COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00284-CR
JOHN HERNANDEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2014-1924-A
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MEMORANDUM OPINION1
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Appellant John Hernandez appeals his conviction of driving while
intoxicated (DWI), enhanced by two prior convictions of DWI. See Tex. Penal
Code Ann. §§ 49.04, 49.09 (West Supp. 2015). We affirm.
1
See Tex. R. App. P. 47.4.
I. BRIEF FACTS
On July 18, 2014, Appellant was stopped by Officer Ryan Stanford of the
Denton Police Department for driving the wrong way down the roadway.
Appellant was unsteady, had slurred speech and red and watery eyes, smelled of
alcohol, admitted to drinking at a bar, and could not recite the alphabet or count.
He admitted that he may have been on the wrong side of the roadway because
he had been drinking. Officer Stanford administered the horizontal gaze
nystagmus test (HGN) on Appellant and observed all six clues, indicating
intoxication. Officer Stanford next directed Appellant to perform a walk-and-turn
test during which he observed seven of eight clues, also indicating intoxication.
Finally, Officer Stanford had Appellant perform the one-leg-stand test and
observed three of four clues, indicating intoxication.
Officer Stanford provided Appellant with the DIC-24 warnings2 and asked
him to consent to the taking of a breath sample. Appellant agreed to give a
breath sample, and the results were 0.123 and 0.124.3 Because Appellant had
2
The DIC-24 is the Texas Department of Public Safety’s standard form
containing the written warnings required by the transportation code to be read to
an individual arrested for DWI before a peace officer requests a voluntary blood
or breath sample from a person. See Tex. Transp. Code Ann. § 724.015 (West
Supp. 2015); State v. Neesley, 239 S.W.3d 780, 782 n.1 (Tex. Crim. App. 2007).
3
The legal limit is 0.08. See Tex. Penal Code Ann. § 49.01(2)(B) (West
2011).
2
two intoxication offense convictions prior to July 18, 2014, he was charged with
felony DWI.
At trial, Officer Stanford testified regarding Appellant’s behavior, the arrest,
and the operation of the breath test. The State also offered the testimony of
Terry Robinson, the technical supervisor of the breath-test machine—the
Intoxilyzer—at the time of trial, but not the technical supervisor in charge of
maintenance and testing of the Intoxilyzer at issue at the time that Appellant took
his breath test.4 Robinson testified to his experience as a technical supervisor,
how the Intoxilyzer works, and the maintenance of the Intoxilyzer, and he also
interpreted the results of Appellant’s breath test.
The jury found Appellant guilty of felony DWI and sentenced him to eighty
years’ confinement. See Tex. Penal Code Ann. §§ 49.04, 49.09.
II. DISCUSSION
A. Evidence of prior convictions
We address Appellant’s first and fifth issue together because both relate to
evidence of Appellant’s prior convictions. In his first issue, Appellant complains
of the denial of his motion for directed verdict on the ground that one of his prior
convictions was void as a matter of law and, therefore, could not support an
indictment or conviction for felony DWI. In his fifth issue, Appellant argues that
4
Lori Fuller was the technical supervisor who was in charge of
maintenance and testing of the Intoxilyzer at the time the test was taken by
Appellant. She did not testify at trial.
3
the trial court abused its discretion by admitting the complaint and information
from his prior conviction for “driving/boating while intoxicated.” We address
Appellant’s fifth issue first.
i. Admission of the complaint and information
Absent a stipulation by Appellant as to his prior convictions for DWI, the
State was required to prove them during the guilt-innocence stage of trial. See
Barfield v. State, 63 S.W.3d 446, 448 (Tex. Crim. App. 2001). The State sought
to accomplish this by offering into evidence both prior judgments.5 One of the
State’s exhibits—Exhibit 3—was a Judgment of Community Supervision dated
September 17, 2013, reflecting a conviction for “driving/boating while
intoxicated.” For clarification purposes, the State also offered State’s Exhibit 8,
the complaint and information related to the “driving/boating while intoxicated”
conviction, indicating that Appellant was charged with driving while intoxicated,
not boating while intoxicated.
Appellant argues that the trial court’s admission of the complaint and
information was error because a complaint and information are not evidence of
guilt and, therefore, are irrelevant. We review a trial court’s decision to admit
evidence under an abuse of discretion standard. Ellison v. State, 86 S.W.3d 226,
227 (Tex. Crim. App. 2002); Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim.
App. 1996). We may reverse the trial court’s decision only if the ruling is outside
5
Appellant does not contest that he was the subject of each of these prior
convictions.
4
the zone of reasonable disagreement. Ford v. State, 919 S.W.2d 107, 115 (Tex.
Crim. App. 1996). We disagree with Appellant’s contention that the complaint
and information were irrelevant. During testimony at trial, Appellant questioned
the validity of the judgment6 because it recited a conviction for both driving while
intoxicated and boating while intoxicated.7 Thus, the complaint and information
were not admitted as proof of Appellant’s guilt—the judgment itself was evidence
of his guilt—but to clarify what crime he was charged with and adjudicated guilty
of. See Tex. R. Evid. 401. We therefore overrule Appellant’s fifth issue.
ii. Denial of Appellant’s motion for instructed verdict
Appellant argues in his first issue that the trial court erred in denying his
motion for instructed verdict because his prior conviction for “driving/boating
6
Appellant asked Christie Perry, an investigator with the district attorney’s
office, the following:
Q: So it’s impossible from reading this judgment [for
driving/boating while intoxicated] for you to say with any certainty
what offense he was convicted of, isn’t it?
A: Correct.
Appellant additionally questioned Officer Stanford regarding the difference
between driving while intoxicated and boating while intoxicated.
7
Appellant did not appeal this conviction, but he did bring it to our attention
in his appeal of the trial court’s denial of his application for a writ of habeas
corpus relating to that conviction. Ex parte Hernandez, No. 02-15-00277-CR,
2016 WL 354136 (Tex. App.—Fort Worth Jan. 28, 2016, no pet. h.) (mem. op.,
not designated for publication). As we discuss below, in affirming the trial court’s
decision, we held that the record supported the trial court’s determination that the
inclusion of the term “boating” was a clerical error. Id. at *3.
5
while intoxicated” was void as a matter of law and, therefore, could not support
an indictment or conviction for felony DWI.
A challenge to the denial of a motion for instructed verdict is actually a
challenge to the sufficiency of the evidence. Canales v. State, 98 S.W.3d 690,
693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003). In our due-process
review of the sufficiency of the evidence to support a conviction, we view all of
the evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). This
standard gives full play to the responsibility of the trier of fact to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs,
434 S.W.3d at 170.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434
S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188,
192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary
inferences are reasonable based upon the cumulative force of the evidence
when viewed in the light most favorable to the verdict. Murray v. State, 457
6
S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015). We
must presume that the factfinder resolved any conflicting inferences in favor of
the verdict and defer to that resolution. Id. at 448–49.
A person may be charged with felony DWI if he has two previous
convictions for DWI. Tex. Penal Code Ann. § 49.09(b)(2). The two prior DWI
offenses are necessary elements of the offense of felony DWI; they are
jurisdictional, as opposed to mere enhancement allegations. See Martin v. State,
200 S.W.3d 635, 640 (Tex. Crim. App. 2006); State v. Wheeler, 790 S.W.2d 415,
416 (Tex. App.—Amarillo 1990, no pet.). Therefore, to obtain a conviction for
felony DWI, the State must prove the two prior DWI convictions at the guilt-
innocence stage of trial. See Barfield, 63 S.W.3d at 448; Mapes v. State, 187
S.W.3d 655, 658 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).
Appellant first contends that his second conviction for an intoxication
offense is void as a matter of law because the judgment states that it is for
“driving/boating while intoxicated.” We have previously addressed this issue in
Appellant’s appeal of the trial court’s denial of habeas corpus relating to that
second conviction. See Hernandez, 2016 WL 354136 at *2–3. In that case, the
trial court issued findings, including a finding that “[t]he term ‘boating’ on
[Appellant’s] judgment was a clerical error.” Id. at *2. We held that the record
supported the trial court’s finding and that such a clerical error did not render the
7
judgment void.8 Id. at *3. Accordingly, we do not agree with Appellant that he
was entitled to an instructed verdict on the ground that the prior judgment was
void as a matter of law.
To prove the prior convictions, the State offered into evidence both State’s
Exhibit 2 and State’s Exhibit 3. State’s Exhibit 2 is a Judgment of Conviction of
Sentence dated November 6, 2006, reflecting a conviction for DWI. As
previously discussed, State’s Exhibit 3 is a Judgment of Community Supervision
dated September 17, 2013, reflecting a conviction for “driving/boating while
intoxicated.” Also as previously discussed, the State additionally offered State’s
Exhibit 8, the complaint and information related to the “driving/boating while
intoxicated” conviction, to clarify that Appellant was charged with driving while
intoxicated.
It was in the province of the jury to weigh the evidence and to draw
reasonable inferences therefrom. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Dobbs, 434 S.W.3d at 170. The jury was presented evidence of two prior
convictions and evidence that the charge underlying the conviction reflected in
State’s Exhibit 3 was DWI, even if the resulting judgment erroneously included a
conviction for “boating while intoxicated.” Viewing this evidence in the light most
8
In our opinion affirming the trial court’s denial of Appellant’s application for
writ of habeas corpus, we noted that the trial court had authority to correct the
clerical error but had not done so at that time. Hernandez, 2016 WL 354136 at
*3, n.7. We do not know if the trial court has since issued a nunc pro tunc order
but note again that it would be within the trial court’s power to do so. See State
v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994).
8
favorable to the verdict, the jury could reasonably conclude that Appellant had
been charged with and convicted of DWI twice prior to the DWI charge resulting
from the events of July 18, 2014.9 We therefore overrule Appellant’s first issue.
B. Testimony of technical supervisor Terry Robinson
In his second issue, Appellant argues that because evidence of the
maintenance of the Intoxilyzer machine is testimonial in nature, he was denied a
fair trial through denial of the opportunity to cross-examine the technical
supervisor who had actually performed the monthly service of the Intoxilyzer
machine before and after Appellant’s breath test. In his third issue, Appellant
argues that we should overrule our prior holding in Settlemire v. State, which held
directly to the contrary. 323 S.W.3d 520 (Tex. App.—Fort Worth 2010, pet.
ref’d). Because these issues are related, we will address them together.
i. Predicate for admission of breath-test results
In order to properly lay the predicate for admission of breath-test results,
the State must establish (1) that the machine functioned properly on the day of
the test as evidenced by a reference sample having been run through it; (2) the
existence of periodic supervision over the machine and operation by one who
understands the scientific theory behind it; and (3) proof of the test results by a
9
At oral argument, Appellant suggested that the State should have called
the trial judge who presided over the case resulting in the conviction for
“driving/boating while intoxicated.” We decline to impose such a burden on the
State, especially considering that a trial judge in such a situation would
presumably rely upon the very documents from the prior case that were admitted
into evidence—the complaint, information, and judgment.
9
witness or witnesses qualified to translate and interpret such results. Harrell v.
State, 725 S.W.2d 208, 209–10 (Tex. Crim. App. 1986); Rhyne v. State, 387
S.W.3d 896, 902 (Tex. App.—Fort Worth 2012, no pet.).
This predicate is generally met by the testimony of both the test operator—
the person who administered the breath test in question—and the technical
supervisor—the person who was responsible for ensuring that the test equipment
was properly maintained and functioned properly. See Rhyne, 387 S.W.3d at
902–03 (holding breath-test results were inadmissible because the State had
only offered the testimony of the test operator and had not shown proper
maintenance of the Intoxilyzer), 37 Tex. Admin. Code § 19.4 (2015) (Tex. Dep’t
of Pub. Safety, Operator Certification); see also French v. State, 484 S.W.2d
716, 719 (Tex. Crim. App. 1972) (“[A]n officer may administer a breath test even
though he is not otherwise qualified to interpret the results, and the standards
required to qualify one to administer the test are far less than those qualifying to
interpret the results.”). We noted the typical manner in which breath-test
evidence is presented at trial in Rhyne:
First, the officer who administers the test testifies
that he is certified as an [I]ntoxilyzer operator, that he
administered the test to the defendant and did so in
accordance with the Department’s regulations, and that
the results are contained in a data readout that the
State offers as an exhibit. As part of this testimony, the
operator testifies that he ran a reference test on the
Intoxilyzer and what results were produced by this
reference test.
10
Second, an officer who was the technical
supervisor with supervisory responsibility for the
machine used in the test testifies that he is certified by
the Department as a technical supervisor, the machine
used was certified by the Department for testing
purposes, the machine used was checked periodically
to assure that it operated properly, and that the
reference sample used by the officer administering the
test was properly prepared. This witness generally
asserts that he understands the scientific theory of the
device and interprets the numbers on the data readout.
He may also explain the reference test and what is
meant by the results of this process.
Rhyne, 387 S.W.3d at 903 (quoting 40 George E. Dix & John M. Schmolesky,
Texas Practice Series: Criminal Practice & Procedure § 14:84 (3d ed. 2011)).
In this case, the State used the testimony of Officer Stanford, the
administrator of the breath test, and Terry Robinson, a technical supervisor of the
Intoxilyzer used to conduct the test, to lay the predicate for admission of the
breath-test results. Officer Stanford first testified to the administration of the
breath test generally and then specifically described some of the safeguards the
Intoxilyzer has in place to ensure it is operating correctly, including a temperature
readout of the reference sample to make sure it is kept at the correct
temperature. He also explained how the Intoxilyzer reports the accuracy of its
own calibration by providing a predictive value and an actual test reference value
on the breath-test result printout. Officer Stanford testified that, in his opinion,
the Intoxilyzer was operating correctly at the time he administered the breath test
to Appellant.
11
Robinson testified to his experience as a Breath Alcohol Supervisor and
Toxicology Scientist, including his knowledge of how the Intoxilyzer works, and to
the maintenance of the Intoxilyzer in question. Robinson outlined the regular
maintenance performed on the machine, including an explanation about
diagnostic checks conducted monthly during on-site inspections of the
instrument.10 He also described a second check that uses a software program to
enable daily diagnostic tests on the Intoxilyzer machine to be performed and the
machine’s data to be retrieved remotely.11
Although Fuller had conducted the on-site inspections of the Intoxilyzer
before and after Appellant’s breath test, Robinson also participated. He testified
that he, Fuller, and a third technical supervisor had prepared the reference
10
In particular, Robinson testified:
At least once each calendar month, we’re required to go to the
testing site, and when we do so, we do a diagnostic check of the
instrument and its associated equipment.
We change the standard or reference analysis solution that is
used with the instrument and with each analysis. We do an overall
inspection of the site itself, and we make sure that the supplies that
the operators need to run the tests are in good number.
Robinson testified, “Beginning each weekday morning, each one of our
11
instruments is contacted, and when it is contacted, three things happen: We
perform a diagnostic check, we perform a calibration check, and we download
any data or any tests that have been run in the past twenty-four hours.”
12
solution—by diluting ethyl alcohol to a known concentration—which was used to
test the Intoxilyzer.12
Robinson testified that prior to Appellant’s breath test on July 19, 2014,
Fuller conducted an on-site inspection of the Intoxilyzer used in this case, that
this inspection occurred on June 27, 2014, and that Fuller conducted a second
on-site inspection on July 24, 2014, five days after Appellant’s breath test. He
testified that based upon the maintenance records resulting from those
inspections—records that were made during the regular course of business—the
Intoxilyzer was in operational condition when Officer Stanford conducted the
breath test on Appellant.13
ii. Confrontation Clause
Appellant argues that his right to confrontation was violated when
Robinson was permitted to testify in lieu of Fuller.
The Sixth Amendment to the United States Constitution provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right to . . . be confronted
with the witnesses against him.” U.S. Const. amend. VI. The central concern of
the Confrontation Clause is to ensure the reliability of the evidence against a
criminal defendant by subjecting it to rigorous testing in the context of an
12
After the reference solution is poured into the machine, the Intoxilyzer
tests the reference solution and gives a “predictive value” as part of the printout
of the breath-test results. If the predictive value is outside the tolerated range,
the Intoxilyzer itself terminates the test.
13
The maintenance records were not offered or admitted into evidence.
13
adversarial proceeding before the trier of fact. Lilly v. Virginia, 527 U.S. 116,
123–24, 119 S. Ct. 1887, 1894 (1999). On this matter, the Supreme Court has
been clear: “Where testimonial evidence is at issue . . . , the Sixth Amendment
demands what the common law required: unavailability and a prior opportunity
for cross-examination.” Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct.
1354, 1374 (2004). Thus, unless the prosecution can show that a declarant is
unavailable to testify in court and that the accused had an opportunity to cross-
examine him, out-of-court statements offered against the defendant that are
testimonial in nature are objectionable. Id.; Langham v. State, 305 S.W.3d 568,
575–76 (Tex. Crim. App. 2010).
Whether an out-of-court statement is testimonial is an issue of law.
Langham, 305 S.W.3d at 576 (citing De La Paz v. State, 273 S.W.3d 671, 680
(Tex. Crim. App. 2008)). We review de novo the trial court’s determination that
an out-of-court statement is or is not testimonial in nature, looking to whether “the
surrounding circumstances objectively indicate that the primary purpose of the
interview or interrogation is to establish or prove past events potentially relevant
to later criminal prosecution.” Id.; see also Wall v. State, 184 S.W.3d 730, 734–
35 (Tex. Crim. App. 2006).
We have previously addressed the very facts at issue in this appeal in
Settlemire v. State. In Settlemire, the trial court admitted into evidence the
breath test results and the maintenance logs for the Intoxilyzer machine when
they were sponsored by the technical supervisor who was in charge of the
14
machine at the time of trial but who had not been the supervisor at the time the
defendant was arrested.14 323 S.W.3d at 521. The defendant argued that the
admission of those records violated his right to confront the witnesses against
him, specifically the technical supervisor who was in charge of the machine at the
time the defendant took the breath test. Id. Relying upon the Supreme Court’s
footnote in Melendez-Diaz v. Massachusetts,15 we held that the admission of the
breath test results and the maintenance logs did not violate the defendant’s rights
to confrontation. Id. at 522 (citing Melendez-Diaz v. Massachusetts, 557 U.S.
305, 311 n.1, 129 S. Ct. 2527, 2532 n.1 (2009)). We explained in Settlemire that
the technical supervisor who testified was “precisely the type of analyst that the
[Supreme] Court anticipated might be challenged based on its holding in
Melendez-Diaz” and that the Supreme Court had “made clear . . . that it did not
intend its holding to ‘sweep away an accepted rule governing the admission of
scientific evidence.’” Id. (quoting Melendez-Diaz, 557 U.S. at 312, 129 S. Ct. at
14
Incidentally, in Settlemire, the sponsoring witness complained of was
Fuller—she was in charge of the machine at the time of trial but had not been the
supervisor at the time the defendant was arrested. 323 S.W.3d at 521. Here,
Appellant objects that Fuller was not the sponsoring witness, as she was the
technical supervisor in charge of the Intoxilyzer used at the time of Appellant’s
arrest.
15
Specifically, Melendez-Diaz noted that it was not holding that the right to
confrontation extended to every individual that “may be relevant in establishing
the chain of custody, authenticity of the sample, or accuracy of the testing
device” and that “documents prepared in the regular course of equipment
maintenance may well qualify as nontestimonial records.” 557 U.S. at 311 n.1,
129 S. Ct. at 2532 n.1.
15
2533). Our holding in Settlemire has been adopted or favorably discussed by a
number of our sister courts. See Trigo v. State, No. 01-15-00382-CR, 2016 WL
430879, at *7 (Tex. App.—Houston [1st Dist.] Feb. 4, 2016, pet. filed); Hysenaj v.
State, No. 11-13-00219-CR, 2015 WL 4733068, at *2–3 (Tex. App.—Eastland
Aug. 6, 2015, no pet.) (mem. op., not designated for publication); Boutang v.
State, 402 S.W.3d 782, 788–89 (Tex. App.—San Antonio 2013, pet. ref’d), cert.
denied, 134 S. Ct. 2290 (2014); Weber v. State, No. 14-11-00863-CR, 2012 WL
3776362, at *5 (Tex. App.—Houston [14th Dist.] Aug. 30, 2012, no pet.) (mem.
op., not designated for publication); Torres v. State, No. 08-09-00266-CR, 2011
WL 3199065, at *2 (Tex. App.—El Paso July 27, 2011, no pet.) (not designated
for publication).
Appellant argues that the holding in Settlemire is incorrect because the
breath-test results and any maintenance records are testimonial in nature in light
of the technical supervisor’s role as defined by the administrative code:
The primary function of the technical supervisor is to provide the
technical, administrative and supervisory expertise in safeguarding
the scientific integrity of the breath alcohol testing program and to
ensure the breath alcohol testing program’s acceptability for
evidential purposes.
37 Tex. Admin. Code § 19.5(a) (2015) (Tex. Dep’t of Pub. Safety, Technical
Supervisor Certification) (emphasis added).16 Appellant specifically focuses on
16
The sections of the administrative code relating to the administration of
breath tests were amended in 2015, prior to Appellant’s trial, but no substantive
changes were made that relate to Appellant’s argument in this case. See 37
Tex. Admin. Code §§ 19.5, 19.6 (2013) (Tex. Dep’t of Pub. Safety, Operator
16
the rule’s language that the technical supervisor’s role is to assure the breath-test
program’s “acceptability for evidential purposes,” arguing that this proves that
breath-test results and maintenance records for an Intoxilyzer are testimonial
under the Supreme Court’s direction that we are to look at whether the “primary
purpose” of a document or testimony “is to establish or prove past events
potentially relevant to later criminal prosecution.” Langham, 305 S.W.3d at 576;
see Wall, 184 S.W.3d at 734–35.
Appellant argues that the administrative code and the Rhyne decision
support the conclusion that the maintenance records of an Intoxilyzer machine
are testimonial in nature because the records are made for the specific purpose
of proving a fact at trial. Rhyne, 387 S.W.3d at 903 (holding that breath-test
results were inadmissible without testimony showing the Intoxilyzer in question
was properly maintained); See, e.g., Davis v. Washington, 547 U.S. 813, 822,
126 S. Ct. 2266, 2273–74 (2006) (holding that statements are testimonial when
“the primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution”). He further relies upon the
Supreme Court’s decision in Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct.
2705 (2011). Bullcoming concerned a prosecution for DWI in which a forensic
laboratory report analyzing the defendant’s blood alcohol content was admitted at
trial and sponsored by a forensic scientist who was not the scientist who had
Certification, Technical Supervisor Certification), repealed by 40 Tex. Reg. 250,
255 (2015).
17
conducted the testing and certified the results. Id. at 653–57, 131 S. Ct. at 2711–
12. The Court held that the forensic testimony of the second scientist violated
the defendant’s rights under the Confrontation Clause because the report did
more than report a machine-generated number: in it, the original scientist
certified that he received the blood sample intact, that he checked the forensic
report number and the sample number and they “correspond[ed],” that he
performed a particular test on the sample, adhering to a precise protocol, and
that “no circumstance or condition . . . affect[ed] the integrity of the sample or . . .
the validity of the analysis.” Id. at 660, 131 S. Ct. at 2714. Therefore, the report
was testimonial in nature, and the author of the report had to be available for
cross-examination. Id., 131 S. Ct. at 2714.
In Boutang v. State, the San Antonio court encountered a situation similar
to the facts here. In Boutang, the technical supervisor who had been responsible
for maintaining the Intoxilyzer machine at the time the defendant was tested was
not available to testify at trial because he had retired. 402 S.W.3d at 785–86.
Instead, the new technical supervisor testified about the maintenance of the
Intoxilyzer based upon the maintenance records for the machine that were kept
in accordance with Department of Public Safety regulations. Id. The appellant
argued that her rights under the Confrontation Clause were violated by overruling
her objection to the second technical supervisor’s testimony, the admission of the
breath tests, and the admission of the Intoxilyzer maintenance reports. Id. at
786. The appellate court held that her rights to confrontation were not violated
18
and distinguished the facts from those in Bullcoming. Id. at 787–88. First, it
noted that the report at issue in Bullcoming was more than just a signed printout
from a machine but was instead a written report containing the analyst’s own
certifications and conclusions. Id. at 787. Indeed, Justice Sotomayor, in her
concurring opinion, noted that Bullcoming does not address a situation “in which
the State introduced only machine-generated results, such as a printout from a
gas chromatograph.” Bullcoming, 564 U.S. at 673, 131 S. Ct. at 2722
(Sotomayor, J., concurring). The court in Boutang then noted that the only
statement by the previous technical supervisor in the maintenance records was a
notation of the predicted reading from the Intoxilyzer based upon the reference
solution used to test and calibrate the machine. Boutang, 402 S.W.3d at 788.
The court went on to state that “it is the Intoxilyzer machine itself, not an
individual, which reads the concentration of the reference solution, despite the
number predicted by the technical supervisor.” Id.
Finally, the court in Boutang noted that neither the court of criminal
appeals nor any other appellate court in Texas has “required the State to
produce the actual person who mixed a reference solution for an Intoxilyzer
machine before the breath-test results can be admitted in court.” Id. “Thus, as
an expert familiar with the maintenance of Intoxilyzer machines and lab
procedures associated with its maintenance, [the new technical supervisor]
testified as to the maintenance of the machine and what the particular numbers
meant on the report.” Id.
19
Appellant argues that he has no reassurance of Fuller’s accuracy or
truthfulness in keeping the maintenance records for the Intoxilyzer.17 A similar
complaint was addressed in Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App.
2015). In Paredes, the State offered the testimony of a forensic-laboratory
director to testify about the DNA analysis of a blood sample from the defendant.
Id. at 512. The director testified that the DNA testing was conducted in an
assembly-line batch process by other lab analysts and that she analyzed the raw
data to determine whether there was a DNA match. Id. The court of criminal
appeals held that the defendant’s Confrontation Clause rights were not violated
by the fact that the lab analysts did not testify, and it emphasized that the State
did not introduce into evidence the raw data, which was computer-generated. Id.
at 518–19. The court noted:
17
Related to this point, Appellant filed a supplemental brief in this court
asserting that, after both parties had submitted their briefs in this appeal, the
State provided to Appellant certain material regarding Fuller that had not been
previously disclosed to Appellant. Appellant argues that we must consider this
evidence as Brady material that is relevant to the issue of Fuller’s absence from
trial. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). However, “[a]n
appellate court may not consider factual assertions that are outside the record . .
. . While the record may be supplemented under the appellate rules if something
has been omitted, the supplementation rules cannot be used to create new
evidence.” Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004);
see also Newman v. State, 331 S.W.3d 447, 450 n.7 (Tex. Crim. App. 2011).
Generally, our review of the record is limited to the evidence before the trial court
at the time of the trial court’s ruling. Whitehead, 130 S.W.3d at 872. Appellant
has not provided us, nor have we found, any authority providing that we can
consider such evidence that is not part of the record. We therefore decline to do
so.
20
Appellant contends that the analysts could misreport information or
mishandle the samples, but the Supreme Court has held that the
Confrontation Clause does not mandate ‘that anyone whose
testimony may be relevant in establishing the chain of custody,
authenticity of the sample, or accuracy of the testing device’ must
testify. Melendez-Diaz, 557 U.S. at 311 n. 1, 129 S. Ct. [at 2532
n.1]. More importantly, Freeman testified about the safety measures
in place at [the forensic laboratory] to detect such errors and stated
that, if part of the analysis were done improperly, the laboratory
procedure would not generate an incorrect DNA profile. The testing
would yield no result at all rather than an improper result.
Id. at 518.
In this case, unlike in Boutang, Robinson was actually involved in the
maintenance process because he, Fuller, and another technical supervisor
worked together in preparing the reference solution used to test the Intoxilyzer in
question. And, as was also noted in the Paredes decision, Robinson testified
that, if a reference solution were incorrectly prepared or part of the maintenance
check process was performed improperly and as a result the predictive value
was outside the tolerated range, the Intoxilyzer would terminate the test and yield
no result at all rather than an improper result. The results of the Intoxilyzer
maintenance and breath tests are computer-generated, and it was the Intoxilyzer
machine itself, not Fuller, which read the concentration of the reference solution.
See, e.g., Boutang, 402 S.W.3d at 782.18 The raw data in this case was
18
Appellant urges us to follow the reasoning of the dissenting opinion
rather than the majority opinion in Boutang. The dissent in that case argued that
the original technical supervisor was personally involved in the maintenance and
operation of the machine and, therefore, was essential to showing that the
Intoxilyzer in that case was operating properly at the time the breath test took
place. 402 S.W.3d at 795–96 (Martinez, J., dissenting). We note that no other
21
produced by the Intoxilyzer, a computer, and is therefore “not the functional
equivalent of live, in-court testimony because [it] did not come from a witness
capable of being cross-examined.” Paredes, 462 S.W.3d at 519.
We decline Appellant’s invitation to overrule Settlemire because it remains
true that the testimony at issue here is just the sort of testimony addressed by the
Supreme Court when it noted that the Confrontation Clause does not mandate
“that anyone whose testimony may be relevant in establishing the . . . accuracy
of the testing device” must testify. Melendez-Diaz, 557 U.S. at 311 n.1, 129 S.
Ct. at 2532 n.1. We hold that Appellant’s Confrontation Clause rights were not
violated by allowing Robinson to testify and by admitting the breath-test results.
We therefore overrule Appellant’s second and third issues.
C. Admission of breath-test results
In his fourth issue, Appellant argues that the trial court abused its
discretion by admitting the breath-test results because the State failed to prove
“(1) [that] the reference sample [was] properly mixed and utilized in the
Intoxil[y]zer; (2) that the machine at issue was periodically supervised and
operated by one who understands the scientific theory of the machine; and, (3)
that . . . there was a qualified witness who could translate and interpret the result
of the test.”
Texas court that has considered this issue has adopted the reasoning of this
dissenting opinion.
22
We review the trial court’s decision to admit scientific evidence for an
abuse of discretion. Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App.
2008). Under this standard, we do not disturb the trial court’s decision if the
ruling was within the zone of reasonable disagreement. Id. As we have
previously noted in addressing Appellant’s second and third issues, the State
must establish (1) that the machine functioned properly on the day of the test as
evidenced by a reference sample having been run through it, (2) the existence of
periodic supervision over the machine and operation by one who understands
the scientific theory behind it, and (3) proof of the test results by a witness or
witnesses qualified to translate and interpret such results. Harrell, 725 S.W.2d at
209–10; Rhyne, 387 S.W.3d at 902.
In disposing of Appellant’s second and third issues, we have determined
that the State established the existence of periodic supervision over the machine
through Robinson’s testimony and that Robinson was qualified to translate and
interpret the breath-test results. Robinson testified to his qualifications and
experience as a technical supervisor. Robinson testified that the Intoxilyzer was
functioning properly on the day of the test as evidenced by the reference sample
run through it and reported on the breath-test result printout and the maintenance
records for the machine.19 He also testified to the supervision and maintenance
19
As we mentioned above, Robinson testified that the Intoxilyzer would
have terminated the breath test and yielded no result at all if the reference
solution had been incorrectly prepared. That did not occur in this case, as
evidenced by the breath-test results that were obtained.
23
of the machine, including his involvement in making the reference sample used in
the Intoxilyzer. He testified to the scientific theory behind the machine. And he
testified to his experience and training as a technical supervisor, showing that he
was qualified to translate and interpret the breath-test results.
Officer Stanford testified to his certification to run an Intoxilyzer machine
and to the administration of the breath test. He testified to some of the
safeguards in place within the Intoxilyzer, including the predictive value and
actual test reference value that is included on the printout at the end of a breath
test. And, according to Officer Stanford, the Intoxilyzer was operating correctly at
the time he conducted the breath test of Appellant.
The testimony of Robinson and Officer Stanford was sufficient to establish
the proper predicate for admission of the breath-test results. See Rhyne, 387
S.W.3d at 902. Contrary to Appellant’s arguments, their testimony established
that the Intoxilyzer was properly maintained and was operating properly at the
time of Appellant’s breath test. Id. And Robinson’s testimony established that he
was qualified to translate and interpret the results. The trial court did not abuse
its discretion in admitting the breath-test results, and as such we overrule
Appellant’s fourth issue.
24
Conclusion
Having overruled all of Appellant’s issues, we affirm the judgment of the
trial court.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 16, 2016
25