer 5000 to abort the test.[3] Appellant=s tests were not aborted. The evidence at trial establishes that the readings produced by the Intoxilyzer 5000 were accurate and were obtained in conformity with procedures prescribed by the governing regulations. Therefore, the breath test results were admissible.
Because the breath test results were admissible, appellant cannot establish that a mistrial was warranted based upon admission of the results.
Appellant=s second and third issues are overruled.
Conclusion
The trial court=s judgment is affirmed.
/s/ William J. Boyce
Justice
Judgment rendered and Memorandum Opinion filed June 19, 2008.
Panel consists of Chief Justice Hedges, Justice Boyce, and Senior Justice Hudson.*
Do not publish C Tex. R. App. P. 47.2(b).
[1] Appellant argues that Deputy Burton=s stated reason for arresting appellant was driving while intoxicated, and argues that probable cause for this offense was not present when he was originally detained. Although Deputy Burton stated that the arrest was premised upon appellant=s driving while intoxicated, he had grounds for the initial detention because of the traffic violation. Therefore, probable cause for a detention and an arrest existed from the first moment Officer Burton spoke to appellant. See Gray, 158 S.W.3d at 467; Laney v. State, 117 S.W.3d at 857.
[2] The current code became effective on March 26, 2006. Appellant was arrested on August 13, 2006.
[3] There is little discussion of why the old statute was changed other than to note that it had become burdensome and antiquated. See 30 Tex. Reg. 5729 (AThe current application process used to establish a breath testing program under department regulatory control is unduly burdensome and antiquated and language is offered to better facilitate this process@).
* Senior Justice J. Harvey Hudson sitting by assignment.