Opinion issued August 8, 2017
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-16-00237-CR ——————————— TYLER COLLIN SANDEL, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1 Galveston County, Texas Trial Court Case No. MD-0332846
MEMORANDUM OPINION
A jury convicted appellant Tyler Collin Sandel of driving while intoxicated
with a breath alcohol concentration level equal to or greater than 0.15, a class A
misdemeanor. See TEX. PENAL CODE § 49.04(d). He was sentenced to serve 365
days in the Galveston County jail, and his sentence was suspended for 18 months. On appeal, Sandel challenges the trial court’s refusal to instruct the jury to
disregard illegally obtained evidence. See TEX. CODE CRIM. PROC. art. 38.23
We affirm.
Background
Appellant Tyler Collin Sandel was leaving a bar when he backed onto a
road, narrowly missing the patrol car of Kemah Police Officer M. Hinson. Several
minutes later, Hinson stopped Sandel for not wearing his seat belt. Sandel stopped
his car “halfway in the roadway.” Hinson approached the car, asked for Sandel’s
license and insurance, and observed his “slurred speech” and his “bloodshot, glassy
eyes.” Hinson also smelled an “alcoholic beverage coming from inside the
vehicle.” Sandel handed his driver’s license to Hinson, who verified that there
were no outstanding warrants.
Hinson testified that he had concerns about Sandel’s ability to drive safely.
Sandel told Hinson that he had consumed two beers and two shots, and he
cooperated with field sobriety tests, all of which indicated that he was intoxicated.
Sandel then consented to provide a breath specimen.
The Dickinson Police Department administered breath alcohol tests at its
police station upon request of Kemah police officers. At the time of Sandel’s
arrest, the regulations governing breath alcohol testing required that the test subject
2 be observed by the officer administering the test for at least 15 minutes before the
test to ensure that the subject did not put anything in his mouth.1
At 1:50 a.m., after Sandel agreed to take a breath alcohol test, Hinson called
the Dickinson police dispatcher to request breath testing. Hinson testified that it
usually takes about 10 to 15 minutes for him to get to Dickinson. He drove Sandel
to the Dickinson police station, and the event report shows that they arrived just
before 1:58 a.m. Hinson testified that he stayed with Sandel until a Dickinson
police officer administered the breath test at 2:31 am.
At trial, Hinson testified about the circumstances of Sandel’s stop and arrest,
including the field sobriety tests. He also gave his opinion, based on his experience
and observations, that Sandel was intoxicated at that time due to the consumption
of alcohol.
On cross-examination, Hinson was asked what time he and Sandel arrived at
the Dickinson police station and what time the breath test began. In an attempt to
refresh his recollection, Hinson was shown a note from dispatch, which had a
1:58 a.m. time stamp and which stated that the intoxilyzer operator was “on lunch”
and would be “back in 30 minutes.” Further questions showed that note from
dispatch did not refresh Officer Hinson’s recollection:
1 37 TEX. ADMIN. CODE § 19.4(c)(1) (2014) (Tex. Dep’t of Pub. Safety, Approval of Techniques, Methods, and Programs), repealed by 40 Tex. Reg. 129, 250–55 (2015).
3 Q: I mean, best you know, you asked for [the intoxilyzer operator] and then they told you he’s at lunch, he’ll be there in a little bit. Approximately 35 minutes?
A. If that’s what it says. I just don’t recall.
Q: But is that what it says?
A: Well, we said that a while ago, 1:58.
Q: And he’ll be back in 30 minutes?
A: Yes, sir.
Dickinson Police Officer J. Peterson, the intoxilyzer operator, testified that
he administered the breath test to Sandel, but he “did not know the exact time”
when Sandel arrived at the station to take the test. Peterson testified about how
long it took him to administer the test, and he used that information to estimate
when Sandel arrived at the station. Peterson testified that the first test was
administered at 2:31 a.m. He further testified that before the first test, he was
continuously in the room with Sandel for 15 minutes, and he verified that nothing
had been placed in Sandel’s mouth. Peterson also entered identifying information
into the intoxilyzer before he began the test. Based on those factors, Peterson
offered a “guess” that Sandel arrived “somewhere right after 2:00.” Two tests
showed that Sandel’s breath alcohol concentration was 0.163 and 0.162.
Sandel argued that the dispatcher’s note demonstrated that the rule requiring
the 15-minute waiting period was not followed. He argued that if the intoxilyzer
4 operator was “on lunch” for 30 minutes at 1:58 a.m. and the first test was
performed at 2:31 a.m., then it was not possible for the operator to observe Sandel
for 15 minutes before administering the test. Sandel thus contended that although
the dispatcher’s note was not admitted into evidence, the testimony about it
controverted the testimony from Hinson and Peterson who said that the rule
requiring a 15-minute waiting period had been followed. Sandel reasoned that the
results of the breath alcohol test had been obtained illegally, and he asked the court
to instruct the jury that it could disregard the evidence of his breath alcohol
concentration if it agreed that Peterson did not comply with the procedure set forth
in the State regulations.
The trial court denied Sandel’s requested instruction. The jury found Sandel
guilty, and the trial court imposed punishment. Sandel appealed.
Analysis
On appeal, Sandel argues that the trial court erred by refusing to give the
jury his requested instruction to disregard the test results if it believed that the
required 15-minute waiting period was not observed. “Our first duty in analyzing a
jury-charge issue is to decide whether error exists.” Phillips v. State, 463 S.W.3d
59, 64 (Tex. Crim. App. 2015). Only if we conclude that there is error in the jury
charge do we conduct a harm analysis. Id. at 64–65.
5 Article 38.23(a) provides that “evidence obtained by an officer” and “in
violation of any provisions of the Constitution or laws” is inadmissible against a
criminal defendant at trial. TEX. CODE. CRIM. PROC. art. 38.23(a). In a jury trial,
when the evidence creates a question regarding whether “the fruits of a police-
initiated search or arrest were illegally obtained, ‘the jury shall be instructed that if
it believes, or has a reasonable doubt,” that the evidence was obtained illegally, it
“shall disregard” the evidence that was improperly obtained. Robinson v. State,
377 S.W.3d 712, 719 (Tex. Crim. App. 2012) (quoting TEX. CODE. CRIM. PROC.
art. 38.23(a)).
“A defendant’s right to the submission of jury instructions under Article
38.23(a) is limited to disputed issues of fact that are material to his claim of a
constitutional or statutory violation that would render evidence inadmissible.”
Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007). A defendant
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued August 8, 2017
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-16-00237-CR ——————————— TYLER COLLIN SANDEL, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1 Galveston County, Texas Trial Court Case No. MD-0332846
MEMORANDUM OPINION
A jury convicted appellant Tyler Collin Sandel of driving while intoxicated
with a breath alcohol concentration level equal to or greater than 0.15, a class A
misdemeanor. See TEX. PENAL CODE § 49.04(d). He was sentenced to serve 365
days in the Galveston County jail, and his sentence was suspended for 18 months. On appeal, Sandel challenges the trial court’s refusal to instruct the jury to
disregard illegally obtained evidence. See TEX. CODE CRIM. PROC. art. 38.23
We affirm.
Background
Appellant Tyler Collin Sandel was leaving a bar when he backed onto a
road, narrowly missing the patrol car of Kemah Police Officer M. Hinson. Several
minutes later, Hinson stopped Sandel for not wearing his seat belt. Sandel stopped
his car “halfway in the roadway.” Hinson approached the car, asked for Sandel’s
license and insurance, and observed his “slurred speech” and his “bloodshot, glassy
eyes.” Hinson also smelled an “alcoholic beverage coming from inside the
vehicle.” Sandel handed his driver’s license to Hinson, who verified that there
were no outstanding warrants.
Hinson testified that he had concerns about Sandel’s ability to drive safely.
Sandel told Hinson that he had consumed two beers and two shots, and he
cooperated with field sobriety tests, all of which indicated that he was intoxicated.
Sandel then consented to provide a breath specimen.
The Dickinson Police Department administered breath alcohol tests at its
police station upon request of Kemah police officers. At the time of Sandel’s
arrest, the regulations governing breath alcohol testing required that the test subject
2 be observed by the officer administering the test for at least 15 minutes before the
test to ensure that the subject did not put anything in his mouth.1
At 1:50 a.m., after Sandel agreed to take a breath alcohol test, Hinson called
the Dickinson police dispatcher to request breath testing. Hinson testified that it
usually takes about 10 to 15 minutes for him to get to Dickinson. He drove Sandel
to the Dickinson police station, and the event report shows that they arrived just
before 1:58 a.m. Hinson testified that he stayed with Sandel until a Dickinson
police officer administered the breath test at 2:31 am.
At trial, Hinson testified about the circumstances of Sandel’s stop and arrest,
including the field sobriety tests. He also gave his opinion, based on his experience
and observations, that Sandel was intoxicated at that time due to the consumption
of alcohol.
On cross-examination, Hinson was asked what time he and Sandel arrived at
the Dickinson police station and what time the breath test began. In an attempt to
refresh his recollection, Hinson was shown a note from dispatch, which had a
1:58 a.m. time stamp and which stated that the intoxilyzer operator was “on lunch”
and would be “back in 30 minutes.” Further questions showed that note from
dispatch did not refresh Officer Hinson’s recollection:
1 37 TEX. ADMIN. CODE § 19.4(c)(1) (2014) (Tex. Dep’t of Pub. Safety, Approval of Techniques, Methods, and Programs), repealed by 40 Tex. Reg. 129, 250–55 (2015).
3 Q: I mean, best you know, you asked for [the intoxilyzer operator] and then they told you he’s at lunch, he’ll be there in a little bit. Approximately 35 minutes?
A. If that’s what it says. I just don’t recall.
Q: But is that what it says?
A: Well, we said that a while ago, 1:58.
Q: And he’ll be back in 30 minutes?
A: Yes, sir.
Dickinson Police Officer J. Peterson, the intoxilyzer operator, testified that
he administered the breath test to Sandel, but he “did not know the exact time”
when Sandel arrived at the station to take the test. Peterson testified about how
long it took him to administer the test, and he used that information to estimate
when Sandel arrived at the station. Peterson testified that the first test was
administered at 2:31 a.m. He further testified that before the first test, he was
continuously in the room with Sandel for 15 minutes, and he verified that nothing
had been placed in Sandel’s mouth. Peterson also entered identifying information
into the intoxilyzer before he began the test. Based on those factors, Peterson
offered a “guess” that Sandel arrived “somewhere right after 2:00.” Two tests
showed that Sandel’s breath alcohol concentration was 0.163 and 0.162.
Sandel argued that the dispatcher’s note demonstrated that the rule requiring
the 15-minute waiting period was not followed. He argued that if the intoxilyzer
4 operator was “on lunch” for 30 minutes at 1:58 a.m. and the first test was
performed at 2:31 a.m., then it was not possible for the operator to observe Sandel
for 15 minutes before administering the test. Sandel thus contended that although
the dispatcher’s note was not admitted into evidence, the testimony about it
controverted the testimony from Hinson and Peterson who said that the rule
requiring a 15-minute waiting period had been followed. Sandel reasoned that the
results of the breath alcohol test had been obtained illegally, and he asked the court
to instruct the jury that it could disregard the evidence of his breath alcohol
concentration if it agreed that Peterson did not comply with the procedure set forth
in the State regulations.
The trial court denied Sandel’s requested instruction. The jury found Sandel
guilty, and the trial court imposed punishment. Sandel appealed.
Analysis
On appeal, Sandel argues that the trial court erred by refusing to give the
jury his requested instruction to disregard the test results if it believed that the
required 15-minute waiting period was not observed. “Our first duty in analyzing a
jury-charge issue is to decide whether error exists.” Phillips v. State, 463 S.W.3d
59, 64 (Tex. Crim. App. 2015). Only if we conclude that there is error in the jury
charge do we conduct a harm analysis. Id. at 64–65.
5 Article 38.23(a) provides that “evidence obtained by an officer” and “in
violation of any provisions of the Constitution or laws” is inadmissible against a
criminal defendant at trial. TEX. CODE. CRIM. PROC. art. 38.23(a). In a jury trial,
when the evidence creates a question regarding whether “the fruits of a police-
initiated search or arrest were illegally obtained, ‘the jury shall be instructed that if
it believes, or has a reasonable doubt,” that the evidence was obtained illegally, it
“shall disregard” the evidence that was improperly obtained. Robinson v. State,
377 S.W.3d 712, 719 (Tex. Crim. App. 2012) (quoting TEX. CODE. CRIM. PROC.
art. 38.23(a)).
“A defendant’s right to the submission of jury instructions under Article
38.23(a) is limited to disputed issues of fact that are material to his claim of a
constitutional or statutory violation that would render evidence inadmissible.”
Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007). A defendant
seeking submission of a jury instruction under Article 38.23(a) must show that the
evidence heard by the jury raises an issue of fact, the evidence on that fact is
affirmatively contested, and the contested factual issue is material to the lawfulness
of the challenged conduct in obtaining the evidence. Id. at 510. To justify an
Article 38.23(a) instruction, there must be controverted evidence demonstrating a
“factual dispute about how the evidence was obtained.” Robinson, 377 S.W.3d at
719 (quoting Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004)). This
6 requires that the record include “some affirmative evidence that puts the existence
of that fact in question.” Madden, 242 S.W.3d at 513.
Sandel complains that the breath test, which showed he had a breath alcohol
concentration greater than 0.15, was obtained in violation of the testing procedures
set forth in the Texas Administrative Code. “A breath specimen taken at the
request or order of a peace officer must be taken and analyzed” in accordance with
the rules set forth by the Department of Public Safety. TEX. TRANSP. CODE §
724.016.
Sandel argued that the dispatcher’s note, which had a time stamp of
1:58 a.m. and stated that Peterson would return from lunch in 30 minutes, created a
fact dispute about whether the procedure requiring the intoxilyzer operator to be in
the presence of the test subject for 15 minutes was followed. Sandel argued that a
person returning from lunch 30 minutes after 1:58 a.m. would not have had time to
personally observe a test subject for 15 minutes prior to administering a test at
2:31 a.m. Thus, Sandel requested that the trial court instruct the jury to disregard
the test results if it believed the State failed to comply with the law or if it had a
reasonable doubt about the State’s compliance.
At the time of Sandel’s breath test, an intoxilyzer operator was required to
“remain in the presence of the subject at least 15 minutes before the test and
exercise reasonable care to ensure that the subject does not place any substances in
7 the mouth.” 37 TEX. ADMIN. CODE § 19.4(c)(1) (2014) (Tex. Dep’t of Pub. Safety,
Approval of Techniques, Methods, and Programs), repealed by 40 Tex. Reg. 129,
250–55 (2015). The then-applicable rule also provided that “[d]irect observation is
not necessary to ensure the validity or accuracy of the test result.”2 Id.
Sandel requested the following jury instruction:
You are instructed that no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
You are further instructed that before you may consider the results of any breath or chemical test, you must find beyond a reasonable doubt that the regulations of the Department of Public Safety were complied with in administering the test. The regulations of the Department of Public Safety include:
(1) An observation period of fifteen minutes during which the subject of the test did not eat, smoke, vomit or otherwise introduce ay substance into his mouth;
2 After Sandel’s breath test on February 27, 2013, and before his conviction on December 2, 2015, the Department of Public Safety adopted new amendments and sections to its rules governing breath tests, effective January 12, 2015, in order to reorganize, update, and clarify them. See 40 Tex. Reg. 129, 250–55 (2015). The rule regarding the 15-minute observation period is now codified in section 19.3 of the Texas Administrative Code. See 37 TEX. ADMIN. CODE § 19.3 (2015) (Tex. Dep’t of Pub. Safety, Techniques and Methods). In this opinion, we analyze Sandel’s issue under former section 19.4(c)(1), which was effective at the time of his breath test. See Patel v. State, No. 01-14-00575-CR, 2015 WL 5821439, at *1, n.1 (Tex. App.–Houston [1st Dist.] Sep. 29, 2015, pet. ref’d) (mem. op.).
8 (2) Checking the reference sample device to assure that it is properly sealed;
(3) Maintaining the breath tube inside the housing until the subject test.
If you have found beyond a reasonable doubt that all of these requirements were complied with, then you may consider the results of the test in your deliberations. But, if you do not find, or if you have a reasonable doubt as to the compliance, then you may not consider said test for any purpose and shall not consider it whatsoever in arriving at your verdict.
For Sandel to have been entitled to an instruction on the issue of the 15-
minute waiting period, there had to be a disputed fact issue about compliance with
the mandatory 15-minute waiting period. This required some affirmative evidence
that Peterson did not comply with the required 15-minute waiting period. See
Madden, 242 S.W.3d at 514.
Sandel relied on information from the dispatcher’s note, but the note was not
admitted into evidence. Rather, defense counsel used it in an attempt to refresh
Hinson’s recollection, and Hinson testified that the dispatcher’s note did not
refresh his recollection. The information was made known to the jury only through
the defense attorney’s cross-examination of Hinson, and a “cross-examiner cannot
create a factual dispute for purposes of an Article 38.23(a) instruction merely by
his questions.” Id. Moreover, Sandel’s argument that the information from the
dispatcher’s note supported an inference that the Peterson was away from the
police station and did not return until 30 minutes after 1:58 am. is unsound. While
9 the dispatcher’s note indicated when the dispatcher expected Peterson to return, it
did not indicate when he actually returned, which was the information needed as
the start time for Sandel’s computation of time periods.
Contrary to Sandel’s argument, Peterson testified several times that he
observed the waiting period. Hinson’s event report from Sandel’s arrest showed
arrival at the police station just minutes before 2:00 a.m. There is no affirmative
evidence that Peterson did not comply with the 15-minute waiting period. “To raise
a disputed fact issue warranting an Article 38.23(a) jury instruction, there must be
some affirmative evidence that puts the existence of that fact in question.” Id. at
513. Because there is no affirmative evidence in the record creating a factual
dispute about how the evidence was obtained, we overrule Sandel’s sole issue. See
Robinson, 377 S.W.3d at 719; Madden, 242 S.W.3d at 513; see also Serrano v.
State, 464 S.W.3d 1, 8 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d)
(defendant not entitled to Article 38.23 submission because there was no factual
dispute about whether the State followed 15-minute waiting period for DWI breath
testing).
10 Conclusion
We affirm the judgment of the trial court.
Michael Massengale Justice
Panel consists of Chief Justice Radack and Justices Keyes and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).