Moseley v. State

696 S.W.2d 934, 1985 Tex. App. LEXIS 7369

• Court: Court of Appeals of Texas
• Decided: August 30, 1985
• Docket: 05-84-00421-CR
• Status: Published

Opinions

GUITTARD, Chief Justice.

Appellant appeals his conviction for driving while intoxicated, contending that the trial court erred in admitting into evidence the result of a chemical breath analysis (hereinafter referred to as a breath test), in failing to submit his requested jury instruction regarding this breath test, and in admitting evidence of the breath-test operator’s certification. We disagree with all of appellant’s contentions and affirm his conviction.

All of appellant’s grounds of error are based on section 3(b) of former article 6701 / -5 (hereinafter referred to as section 3(b)), the statute authorizing breath tests for suspected intoxicated drivers, which provides as follows:

Chemical analysis of the person’s breath, to be considered valid under the provisions of this section, must be performed according to methods approved by 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 approve 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.

Acts 1969, ch. 434, § 3(b), 1969 Tex.Gen. Laws 1468, 1469, amended by Acts 1971, ch. 709, § 1, 1971 Tex.Gen.Laws 2340, 2341, amended by Acts 1983, ch. 303, § 4, 1983 Tex.Gen.Laws 1577, 1582 (formerly Tex.Rev.Civ.Stat.Ann. art. 6701/-5, § 3(b)).

Evidence of Test Result

Appellant was arrested by officer Velasquez for driving while intoxicated. At the police station, appellant voluntarily submitted to a breath test administered by officer England. At trial England did not testify. Velasquez testified without objection tht the test showed an alcohol concentration in appellant’s blood of 0.22 percent. The State also offered the testimony of officer Scott, the supervisor of the Dallas Police Department’s breath-test program. Appellant objected to Scott’s testimony on the ground that the State had not shown that the test was administered in accordance with the methods approved by the Department of Public Safety. The trial court overruled this objection on the stated ground that the test result was already in evidence. Scott then testified concerning the test result, and he described the methods approved by the Department of Public Safety, but there is no testimony as to whether appellant’s test was administered in accordance with those methods. Besides the test result, there was other strong evidence of appellant’s intoxication.

Appellant’s first ground of error asserts that the, court erred in admitting Scott’s testimony concerning the test result over appellant’s objection that there was no proof that the test was administered according to the methods approved by the Department. We overrule this ground on the principle of curative admissibility. Even if the trial court improperly allowed Scott to testify as to the test result, this error would not be reversible because the result of the test was already established by Velasquez's unchallenged testimony. McMahon v. State, 582 S.W.2d 786, 791 (Tex.Crim.App.1978) (en banc), cert. denied, 444 U.S. 919, 100 S.Ct. 238, 62 L.Ed.2d 175 (1979); see also Lockhart v. State, 171 Tex.Crim. 648, 352 S.W.2d 749, 751 (1961); Moore v. State, 675 S.W.2d 348, 350 (Tex.App.—Fort Worth 1984, pet. ref’d).

Refusal of Requested Instruction

Appellant contends by his second ground of error that the trial court erred in failing to submit to the jury his requested instruction concerning the statutory requirements for admissibility of a breath test. We conclude that no error is presented in this respect because no fact issue was raised as to whether the statutory requirements were met.

As we have already pointed out, Velasquez testified without objection that the breath test administered to appellant showed an alcohol concentration in appellant’s blood of 0.22 percent, well above the 0.10 percent required for application of the presumption of intoxication established by section 3(a) of former article 6701l- 5. Acts 1971, ch. 709, § 1, 1971 Tex.Gen.Laws 2340, 2340-41, amended by Acts 1983, ch. 303, § 4, 1983 Tex.Gen.Laws 1577, 1582. The court instructed the jury concerning this presumption, as required by section 2.05 of the Texas Penal Code (Vernon Supp.1985), explaining that the facts giving rise to the presumption must be proved beyond a reasonable doubt. See Wilson v. State, 658 S.W.2d 615, 617-18 (Tex.Crim.App.1983). The court further instructed the jury that for the breath-test result to be valid, the jury must find from the evidence beyond a reasonable doubt that the test was performed by a person possessing a valid certificate issued by the Texas Department of Public Safety for that purpose. The appellant requested, and the court refused, an instruction to the effect that the jury must also find beyond a reasonable doubt that the test was performed according to methods approved by the Texas Department of Public Safety.

We have found no decisions bearing directly on the necessity for such an instruction. We recognize that section 3(b) requires the State to prove, as a predicate to the admission of the test result, both the certification of the operator and the administration of the test according to methods approved by the Department. A number of cases refer to proof of the proper method of administering the test as a necessary predicate to admissibility of the test result when lack of such a predicate is raised by a proper objection. Slagle v. State, 570 S.W.2d 916, 917-18 (Tex.Crim.App.1978); Cody v. State, 548 S.W.2d 401, 404 (Tex. Crim.App.1977). If no objection is made to evidence of the test result for lack of the predicate, any error in admitting the evidence without proving the predicate is not preserved for review. Romo v. State, 577 S.W.2d 251, 252 (Tex.Crim.App.1979).

An accused may waive proof of these two requirements of section 3(b) by failing to object to the admission of the breathtest result on the ground that the State has failed not proved one or both of them. In the absence of objection to the testimony of Velasquez, we hold that proof of the predicate was waived and, accordingly, that appellant was not entitled to a jury instruction on the predicate.

We recognize that even though appellant waived proof of the predicate, if other evidence had raised a fact issue with respect to the proof of the predicate, the court would have been required to submit the issue to the jury by a proper instruction. Thus, in Ozark v. State, 51 Tex.Crim. 106, 100 S.W. 927, 930 (1907), the appellant was held entitled to an instruction submitting to the jury a fact issue concerning the unavailability of an absent witness as a predicate for introducing his former testimony.

The rule requiring special instructions in such situations has been statutorily enacted with respect to voluntariness of confessions in article 38.22, sections 6 and 7, of the Texas Code of Criminal Procedure (Vernon 1979). See Rogers v. State, 549 S.W.2d 726, 729-30 (Tex.Crim.App.1977) (fact issue of voluntariness raised by evidence of mental incapacity); Burton v. State, 505 S.W.2d 811, 812-13 (Tex.Crim.App.1974) (fact issue raised with respect to warning appellant that his confession may be used against him); Jordan v. State, 163 Tex.Crim. 287, 290 S.W.2d 666 (1956) (fact issue raised on defendant’s knowledge of contents of confession). Nevertheless, in such a case the defendant is not entitled to such an instruction in the absence of evidence showing that the confession was not voluntary. Hughes v. State, 562 S.W.2d 857, 863 (Tex.Crim.App.) (en banc) cert. denied, 439 U.S. 903, 99 S.Ct. 268, 58 L.Ed.2d 250 (1978); Cogburn v. State, 458 S.W.2d 932, 933 (Tex.Crim.App.1970); Gregory v. State, 389 S.W.2d 301, 303 (Tex.Crim.App.1965). Nor does evidence presented by the State in anticipation of an attack on the voluntariness of a confession put voluntariness in issue and require such an instruction if no contrary testimony is offered. Brooks v. State, 567 S.W.2d 2, 3 (Tex.Crim.App.1978); McDonald v. State, 631 S.W.2d 237, 239 (Tex.App.—Fort Worth 1982, no pet.).

If no instruction on the voluntariness of a confession is necessary in the absence of a fact issue concerning the requirements of section 38.22, as the above authorities hold, then, by the same reasoning, no instruction on the methods of administering a breath test is necessary in the absence of a fact issue concerning the use of the methods prescribed by section 3(b). We recognize that section 3(b) provides that a breath test, “to be considered valid,” must be administered according to the methods approved by the Department of Public Safety. Yet, the confession cases cannot be distinguished on this ground because article 38.22 likewise provides, in effect, that a confession, to be considered valid, must meet the requirements of that statute. Accordingly, we hold that no instruction is necessary on the validity of a breath test unless a fact question is raised concerning compliance with section 3(b).

In our application of this holding to the present case, we have reviewed the record and conclude that there is no evidence raising a fact issue on whether appellant’s test was performed according to the methods approved by the Department of Public Safety. Since there was no fact issue raised by the evidence, appellant was not entitled to an instruction submitting this issue to the jury. Moreover, the giving of an instruction that included the proper certification of the test operator but did not include the method of administering the test was not error because appellant was not entitled to any instruction concerning a fact issue not properly before the jury. See Jernigan v. State, 661 S.W.2d 936, 942 (Tex.Crim.App.) (in absence of evidence that a confession was not voluntary, no error in an instruction on voluntariness failing to explain that the accused may terminate the interview), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 368 (1983). Consequently, we hold that the court did not err in refusing the requested instruction.

Certification of Test Operator

In his third, fourth, and fifth grounds of error, appellant contends that the trial court reversibly erred in admitting over his objections evidence that tended to prove that England, the officer who administered appellant’s breath test, was a Department of Public Safety certified breath test operator. We overrule these three grounds of error without addressing their merits.

Proof of England’s certification as a breath test operator was necessary to establish the second requirement of section 3(b), that an accused’s breath test be administered by á certified operator. However, as already stated, the two express requirements of section 3(b) constitute a predicate to the admissibility of the test result, and appellant has waived his right to require the State to prove these requirements because he failed to object to Velasquez’s testimony concerning the result of the test on the specific ground that the State failed to prove one or both of them. Because appellant waived proof of the statutory requirements and offered no proof raising a fact issue concerning England’s certification, he cannot plausibly complain on appeal that the trial court erred in admitting incompetent proof of a predicate that the State had no burden to prove. We conclude, therefore, that if the trial court erred in admitting any of the evidence concerning England’s certification by the Department of Public Safety, the error was harmless. Accordingly, we overrule appellant’s third, fourth, and fifth grounds of error.

Affirmed.

AKIN, CARVER, STEPHENS, SPAR-LING, VANCE, ALLEN and GUILLOT, JJ., join in the majority. WHITHAM, J., dissenting, joined by DE-VANY, HOWELL, and McCLUNG, JJ. MALONEY, J., not participating.