dissenting.
I must dissent to the majority opinion because it is erroneous in several respects.
First, the majority strains logic to conclude that Article 6701Z-5, Section 3, V.A.C.S., “does not abrogate the hearsay rule.” Article 6701Z-5, Section 3 is clear and unambiguous that evidence of alcohol concentration is admissible and specifies the predicate for its admissibility. The Court of Appeals correctly held that a proper predicate had been laid for the admission of the intoxilyzer printout. Any rule of evidence must give way to the statute.
Second, I fail to perceive, and the majority fails to. state, why the printout qualifies as hearsay — it certainly doesn’t meet the definition of hearsay.
Since the Court of Appeals’ opinion was unpublished, I quote extensively therefrom as relates to this ground of review:
“Office Flynn arrested appellant for driving while intoxicated and transported him to Lew Sterrett Jail. While enroute to Lew Sterrett, appellant told Officer Flynn that he (Flynn) was about to ruin appellant’s life, he was going through a divorce, he was a track driver, and a DWI would not look good on his record.
“Upon arrival at Lew Sterrett, appellant was placed in a room where he could be videotaped and an intoxilyzer test could be administered. The video tape was admitted into evidence and played before the jury, [footnote omitted] Testimony in the statement of facts indicates that the videotape showed that appellant swayed slightly, that he staggered slightly, and that he made an error when counting backwards. Officer Flynn testified that appellant’s behavior in the videotape was similar to appellant’s behavior when he was initially stopped. Officer Flynn also testified it was his opinion that appellant was still intoxicated when he was videotaped.
“Officer Champon testified regarding the results of the two intoxilyzer tests given to appellant. Officer Champon is a senior corporal, technical supervisor. His duties as technical supervisor include maintaining and calibrating the breath test instruments, preparing the alcohol solutions; used by the intoxilyzer instruments, providing expert testimony, and serving as a custodian of the reports generated by the intoxilyzer instruments. Officer Champon has bachelor’s degrees in chemistry and forensic science and sixteen hours of graduate work in biochemistry, medical physiology, and pharmacology. He has attended courses on the maintenance and use of the intoxilyzer equipment in issue. He is certified by the Texas Department of Public Safety as a breath test operator and as a technical supervisor. He was certified as a supervisor of the intoxilyzer equipment used on appellant at the time he was tested.
“Officer Champon testified that Officer Drake administered the intoxilyzer tests on appellant. Officer Drake was certified by the Texas Department of Public Safety to administer intoxilyzer tests. Officer Drake, who had retired since administering the tests on appellant did not testify at trial.
“Officer Champon is the supervisor of the intoxilyzer used to test appellant and testified extensively regarding its maintenance and operation. The model of intoxi-lyzer used by appellant was certified and approved by the scientific director of the Texas Department of Public Safety. The specific intoxilyzer used was certified by the Texas Department of Public Safety. Officer Champon testified that maintenance checks were performed on the intox-ilyzer in question on November 30, 1990, and December 24, 1990. Each check indi*698cated that the instrument was operating properly. The intoxilyzer did not require any maintenance between November 80, 1990, and December 24, 1990. The intoxi-lyzer also undergoes an extensive, self-administered “circuit check” each time it performs a test. [footnote omitted] Based upon appellant’s intoxilyzer test record and the maintenance records of the intoxilyzer in question, Officer Champon testified it was his opinion that the intoxi-lyzer was operating properly at the time appellant was tested.
“The computer printout of appellant’s intoxilyzer tests was admitted into evidence. Appellant’s test results showed that he had alcohol concentrations of 0.134 and 0.123 grams of alcohol per 210 liters of breath. Officer Champon testified that the legal limit for blood alcohol concentration in Texas is 0.10 grams of alcohol per 210 liters of breath. Officer Champon testified that a person registering alcohol concentrations of 0.123 or 0.134 grams per 210 liters of breath would not have the normal use of his mental or physical faculties.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“In his second point of error, appellant asserts that the trial court erred in admitting the intoxilyzer test results into evidence because the results were hearsay and not admissible as business records under Texas Rule of Criminal Evidence 803(8). [footnote omitted] Appellant relies upon the Texas Court of Criminal Appeals decision in Cole v. State to support his position. See Cole v. State, 839 S.W.2d 798 (Tex.Crim.App.1992) (reports generated by law enforcement personnel not admissible as business records under Texas Rule of Criminal Evidence 803(8)(B)). The legislature has .enacted a specific statute governing the admissible of intoxilyzer test results. The results in question were admissible under the statute. Therefore, we do not reach appellant’s argument based on Texas Rule of Criminal Evidence 803(8). See Tex.Gov’t Code § 311.026 (Vernon 1988) (specific statutory enactment controls general enactment).
“Texas Revised Civil Statute art. 6701^-5, § 3 provides as follows:
“ ‘(a) Upon the trial of any criminal action or proceeding arising out of an offense under Subdivision (2), Subsection (a), Section 19.05, Penal Code, or an offense under Article 6701Z-1, Revised Statutes, evidence of the alcohol concentration or presence of a controlled substance or drug as shown by analysis of a specimen or the person’s blood, breath, urine, or any other bodily substances taken at the request or order of a peace officer, shall be admissible.
“ ‘(b) Analysis of a specimen of the person’s breath, to be considered valid under the provisions of this section, must be performed according to rules of the Texas Department of Public Safety and by an individual possessing a valid certificate issued by the Texas Department of Public Safety for this purpose. The Texas Department of Public Safety is authorized to establish rules approving satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analysis, and to issue certificates certifying such fact. These certificates shall be subject to termination or revocation, for cause, at the discretion of the Texas Department of Public Safety.
“ ‘(c) ... Breath specimens taken at the request or order of a peace officer must be taken and analysis made under such conditions as may be prescribed by the Texas Department of Public Safety, and by such persons as the Texas Department of Public Safety has certified to be qualified.’ “Tex.Rev.Civ.Stat.Ann. art. 670U-5, § 3(a)-(c) (Vernon Supp.1993). This statute sets forth the necessary predicate for admission of intoxilyzer test results. See Gifford v. State, 793 S.W.2d 48, 49 (Tex.App.—Dallas 1990), pet. dism’d, improvidently granted, 810 S.W.2d 225 (Tex.Crim.App.1991). For intoxilyzer results to be admissible under Texas Revised Civil Statute art. 6701Z-5, § 3, the State must show that: (1) the machine functioned properly on the day of the test as evidence by the running of a reference sample through the machine; (2) the existence of periodic supervision over the machine and operation by one who understands the scientific theory of the machine; and (3) proof of the *699results of the test by a witness or witnesses qualified to translate and interpret such results so as to eliminate hearsay. See Harrell v. State, 725 S.W.2d 208, 209-10 (Tex.Crim.App.1986); May v. State, 784 S.W.2d 494, 498 (Tex.App.—Dallas 1990, pet. ref'd).
“Officer Champon testified that the reference samples were properly run and that the machine was operating properly when appellant was tested. This satisfies the first element of the predicate.
“Officer Drake, the person who administered appellant’s intoxilyzer test, was certified by the Texas Department of Public Safety. To be certified, Officer Drake had to demonstrate an understanding of the operational principles of the equipment he used. See 37 Tex.Admin.Code § 19.4(a)(1), (a)(2)(A) (West Supp.1992-93) (Texas Department of Public Safety, Breach Alcohol Testing Regulations). Thus, the second element of the predicate was established.
“Officer Champon had extensive training in the operation of the intoxilyzer and interpretation of its printout. His knowledge, experience, and training qualified him to render expert testimony interpreting the intoxilyzer test results. While he was not formally recognized as an expert, the State and appellant freely asked for his opinions and for answers to hypothetical technical questions. At trial, appellant did not object to Officer Champon’s qualifications to provide expert testimony interpreting the intoxilyzer test results; thus, appellant waived any objection or error to the testimony. See Tex.R.App.Proc. 52(a). The third element of the predicate was satisfied.
“We conclude that the State laid a sufficient predicate for the admission of appellant’s intoxilyzer test printout under Texas Revised Civil Statute art. 6701Í — 5, § 3....”
I believe the Court of Appeals was correct in every respect.
I further disagree that the complained of testimony falls within the ambit of hearsay. Hearsay is an out of court statement offered in court to prove the truth of the matters asserted. See Rule 801(d), Texas Rules of Criminal Evidence. If evidence is hearsay it is generally inadmissible, but there are numerous exceptions we have recognized because the facts and circumstances surrounding the making of the statement are such as to give it credence or credibility and tend to overrule the probability of fabrication.
Officer Champon’s testimony as technical supervisor showed that the instrument was properly maintained and would not perform a test if it were not functioning properly. The printout was the data upon which an opinion could be based. It was a scientific measurement, not a statement, and was not subject to any of the evils which the hearsay rule seeks to prevent nor was it a “statement” under Rule 801(a).
For these reasons I respectfully dissent.
KELLER, J., joins this dissent.