IN THE
TENTH COURT OF APPEALS
No. 10-12-00169-CR
TONY EUGENE BEARD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court
Limestone County, Texas
Trial Court No. 35374
OPINION
Tony Eugene Beard was convicted of driving while intoxicated and sentenced to
180 days in jail. See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2013). His sentence was
suspended, and he was placed on community supervision for one year. On appeal,
Beard argues that “the trial court erred in failing to exclude the testimony of the State’s
technical supervisor, [Scott Brown,] denying Mr. Beard’s constitutional right of
confrontation.” See U.S. CONST. art. VI. We affirm the trial court’s judgment.
Scott Brown was not the technical supervisor of the Intoxilyzer 5000 at the time
Beard submitted to a breath test analysis. Thus, he did not test the instrument to make
sure it was working properly and did not formulate the reference sample solution used
by the instrument. Those tests and formulations were conducted by the former
technical supervisor for the area, Ron Oliver, who, at the time of Beard’s trial, had been
reassigned to Houston because the territories of the technical supervisors were
reconfigured.
Beard filed a motion to suppress the breath test, or Intoxilyzer, results but not
due to a violation of the Confrontation Clause. However, in a pretrial hearing, Beard
complained to the trial court that because the technical supervisor who was going to be
testifying, that being Brown, was not the technical supervisor of the Intoxilyzer at the
time Beard submitted a breath specimen, the Confrontation Clause was violated. After
hearing argument and testimony from Brown, the trial court overruled the motion to
suppress “those results.” At trial, Beard re-urged his objection argued at the pretrial
hearing both before Brown testified and when the State offered the Intoxilyzer results
into evidence. The trial court overruled those objections.
Testimony from the technical supervisor as to 1) the proper use of the reference
sample, 2) the existence of periodic supervision over the instrument by one who
understands the scientific theory of the instrument, and 3) proof of the result of the test
by one who is qualified to translate and interpret such result, is a predicate to the
Beard v. State Page 2
introduction of the Intoxilyzer results. See Harrell v. State, 725 S.W.2d 208, 209 (Tex.
Crim. App. 1986). Beard argues on appeal that a technical supervisor’s observations,
records, and other work product regarding the first two prongs of this predicate is
testimonial and that his right to confront the witness was violated when the State
presented the alleged testimonial evidence of Ron Oliver through Scott Brown.
Beard’s issue was recently addressed by the San Antonio Court of Appeals in
two cases, Boutang v. State and Alcaraz v. State. Boutang v. State, 402 S.W.3d 782 (Tex.
App.—San Antonio 2013, pet. ref’d); Alcaraz v. State, 401 S.W.3d 277 (Tex. App.—San
Antonio 2013, no pet.).
In Boutang, the appellant argued that the trial court violated her rights under the
Confrontation Clause by overruling her objection to the testimony of a “surrogate”
analyst who was not employed by the Department of Public Safety during the time the
appellant’s breath specimen was provided and analyzed. Boutang, 402 S.W.3d at 786.
One of the appellant’s specific arguments addressed by the court of appeals was that,
for admissibility of the breath test results, the State must show that the Intoxilyzer
functioned properly on the day of the test and that the former analyst, as the person in
charge of maintaining the Intoxilyzer used, was the only witness who could provide
evidence as to the proper functioning of the machine. Id. at 787. The court of appeals
disagreed, noting that neither the Court of Criminal Appeals nor any appellate court in
this State has required the State to produce the actual person who mixed a reference
Beard v. State Page 3
solution for an Intoxilyzer machine before the breath-test results could be admitted in
court, and noting that the analyst did not testify she prepared or created a report that
was actually created by another analyst, nor was she certifying such a report based on
the machine's results. Id. at 788. Rather, the court of appeals determined, the analyst
merely interpreted the results from the Intoxilyzer’s own print-out. Id. The court
concluded that the analyst’s testimony did not violate the appellant’s rights under the
Confrontation Clause. Id. at 789. The court of appeals also concluded that the
Intoxilyzer maintenance records created by the former analyst were not testimonial in
nature and did not violate the appellant’s rights under the Confrontation Clause. Id. at
790.
A month later, the same court of appeals, but with a different panel of justices,
agreed with the court’s previous analysis in Boutang and concluded that the appellant’s
Confrontation Clause rights were not violated when the breath test results were
admitted into evidence without the former analyst’s testimony. Alcaraz, 401 S.W.3d at
280-281. The court of appeals also concluded that the creation of “reference samples”
for use in establishing the accuracy and validity of the Intoxilyzer was not "testimonial"
for purposes of the Confrontation Clause. Id. at 282.
In this case, Scott Brown testified that he was a technical supervisor for the
Department of Public Safety who had the responsibility of supervising all things
regarding breath tests in 15 counties in east Texas. He supervised and maintained the
Beard v. State Page 4
instruments used for breath alcohol testing and was the custodian of the reports that are
generated by those instruments. He was required to conduct on-site inspections of
every instrument under his supervision at least once per calendar month.
Although he had not prepared the maintenance records of the Intoxilyzer during
the month Beard was administered a breath test, he reviewed those records and
determined the Intoxilyzer was operating properly when the breath test was
administered to Beard. Brown further testified that several safeguards were built into
the breath test program that would ensure the instrument itself would not produce a
valid test unless it was operational. Brown also explained what a reference sample
solution was and its purpose. And, although Brown did not prepare this particular
reference sample, Brown knew that the former operator prepared his solution the same
way that Brown prepared the solution. Brown testified that the test slip which reflected
the results of Beard’s breath test also reflected that the result was within the predicted
range of the reference sample. If the sample was not within the predicted range, the
Intoxilyzer would show that the test was invalid.
Based on the reasoning and conclusions of Boutang and Alcaraz, we agree with
the San Antonio Court of Appeals and hold that Brown’s testimony regarding the
operation of the Intoxilyzer and the use of the reference sample solution were not
testimonial and did not violate Beard’s right to confront witnesses.
Beard’s sole issue is overruled.
Beard v. State Page 5
The trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed November 21, 2013
Publish
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