May v. State

784 S.W.2d 494, 1990 Tex. App. LEXIS 471, 1990 WL 20949
CourtCourt of Appeals of Texas
DecidedJanuary 10, 1990
Docket05-8801324-CR
StatusPublished
Cited by13 cases

This text of 784 S.W.2d 494 (May v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
May v. State, 784 S.W.2d 494, 1990 Tex. App. LEXIS 471, 1990 WL 20949 (Tex. Ct. App. 1990).

Opinion

OPINION

KINKEADE, Justice.

Frank Delvis May appeals his conviction of the misdemeanor offense of driving while intoxicated. Following a jury trial, the court assessed punishment at sixty days’ confinement and payment of an $850.00 fine. May argues that the trial court erred in refusing to grant him a mistrial after admitting in the hearsay evidence of the intoxilyzer machine readout. Further, May argues that the trial court erred in permitting the State to introduce evidence regarding the intoxication of May’s passenger. Finally, May argues that the trial court erred in allowing the testimony of Richard Harris into evidence. Because the trial court committed harmful error in refusing to grant a mistrial after allowing in hearsay evidence of the intoxi-lyzer machine’s readout, we sustain May’s first point of error and need not consider his other points of error. We reverse the trial court’s judgment and remand.

Facts

On October 4, 1987, Trooper William Diggs, Jr., a highway patrolman, and his training officer, Trooper Paluga, stopped May’s car solely for May’s failure to dim the car’s high beam headlights. Trooper Diggs stated that May never drove erratically. Trooper Diggs testified that he smelled alcohol on both May and his passenger, but that when questioned May told him that what Trooper Diggs smelled was Listerine. Trooper Diggs further stated that May failed to produce a driver’s license or insurance card and failed to perform satisfactorily on a number of field sobriety tests. Trooper Diggs also testified that his report reflected that May told *496 him that he had low blood sugar, took Tetracycline, and had something wrong with his knees. Subsequently, the troopers arrested May’s passenger for public intoxication and May for driving while intoxicated, then transported both of them to the Collin County jail. At the jail, Trooper Diggs videotaped May performing all sobriety tests unsatisfactorily, including an attempt to take an intoxilyzer test. Trooper Paluga, a certified intoxilyzer machine operator, conducted the test on May. Trooper Diggs and Trooper Paluga testified that they viewed numbers on the machine’s computer readout, but that no printed results were available because of May’s inability to complete the test.

May testified that he could not complete the test on the machine, because of an asthmatic condition which resulted in his inability to - blow hard enough into the machine. May also stated that he had taken asthma medication, in addition to the Tetracycline, but had forgotten to tell the troopers. May denied drinking alcohol on the day in question. May stated that he never drank when he took his asthma medication, because the medication made him feel drowsy and loose.

Admissibility of the Intoxilyzer Test Results

In his first point of error, May argues that the State failed to establish a proper predicate for the admission of the numbers on the intoxilyzer machine’s readout into evidence. May objected at trial that the testimony regarding the numbers on the intoxilyzer’s computer readout amounted to hearsay and a denial of his right to confrontation, because the State produced no printout card of the test results as required under the best evidence rule. On appeal, May contends that Trooper Diggs’s testimony amounted to hearsay because the State failed to establish that: (1) a certified operator performed the test and properly prepared the alcohol solution; (2) the device functioned properly at the time of the test by evidence of periodic calibration and evaluation; and (3) the operator conducted the test in an approved manner.

The pertinent testimony of Trooper Diggs progressed as follows:

BY MR. McCONATHY:
Q You will furnish us with a copy from the printout from the Intoxilizer results, will you not?
A That could be obtained through a technical supervisor.
Q Well, you were there and you saw the Defendant take an Intoxilizer. You saw the green light go on and you saw the printout card because the officer had it in his hand. Then there is a result of that test he took somewhere.
A There are no printed complete results due to the fact that Mr. May would not give a breath sample. But there is a voided test record.
Q Now, you just got—you weren’t certified in that machine at the time?
A I was not certified on the instrument at that time, that’s correct.
Q Did you see the green light on on that machine whfen he blew in it?
A I saw—it’s an amber light.
Q Did you see—•
A It came on a couple of times.
Q There was a test going on and that card was in the machine, was it not, that test card?
A It was in the instrument, but as I said earlier, he wouldn’t blow into it long enough and hard enough.
Q You know as being an operator, once that light goes on, there is a test being conducted once that light turns on?
A Yes, sir, and there were some numbers on the instrument, too.
Q Then we would—no, we would want the printout card, not the numbers. We want the printout card.
A Okay. Sir, there were no printed results on the card due to the fact that he did not satisfy the slope detector and he did not satisfy the time.
Q But you don’t have the card?
A Not with me, no, sir, I do not.
Q Can you get it for us?
*497 A It can be attained through a technical supervisor and he is stationed in Garland.
Q Who is that; George Huang?
A It’s Jim Hughes.
Q Jim Hughes.
MR. McCONATHY: Thank you. No further questions.
THE COURT: Is this witness released by the State?
MS. BENKO: I have a couple more questions, Your Honor.
THE COURT: Ma’am, two minutes for any redirect examination.
MS. BENKO: Thank you, Your Honor.
FURTHER REDIRECT EXAMINATION
BY MS. BENKO:
Q You saw some numbers. What numbers did you see on the instrument?
MR. McCONATHY: Objection to any •hearsay to what he saw, Your Honor; denied any confrontation since he said there is no card, there was no test results.
THE COURT: The objection is overruled, sir. You may answer the question.
Q (By Ms. Benko) What number did you see?
A I saw 0.20.

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Bluebook (online)
784 S.W.2d 494, 1990 Tex. App. LEXIS 471, 1990 WL 20949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/may-v-state-texapp-1990.