Harrell v. State

failing grant appellant the relief he

is entitled to receive under the law. Lloyd HARRELL, Jr.,

Bennie

Appellant, Engle, Antonio, William D. San v. appellant. Texas, Appellee. The STATE of Millsap, Jr., Atty. Sam D. Dist. and Ed- No. 720-85. III, ward F. Shaughnessy, Asst. Dist. Antonio, Huttash, Atty., San Robert State’s Court of Criminal Austin, Atty., for the State. En Banc. 17, Dec. 1986.

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW DAVIS, Judge. W.C. San of Appeals Antonio Court re- driving

versed conviction for intoxicated, holding while that the test re- interpretation sults thereof from lant’s test should have been admitted at trial. The Court held that the part failed to of the intoxilyz- State show a er certified as Testing required (hereinafter Regulations “regulations”) promulgated by Article See V.A.C.S. 6701Z -5 (Shepard’s

Tex.Admin.Code 19.1-19.6 1982). 693 S.W.2d 693 Harrell v. 1985). (Tex.App. Antonio State —San contends that the Court has interpreted regulations incorrectly compliance evidence shows regulations. also The State contends appellant preserve the issue granted peti- for review. We State’s tion for review to consider both issues. preservation first to the of error We turn Lin Manford contention. Officer 29, April that he arrested on driving intoxicated. He while certified, appel- by type, appellant Live Oak but was certified said he drove to the a intoxi- suppress and administered a motion to the Police lant made appellant intoxilyzer. already to on the He also breath test admitted. lyzer results that he certified as an jury Manford stated was judge the requested that the instruct operator intoxilyzer. the He described concerning the disregard all proce- operation the and his machine judge un- The took the motion intoxilyzer. it operating on appellant’s dure the next and it der consideration overruled sample. appellant’s He testified that day. the a intoxilyzer produced test on appellant argues The State that because printed “.13.” digital reading and a testimony that object to Manford’s testified George McDougall, Allen test reading appellant’s from the Depart- that he was certified “.13,” the appellant preserve not did was operator and ment of Public as an answers, in- ground Appellant for review. supervisor intoxilyzer in Bexar alia, object did that he not need ter prin- County. He understood the scientific to the expert, McDougall, the testified until ciples upon intoxilyzer operated, the opera- supervision the certification and calibrate, maintain and he trained was tor, operation intoxilyzer, and the the McDougall repair the instrument. and interpretation the the result. intoxilyzer had that he checked the stated appellant. days prior to test and some correctly. He operating out, that it was points predi the As appel- day also checked it the after had admissibility a test cate for the operating lant’s test and found that it was State, 158 enumerated Hill v. was opinion intoxilyzer correctly. In his the re 256 93 and Cr.R. S.W.2d operating properly April 29. on subsequent French v. cases. affirmed State, (Tex.Cr.App.1972); 484 S.W.2d 716 McDougall prosecutor then The asked (Tex.Cr. State, 509 359 Bumpus v. S.W.2d correlation a “.13 what the was between v. 509 S.W.2d App.1974); reading intoxilyzer and the print-out Palafox State, 548 (Tex.Cr.App.1974); Cody v. reading that individual’s blood alcohol predi The (Tex.Cr.App.1977). S.W.2d place.” Appellant objected time and same the breath out reference to cate was set “question ques- and to the answer that the machine, is, exception the but alyzer a tion calls for because there’s not been the prong, equally applicable to the first predicate conform- established the State the The are: intoxilyzer. 2 of ing Section the Chemical chemicals; (2) compounded use of by the Testing Regulations promulgated as over periodic supervision existence of the as Article as well State of 67011-5 un operation by one who and the machine following.” Hill v. State those cases machine; theory of the scientific derstands the McDou- objection. The court overruled the test a proof of the result of gall principles be- proceeded to the qualified to translate or witnesses measurement, witness it was the “.13” how hind so as to eliminate interpret such result ques- calculated, it After and what meant. not use hearsay. intoxilyzer The does extensively the tioning McDougall about predi prong of the simulator,1 so the first proving that this chemicals reference really applicable and is not was not cate working intoxilyzer the in- to be sure attached to the checks simulator is 1. The reference sample McDougall correctly accurately. of a testified toxilyzer contains reference sample up which is mixed to a of alcohol water the mixture made reference that he supervisor specific, known to a said the week. He concentration each different sample This of a known concen- concentration. running sample verified the analyzed put into simulator and tration is operating properly. He also intoxilyzer was analyzes intoxilyzer. intoxilyzer test not be administered that a valid could said gives reading to the alcohol as intoxilyzer of the sim- without the use on operator compares concentration. reading ulator. thus, and, the known concentration modified due the nature of the reading machine. on intoxilyzer meant. He intoxilyzer through is “checked” timely interpretation use contested the from sample. McDougall the reference qualified witness interpret that a valid could not run qualified result testify about running also through certification of used to the intoxilyzer. He stated prepared that he achieve that result. We find that the sample to used check the objection timely, specific, lant’s was and proper functioning April the preserved of machine on his contention for review. 29, and that it reading matched the mea- of Appeals agreed Court intoxilyzer. sured. the The reference lant that the used administer- sample was to used check the ing the breath test could not be used for functioning intoxilyzer. of the Because the purposes evidential and that the results sample so important the to therefrom should not have been admitted intoxilyzer showing a proper of because the State had to failed show that of use a reference satisfies the first the was certified in accordance prong predicate, of the as modified due to the of the Chemical Breath the of nature the instrument. The State Testing Regulations promulgated by the McDougall Manford and to the Texas Department See prongs predicate. other two of the Tex.Admin, of Public 1982). Thus, (Shepard’s Code 19.2-19.6 §§ he that the Court held the State did not establish objected not have to Manford’s testi proper predicate the of introduction mony reading of print-out the and from such results. The of Court found appellant’s pre in order to of introduction such was reversible error serve his contention. Manford testified jury because the was instructed on the operation to intoxilyzer his of the presumption of intoxication under V.A.C.S. therefrom, his observations including the 6701Z-5, 3(a), (currently Art. print-out reading of He “.13.” 6701Z-5, Specifically, 3(j). art. the Court interpret the number and stated he held, of qualified explain interpret was not to the mandate certifica- qualified the number. Nor hewas to testi of as to model breath test instru- fy intoxilyzer about the of certification the ments indi- and allied yet itself. The State had not offered vidual certification enough instru- predicate Hill, a evidence as under they ments and allied supra, before explain to the “.13” regula or the finally can be certified the Therefore, appellant’s tions. objection Department pertained parts to the certification Safety administering Public use in intoxilyzer could not have been testi pur- breath tests for evidential chemical objec fied to or An answered Manford. poses. Further, failure final to show a point tion at grounds on those would any piece certification meaningless. be be it an instrument or allied McDougall expert concerning was the pur- used in evidential intoxilyzer. tes- His poses is a failure to show that the timony prongs last satisfied the two performed was con- certification as Hill, supra. Appellant’s test established templated not McDougall’s objection prior purposes admissible for court in this interpreting the results of the 19.6(e). state. See id. § explaining the blood alcohol content (Tex. Harrell v. 693 S.W.2d Appellant timely. specified to the was 1985). App.-San Antonio objected he court that because the intoxi- 3(b) lyzer according 6701Z-5, V.A.C.S. Article in effect regulations. Appellant objected trial when time arrest and attempted jury State to the what stated: breath, (1) The make person’s Scientific Director will analysis of the

Chemical al- provi- available a list of instruments and considered valid under equipment certified for use in the section, lied performed of this sions of Texas. State according approved to methods Safety Department of Public Texas application If is made for certif- possessing equip- an individual valid of an instrument or list, Department icate issued Texas ment not on the Safety purpose. for this The Tex- shall examine Public Scientific Director ór item is autho- the instrument other as evaluate techniques or not it meets approve satisfactory to determine whether rized methods, qualifica- certifying criteria. to ascertain the competence of individuals to instruments, tions (b) All or- analysis, and to issue certif- conduct approved, must meet der to be certifying icates such fact. These certifi- (These following criteria. conform subject to termination or cates shall be guidelines by the U.S. set forth revocation, cause, for at the discretion Department Transportation, Nation- Highway Safety Traffic Administra- al tion.) provision the Texas De- Pursuant (1) analyzed for quantity of breath Safety promulgated

partment of Public shall established its alcohol content Testing,” Breath “Chemical measurement only by direct volumetric 37 Tex.Admin. Public fixed analysis collection and of a or 19.1-19.6. These deal Code §§ breath volume. approval of instru- with certification ments, equipment, operators, techniques, (2) collected for specimens programs testing alcohol essentially alveolar analysis shall be relation to enforcement and law evidence composition. for use in court. In the instant case there be able to an- The instrument shall question is no method and sample, alyze a suitable operator’s administration of the test was reference solu- equilibrated as air

proper under the and under the alcohol content at tion of known specifying requisite predicate case law temperature, the result known Also, for admission of the test and results. analysis must which dispute supervision is there no the lim- value within super- maintenance a certified technical = W/V, or such limits as its of 0.01% regula- visor was accordance with the by the Scientific Director. set issue is not the tions. The whether or analysis of breath The instrumental regulations require piece sufficiently, accurately reflect the shall called a reference simulator to be individu- concentration for use breath alcohol certified, rather certified mod- ally than converting alcohol concentra- to blood or class. el tion. pertinent portion specificity procedure are as follows: appropriate for adequate and shall be analyses specimes for the of breath Instru- Breath Test

Sec. 19.1 Chemical of alcohol concentration determination ment Certification: in traffic law enforcement. (a)All testing instruments and necessary (6) Any other tests deemed for eviden- to be used correctly Director to by the Scientific tiary purposes in the State of Texas instru- adequately evaluate the approval and certi- must have the give results in routine ment to correct Director, fied the Scientific testing. chemical breath testing Program, Department of Texas (c) crite- (hereinafter equipment shall referred to Allied Director). necessary by the Scientific ria deemed as Scientific operate properly Director and ade- pur- for evidential it quately poses. function Instruments allied equip- perform. ment include but are not limited to the (d) device After the breath and instruments and collects certified, measures the alcohol content of no modi- breath,

fications these made will be blood or the reference written devices, expendable of the Scientific Di- supplies, and facili- rector. storage. ty security Certifica- (e) If tion will be made it is determined the Scientific designated representative Director or a model or class Office of Director, however, specific specific that a instrument or a Scientific piece unreliable unserviceable, certification will be meet the for certifica- withdrawn. Regulations’ stated ‘The or tions (e) Sec. 19.6 forth in ‘The cation is Certification: He maintaining ^[*] Explanation granted individually of ‘The Regulations.’ ^[*] Refers ^[*] of Terms and Ac- ^[*] Under the meeting to: certifi- ^[*] set (1) McDougall, prior rector modifications can be made without the written consent of the Scientific Di- supervisor.2 designated by the certified, obtained the technical its no final certification. changes, through supervisor, deletions, Technical testi- Once fied that the simulator could be considered (2) operators, (3) supervisors, equipment,” “allied as the term is used in breath test instruments allied regulations. equipment, techniques of (breath programs, agencies), The Court held the refer- of training. courses Certificates individually ence simulator must be certi- operators, are issued for Technical Su- just fied as the instrument itself must be. pervisors and pro- certified breath test not specifically The Court did which grams, other are certifications handled provisions regulations they relied by list or letter. Certifications are upon holding. appears for their It that the granted only by the Scientific Director upon para- Court relied the definitional requirements when of certification graphs previously titled set out “Certi- Cancellation, denial, have been met. fication” and “Instruments suspension, revocation, or inactivation 19.6(e) (h). equipment.” The defini- & § by and certification is made the Scien- “under tion certification states that tific or authority provision Regulations,’ ‘The Scientific Director. All breath granted individually is to: ... purposes per- evidential must be equipment test instruments and allied ...” formed in order under certification paragraph The definitional instruments purposes. be admissible court states, equipment and allied “Certification ****** equipment will model or be made Scientific Di- (h) class the Office of the equipment: Instruments and allied rector; however, piece equipment each physical Refers to individually requirements supplies which are meet the breath test- Regula- ‘The ing. for certification stated in Certification of instruments and designated Scientific Di- only conjunction is tions’ or 19.6(h) requirements individually for certifica- 2. Sec. has been amended to delete the meet language piece equipment” requiring regulations....” (emphasis “each tion stated in the individually Thus, meet stated in added). certifications presented the issue in the instant Regulations ... This section now states that wording. present case would not arise under the "each breath alcohol instrument must (em- designed, prior to its final certification.” function for which it was 19- rector § added). phasis 1(c). requirements There are no additional stated in the for certification of note first that these are both defini- equipment. do not provisions, although tional for some rea- specify individual certification for allied they son also seem to contain substantive equipment. “any criteria deemed Rather requirements for certification. The defini- necessary by are the Scientific Director” Regu- tional refer back to “The required. only specified Those criteria lations” and should not in isolation be read as certification model and class. There- specify par- from the which 19.6(h) fore, reference back from requirements § ticular for certification. Sec- 19.1(c) regard to allied portion tion 19.1 is the demonstrates that allied individ- requirements specifies for certifi- ually certified model and separates This section be cation. instruments and allied into distinct subhead- class. ings and enumerates different certification case, McDougall In the instant testi

requirements Necessarily, for each. Sec- simulator, fied reference is 19.6(h), requires which first certifica- considered allied was certified requires tion model and class and then by type or In addition he model. operated properly that it for the function it for certification perform. ” This “stated in ‘The is sufficient to meet the regulations. read to these regulations. McDougall’s testimony instrument, precisely, More when an concerning interpre test and his intoxilyzer, involved, as the admitted. tation that test was 19.1(b) require- must be made to certification, judgment ments for of the Court of individual addi- tion to certification judgment model and class. reversed and the of the trial conviction, When allied is at issue the refer- sustaining court is affirmed. 19.1(c), ence must section which specifically require- deals with certification ONION, P.J., concurs the result. ments for addition to TEAGUE, J., believing that the San certification model and class. To do Appeals correctly Antonio Court of simply interpreta- otherwise and base an disposed the issue that is before solely paragraphs’ on the definitional Court, respectfully dissents to the seeming substantive opinion’s contrary holding. majority reference to the is incorrect very language 19.6(h) under the CLINTON, Judge, concurring.

renders the enumerated certification re- I Though with the result reached quirements nullity useless at best and a majority opinion, it seems to me the worst. must be read as a up in opinion gets caught what it calls whole. provisions” that “refer back “definitional whole, Reading the as a ” we creating ensuing to ‘The see that allied must certified confusion. 19.6(h) class model and as well that follow are directed The comments stat- as meet certification particu- solely equipment,” to “allied more ined for allied larly simulator.” to a “reference namely, shall meet “[a]llied given A is that all such “to be necessary by criteria deemed the Scientific purposes in the State evidentiary for operate properly Director and and ade- of and of Texas must have quately designed for function it Director, by the Scientific perform.” regulations require certifi- Department class, 19.6(h), Testing Program, Texas cation model and 19.1(a). Safety.” Regulations, operation properly adequately for the Sec. specific Unlike criteria that all breath approv- instruments must meet for parte Ex Bernardo EURESTE. certification, id., 19.1(b), al and Sec. No. 69473. satisfy “any only criteria deemed necessary by the Di- Scientific Court of Criminal rector and operate properly adequately En Banc. perform.” function it is Dec. 1986.

Id., 19.1(c). much So certi- criteria equipment. fication of allied id.,

Actual certification is covered in Sec.

19.6, “Explana- and that section is titled

tion of Terms and Actions” its indicates merely

content is more than “definitional.” only remaining question is whether explains

that section Di- how

rector must manifest the fact he has equipment. certified allied I clearly

believe it does. id., 19.6(e) provide

While Sec. does “certi- granted

fication individually [inter

alia test instruments ]

equipment,” op- certificates for other than

erators, supervisors programs “handled list let- Again, granted

ter.” certification is

“when requirements of certification have

been met.” Thus each simulator satisfy necessary “criteria deemed Director,”

by the Scientific is somehow to “by letter,”

be identified list or but no

regulation yet has said how. 19.6(h),however, provides:

Section “Cer-

tification of will be made ..., however,

model or class meet the re-

quirements ...”

Thus does the Scientific Director mani-

fest the fact that he has simulator particular identifying its model or class in list or

letter, presumably made available affect- parties.

ed I judgment concur in the On that basis George Scharmen, Antonio, appli- San the Court. cant. Millsap, Atty. D.

Sam Dist. and Mi- Estee, Asst. chael Schill and Charles Dist. Antonio, Huttash, Attys., San Robert Austin, Atty., for the State. State’s

Case Details

Case Name: Harrell v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 17, 1986

Citation: 725 S.W.2d 208

Docket Number: 720-85

Court Abbreviation: Tex. Crim. App.