analyzing whether part of a breath-test machine was properly certified as required by regulations in the administrative code and whether results from the 5Later, in the punishment phase of the trial, appellant conceded that these exhibits correctly depicted text-message conversations between him and Mother and between him and Rita. 8 machine were admissible
How later courts described this case
- analyzing whether part of a breath-test machine was properly certified as required by regulations in the administrative code and whether results from the 5Later, in the punishment phase of the trial, appellant conceded that these exhibits correctly depicted text-message conversations between him and Mother and between him and Rita. 8 machine were admissible
- requiring prosecution to show “the existence of periodic supervision over the machine and operation by one who understands scientific theory of the machine [] and [ ] proof of the result of the test by a witness or witnesses qualified to translate and interpret the result so as to eliminate hearsay,” but not expressly requiring they be same person
- certification of the equipment falls under the third prong
- modifying the three-prong predicate due to the nature of the intoxilyzer instrument
Written by the judges who cited it.
The opinion
CLINTON, Judge,
concurring.
Though I agree with the result reached by the majority opinion, it seems to me the opinion gets caught up in what it calls “definitional provisions” that “refer back to ‘The Regulations,’ ” creating an ensuing confusion.
The comments that follow are directed solely to “allied equipment,” more particularly to a “reference simulator.”
A given is that all such equipment “to be used for evidentiary purposes in the State of Texas must have the approval of and certified by the Scientific Director, Alcohol Testing Program, Texas Department of Public Safety.” Regulations, Sec. 19.1(a).
*214 Unlike specific criteria that all breath testing instruments must meet for approval and certification, id., Sec. 19.1(b), allied equipment need satisfy only “any criteria deemed necessary by the Scientific Director and operate properly and adequately for the function it is designed to perform.” Id., 19.1(c). So much for criteria for certification of allied equipment.
Actual certification is covered in id., Sec. 19.6, and that the section is titled “Explanation of Terms and Actions” indicates its content is more than merely “definitional.” The only remaining question is whether that section explains how the Scientific Director must manifest the fact that he has approved and certified allied equipment. I believe it clearly does.
While id., Sec. 19.6(e) does provide “certification is granted individually to [inter alia ] (3) breath test instruments and allied equipment,” certificates for other than operators, technical supervisors and breath test programs are “handled by list or letter.” Again, certification is granted only “when requirements of certification have been met.” Thus each reference simulator found to satisfy “criteria deemed necessary by the Scientific Director,” is somehow to be identified “by list or letter,” but no regulation has yet said how.
Section 19.6(h), however, provides: “Certification of equipment will be made by model or class ..., however, each piece of equipment must individually meet the requirements for certification ...”
Thus does the Scientific Director manifest the fact that he has approved and certified a particular reference simulator by identifying its model or class in a list or letter, presumably made available to affected parties.
On that basis I concur in the judgment of the Court.