Harrell v. State

725 S.W.2d 208, 1986 Tex. Crim. App. LEXIS 890
CourtCourt of Criminal Appeals of Texas
DecidedDecember 17, 1986
Docket720-85
StatusPublished
Cited by52 cases

This text of 725 S.W.2d 208 (Harrell v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrell v. State, 725 S.W.2d 208, 1986 Tex. Crim. App. LEXIS 890 (Tex. 1986).

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

The San Antonio Court of Appeals reversed appellant’s conviction for driving while intoxicated, holding that the test results and interpretation thereof from appellant’s breath test should not have been admitted at trial. The Court held that the State failed to show a part of the intoxilyzer equipment was individually certified as required by the Breath Alcohol Testing Regulations (hereinafter “regulations”) promulgated by the Texas Department of Public Safety. See V.A.C.S. Article 6701Z -5 and Tex. Dept, of Public Safety, 37 Tex.Admin.Code § 19.1-19.6 (Shepard’s 1982). Harrell v. State, 693 S.W.2d 693 (Tex.App. — San Antonio 1985). The State contends that the Court of Appeals has interpreted the regulations incorrectly and that the evidence shows compliance with the regulations. The State also contends that appellant did not preserve the issue for review. We granted the State’s petition for review to consider both issues.

We turn first to the preservation of error contention. Officer Lin Manford testified that he arrested appellant on April 29, 1983, for driving while intoxicated. He [209]*209said he drove appellant to the Live Oak Police Department and administered a breath test to appellant on the intoxilyzer. Manford stated that he was certified as an operator of the intoxilyzer. He described the operation of the machine and his procedure in operating it on appellant’s breath sample. He testified that appellant’s breath test on the intoxilyzer produced a digital and a printed reading of “.13.”

George Allen McDougall, Jr., testified that he was certified by the Texas Department of Public Safety as an operator and supervisor of the intoxilyzer in Bexar County. He understood the scientific principles upon which the intoxilyzer operated, and he was trained to calibrate, maintain and repair the instrument. McDougall stated that he had checked the intoxilyzer some days prior to appellant’s test and found that it was operating correctly. He had also checked it the day after appellant’s test and found that it was operating correctly. In his opinion the intoxilyzer was operating properly on April 29.

The prosecutor then asked McDougall what the correlation was between a “.13 reading of an intoxilyzer print-out and the individual’s blood alcohol reading at that same time and place.” Appellant objected to the “question and answer that the question calls for because there’s not been a predicate established by the State conforming with Section 2 of the Chemical Breath Testing Regulations as promulgated by the State of Texas, Article 67011-5 as well as Hill v. State and those cases following.” The court overruled the objection. McDou-gall proceeded to explain the principles behind the “.13” measurement, how it was calculated, and what it meant. After questioning McDougall extensively about the reference simulator,1 and proving that this piece of equipment was not individually certified, but was certified by type, appellant made a motion to suppress the intoxi-lyzer results already admitted. He also requested that the judge instruct the jury to disregard all testimony concerning the intoxilyzer. The judge took the motion under consideration and overruled it the next day.

The State argues that because appellant did not object to Manford’s testimony that the reading from appellant’s breath test was “.13,” appellant did not preserve the ground for review. Appellant answers, inter alia, that he did not need not object until the expert, McDougall, testified to the certification and supervision of the operator, the operation of the intoxilyzer, and the interpretation of the result. We agree with appellant.

As appellant points out, the predicate for the admissibility of a breath test was enumerated in Hill v. State, 158 Tex. Cr.R. 313, 256 S.W.2d 93 (1953) and reaffirmed in subsequent cases. French v. State, 484 S.W.2d 716 (Tex.Cr.App.1972); Bumpus v. State, 509 S.W.2d 359 (Tex.Cr.App.1974); Palafox v. State, 509 S.W.2d 846 (Tex.Cr.App.1974); Cody v. State, 548 S.W.2d 401 (Tex.Cr.App.1977). The predicate was set out in reference to the breathalyzer machine, but is, with the exception of the first prong, equally applicable to the intoxilyzer. The requirements are: (1) the use of properly compounded chemicals; (2) the existence of periodic supervision over the machine and operation by one who understands scientific theory of the machine; and (3) proof of the result of the test by a witness or witnesses qualified to translate and interpret such result so as to eliminate hearsay. The intoxilyzer does not use chemicals so the first prong of the predicate is not really applicable and must be [210]*210modified due to the nature of the machine. The intoxilyzer is “checked” through use of the reference sample. McDougall testified that a valid test could not be run without also running the reference sample through the intoxilyzer. He stated that he prepared the reference sample used to check the proper functioning of the machine on April 29, and that it matched the reading measured. by the intoxilyzer. The reference sample was properly used to check the functioning of the intoxilyzer. Because the reference sample is so important to the intoxilyzer in Texas, a showing of proper use of a reference sample satisfies the first prong of the predicate, as modified due to the nature of the instrument. The State used Manford and McDougall to meet the other two prongs of the predicate.

We agree with appellant that he need not have objected to Manford’s testimony of the reading and print-out from appellant’s breath sample in order to preserve his contention. Manford testified only to his operation of the intoxilyzer and his observations therefrom, including the print-out and reading of “.13.” He did not interpret the number and stated that he was not qualified to explain and interpret the number. Nor was he qualified to testify about the certification of the intoxilyzer itself. The State had not yet offered enough evidence as a predicate under Hill, supra, to explain the “.13” or the regulations. Therefore, appellant’s objection which pertained to the certification of parts of the intoxilyzer could not have been testified to or answered by Manford. An objection at this point on those grounds would be meaningless.

McDougall was the expert concerning the certification of the intoxilyzer. His testimony satisfied the last two prongs of the test established in Hill, supra. Appellant’s objection prior to McDougall’s testimony interpreting the results of the equipment and explaining the blood alcohol content was timely. Appellant specified to the court that he objected because the intoxi-lyzer was not certified according to the regulations. Appellant objected when the State attempted to explain to the jury what the reading on the intoxilyzer meant. He timely contested the interpretation from the only witness qualified to interpret the result and qualified to testify about the certification of the equipment used to achieve that result.

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Cite This Page — Counsel Stack

Bluebook (online)
725 S.W.2d 208, 1986 Tex. Crim. App. LEXIS 890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrell-v-state-texcrimapp-1986.