Robert Edwin Kercho v. State

Affirmed on Remand and Memorandum Opinion filed May 31, 2007

Affirmed on Remand and Memorandum Opinion filed May 31, 2007.

In The

Fourteenth Court of

Appeals

____________

NO. 14-01-01176-CR

____________

ROBERT EDWIN KERCHO , Appellant

V.

STATE OF TEXAS , Appellee

On Appeal from the County

Criminal Court at Law No. 5

Harris County, Texas

Trial Court Cause No. 1057265

M E M O R A N D U M O P I N I O N

Appellant Robert Edwin Kercho challenges his conviction for

driving while intoxicated. In three issues, Kercho argues the trial court

improperly denied his two motions to suppress. The State responds that Kercho

failed to preserve error, or alternatively, the trial court = s rulings are

correct. Although we agree that Kercho preserved his arguments for appellate

review, we affirm. Kercho = s motion to suppress was based on the

premise that the State lacked probable cause for his warrantless arrest because

the prosecutor presented no evidence that appellant failed field sobriety tests

and did not link appellant = s unsafe driving to his intoxication.

Because the trial court could properly have found that the arresting officer

reached his conclusions based on other first-hand observations of common signs

of intoxication, we hold the arrest was supported by probable cause. With

regard to Kercho = s supplemental motion to suppress evidence

relating to his breath test, we further hold the trial court = s implied findings

of fact are supported by the evidence.

I. Factual and Procedural History

Robert

Edwin Kercho was arrested for driving while intoxicated on May 1, 2001.

Houston police officers John Miller and Craig Bellamy observed Kercho driving

fifty-one m.p.h. in a thirty-five m.p.h. zone and weaving out of his lane

without signaling. Bellamy stopped Kercho and noticed a strong odor of

alcoholic beverage on Kercho = s breath. According to Bellamy, Kercho = s eyes were red and his movements

were slowed. Bellamy administered field sobriety tests, including the

horizontal gaze nystagmus ( A HGN @ ) test. He concluded that Kercho had lost the normal use of

his mental and physical faculties and was not able to drive safely. Bellamy

arrested Kercho, and Officer Ray Cibulski transported him to the police

station. After Cibulski read Kercho statutory warnings, Kercho agreed to take

a breath test. Using the Intoxilyzer 5000, Cibulski administered breath

tests. Each test indicated that Kercho had a blood alcohol level well in

excess of legal limits.

As

relevant to this appeal, Kercho filed a motion to suppress on the grounds that

evidence was acquired without his consent during his warrantless arrest. This

motion was supported by Kercho = s affidavit attesting that he was arrested without a

warrant. Kercho also filed a supplemental motion to suppress his breath test

results on the grounds that (a) the State = s expert witness could not reliably

extrapolate from the results to determine his blood-alcohol concentration at

the time he was driving, and (b) the test was not performed in accordance with

governing regulations. At a combined evidentiary hearing on both motions, the

State offered to stipulate that Kercho = s arrest was warrantless. Although

Kercho rejected the stipulation, it was accepted by the trial court. After the

hearing, the trial court denied Kercho = s motion to suppress and stated that

it refused to rule on the supplemental motion to suppress. Kercho entered a

negotiated plea of guilty, and the trial court imposed a 180-day suspended

sentence, one year of community supervision, a fine of $300.00, and court costs

of $265.25. Kercho = s appeal ensued. [1]

II. Issues

In his

first issue, Kercho argues that the trial court erred in denying his first

motion to suppress evidence because the State failed to demonstrate that police

had probable cause for his arrest. In his second issue, Kercho contends that

the trial court erred in denying his supplemental motion to suppress because

the State failed to demonstrate sufficient evidence upon which its expert could

base a scientifically reliable opinion concerning retrograde extrapolation.

Finally, Kercho argues in his third issue that the trial court erred in denying

his supplemental motion to suppress because the State failed to establish that

Kercho = s breath test was conducted in

accordance with governing regulations.

III. Standard of Review

The

trial court is the sole finder of fact at a suppression hearing, and is

therefore responsible for evaluating witness testimony and credibility. Torres v. State , 182 S.W.3d 899,

902 (Tex. Crim. App. 2005) (en banc). Accordingly, we therefore afford great deference to a trial

court = s determination of historical facts.

Id. When no written findings are stated or requested, we must uphold

the ruling on any applicable theory of law that is supported by the evidence

when viewed in the light most favorable to the trial court = s ruling. State v. Kelly , 204

S.W.3d 808 , 818 B 19 (Tex. Crim. App. 2006); State v. Ross , 32 S.W.3d

853 , 855 B 56 (Tex. Crim. App. 2000) (en banc).

We

review the trial court = s legal ruling de novo unless the

implied fact findings supported by the record are also dispositive of the legal

ruling. Kelly , 204 S.W.3d at 818 B 19.

IV. Analysis

A. Motion to

Suppress

The trial court = s ruling on Kercho = s initial motion

to suppress is premised on the court = s conclusion that

Kercho = s arrest was based

on probable cause. Probable cause for a warrantless arrest is determined by

reviewing the A totality of the circumstances. @ Torres ,

182 S.W.3d at 902 . Specifically, A [p]robable cause

for a warrantless arrest requires that the officer have a reasonable belief

that, based on facts and circumstances within the officer = s personal knowledge,

or of which the officer has reasonably trustworthy information, an offense has

been committed . . . . @ Id. (citations omitted).

1. Preservation

of Error

With regard to the trial court = s denial of Kercho = s original motion

to suppress, the State contends that Kercho failed to preserve error, if any,

because he produced no evidence that his arrest was warrantless. In addition,

the State argues that Kercho invited error by refusing to accept the State = s stipulation that

the arrest was warrantless.

These arguments overlook relevant facts. Kercho never

disputed that his arrest was warrantless, and he offered both a judicial

admission and a sworn affidavit attesting to his warrantless arrest. In both

his motion to suppress and his supporting affidavit, Kercho insisted that he

was arrested without a warrant. Although Kercho = s defense counsel

refused the State = s offered stipulation, no stipulation was

required to establish this uncontested fact. [2]

We conclude the trial court properly found that the arrest was warrantless and

shifted the burden of proof to the State to prove the arrest was made with

probable cause. See Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App.

2005) ( A [T]he suppression

hearing began with the State stipulating that this case involved a warrantless

arrest . . . . [which] shifted the burden of proof to the

State . . . . @ ); see also Richards v. State , 150

S.W.3d 762, 767 (Tex. App. C Houston [14th Dist.] 2004, pet. ref = d) (en banc)

(holding that a defendant may rely on circumstantial evidence to show an arrest

was warrantless).

The State = s argument that Kercho invited error by

rejecting the proposed stipulation is also without merit. Under the doctrine

of invited error, a party may not complain on appeal about A those actions of

the trial court actually sought by the party in that tribunal. @ Prystash v.

State , 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (en banc). Here, Kercho

neither requested nor accepted the State = s stipulation

concerning the warrantless arrest. Thus, Kercho cannot be said to have invited

error. Moreover, as previously discussed, the trial court = s conclusion was

not erroneous. We therefore reject the State = s arguments that

Kercho failed to preserve error, if any, in the trial court = s denial of his

motion to suppress.

2. Evidence

of Probable Cause

Kercho argues that his arrest was unlawful because Officer

Bellamy offered no more than his subjective conclusion that Kercho had lost the

normal use of his mental and physical faculties. Kercho correctly points out

that Bellamy did not testify that Kercho failed the field sobriety tests, or

that the reason Kercho was unable to drive safely was due to intoxication.

Thus, he argues, the testimony presented at the hearing on his motions to

suppress was insufficient to establish probable cause for his arrest, and all

evidence arising from his arrest is inadmissible.

a. Absence

of Testimony Regarding the Results of Field Sobriety Tests

In support of his argument that the State = s failure to

present evidence of the results of his field sobriety tests requires reversal,

Kercho first relies on Torres , 182 S.W.3d at 902 B 03. In Torres ,

the arresting officer arrived to investigate a single-vehicle accident after

two sheriff = s deputies were already at the scene. Id. at

901 . The deputies told the arresting officer that they believed the driver,

who had driven his car 150 feet off the road and into a porch, was

intoxicated. Id. The officer asked the driver how the accident occurred,

and the driver answered that he was unfamiliar with the road and made a wrong

turn. Id. Based only on this information, the officer arrested the

driver. Id. The court held, A This one question

and answer is insufficient to show probable cause to believe that appellant was

intoxicated. @ Id. at 903 . In reaching this conclusion, the

court emphasized that the arresting officer A lacked any

personal knowledge about the accident or the circumstances surrounding it. @ Id.

Moreover, the officer did not testify that he administered any field sobriety

tests, detected the odor of alcoholic beverages on the driver = s breath, or

observed common signs of intoxication. See id. He performed no

independent investigation and had no personal knowledge of the facts. Id.

Nevertheless, he arrested the driver based solely on the deputies = opinions.

The present case is readily distinguished from Torres .

Here, the arresting officer had personal knowledge of the facts and

circumstances surrounding the traffic violation that led to Kercho = s arrest. Bellamy

personally observed Kercho weaving and driving fifty-one m.p.h. in a

thirty-five m.p.h. zone. Bellamy also testified that he observed common signs

of intoxication and performed field sobriety tests. Therefore, his decision to

arrest Kercho was not based on a second-hand opinion, but on his own first-hand

observations and investigation.

Kercho correctly points out that Bellamy was not questioned

regarding the results of the field sobriety tests, and thus, there is no

evidence in the record that Kercho failed the tests. To support his argument

that this omission is fatal to the State = s case, Kercho

relies on State v. Hopper , 842 S.W.2d 817, 821 (Tex. App. C El Paso 1992, no

pet.).

In Hopper , the testifying officer stated that he

detained a driver after he witnessed the driver traveling at an unspecified

excessive speed. Id. at 818 . The officer began field sobriety testing,

but then asked a second officer to perform the tests. Id. at 818 B 19. The second

officer conducted or completed the unspecified sobriety tests, and arrested the

driver for driving while intoxicated. Id. at 819 . Although the officer

who initially detained the driver testified at the hearing on the motion to

suppress, the published opinion does not indicate that the second officer, who

actually performed the sobriety tests and arrested the driver, testified. The

court held, A Other than the implied conclusion that [the driver]

failed the tests, there is nothing specific in the record which provides any

basis upon which the trial court could reasonably determine that the officers

had probable cause to effect the arrest . . . . @ Id. at

821 . As in Torres , the testifying officer in Hopper relied on

the opinion of another officer, and presented no evidence A as to the specific

facts and circumstances which warranted the officers to prudently believe that

[the driver] was intoxicated . . . . @ Id.

Hopper is distinguishable from the present case for the same

reasons that Torres is distinguishable: here, the testifying officer did

not rely on the opinion of another officer based on facts unknown to the

witness. To the contrary, Bellamy formed his conclusions based on his personal

observations and investigation. Whereas the testifying officers in Hopper and

Torres had personal knowledge only of traffic violations, Bellamy = s observations

included common signs of intoxication.

Thus, the issue presented might be rephrased as: A Has the State

established that an officer has probable cause for a warrantless arrest on the

charge of driving while intoxicated when the arresting officer testifies only

that he (a) observed the driver weaving and driving fifty-one m.p.h. in a

thirty-five m.p.h. zone, (b) noticed the driver = s red eyes,

(c) observed the driver = s slowed movements, (d) noticed the

strong odor of alcoholic beverage on the driver = s breath,

(e) characterized these behaviors as common signs of intoxication, (f)

performed field sobriety tests, and (g) concluded that the driver had decreased

mental and physical capacity and was unable to drive safely? @ Reviewing the

totality of the circumstances under the applicable standard of review, we

conclude the evidence rises above the level of A [a]n unarticulated

> hunch, = a suspicion, or

the good faith of the arresting officer . . . . @ Torres ,

182 S.W.3d at 902 (citing McDougald v. State , 547 S.W.2d 40, 42 (Tex.

Crim. App. 1977)).

Although Kercho correctly points out that Bellamy did not

describe the administration or results of the horizontal gaze nystagmus test

given to assess Kercho = s sobriety, Bellamy did testify that he

observed several other common signs of intoxication. A trained and experienced

police officer = s opinion that a driver is intoxicated is a A reasonable belief @ sufficient to

establish probable cause for arrest when based on his personal observation of

such specific, articulable signs of intoxication. See, e.g., Cotton v. State ,

686 S.W.2d 140 , 142 n.3 (Tex. Crim. App. 1985) (en banc) (collecting cases and

stating that evidence of intoxication may include slurred speech, bloodshot

eyes, the odor of alcohol on the person, unsteady balance, staggered gait, or

the odor of alcohol on the breath); Annis v. State , 578 S.W.2d 406, 407

(Tex. Crim. App. 1979) (holding that the experienced arresting officer = s opinion that a

driver was intoxicated was sufficient to establish intoxication when the opinion

was based on his observation that the vehicle swerved and the driver appeared

disorderly, had red eyes and a swaying gait, his breath smelled of alcohol, and

A his speech was > mush-mouthed. = @ ).

b. Absence of Testimony Regarding Causation

Kercho next argues that the State was required to show the

arresting officer related specific, objective, articulable facts that would

warrant a person of reasonable caution in the belief that, more likely than

not, Kercho had lost the normal use of his mental or physical faculties as the

result of intoxication. He contends that the evidence presented at the hearing

is insufficient because Bellamy did not testify that Kercho = s impairment was

caused by intoxication. In the absence of testimony regarding causation,

Kercho contends the State failed to establish probable cause for his arrest.

We disagree.

Probable cause for a warrantless arrest is determined by

reviewing the A totality of the circumstances. @ Torres ,

182 S.W.3d at 902 . It A requires an evaluation of probabilities,

and probabilities > are the factual and practical

considerations of everyday life on which reasonable and prudent men, not legal

technicians, act. = @ Wiede v.

State , 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting Brinegar v.

United States , 338 U.S. 160, 175 , 69 S. Ct. 1302 , 93 L. Ed. 1879 (1949)).

When reviewing a trial court = s ruling that depends on probable cause, A a > divide-and-conquer = or piecemeal

approach is prohibited. @ Id. at 25 (quoting United

States v. Arvizu , 534 U.S. 266, 274 , 122 S. Ct. 744 , 151 L. Ed. 2d 740

(2002)). Moreover, in reviewing the trial court = s ruling, we

afford almost total deference to a trial court = s express or implied

determination of historical facts. Id.

We conclude the trial court found that Kercho = s intoxication was

the reason for his inability to drive safely. We further hold that this

implied finding of fact is supported by the inferences reasonably drawn from

the evidence, including Bellamy = s testimony that Kercho demonstrated

several signs of intoxication and was not able to drive safely. As the sole

finder of fact in determining whether there was probable cause to support

Kercho = s arrest, the

trial court was free to use its A common sense and

apply common knowledge, observation, and experience gained in the ordinary

affairs of life when giving effect to the inferences that may reasonably be

drawn from the evidence. @ See Wawrykow v. State , 866 S.W.2d

96, 99 (Tex. App. C Beaumont 1993, no pet.). As demonstrated

by the wealth of authority affirming convictions for driving while intoxicated

based on lay opinion testimony that the driver was intoxicated, it is common

knowledge that intoxication can be the cause of impaired driving. See, e.g. ,

McCown v. State , 192 S.W.3d 158 , 164 B 65 (Tex. App. C Fort Worth 2006,

pet. ref = d).

We

overrule Kercho = s first issue.

B. Supplemental

Motion to Suppress

1. Preservation

of Error

Before reaching the merits of Kercho = s issues regarding

his supplemental motion to suppress, we must first address the State = s argument that

Kercho failed to preserve error, if any, arising from the trial court = s ruling or

failure to rule on this motion. Specifically, the State points to the trial

court = s refusal to rule

on the motion, and argues that Kercho failed to preserve error because he did

not object to the trial court = s refusal to rule. See Tex. R. App. P. 33.1(a)(2)(B). In

contrast, Kercho argues that the trial court implicitly denied the motion, and

thus, no objection was required. See Tex.

R. App. P. 33.1(a)(2)(A).

Our review of the record of the combined hearing on the two

motions to suppress reveals that the trial court initially denied Kercho = s supplemental

motion:

Court: Well, I = m ruling with the State basically

on this one, Mr. Palmie. [3]

I thought [I] made that clear. I = m not going to go into those issues, I think those go into

the weight and not admissibility. If you feel I = m wrong, of course, you can appeal me C

Defense: I would like to do

that, Judge.

. . .

Court: But anyway,

I = m not going into

all the issues about extrapolation, about the test and so on. The State can

present that testimony at trial and if the jury finds it convincing, they can,

you know, give whatever weight they feel.

When

the trial court later stated that it had not ruled, Kercho = s defense counsel

pressed the court for a ruling:

Defense: [B]asically, do I

understand, Your Honor, that you = re denying my Supplemental Motion to Suppress at this time?

Court: No, I think we should hear

from the officers and hear what = s going on.

Defense: I = m sorry, maybe the Court hasn = t had a chance to look at the

supplemental motion?

Court: I have, I glanced through

it.

Defense: Then you know that

the Supplemental Motion to Suppress deals exclusively with the breath test and

the breath test results?

Court: Mr. Palmie, let = s get started on something. Let = s hear from the witnesses from the

State.

Defense: Well, I = m pressing the Court for a ruling

on that.

Court: I know. I know that, Mr.

Palmie.

Defense: Do I understand C

Court: I know when I = m being pressed. And I = m smiling when I = m saying that.

Defense: I appreciate that,

Your Honor. I = ll [sic] smiling when I say it.

Court: Okay. All right.

Defense: Do I understand, Your

Honor, that in this motion to suppress C and my understanding from dealing with you previously is

that you carry no motions to suppress with the trial?

Court: Correct.

Defense: So C

Court: Unless they arise C we didn = t anticipate them, some emergency;

that = s right.

Defense: And in anticipation

of a motion to suppress suppressing [sic] the breath test, I have filed a

Supplemental Motion to Suppress which deals exclusively with the breath test

results. So my question to you is, Your Honor, if you = re prepared to deal with that right

now perhaps you could give me just a minute to talk to the State? We may

obviate the need for any further hearing because if you = re not going to let us address

that, I think we = d like to take that up.

. . .

Defense: Where we are, Your

Honor, is that if you = re going to preclude me from

getting into the C you = re not going to rule on the admissibility of the

breath test results, if you = re going to overrule the supplemental motion, then we will plead this

right now.

Court: I = m not overruling anything, Mr.

Palmie. I keep telling you that. I haven = t heard any testimony, I haven = t heard anything. You don = t seem to want to get into that, I

haven = t ruled on anything.

Defense: Do I understand C

Court: I = m just telling you that when the

officers come up we are not going to get into the test and so on, we are going

to focus on the issue of reasonable suspicion and the defendant = s statements, if any, on the way to

the station.

. . .

Defense: If you deny my

Supplemental Motion to Suppress C

Court: Uh-huh.

Defense: C then I = ll plea and I would like to take

that up [on appeal]. If you are not going to rule on that and you = re going to require evidence from

the officers before you rule C and I assume when the officers conclude their testimony you would rule

on all motions; is that right?

Court: Correct.

Defense: Okay. Then I will

sit and listen to the State go through reasonable suspicion for the stop and

probable cause for the arrest; but I will tell you, as I = ve told the State, that the thrust

of my [supplemental] motion and the reason I specifically enumerated the areas

into which I was going and gave them to you and to the State is that I am

focusing on breath test results.

[Evidentiary Hearing conducted on

both motions]

Court: Okay. All right. Based on

the evidence and the arguments cited by counsel, Mr. Palmie, I = m going to deny your Motion to

Suppress. And I = m not going to rule on your

Supplemental Motion to Suppress, I feel those are questions for the jury and

not for the court. Those go to the weight and not admissibility, it = s [for] the jury to decide those

issues. They = re not issues for the Court.

Defense: Judge, if they = re not issues for the Court, then

you = re denying the Supplemental Motion;

is that right?

Court: I = ve ruled, Mr. Palmie. If you want

to appeal me, go ahead.

State: Thank you, Your

Honor.

Court: Okay.

Defense: Judge, are you

carrying the Supplemental Motion to Suppress that deals with the admissibility

of the breath tests results with the trial?

Court: No.

Defense: How are you disposing

with [sic] the Supplemental Motion to Suppress?

Court: I = ve already stated that, Mr. Palmie.

[End of Hearing]

On appeal, Kercho contends the trial court implicitly

overruled his supplemental motion, and thus, no further objection was

required. The State responds that this court would not be justified in

implying a ruling in contravention of the trial court = s explicit refusal

to rule. See State v. Cullen , 195 S.W.3d 696, 698 (Tex. Crim. App.

2006) ( A [C]ourts of

appeals should not be forced to make assumptions (or outright guesses) about a

trial court = s ruling on a motion to suppress evidence. @ ); compare Tex. R. App. P. 33.1(a)(2)(A)

(providing in pertinent part that, to preserve error for review, the party must

A either expressly

or implicitly @ obtain a ruling on the motion) with Tex. R. App. P. 33.1(a)(2)(B)

(requiring that, if the trial court refuses to rule, a party must object to the

refusal in order to preserve error).

On this record, we conclude the trial court overruled

Kercho = s supplemental

motion to suppress. First, it is clear that the trial court disposed of the

motion in some fashion. The trial court stated that the supplemental motion

would not be carried with the trial, and when asked how the court disposed of

the motion, the trial court replied, A I = ve already stated

that . . . . @ But the trial

court = s only statement

that appears to dispose of the motion is its initial statement, A I = m ruling with the

State basically on this one . . . . @ The trial court

also explained its reasons for this ruling: A I feel those are

questions for the jury and not for the court. Those go to the weight and not

admissibility, it = s [for] the jury to decide those issues. @ Although the

trial court stated that these were its reasons for refusing to rule, the trial

court earlier gave these as the same reasons for overruling the motion.

Moreover, even if we agreed with the State that the trial

court did not rule on the motion, Kercho = s response to any

such refusal was adequate to preserve error. As the Court of Criminal Appeals

has explained,

[t]he standards of procedural

default . . . are not to be implemented by splitting hairs

in the appellate courts. As regards specificity, all a party has to do to

avoid the forfeiture of a complaint on appeal is to let the trial judge know

what he wants, why he thinks himself entitled to it, and to do so clearly

enough for the judge to understand him at a time when the trial court is in a

proper position to do something about it. Of course, when it seems from

context that a party failed effectively to communicate his desire, then

reviewing courts should not hesitate to hold that appellate complaints arising

from the event have been lost. But otherwise, they should reach the merits of

those complaints without requiring that the parties read some special script to

make their wishes known.

Lankston

v. State , 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (en banc). Although

Kercho = s attorney did not

use the word A object, @ it is evident

from the record that he complained to the trial court about its purported

refusal to rule. It is equally evident that all parties timely understood the

nature of Kercho = s complaint. This was acknowledged by the

prosecutor, who stated, A Can I just say for the record, a part of

[defense counsel = s] complaint was that [the trial court]

wouldn = t address the

motion. @

Based on the transcript of the hearing, we reject the State = s arguments that

Kercho failed to preserve his challenges to the error, if any, in the trial

court = s ruling on the

supplemental motion to suppress.

2. Sufficiency

of Evidence as a Basis for Scientifically Reliable Opinion

On appeal, Kercho contends the trial court erred in denying

his supplemental motion to suppress the breath test results because the State

failed to offer sufficient evidence on which its expert could base a

scientifically reliable opinion concerning retrograde extrapolation. A Retrograde

extrapolation is the computation back in time of the blood-alcohol level C that is, the

estimation of the level at the time of driving based on a test result from some

later time. @ Mata v. State , 46 S.W.3d 902 , 908 B 09 (Tex. Crim.

App. 2001) (en banc). Kercho argues that his breath test results should be

suppressed because the technician responsible for this particular machine

lacked sufficient information to extrapolate from Kercho = s test results and

determine his blood-alcohol level at a time that he was driving. In the trial

court, Kercho similarly argued that in the absence of such retrograde

expolation evidence, the breath test results were inadmissible under Texas Rule

of Evidence 702 and Mata .

But Kercho moved to suppress his breath test results, not

retrograde extrapolation evidence or expert opinion testimony regarding his

likely blood-alcohol level at any time before his breath was actually tested.

Thus, Mata does not support his argument because it concerns only the

admissibility of expert testimony and does not address the admissibility of

breath test results. See Mata , 46 S.W.3d at 910 (stating that the Court

did not A address whether

test results showing a defendant = s [blood-alcohol

concentration] at some time after the alleged offense are admissible at trial

in the absence of retrograde extrapolation @ ); see also

State v. Mechler , 153 S.W.3d 435, 438 (Tex. Crim. App. 2005)

(confirming that Mata addresses the admissibility of expert testimony

rather than breath test results).

Moreover, retrograde extrapolation evidence is not a

prerequisite to the admission of breath test results. Stewart v. State ,

129 S.W.3d 93, 97 (Tex. Crim. App. 2004) (en banc); Garcia v. State , 112

S.W.3d 839 , 849 B 50 (Tex. App. C Houston [14th

Dist.] 2003, no pet.). Thus, even if we agreed with Kercho that the State = s expert would

have insufficient information at trial on which to base an expert opinion

regarding Kercho = s likely blood-alcohol level at the time

he was last seen driving C an issue not properly before us C such agreement

would still afford no basis for excluding the breath test results. We

therefore overrule Kercho = s second issue. [4]

3. Compliance

with Texas Breath Alcohol Testing Regulations

In his third issue, Kercho contends the trial court erred

in denying his supplemental motion to suppress because his breath test was not

conducted in accordance with governing regulations. See Reynolds v. State ,

204 S.W.3d 386, 391 (Tex. Crim. App. 2006) (holding that, to rule on the

admissibility of the test results, the trial court need only determine whether

the technique was properly applied on the occasion in question).

On appeal, Kercho argues that his breath test was not

conducted in accordance with a regulation in effect at that time, which

required:

the analysis of a reference sample,

prepared by the technical supervisor or a designee of the scientific director,

such as headspace gas from a mixture of water and a known weight of alcohol at

a known temperature, the results of which must agree with the reference sample

predicted value within 0.01g/210L, or such limits as set by the scientific

director. This reference sample shall be performed in conjunction with subject

analyses . . . .

37 Tex. Admin. Code ' 19.3(c)(4). [5]

According to Kercho, the reference sample analyzed by the Intoxilyzer used to

perform his breath test was not maintained at a known constant temperature.

But this argument is contradicted by the record. Technical

Supervisor Debra Stephens testified that the Intoxilyzer used to perform the

test was operating correctly that day and that it maintains a reference sample

solution at a constant temperature of thirty-four degrees Centigrade, plus or

minus two-tenths of a degree. Kercho argues that Stephens conceded it was A open to

interpretation @ whether the reference sample was maintained at a

constant temperature. In fact, Stephens testified as follows:

Defense: And are you telling

the Court that the reference sample used in this case was maintained at a

constant temperature? A Constant @ by definition means no fluctuation or variance.

Stephens: I think that = s open to interpretation.

Defense: Okay. Can you tell

the Court whether the reference sample was being maintained at a constant

temperature at the time this test was given?

Stephens: Yes, it was at a

constant temperature.

Defense: Tell me then why you

felt it necessary to talk about a variance earlier of plus or minus 0.02? [sic]

Stephens: Because

0.02 [sic] is allowed in the regulations and, therefore, it is

considered to be a constant temperature by the scientific director who wrote

those regulations.

(emphasis

added). Stephens = s testimony clarified that, under the

regulations, the definition of A constant temperature @ does not

necessarily require a complete absence of fluctuation, but includes a variance

of 0.02 degrees. Stephens then corrected her testimony, and stated that the

temperature may vary by two-tenths of a degree. [6]

In addition, the officer who performed the test testified that the machine

would fail to operate if the reference sample was not maintained at its

required temperature. Thus, the trial court = s implied finding

that the reference sample was maintained at a known temperature is supported by

the record.

We overrule Kercho = s third issue.

V. Conclusion

Having overruled each of Kercho = s three issues, we

affirm the judgment of the trial court.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum

Opinion filed May 31, 2007.

Panel consists of Justices Frost,

Seymore, and Guzman.

Do Not

Publish C Tex. R. App. P. 47.2(b).

[1] Kercho = s

original appeal was dismissed on the ground that he had signed a standardized

form containing a waiver of the right to appeal. Kercho v. State , No.

14-01-01176-CR, 2002 WL 15932 (Tex. App. C Houston

[14th Dist.] Jan. 3, 2002) (per curiam) (mem. op., not designated for

publication). After the decision was issued, the Court of Criminal Appeals

decided Alzarka v. State , 90 S.W.3d 321 (Tex. Crim. App. 2002) (en

banc), reversing the dismissal of an appeal on similar facts. As a result, the

original Kercho opinion was vacated and the case remanded for

reconsideration in light of Alzarka . Kercho v. State , No.

0656-02, 2002 WL 32069150 (Tex. Crim. App. Jan. 29, 2002) (per curiam) (not

designated for publication).

[2] Kercho = s

trial counsel was therefore mistaken when he represented to the trial court

that A [t]here is no evidence before the Court that this is a

warrantless arrest . . . . There is no testimony in

front of the Court at this time that it is a warrantless arrest. @

[3] Kercho was represented at trial by attorney Ross

Palmie.

[4] Although Kercho = s

attorney called and examined a witness regarding retrograde extrapolation, the

parties do not contend that the suppression of such evidence was tried by

consent. Moreover, the trial court repeatedly cautioned Kercho = s attorney that his examination was A wandering all over the map @ but stated that it was faster to allow the

questioning than to permit argument regarding the scope of the hearing.

[5] Amended , 31 Tex. Reg. 2189 .

[6] See also Gamez v. State , No. 04-02-00087-CR,

2003 WL 145554 , at *3 (Tex. App. C San

Antonio Jan. 22, 2003, no pet.) (mem. op., not designated for publication)

(affirming the admission of breath test results and summarizing similar

testimony that the Intoxilyzer uses a reference sample maintained at thirty-four

degrees Centigrade plus or minus two-tenths of a degree).