*1 сomply, trial court will and the writ will only if it does not.
issue
Terry HOLMES, M. David Ga- Williams, Contreras, J.
briel Gabriel
Jr., Harlow, April Alfonso R. Rodri-
guez, Brice, Michael & Walter Widen-
er, Jr.
The STATE of Texas.
Nos. PD-0453-07 to PD-0460-07.
Court of Appeals Criminal of Texas.
April 2009.
Opinion Rehearing Feb.
Dissenting Opinion on Denial of Rehearing
Sept. *2 Solomon, Marshall, Appel- for
Vernard lant. Davis, Atty., Mar-
A1 Asst. Crim. Dist. shall, Horn, Jeffrey L. Attor- Van Austin, ney, for State.
WOMACK, J.,
opinion
delivered the
PRICE,
Court,
MEYERS,
in which
JOHNSON, KEASLER, HERVEY,
HOLCOMB,
COCHRAN, JJ., joined.
appellant
The
David Woodall
charged
driving
while intoxicated.1
County
him
Court at Law found
reversed the
guilty.
Appeals
The Court
and remanded the case.2
conviction
Relying on its decision in Woodall’s
judg-
reversed the
Appeals
driving-
other
ments of conviction
seven
while-intoxicated cases from the same
pro-
them for further
court and remanded
eight
ceedings.3 We consolidated
State,
06-06-105-CR, 2007
§
3. Holmes v.
No.
1. See Penal Code
49.04.
702739;
State,
Williams v.
No. 06-06-
WL
746157;
State,
107-CR, 2007 WL
Contreras v.
State,
(Tex.
2. See Woodall v.
Just before trial Woodall’s State, would indicate problems some with began, relying on a the machine—and we by many, have tried recently made the same trial court in a many, many cases us,4 involving Intoxi- case that not before made an is oral lyzer I 5000 and request never heard not judicial trial court take one shred of an expert notice of evidence from underlying science of the (a any problem witness that would indicate Intoxilyzer 5000 machine which tests content). with the going grant machine—I’m samples of for breath alcohol your application just like I did in the objected, Defense counsel arguing: other case. My cross-examination an from the State of Texas in regard to the Defense sought counsel clarification: Intoxilyzer testing 5000 goes to the tech- Judge, [DEFENSE so I COUNSEL]: niques principles appli- and sure, you ordering know for what are recognized cation the machine of the question me is not to in re- testing deny breath science. And to me gard to the principles the right go question [sic] and how it applies rules of science in techniques application and the done regard attempting apply sci- prevents the machine the Defendant essence, testing. ence of I breath presenting from it pre- defense. And always question have a lack of vents us the of due process law ability the—or the of the machine to doing because what Court is I temperature. correlate the have a— a ruling creating kind of is some- temperature? What [TRIAL COURT]: thing legislature that the has refused to temper- [DEFENSE COUNSEL]: past do for 25 years and that ature of sample. the breath per guilt create a se issue on intoxication upon based breath All testing. right. [TRIAL COURT]: 702770; State, State, 06-06-00090-CR, Rodriguez v. No. 06-06-110- No. Barfield 702803; CR, 2007 WL Brice v. No. 06- Tex.App. 2007 WL LEXIS 566 702879; 06-111-CR, WL (not Widner v. Jan.26, 2007) desig- (Tex.App.-Texarkana 06-06-112-CR, No. WL publication). nated for opinions All the were on delivered March they designated publi- were cation. did. say- are But he never You COUNSEL]: [DEFENSE go that I can’t into that? ing jury, In the before right. That’s COURT]: [TRIAL arresting offi- introduced evidence of the pulled that he Woodall’s always cer’s I COUNSEL]: [DEFENSE seeing over after it weave and vehicle is heat- way as to the tube swerve, that he smelled alcohol Woo- ed, way the is heated breath breath, and had that Woodall red I dall’s no to that. being correlation there watery eyes. The officer also testified that? go into can’t field-sobriety that he conducted various *4 correct. COURT]: That’s [TRIAL jail, at the again tests at the scene and and always I’ve COUNSEL]: [DEFENSE in performed poorly that those Woodall in the sim- temperature contested videotapes played tests. The State then Law, law, it Henry’s ulator and sobriety jury. Finally, tests for the into go to the I can’t applies simulator. procedure in- the officer described that? Intoxilyzer in operating volved if there is some Only COURT]: [TRIAL that and stated Woodall had submitted to something that is indication there test. But a breath when offered wrong the test before and after —if copy report of the which contained the a admissibility test there is some- show tests, of the the trial court sus- results you wrong with machine. But thing that the objection tained Woodall’s State right. are lay predicate. а The proper had failed Okay. COUNSEL]: [DEFENSE results, never to the and officer testified evidence is COURT]: If the [TRIAL them the trial court never admitted in they tested it the test that before evidence. in question and it after the test tested After the officer’s arresting it both times question working and was lunch, and a recess the defense counsel working and the evidence is that it was said, keep “I like I’ll to also—and day, you are that correct. proffer regards what short —make they if So COUNSEL]: [DEFENSE permitted I if questions would have asked expert, opinion, an in his present to do so.” opera- valid says that the machine has said, talking The been Court “We’ve of breath test- apply principles tion to potential case.” about resolution I cannot ing, jury began. A trial without a application of the breath principles permis- The defense counsel moved “for Is what the testing science. any expert called on sion to cross-examine saying? concerning behalf of the State of Texas That is correct. COURT]: [TRIAL reliability Intoxilyzer of the 5000. And to the objected Defense counsel again techniques particular more in into the again was ruling, objection and his techniques principles application Defense then asked for overruled. counsel Intoxilyzer testing applied by the of breath that he running objection and stated 5000.” sug- perfect judge The needed bill. denied mo- The Court overruled and a statement gested making he do so tion. prove. he would into the record what plea his appellant be Woodall withdrew replied counsel that he would Defense pleaded pursu- no contest guilty glad to do it later. agreement. plea ant to a After the temperature of the breath is above guilty, appellant court found him Woo- deg. The [sic ] results will be a false appealed dall the denial of his oral motion high.
for crоss-examination. (3) A deg. “5. rise of three C will increase the results a false high of The Other Cases A body temperature .02. deg. of 37 C is Each of the other appellants’ seven deg. F. body 98.6 which is normal temp- cases came to court after Woodall’s trial. erature. charged Each appellant driving trial, ap- while intoxicated. Before each The Intoxilyzer specific “6. is not pellant filed motion to cross-examine the Ethel alcohol and [sic ] that others sub- on the In- operation stances will indicate high [sic ] a false toxilyzer Included each motion the results. eight
was a list of of concern “areas slop “7. The has a or tol- workings internal of the Intoxilyzer erance or error factor of .02. *5 5000: That temperature “8. if the of the simulator, “1. The which the state operator simulator is unknown to the he presents proof the that machine is would not be predict able to the sim- working properly on thе date in ques- tion, ulator results.” Henry’s is based on re- Law. It quires that the is simulator maintained The court each denied motion. at a temperature, constant in a closed container, and at a constant pressure. appellant Each entered a plea no-contest It a person simulates which is to offered trial, a no without evidence was heard give a of sample their breath The [sic ]. in the seven The cases. trial court found body human is not closed container each the appellants guilty. of seven which prevents pressure a constant temperature of the breath un- is Appeals The known to the machine. appeal, On Woodall the seven other partition
“2. The ratio between the appellants argued that gas above the the trial court fluid and substance in denying erred their to fluid is incorrect as relates motions cross- to partition ratio assumed the mаchine examine State’s breath-test to be the subject. [sic that of the the operation Intoxilyzer ] about Appeals 5000.5 The held that Court of
“3. The machine heats certain parts appellants preserved that had the error for re- produce are used to a result includ- view, ing complete right that denial of the to the collection chamber to between error, deg. deg. right To that [sic ] 145 which effects cross-examine was by producing the breath is sample present [sic ] defense a fundamental ele- high. law, false of process ment due of and that a of amounts to constitu- “4. violation temperature The of the human tional error.6 breath unknown The Court also concluded is to the machine and has way measuring beyond [sic no of that it could not determine rea- ] same give in order to an accurate If sonable doubt that the errors not con- result. did S.W.3d, Id., at 5. See 531-33. at 534-37. convictions, proof Rule of of to enable pursuant purpose the offer
tribute 44.2(a).7 whether appellate an determine Appellate of Procedure erroneous harmful.11 the exclusion was for, grant- and we petitioned The State secondary purpose permit A is to the trial ed, of three issues. discretionary review of light to reconsider his judge preservation concerned Two them the actual evidence.12 demon- appellate record error: Must strate substance recognized This court has a distinction given? the breath-test 103(a)(2) rule in general between Rule record show results appellate Must not and the case in which defendant is tests? witness permitted wit- might about affect the matters harm: had do with third issue credibility.13 ness’s 44.2(a)’s Appellate Rule of Procedure Was for constitutional harmless-error standard In the latter “the defendant error the correct standard? his need show what cross-examination affirmatively of the witness would Error Preservation of established; merely he must establish 103(a)(2) limits Rule of Evidence matter general subject what he desired to scope may appealed which be issues his during examine witness limited excluded. when evidence is or and, if challenged, cross-examination show a rul may predicated upon “Error be why on the record such should be admitted *6 ing which ... excludes unless evidence trial into evidence.”14 In such case the affected, party of the right substantial is prevented has a defendant ... of the the substance evidence questioning from a State’s witness about offer, or was by made known to the subject which affect witness’s matters the context within which apparent from is, credibility, might that matters which questions The offer of were asked.”8 malice, will, bias, feeling, preju ill show ill may question-and-answer in form proof be dice, or animus.15 by or form of concise statement of proоf of to be accom The distinction between these kinds counsel.9 “An offer may plished by by counsel’s concise statement cases have been blurred the simi- reasonably larity expressions: sum of in two “the specific language must include credibility “a mary testimony” of evidence offered and must of a witness’s credibility.” The expres- the relevance of the unless witness’s former state evidence apparent, that the court refers to the substance of the evi- relevance is so sion dence; personal whether the rel refers to char- can determine evidence is latter primary evant and admissible.”10 The acteristics of the witness. Id.., at 537. 7. Practice —Guide to the Texas of Evidence: Rules (1993). § 103.3 Civil and Criminal R. Evid. 103(a)(2).
8. 12. Ibid. 103(b); R. v. 9. Warner 969 S.W.2d Evid. (Tex.Cr. 2 v. S.W.2d (Tex.Cr.App.1998). 13. Virts 739 29 App.1987). S.W.2d, Warner, at 2. 10. 969 14. Ibid. (4th McCormick, § ed. on Evidence 51 ah, 1992). Accord, Ibid. Steven Goode et 1 Texas blurring perhaps began when we The of Appeals said in this circumstances, from рaraphrased language many one decision “Under the state- (“certain by ments subject matters counsel might might that be sufficient malice, will, bias, adequately trial feeling, ill ill inform the court about prej- [show] animus”)16 udice, substance of the evidence he Virts State or wanted to However, instance, offer. in this ap- is general subjects] might “certain that af- parent that counsel and the court both The Virts credibility.” fect witness’s understood the picture ques- broad of the short-hand, opinion, despite its initial went sought tions counsel to propound and the on to state what we meant “certain of questioning line upon which his argu- general subjects] might that affect the Virts, ments were based.”20 Citing witness’s credibility,” namely, those sub- declared, Court of Appeals “When bias, interest, jects might that “reflect court excludes evidence designed to call statements, prejudice, inconsistent of traits credibility a witness’s affecting character оr credibility, testimony, the defendant has less rigid might go any impairment or dis- requirements preserve error for ap- ability affecting the witness’s credibili- peal.” disagree We with this statement ty.” law, disagree and we that the facts of context, however, Taken out this fall within exception. open phrase left the door more confu- The essence of Virts “the sion, which occurred this court when cross-examination the accused Virts Judge Teague, citing in a dissent- of a testifying State’s witness includes the ing opinion, “credibility substituted right to impeach the witness with relevant testimony” witness’s for “witness’s credi- bias, interest, might evidence that reflect bility.” statements, prejudice, inconsistent traits hope in this case to return We to the affecting character credibility, or evidence correct statement of distinction be- might go impairment to any or dis *7 103(a)(2)’s requirement tween Rule for ability affecting the witness’s credibilit of preservation error and Thеre, the narrow ex- y.”22 the judge prevented trial subject ception for matters which affect the defendant cross-examining from is, credibility' the witness’s matters regarding witness the witness’s —that malice, might which show ill ill feeling, appeal, mental health.23 On this court bias, will, prejudice, that, or sufficiently animus. found on a based estab- State, 6, Id., (Tex.Cr. Virts, added) 16. Koehler (emphasis (citing v. 679 S.W.2d 9 21. at 535 App.1984). S.W.2d, 29; S.W.2d, Koehler, 9). 739 at 679 at Virts, S.W.2d, Koehler, 17. 29. 739 at 679 Cf. Virts, S.W.2d, Koehler, 22. 29. 739 at See 679 S.W.2d, ("any question at 9 of a asked witness S.W.2d, at See 9. also Harris v. 642 cross-examination, might which 471, (trial (Tex.Cr.App.1982) S.W.2d 479-80 tendency credibility, to the witness' affect to court's refusal allow effective cross-exami- always proper question") orig- (emphasis in nation of a State's witness to establish her inal). against testifying bias or motive in the defen- Virts, S.W.2d, 18. 739 29. at dant violated the to defendant's confron- tation). (Tex. 19. 739 S.W.2d Wilford J., Cr.App.1987) dissenting). (Teague, Virts, S.W.2d, 28. at S.W.3d, at 535. it, stray our record, illness fore and we decline to from mental the witness’s lished Insteаd, today. narrow intent we offer credibility, and to her was relevant of exception: this clarification the where excluding it as erred the defendant, cross-examining a State’s evidence.24 witness, subject to elicit matters desires af- with evidence Virts dealt specifically tend charac- impeach to the witness’s (that is, credibility fecting witness’s example, for to show ter truthfulness —for impeach the wit- used to relevant evidence ill-will, bias, malice, ill-feeling, prejudice, ness); affect- not deal with evidence it did part to- or animus on the of witness testimony. ing of a witness’s the substance order to preserve ward defendant —in Virts, however, Ap- of Applying review, not appellate issue for he is “Clearly, in this case: peals reasoned required to show that his cross-examina- expert] the State’s about questions [to affirmatively tion would established capabili- in the machine’s claimed shortfall merely but he de- sought, thе facts impaired the ties ... could have [State’s regard sired examine witness would have been expert’s] credibility and subject those matters that tend specific results raising doubts that the directed at during cross- impeach the witness his testifying accu- he was were about which examination. disagree. rate.” We an intent to Although Woodall showed might be little distinc there While underlying of call science credibility tion between witness’s intent Intoxilyzer this does testimony in substance of witness’s impeach amount an intent to the wit- cases, showing no such here. some we find truthfulness, opposed ness’s the sub- distinction, contrary, a clear To the we find Be- testimony. stance witness’s ca any shortfall machine’s because failed to appellant cause the Woodall doubts pabilities would raise “general sub- “merely establish” that the testimony, but substance of witness’s proffered ject matter” his credibility. Even not about the witness’s impeach expеrt, be used presented doubt if evidence were that cast expert’s not the substance testimo- this would on the ny, require- his is controlled mean that necessarily 103(a)(2) rather ments Rule Evidence in testi prejudice, example, had for bias or exception impeachment than Sure fying against appellant Woodall. credibility. pre- failed to witness’s Woodall *8 cross-examination, extent, is ly all to some complaint by making his for review serve trier of “raising at doubts” for the directed he record the substance of testimony. fact the witness’s direct 103(a)(2) re- present wished to as Rule allow the equate But to the two would quired. 108(a)(2) exception Rule entire to swallow only The indications we have from
ty- evi- regarding record substance of the interpreta- Appeals’ broad are dence that Woodall wished offer Virts exception from does not he tion of the three statements made pro- objeсtion accurately judge during reflect this court’s intent his to the State’s (1) 103(a)(2) deciding ability “the the machine Rule or in oral motion: mulgating (2) “the temperature”; line be- to correlate the Virts and of cases that came S.W.3d, Id., at 535. 28-30. at 25. heated, way way tube is the breath When the defense attorney failed to “perfect a bill” or to heated there make a being and no correlation to statement of what prove, he would as he (3) told the trial that”; “the temperature in the do, court he would he failed to satisfy Rule law, Law, Henry’s simulator and as it 103(a)(2). Counsel’s statements are not a applies the simulator.” Even if we as- reasonably specific summary of the evi- sume that these statements from defense dence offered. Because the substance of counsel are adequate to inform this court the evidence has not been made known to questions he pose wished to to the record, us from the аnd because the sub- witness, expert we State’s have no indica- stance of the evidence is apparent tion from the record as to what the State’s record, us from the appellant Woodall expert’s might answers been. 103(a)(2). has failed to comply with Rule fact, the only indication we do see in the Thus, we are unable judge the admissi- stated, record is from the trial judge, who bility of the excluded evidence or deter- “I have never heard not one shred of mine whether the trial court abused its evidence from an witness that by excluding discretion it. findWe any problem would indicate with the ma- the error has not been adequately pre- Virts, chine.” Unlike who showed from served for any this or appellate court. the record an intent to impeach the wit- We reverse the ruling of the Court of ness based on history the witness’s of men- Appeals in the Woodall case and affirm the illness, tal the appellant Wоodall has made judgment of the trial court. showing no record an intent to Because the record in each of the seven impeach expert’s credibility, companion cases contains a showing, in the nor do we any indication that this form of a written motion and included intent, only
was even his intent. His as we proffer for purposes 103(a)(2), of Rule it, see was to call question the under- which is different from that in appel- lying This, science of lant Woodall’s we affirm judg- however, merely call into ments of the Appeals Court of in those cases. expert’s substance of the testimony, not the expert’s credibility. KELLER, P.J., concurred
What the record does suggest to us is judgment.
that, trials, many after the trial court and OPINION ON STATE’S MOTION attorneys in this case were familiar FOR REHEARING with defense questions counsel’s usual the usual answers that the J., MEYERS, opinion delivered the given witness had in other regarding trials KELLER, P.J., the Court in which Intoxilyer court, however, 5000.26 This WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, is not privy JJ., to such information. joined. Here we 103(a)(2) must have what Rule rеquires: a eight The defendants in separate cases *9 record that shows the excluded evidence so were charged driving while intoxicat- that we judge admissibility can its ed. In each the defendant filed a determine whether the trial court abused pretrial motion to cross-examine the by its discretion excluding it. on the breath-testing má- Woodall, S.W.3d, ("The counsel, 26. See 216 large at 534 same and on the number of based, response large trial part, judge] court's in other cases trial [the had heard involv- arguments on earlier ing intoxilyzers.”). cases and raised 172 eognizability preser- one rather than
chine, 5000. The trial is motions, that, and the defen- argues court denied vation of error. The State of no contest. Each pleas entered dants denying in even if the trial court erred guilty. The trial was found defendant motions, get cannot defense defendants ap- court certified the defendants’ they relief unless show that the apрellate appealed, and peal. eight All defendants ruling against was used them. erroneous appeals reversed and remand- the court However, pleaded because the defendants to the trial court.1 The State ed the cases very appellate is little record guilty,2 there discretionary review in for petition filed the trial which to determine whether from eight case. We consolidated each them. against was used court’s petition. granted cases and from distinguishes This what this issue preser- related to the opinion issued an We error. The State concedes preservation of affirmed the court of vation of error and the “concise statement counsel” except appeals in all of the cases Woodall. may preserve have been sufficient to ap- the court of we reversed ruling. the trial court’s How- challenge to not holding pre- that the error was peals, ever, enough it was not to show that State, Holmes, et al. v. 2009 served. See ruling excluding the evidence court’s The State Tex.Crim.App. LEXIS 522. in connec- against Appellants was used a motion for Prosecuting Attorney filed guilty pleas. tion with their affirmed, claim- rehearing in the cases we in the State’s ing presented the issues the trial here is whether grounds for review were distinct from ruling that the defense could not error issue preservation of discussed Intoxilyz- on the cross-examine the State’s mo- opinion. granted our We guilt. to admit er induced the defendants rehearing rehearing tion for and ordered says questions regarding The State will on our own motion Woodall. We relevant the machine would not have been appeals. affirm the court of the results of the breath test were because Therefore, ARGUMENT
STATE’S
ex-
not entered into evidence.
ON REHEARING
preju-
could not be
cluding
questions
such
And, since the results of thе breath
dicial.
rehearing,
In its motion for
admitted, the
testing
appellate
were never
contends that the issue raised
this case
State,
702803,
Tex.App.
2007
LEXIS
1859
1. Woodall v.
173 ingful cannot determine that the evidence to opportunity present a complete actually 324, the against appellants 319, used in defense.’” was 547 U.S. 126 S.Ct. 1727, (2006) way that caused to enter guilty them 164 503 L.Ed.2d (quoting pleas. 683, 690, Crane v. 476 Kentucky, U.S. 106 2142, (1986);
S.Ct.
cluded that
FOR
SECOND MOTION
to the State’s
tributed in some measure
REHEARING
plea bargaining process.”
in the
leverage
(Tex.Crim.App.1988).
762 S.W.2d
KELLER, P.J,
MEYERS, J., joined by
State, the defen-
Similarly, in McKenna v.
HERVEY, J.J.
and KEASLER and
mo-
plead guilty
after his
agreed
dant
opinion
I
on
authored
pre-
was denied because
State
tion
rehearing.
I now believe
first motion for
option to use the contested
served the
opinion
well as the Court’s
opinion, as
the elements of
evidence to establish
should be with
original
on
submission
trial. 780 S.W.2d
offense in a full-blown
opinion
because neither
addressed
drawn
Here,
we
(Tex.Crim.App.1989).
along by
all
the issue raised
beyond a reasonable
cannot determine
discretionary
for
review and its
petition
its
failure to allow
doubt that the trial court’s
motions—whether
these cases
rehearing
a defense did
present
the defеndants to
for a review
the court
cognizable
were
their
to enter
not contribute to
decision
fail to
opinions
both
ad
appeals1
—and
in their conviction
pleas, which resulted
claim that this
repeated
dress
the trial
punishment.
Soon after
McGlynn
like
v.
704 S.W.2d
case is
per-
their
motions to
pretrial
court denied
reh’g).
on
(Tex.Crim.App.1982)(opinion
cross-examination,
the defendants
mit
cogniza-
blueprint
addressing
A
and were
changed
pleas
their
to no contest
bility question
laid out
this Court
was
by the trial court. This indi-
guilty
found
(Tex.
v.
results; therefore, actually can con- we any regard-
clude that cross-examinаtion Indeed, accuracy ting gives holding intoxilyzer that ma- that reliability intoxilyzer was a machine chine relevance the case. (such matter relevant an issue barring related cross-examination was support theory. 7. There evidence to such defense), present a violation of the pulled Redden ve- testified that he Woodall's appeals apparently of these court of made all observing swerving and hicle over after presumptions, critical at least in the seven weaving, that he smelled alcohol Woodall's companion appellants' breath test cases—that breath, red, watery had Woodall admissible, they all were results were all eyes. con- further testified that he Redden incriminatory, and that the State would sobriety at ducted field tests the scene called would have testified an who again jail, performed and Woodall at necessary results. It would have been test played videotapes of poorly. State also presumptions it is the to make such because jury. sobriety tests for the of breath test results as incrimina- admission