Opinion issued February 3, 2015
In The
Court of Appeals
For The
First District of Texas
NO. 01-13-00975-CR
ANDREW J. SERRANO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1842255
OPINION
Appellant Andrew J. Serrano was charged and found guilty of driving while
intoxicated. The trial court sentenced him to 180 days’ confinement, probated for
one year. Serrano contends that the trial court’s judgment should be reversed
because the trial court (1) erred by admitting the results of a breath alcohol test
obtained in violation of the Texas Administrative Code and (2) abused its
discretion in refusing to submit an article 38.23 jury instruction. Finding no error,
we affirm.
Background
At trial, Deputy O. Trevino of the Harris County Traffic Division testified
that he pulled Serrano over because his radar gun indicated that Serrano was
driving 81 miles per hour in a 65 mile-per-hour zone. Trevino approached the
vehicle and “immediately . . . could smell obviously the odor of alcoholic beverage
emitting from within the car.” Trevino further testified that he suspected that
Serrano was intoxicated because he had bloodshot eyes and slurred speech.
Serrano refused to perform standardized field sobriety tests. Trevino called for a
backup unit to transport Serrano to the Houston Police Department’s central
intoxication facility (“central intox”) for further tests.
Deputy J. Fuselier testified that when he arrived at the scene Serrano showed
indications of being intoxicated, including “a strong odor of alcoholic beverage,”
“red, glassy eyes,” and “slurred speech.” Fuselier transported Serrano to central
intox, where they met with the breath test operator, whose name Fuselier could not
remember. Fuselier agreed with Serrano’s counsel that the operator first “came in
contact” with Serrano when they entered the intox room where the breath test is
conducted.
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Fuselier testified that once in the intox room, the operator turned on a video
recording device, read Serrano a statutory warning, and requested a breath sample
from Serrano. The video recorded for approximately six minutes before the
operator turned it off to conduct the breath test. According to Fuselier, there was
no time lapse from when the video ended until the time that Serrano provided his
breath sample.
Bianca Wooten, who worked as an evidence technician for the Houston
Police Department at the time Serrano was arrested, testified that she administered
Serrano’s breath test. Wooten explained that the breath test operator has to “make
sure that the suspect is watched over for 15 minutes” before taking a breath test.
The suspects spend these 15 minutes in the intox facility’s holding cell, which has
a metal door that is “see-through.” The breath test operator is not permitted to be
inside the holding cell, so she stands outside of it for 15 minutes. Wooten testified
that there is frequently more than one evidence technician working at a time, so
frequently one is in the hallway outside the holding cell observing the suspects,
while another is in the intox room administering a breath test. Wooten noted that
operators assign each suspect a timer to ensure that he spends 15 minutes in the
holding cell before a breath test is administered. After a suspect has been in the
holding cell for 15 minutes, he is taken into the intox room where the operator
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turns on a video recorder, reads the suspect his statutory warnings, and administers
the breath test on the Intoxilyzer.
When Serrano’s counsel asked Wooten if she recalled observing Serrano for
15 minutes before administering the breath test, Wooten admitted that she did not
specifically remember observing Serrano for 15 minutes. But she testified that she
must have administered the test because her identification information is on
Serrano’s test results and “there’s no way that [someone else] can use your
information” to do a breath test. Additionally, Wooten testified that she
remembered recording the video of Serrano before the breath test and that she
appears on the video.
Because Wooten testified on cross-examination that she did not recall
observing Serrano for 15 minutes before administering the test, Serrano moved to
suppress the breath test results on the ground that the requirement that the suspect
be observed for 15 minutes before the test was not observed. The trial court heard
arguments on Serrano’s motion outside the presence of the jury and stated sua
sponte that it would submit an article 38.23(a) jury instruction regarding whether
the 15 minute requirement was met. Upon recross-examination by Serrano’s
counsel, Wooten again testified that, “I can’t say I actually remember observing
[Serrano] specifically, but I had to in order to administer the test.”
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Camille Stafford, a technical supervisor with the Texas Department of
Public Safety Breath Alcohol Laboratory, also testified. During her testimony, the
State offered the breath test results into evidence. Serrano’s counsel objected “on
the basis of the test not being conducted properly,” and the trial court nevertheless
admitted the test results, which reflect that “Wooten, B, D” was the operator and
include the operator’s certificate number. Stafford then testified that the results
indicated that Serrano’s blood alcohol concentration was .11, and that she found
the tests to be “reliable.”
Although the trial court previously stated that it would submit an article
38.23(a) instruction, the charge did not include the instruction. When Serrano
objected to its omission at the charge conference, the trial court overruled his
objection without explanation. The jury found Serrano guilty, and the trial court
sentenced him to 180 days’ confinement, probated for one year.
Motion to Suppress
In his first issue, Serrano argues that the trial court erred in denying his
motion to suppress the breath test results because “there is no affirmative evidence
that the 15 minute rule was followed while there is affirmative evidence that it was
not followed.”
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A. Standard of Review
In reviewing a trial court’s ruling on a motion to suppress evidence, we
apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327
(Tex. Crim. App. 2000); Wiley v. State, 388 S.W.3d 807, 815 (Tex. App.—
Houston [1st Dist.] 2012, pet. ref’d). We give almost total deference to the trial
court’s determination of historical facts that depend on credibility, and we conduct
a de novo review of the trial court’s application of the law to those facts.
Carmouche, 10 S.W.3d at 327.
When a trial court does not make explicit findings of historical fact, we
review the evidence in the light most favorable to the trial court’s ruling. Id. at
328. That is, “we will assume that the trial court made implicit findings of fact
supported in the record that buttress its conclusion.” Id.
B. Applicable Law
“A breath specimen taken at the request or order of a peace officer must be
taken and analyzed under the rules of the department [of public safety] . . . .” TEX.
TRANSP. CODE ANN. § 724.016 (West 2011). The rules for breath-alcohol-testing
procedures are set forth in the Texas Administrative Code. See 37 TEX. ADMIN.
CODE § 19.4(c) (2014). A presumption of admissibility applies when the
procedures prescribed by the Department of Public Safety are followed. See
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Reynolds v. State, 204 S.W.3d 386, 309 (Tex. Crim. App. 2006); Stevenson v.
State, 895 S.W.2d 694, 696 (Tex. Crim. App. 1995).
Here, Serrano contends that the State did not comply with one such rule. It
states:
[a]n operator shall remain in the presence of the subject at least 15
minutes before the test and should exercise reasonable care to ensure
that the subject does not place any substances in the mouth. Direct
observation is not necessary to ensure the validity or accuracy of the
test result . . . .
37 TEX. ADMIN. CODE § 19.4(c)(1). The term “presence” is not defined, but the
San Antonio Court of Appeals has considered the term’s meaning in a case
involving this same provision. It wrote:
“Presence” has been defined as an [a]ct, fact, or state of being in a
certain place and not elsewhere, or within sight or call, at hand, or in
some place that is being thought of. The existence of a person in a
particular place at a given time particularly with reference to some act
done there and then. Besides actual presence, the law recognizes
constructive presence, which [the] latter may be predicated of a
person who, though not on the very spot, was near enough to be
accounted present by the law, or who was actively cooperating with
another who was actually present.
State v. Reed, 888 S.W.2d 117, 122 (Tex. App.— San Antonio 1994, no pet.)
(emphasis in original) (citations omitted).
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C. Preservation of Error
The State contends that Serrano failed to preserve his complaint that the
operator violated the Texas Administrative Code because he failed to object each
time Stafford testified about the breath test results and because Serrano cross-
examined Stafford about the results. We disagree.
Here, Serrano moved to suppress the breath test results because, according to
him, nobody was able to confirm that Serrano was observed for the required 15
minutes. The trial court heard argument on the motion outside the presence of the
jury and implicitly denied the motion, but stated that it would submit an article
38.23 instruction regarding whether the 15-minute waiting period was observed.
Thus, his motion to suppress preserved this issue for appeal. See Black v. State,
358 S.W.3d 823, 829 (Tex. App.—Fort Worth 2012, pet. ref’d) (When “an
objection is presented as a motion to suppress heard outside the presence of the
jury, that single objection preserves the issue for appellate review.”).
The State also contends that Serrano waived this complaint because his
counsel discussed the breath alcohol test results during cross-examination of
Stafford. But Serrano’s counsel referred to the evidence during Stafford’s cross-
examination to rebut, explain, or undermine her previous testimony about the test
results. We conclude that he did not waive any complaint by doing so. See Rogers
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v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993) (defendant does not waive
issue for appeal by subsequent cross-examination of witness on allegedly
improperly admitted evidence); Rodriguez v. State, 274 S.W.3d 760, 764 (Tex.
App.—San Antonio 2008, no pet.) (“A defendant does not waive his previous
objection to testimony by cross-examining the witness about his direct
testimony.”).
D. Analysis
Serrano contends that the trial court erred in denying his motion suppress
because there is affirmative evidence demonstrating that the operator did not
observe the 15-minute waiting period required by section 19.4(c)(1) of the Texas
Administrative Code. In support of this contention, he points out that Deputy
Fuselier (1) could not recall the name of the operator who administered the test for
Serrano, and (2) testified that Serrano spent less than 15 minutes in the intox room
and did not “make contact” with a breath test operator before entering the intox
room.
Wooten testified that a breath test operator observes a suspect for 15 minutes
while the suspect is in the holding cell, and before the suspect enters the intox
room. She explained that multiple breath test operators may be present at one
time, that the suspect in the holding cell is visible to the operators even when the
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operators are in the area outside the holding cell, and that the operators use a timer
for each suspect to ensure that each spends at least 15 minutes in the holding cell
before taking a breath test. Wooten also testified that she knows that she
administered Serrano’s test both because her name and identification information
are on his results and because she appears on the video taken of Serrano in the
intox room. Finally, although Wooten did not specifically recall observing Serrano
in the holding cell, she testified that she performed his test in accordance with
proper procedures, which includes observing the 15-minute waiting period
required by Texas Administrative Code section 19.4(c)(1). Giving the required
deference to the trial court’s credibility determination, we conclude that the trial
court could have credited Wooten’s testimony and reasonably concluded that
Wooten complied with section 19.4(c)(1). Thus, it did not err in denying Serrano’s
motion to suppress. See Stalknecht v. State, No. 09-06-463-CR, 2007 WL
4991416, at *2 (Tex. App.—Beaumont Mar. 12, 2008, no pet.) (mem. op., not
designated for publication) (evidence was sufficient to sustain DWI conviction
where officer who administered breath test testified he “had no independent
recollection” of appellant but “was sure he observed [appellant] for fifteen minutes
prior to asking him to blow into the intoxilyzer because that was standard
procedure”); Currey v. State, No. 01-01-00091-CR, 2002 WL 123355, at *3 (Tex.
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App.—Houston [1st Dist.] Jan. 31, 2002, no pet.) (not designated for publication)
(trial court did not abuse discretion in denying motion to suppress and admitting
breath test results where appellant testified that he did not see sergeant who
administered test until entering intox room and sergeant testified that he could not
recall administering the test, but “explained that observation begins in the booking
area”).
We overrule Serrano’s first issue.
Section 38.23 Instruction
In his second issue, Serrano contends that the trial court erred in failing to
submit an article 38.23 instruction because the evidence raised a fact issue about
whether the State observed the 15-minute waiting period in Texas Administrative
Code section 19.4(c)(1).
A. Standard of Review
We review a claim of jury charge error using the standard set out in
Alamanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). First, we
determine whether error exists in the jury charge. Second, if error exists, we
determine whether sufficient harm was caused by that error to require reversal.
Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). We review a trial
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court’s decision to not submit an instruction in the jury charge for an abuse of
discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000).
B. Applicable Law
A defendant’s right to the submission of jury instructions under article 38.23
of the Texas Code of Criminal Procedure is “limited to disputed issues of fact that
are material to his claim of a constitutional or statutory violation that would render
evidence inadmissible.” Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App.
2007). Before a defendant is entitled to the submission of a jury instruction under
article 38.23, (1) the evidence heard by the jury must raise an issue of fact, (2) the
evidence on that fact must be affirmatively contested, and (3) that contested factual
issue must be material to the lawfulness of the challenged conduct in obtaining the
evidence. Id. at 510.
Under the first requirement, there must be a genuine dispute about a material
issue of fact before an article 38.23 instruction is warranted; if there is no disputed
fact issue, the legality of the conduct is determined by the court alone, as a matter
of law. Id. at 510. In order for there to be a conflict in the evidence that raises a
disputed fact issue, there must be some affirmative evidence in the record that puts
the existence of that fact in question. Id. at 513. Furthermore, if other facts, not in
dispute, are sufficient to support the lawfulness of the challenged conduct, then the
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disputed fact issue is not material to the ultimate admissibility of the evidence and
is not to be submitted to the jury. Id. The disputed fact issue must be essential to
deciding the lawfulness of the challenged conduct. Id. at 511.
C. Analysis
Serrano argues that article 38.23’s first requirement is met because the
evidence raised a fact issue about whether Wooten observed the 15-minute waiting
period required by Texas Administrative Code section 19.4(c)(1). In support,
Serrano argues that Wooten testified that she did not remember observing Serrano
for 15 minutes, Deputy Fuselier testified that Serrano did not “make contact with”
Wooten before entering the Intox room, and 15 minutes did not lapse between the
beginning of the video recording in the intox room and the breath test.
Serrano points to no evidence that contradicts Wooten’s testimony that she
must have observed Serrano for 15 minutes while he was in the holding cell
because she followed standard procedures. Further, the Administrative Code does
not require direct observation, much less “contact.” See 37 TEX. ADMIN. CODE
§ 19.4(c)(1) (“Direct observation is not necessary to ensure the validity or accuracy
of the test result . . . .”). Thus, Fuselier’s testimony that Serrano did not make
contact with Wooten until entering the Intox room is not affirmative evidence that
Wooten did not comply with Texas Administrative Code section 19.4(c)(1).
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We conclude that Serrano failed to raise a fact issue about whether Wooten
complied with Texas Administrative Code section 19.4(c)(1) and that Serrano
therefore was not entitled to the submission of an article 38.23 instruction.
Accordingly, we hold that the trial court did not abuse its discretion in refusing to
submit an article 38.23 jury instruction. See Correa v. State, No. 05-12-01197-CR,
2014 WL 1797690, at *2 (Tex. App.—Dallas May 2, 2014, no pet.) (mem. op., not
designated for publication) (overruling appellant’s point of error because he
proffered no evidence that operator did not remain in appellant’s presence for 15
minutes); Mbugua v. State, 312 S.W.3d 657, 669 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d) (no error in jury charge because there was no conflict in evidence
raising a disputed fact that would have mandated a 38.23 jury instruction);
Shpikula v. State, 68 S.W.3d 212, 217 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d) (jury’s right to disbelieve officers’ testimony did not create a factual dispute
requiring a jury instruction under article 38.23).
We overrule Serrano’s second issue.1
1
In light of our holdings regarding Serrano’s first and second issues, we need not
reach his third issue, in which he argued that he was harmed by the trial court’s
alleged errors discussed in his first and second issues.
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Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
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