Terry Lee Elliott v. State

• Court: Court of Appeals of Texas
• Decided: July 7, 2005
• Docket: 13-04-00329-CR
• Status: Published

Opinion

                             NUMBER 13-04-00329-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

TERRY LEE ELLIOTT,                                                                      Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

        On appeal from the County Court of Lavaca County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

After appellant, Terry Lee Elliott, pleaded guilty to the offense of driving while intoxicated, the trial court (1) found him guilty, (2) assessed his punishment at 180 days= confinement in the county jail and a $500 fine, (3) suspended the jail sentence, and (4) placed him on community supervision for a term of 180 days.  The trial court has certified that Adefendant=s appeal is in a plea bargain case, but is on matters that were raised by written motion filed and ruled on before trial, and the defendant has the right of appeal.@  See Tex. R. App. P. 25(a)(2).  In a single point of error, appellant contends the trial court erred in denying his motion to suppress the results of a breath test.  Specifically, appellant argues that the test results were inadmissible because the officer administering the test failed to observe him for the statutory fifteen-minute observation period prior to giving him the test.  See 37 Tex. Admin. Code ' 19.3(c)(1) (1998) (Tex. Dep=t of Pub. Safety, Breath Alcohol Testing Regs.).  We affirm.

As this is a memorandum opinion not designated for publication and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of our decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

We review a trial court=s ruling on a motion to suppress evidence under an abuse of discretion standard.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).  We afford almost total deference to the trial court=s decision in granting or denying a motion to suppress evidence.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  Absent a clear showing of abuse of discretion, we will not set aside the decision of a trial court regarding a motion to suppress evidence.  Villarreal, 935 S.W.2d at 138.  The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony.  Id.

Evidence of alcohol concentration, as shown by analysis of a specimen of the person=s breath taken at the request of a peace officer, is admissible at trial in a driving while intoxicated offense.  Tex. Transp. Code Ann. ' 724.064 (Vernon 1999).  Breath specimens must be obtained and analyzed in accordance with the rules adopted by the Texas Department of Public Safety.  Id. ' 724.016 (Vernon 1999).  The Texas Administrative Code provides:

[A breath test] operator shall remain in the presence of the subject at least 15 minutes before the test and should exercise reasonable care to ensure that the subject does not place any substances in the mouth.  Direct observation is no longer necessary to ensure the validity or accuracy of the test result.

37 Tex. Admin. Code '19.3(c)(1) (1998) (Tex. Dep=t. of Pub. Safety, Breath Alcohol Testing Regs.). 

The term Apresence@ as used in section 19.3 has not been administratively or legislatively defined; therefore, it must be given its ordinary and plain meaning.   State v. Reed, 888 S.W.2d 117, 122 (Tex. App.BSan Antonio  1994, no pet.).  APresence@ has been defined as Athe state of being in front of or in the same place as someone or something.@  Id.

Appellant argues that the officer who administered the breath test did not remain in his presence during the entire fifteen-minute period before the test.  Appellant testified he was taken to a holding room or visitation room at the jail immediately prior to the test and that he remained alone in the room for approximately two to five minutes.  Appellant asserts the time he spent in the holding/visitation room constituted time outside the presence of the administering officer during the mandatory fifteen-minute period.

The administering officer=s testimony contradicted appellant=s claim that he was placed in a separate room for a period of time prior to the breath test.  The officer testified that appellant remained in his presence throughout the fifteen-minute period preceding the breath test.^[1]  Because the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, we conclude the trial court did not abuse its discretion in overruling appellant=s motion to suppress.  See Villarreal, 935 S.W.2d at 138.  Appellant=s sole point of error is overruled.

We affirm the trial court=s judgment.

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 7th day of July, 2005.

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^[1] The officer administering the breath test was also the arresting and transporting officer.  The time stamp on the officer=s patrol unit videotape recording indicates that the officer was in the continual presence of appellant as early as 1:15 a.m., the time of the initial traffic stop.  The time stamp on the officer=s patrol unit videotape recording further indicates that the officer and appellant arrived at the jail at 1:24:59 a.m.  The time stamp on the breath test report indicates testing began at 1:39 a.m. (seconds not ascertainable on the device).