Tyler Collin Sandel v. State, 01-16-00237-CR

At ~1:50 a.m., Officer Hinson stopped Tyler Sandel for a seat-belt violation after observing signs of intoxication; Sandel performed field sobriety tests and consented to a breath test.
Hinson transported Sandel to the Dickinson PD station; intoxilyzer operator Peterson administered breath tests showing BACs of .163 and .162.
DPS rules then required the operator to remain in the presence of the subject for at least 15 minutes before testing to ensure nothing was placed in the mouth.
A dispatcher’s note (not admitted into evidence) timestamped 1:58 a.m. said the operator was “on lunch” and would be back in 30 minutes; defense argued this created a dispute about compliance with the 15‑minute observation rule.
The intoxilyzer operator testified he observed Sandel for 15 minutes before testing; Hinson’s report indicated arrival just before 2:00 a.m.; trial court refused defendant’s requested jury instruction to disregard the test if the jury believed the observation period was not followed.
Jury convicted Sandel of DWI with BAC ≥ .15; on appeal the court affirmed, holding there was no affirmative, controverting evidence creating a disputed factual issue about compliance with the 15‑minute rule.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court erred by refusing an Art. 38.23 jury instruction to disregard breath results if DPS procedures weren’t followed	Sandel: dispatcher note shows operator was on lunch, so operator could not have observed 15 minutes before the 2:31 a.m. test — creates factual dispute	State: operator testified he observed the 15‑minute period; dispatcher note was not admitted and did not prove actual return time; no affirmative evidence of noncompliance	Court held no error: no affirmative, controverting evidence created a disputed fact issue warranting an Art. 38.23 instruction

Phillips v. State, 463 S.W.3d 59 (Tex. Crim. App. 2015) (first step is determining whether jury‑charge error exists)
Robinson v. State, 377 S.W.3d 712 (Tex. Crim. App. 2012) (Article 38.23 requires instruction when jury could believe evidence was illegally obtained)
Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) (Article 38.23 instruction limited to contested factual issues material to admissibility)
Garza v. State, 126 S.W.3d 79 (Tex. Crim. App. 2004) (controverted evidence must show factual dispute about how evidence was obtained)
Serrano v. State, 464 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2015) (no Article 38.23 submission where record lacked dispute about 15‑minute observation)