Oscar Henderson v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00174-CR

Oscar Henderson, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY

NO. 506961, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

A jury found appellant Oscar Henderson guilty of driving while intoxicated. See

Tex. Penal Code Ann. § 49.04 (West Supp. 2000). The county court at law assessed punishment

at incarceration for 180 days and a $2000 fine, suspended imposition of sentence, and placed

appellant on community supervision. We will affirm.

An Austin police officer stopped appellant's car for speeding, and subsequently

arrested appellant for driving while intoxicated. A breath test for alcohol concentration

(intoxilyzer) conducted at the police station showed that appellant had an alcohol concentration

of 0.116. At that time, a person with an alcohol concentration of 0.10 or more was intoxicated

by statutory definition. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, sec. 1.01, § 49.01,

1993 Tex. Gen. Laws 3586 , 3696 ( Tex. Penal Code Ann. § 49.01 (2)(B), since amended).

Appellant complains of the admission of the breath test result on several grounds.

In issues one and two, which are interrelated, appellant urges that the State failed to satisfy both

the general prerequisites for admitting scientific evidence pursuant to Texas Rule of Evidence 702

(issue two) and the particular prerequisites applicable to breath test results (issue one).

A qualified expert may testify to scientific, technical, or other specialized

knowledge if the trial court determines that such testimony will assist the trier of fact to

understand the evidence or determine a fact in issue. See Tex. R. Evid. 702. The proponent of

scientific or technical evidence has the burden of demonstrating by clear and convincing evidence

that the evidence is both reliable and relevant. (1) See Kelly v. State , 824 S.W.2d 568, 573 (Tex.

Crim. App. 1992); see also Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 590-92

(1993). Three criteria must be satisfied for scientific evidence to be considered reliable: (1) the

underlying theory must be valid; (2) the technique applying the theory must be valid; and (3) the

technique must be properly applied on the occasion in question. See Kelly , 824 S.W.2d at 573 .

Kelly applies to all scientific evidence offered under rule 702, including intoxilyzer test results.

See Hartman v. State , 946 S.W.2d 60, 63 (Tex. Crim. App. 1997).

Appellant contends the State failed to offer any testimony regarding the first two

Kelly criteria. Such testimony was not necessary. By statute, the result of a breath test for

alcohol concentration is admissible at a prosecution under Penal Code chapter 49. See Tex.

Transp. Code Ann. § 724.064 (West 1994); see also id. § 724.016 (manner of taking and

analyzing breath specimen). The legislature has thereby recognized the validity of the theory and

technique behind the intoxilyzer. See Stevenson v. State , 895 S.W.2d 694, 696 (Tex. Crim. App.

1995); Texas Dep't of Pub. Safety v. Jimenez , 995 S.W.2d 834, 838 (Tex. App.--Austin 1999, no

pet.) (applying predecessor statute). As regards intoxilyzer results, the only open issue for the

trial court to address under Kelly is whether the technique was properly applied on the occasion

in question. See Hartman , 946 S.W.2d at 64 (Keller, J., concurring and dissenting).

Before Kelly was decided, the court of criminal appeals established a three-part

predicate for the admission of an intoxilyzer test result. The State must: (1) show the machine

functioned properly on the day of the test as evidenced by the running of a reference sample; (2)

show the existence of periodic supervision over the machine and its operation by one who

understands the scientific theory of the machine; and (3) prove the result of the test through a

witness qualified to translate and interpret the result. See Harrell v. State , 725 S.W.2d 208, 209-10 (Tex. Crim. App. 1986). Clearly, if the State lays the predicate required by Harrell it also

satisfies the third element of Kelly as it applies to an intoxilyzer test result. (2)

Appellant's intoxilyzer test was administered by Austin police officer Sonia Lopez,

who is certified to operate the machine by the Department of Public Safety. Lopez's technical

supervisor at the time of the test was Rudy Bohac, and it was he who prepared the reference

sample used by Lopez to determine that the machine was functioning properly at the time

appellant was tested. Bohac retired before appellant's trial and did not testify. Instead, the State

called Bohac's successor as technical supervisor, Alvin Weathermon. Weathermon testified that

he reviewed Bohac's records after succeeding him as technical supervisor. According to these

records, Bohac examined the intoxilyzer machine at issue in this cause and prepared a fresh

reference sample four days before appellant was tested. This examination showed that the

machine was functioning properly. Bohac examined the machine approximately one month later

and again determined that it was functioning properly. Based on his review of Bohac's records,

including the record of the test administered to appellant, Weathermon was of the opinion that the

intoxilyzer was functioning properly when appellant's breath was tested.

Weathermon also testified that before assuming his position as technical supervisor

for the Austin Police Department, he worked in the Department of Public Safety's alcohol testing

program. There, it was his responsibility to insure that all breath testing programs in south

Texas, including Austin, complied with departmental regulations. Among other things, these

regulations specify the qualifications for certification as a technical supervisor. See 37 Tex.

Admin. Code § 19.5 (1999). These qualifications include an understanding of the scientific theory

and principles of the intoxilyzer. See id . § 19.5(a)(4). While with the Department of Public

Safety, Weathermon personally recertified Bohac as technical supervisor for the Austin Police

Department.

Appellant urges that because Weathermon did not prepare the reference sample

used by Lopez, he could not testify from personal knowledge that the reference sample was

properly formulated. Appellant further argues that Weathermon could not testify to Bohac's

understanding of the scientific theory underlying the intoxilyzer. Therefore, appellant contends

that Weathermon's testimony did not satisfy the first two elements of Harrell .

An expert witness need not have personal knowledge of all the facts on which he

bases an opinion. Instead, an expert may base an opinion or inference on facts or data perceived

by, reviewed by, or made known to him before testifying. See Tex. R. Evid. 602, 703.

Appellant does not challenge Weathermon's expertise with respect to the administration of the

breath alcohol testing program in Texas or to the maintenance and operation of the intoxilyzer

machine. As an expert, Weathermon could rely on Bohac's records as a basis for his opinion that

the intoxilyzer was working properly on the night appellant was tested. See Ponce v. State , 828

S.W.2d 50, 52 (Tex. App.--Houston [1st Dist.] 1991, pet. ref'd). Weathermon had personal

knowledge of Bohac's certification as technical supervisor. Weathermon's testimony was

sufficient to establish that the reference sample had been properly formulated and that the machine

and its operation were under the supervision of one who understood the scientific theory of the

machine. See Duff v. State , 503 S.W.2d 785, 786 (Tex. Crim. App. 1974). Weathermon's

testimony was clear and convincing evidence that the intoxilyzer technique was applied properly

in testing appellant's breath sample.

The opinions relied on by appellant are distinguishable. In Cody v. State , 548

S.W.2d 401, 404 (Tex. Crim. App. 1977), and May v. State , 784 S.W.2d 494, 498 (Tex.

App.--Dallas 1990, pet. ref'd), no expert was called to testify and there was no evidence that the

machine was functioning properly. In Epperson v. State , 578 S.W.2d 398 , 400 n.2 (Tex. Crim.

App. 1979), the technical supervisor testified to the inspection and proper functioning of a

machine other than the one used to test the defendant's breath.

We hold, in answer to issues one and two, that the State satisfied the requirements

of both Kelly and Harrell with regard to the admission of the intoxilyzer test result.

Appellant further contends that his constitutional right to confront the witnesses

against him was violated because Bohac, the technical supervisor at the time his breath was tested,

did not testify. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. (3) Appellant does not

explain, however, how Bohac was a "witness against him" within the meaning of the Sixth

Amendment. The confrontation right does not speak to the State's burden of production or the

number of witnesses required for conviction. See Shelvin v. State , 884 S.W.2d 874, 877 (Tex.

App.--Austin 1994, pet. ref'd). As a general rule, the State is not required to produce every

conceivable witness with knowledge of the case. See id . The State was not constitutionally

obligated to call Bohac as a witness merely because he was the technical supervisor at the time

appellant's breath was tested. The State laid the necessary predicate for the admission of the

intoxilyzer result without Bohac's testimony.

Weathermon testified to certain facts contained in Bohac's intoxilyzer maintenance

records. Weathermon also testified that it was the regular practice of the police department to

prepare and keep these records. To the extent Weathermon's testimony regarding the content of

the maintenance records constituted hearsay, it was admissible under the exception for records of

regularly conducted activities. See Ponce , 828 S.W.2d at 52 ; Tex. R. Evid. 803(6). This hearsay

exception is "firmly rooted." See Ohio v. Roberts , 448 U.S. 56 , 66 n.8 (1980); Huff v. State , 897

S.W.2d 829, 843 (Tex. App.--Dallas 1995, pet. ref'd). Statements within a firmly rooted hearsay

exception bear sufficient indicia of reliability to satisfy the Confrontation Clause. See Idaho v.

Wright , 497 U.S. 805, 815 (1990). Issues three and four do not present error.

Appellant contends the intoxilyzer test result was inadmissible hearsay. The same

contention was presented to this Court in Jimenez . See 995 S.W.2d at 836-37 . We held there that

the intoxilyzer machine is not a declarant and the data it generates is not hearsay. See id .

Appellant's fifth issue is without merit.

Finally, appellant contends that a mistrial should have been declared after the

prosecutor engaged in improper jury argument. After reviewing the evidence, the prosecutor

asked, "What has been the defense argument in this case? Where is Mr. Henderson's defense?

Why are we here?" Appellant objected that this argument was in derogation of his right to a jury

trial. The objection was sustained and the jury was instructed to disregard, but the motion for

mistrial was overruled.

The prosecutor's argument was not an attack on the integrity of defense counsel of

the sort condemned in the opinions cited by appellant. See Wilson v. State , 938 S.W.2d 57, 58-59

(Tex. Crim. App. 1996); Gomez v. State , 704 S.W.2d 770, 771 (Tex. Crim. App. 1985). Any

error was cured by the court's instruction to disregard. See Caldwell v. State , 818 S.W.2d 790,

801 (Tex. Crim. App. 1991) (argument error generally cured by instruction). Issue six does not

present reversible error.

The judgment of conviction is affirmed.

J. Woodfin Jones, Justice

Before Justices Jones, Yeakel and Patterson

Affirmed

Filed: March 2, 2000

Publish

1. Appellant does not contend that the intoxilyzer results were irrelevant.

2. Neither appellant nor the State discusses whether the predicate for the admission of

intoxilyzer evidence outlined in Harrell has been altered by Kelly and Hartman , and we express

no opinion on that question.

3. Although appellant brings forward his state constitutional claim as a separate issue, he does

not argue that the confrontation right guaranteed by article I, section 10 is broader than that

provided by the Sixth Amendment.

d 494, 498 (Tex.

App.--Dallas 1990, pet. ref'd), no expert was called to testify and there was no evidence that the

machine was functioning properly. In Epperson v. State , 578 S.W.2d 398 , 400 n.2 (Tex. Crim.

App. 1979), the technical supervisor testified to the inspection and proper functioning of a

machine other than the one used to test the defendant's breath.

We hold, in answer to issues one and two, that the State satisfied the requirements

of both