Affirmed and Memorandum Opinion filed August 30, 2012.




                                        In The


                       Fourteenth Court of Appeals

                                  NO. 14-11-00863-CR




                      CHRISTOPHER LEE WEBER, Appellant


                                          V.


                           THE STATE OF TEXAS, Appellee


              On Appeal from the County Criminal Court at Law No. 12
                                Harris County, Texas
                           Trial Court Cause No. 1644822



                         MEMORANDUM OPINION

       Appellant Christopher Lee Weber appeals his conviction for driving while
intoxicated, asserting that the trial court erred in denying his motion to suppress the
results of a breath test. We affirm.
                      FACTUAL AND PROCEDURAL BACKGROUND

       Appellant was charged by information with the offense of driving while
intoxicated. Appellant filed a pre-trial motion to suppress all evidence, namely a breath
test taken from appellant at the police stationhouse following an automobile accident.

       At a hearing on appellant’s motion, Julio Rincones testified that he was a peace
officer certified to operate the Intoxilyzer 5000, a breath-test machine, and administered a
breath test to appellant using the machine. Rincones claimed to have observed appellant
for fifteen minutes before administering the test to ensure that no foreign objects were
introduced into appellant’s mouth to affect the outcome of the test; Rincones also
inspected appellant’s mouth to confirm he had nothing inside his mouth. Rincones
testified that he checked the temperature for the reference sample and that it was within
an allowable range. A circuit check of the machine gave an “okay” result. During a
routine test, two samples are given; an acceptable variance between the two samples is
0.02 grams based on 210 liters of breath. Appellant’s test results, as reflected by the
breath-test strip, showed 0.197 grams of alcohol per 210 liters of breath for the first
sample and 0.196 grams of alcohol per 210 liters of breath for the second sample. Based
on the these test results, Rincones formed the opinion that appellant was intoxicated.
Although Rincones is a certified operator of the Intoxilyzer 5000, he is not qualified to
testify about the underlying theory and science of the machine.

       Marianela Martinez is a state-certified breath technical supervisor who supervises
and maintains the same machine that Rincones used to administer the breath test to
appellant. In addition to her college education, Martinez holds a certification from the
completion of courses to operate, repair, and maintain the Intoxilyzer 5000.             She
explained that the underlying scientific theory of the Intoxilyzer 5000 is based on infrared
spectroscopy in which the machine measures light intensity in a breath sample. In the
scientific community, the theory is considered valid.



                                             2
       Martinez testified that she personally inspects the machine on-site once a month
and remotely monitors the machine by modem or computer once or twice a week or
every two weeks. During this remote monitoring, Martinez’s computer connects with the
machine and conducts a diagnostic check of voltages, readings, and internal standards
and a calibration check to ensure the reference sample is within a tolerance range.

       Prior to the test administered to appellant on November 29, 2009, Martinez and
another certified technical supervisor with the same qualifications, Lee Anne Spino, last
checked the machine on-site and changed the reference sample solution on November 18,
2009. On that date, Martinez and Spino engaged in a “sign-over” in which Spino, who
had temporarily supervised the machine, signed over her supervision of the machine to
Martinez’s supervision, and then they conducted tests on the machine to ensure it
functioned properly. Martinez testified that Spino mixed the reference sample solution at
a remote location, Martinez poured the solution into the machine, and, together, the two
ran a test and verified the accuracy of the solution. The machine produced two slips for
Martinez’s and Spino’s respective signatures indicating that both were on-site changing
the reference sample solution. According to Martinez, the machine functioned properly
following the tests and required no repairs either during her on-site check on November
18, 2009, or during a subsequent on-site check on December 23, 2009.

       Martinez testified that the reference sample solution is sent to an agency in Austin,
Texas, once or twice a year to ensure that the concentration of the solution was made
within the appropriate parameters; according to Martinez, there was nothing wrong with
the particular reference sample used in administering appellant’s test. Martinez did not
have records to prove that the reference solution was independently verified in this case;
however, during her remote monitoring of the machine, the calibration check reflected
that the reference sample was within the appropriate tolerance range.

       Martinez testified that before appellant’s breath test, she had never personally
calibrated that particular machine, although she believed she had reviewed the calibration

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records associated with that particular machine. The record contains no calibration
records on the machine, and Martinez was unable to produce them to appellant’s counsel
under subpoena.        Martinez testified that even without records of the machine’s
calibrations, the machine had to have been calibrated properly and certified by the Texas
Department of Public Safety before the machine could be released into her supervision.

      Martinez inspected the breath-test strip from appellant’s breath test. She noted
that it reflects the result of the reference analysis, which was within the predicted
tolerance value. According to Martinez, the test would be invalidated in any of the
following scenarios:

             If the reference sample were outside of the predicted tolerance range,

             If the first sample breath resulted in a much higher reading than the second
             sample, resulting in residual alcohol,

             If the machine were unable to return to the same baseline reading detected
             before the beginning of the test, or

             If a sample were not provided properly or at the wrong time.

Martinez testified that the machine conducts all functions automatically and that the
operator, who simply pushes one button, is incapable of influencing the test results.
According to Martinez, the scientific technique was properly applied in this case.

      Appellant testified that he consumed three alcoholic beverages between 10:00 a.m.
and 11:30 a.m. on November 29, 2009.            He was later involved in an automobile
accident; officers responded to the scene and administered field-sobriety tests to
appellant. Appellant claimed to have possibly dropped his foot several times during a
field-sobriety test involving a one-leg stand. Appellant claimed to have possibly leaned
against a wall for support during a walk-and-turn field-sobriety test. Appellant admitted
to having to restart his recitation of the alphabet at least once and again during a
recitation of numbers in a field-sobriety test. Appellant was arrested around 6:40 p.m.
                                            4
and transported to the police station, which was a few minutes’ drive from that location.
Appellant claims that, at the stationhouse following his arrest, Rincones spent only a few
minutes with him before conducting the breath test; but, appellant also acknowledged
that Rincones could have spent longer than fifteen minutes observing him.

       The trial court denied appellant’s motion to suppress. Appellant then entered a
plea of “guilty” to the charged offense. After finding appellant guilty, the trial court
sentenced appellant to 180 days’ confinement in a county jail, probated for one year, and
assessed a fine.

                                  ISSUES AND ANALYSIS

       In a single issue, appellant challenges the trial court’s denial of the motion to
suppress the breath-test results, asserting that the scientific technique in administering the
breath test to appellant was not properly applied. Appellant asserts his Sixth Amendment
right to confront his accusers was violated because the State failed to present an expert
scientific witness to testify about the calibration of the Intoxilyzer 5000 machine and the
reference sample to show that the machine was working properly. Appellant also asserts
that he was denied due process as a result of the State’s failure to produce an expert
witness with knowledge of the machine’s calibrations. Appellant relies on the case of
Bullcoming v. New Mexico, —U.S. —, —, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011),
which addresses both arguments.

       We review a trial court’s ruling on a motion to suppress under an abuse-of
discretion standard. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App.
1996); Scillitani v. State, 343 S.W.3d 914, 920 (Tex. App.—Houston [14th Dist.] 2011,
pet. ref’d). At a hearing on a motion to suppress, the trial court is the sole judge of the
credibility of the witnesses and the weight to be given to their testimony. Romero v.
State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Scillitani, 343 S.W.3d at 921. We
afford almost complete deference to the trial court’s determination of historical facts
supported by the record, as well as to mixed questions of law and fact dependent on the
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determination of a witness’s credibility and demeanor. See State v. Ross, 32 S.W.3d 853,
856 (Tex. Crim. App. 2000); Scillitani, 343 S.W.3d at 921. We consider issues that
present purely legal questions under a de novo standard. See Ross, 32 S.W.3d at 856;
Scillitani, 343 S.W.3d at 921.

       When evidence of alcohol concentration, as shown by the results of analysis of a
breath specimen taken at the request or order of a peace officer, is offered (1) the
underlying scientific theory must be determined by the legislature to be valid; (2) the
technique applying the theory has been determined by the legislature to be valid when a
specimen was taken and analyzed by individuals who are certified by, and were using
methods approved by, the Texas Department of Public Safety; and (3) the trial court must
determine whether the technique was properly applied in accordance with the
department’s rules on the occasion in question. See Reynolds v. State, 204 S.W.3d 386,
390–91 (Tex. Crim. App. 2006 (applying standard in Kelly v. State, 824 S.W.2d 568, 573
(Tex. Crim. App. 1992) to breath-test results). By statute, the Texas Legislature has
recognized the validity of the scientific theory and the technique behind the Intoxilyzer,
as reflected in the first two prongs. See Tex. Transp. Code Ann. § 724.064 (West 2011);
Tex. Transp. Code Ann. § 724.016 (West 2011); Stevenson v. State, 895 S.W.2d 694, 696
(Tex. Crim. App. 1995).          Appellant challenges only the third prong, pointing to
Martinez’s testimony that she had no personal, first-hand knowledge of the calibration of
the Intoxilyzer 5000, in ascertaining whether the scientific technique was properly
applied during appellant’s breath test. Appellant also refers to Martinez’s testimony that
she did not personally mix the reference sample solution or independently verify the
accuracy of the solution’s concentration.

       An expert witness may base an opinion or inference on facts or data perceived by,
reviewed by, or made known to the expert before testifying. See Tex. R. Evid. 602; Tex.
R. Evid. 703. Appellant does not challenge Martinez’s expert qualifications; rather,
appellant claims that Martinez lacked personal, first-hand knowledge of the machine’s

                                             6
calibrations and the preparation of the reference sample. Although appellant asserts that
Martinez was “wholly unfamiliar with the machine” used to administer the breath test to
appellant, the record reflects that Martinez received extensive training specific to the
Intoxilyzer 5000, and had served as a certified technical supervisor for nearly a decade,
and had worked specifically with Harris County. She began supervision of the specific
machine used in appellant’s breath test on November 18, 2009.

       The record reflects that Martinez had personal knowledge of Spino’s certification
as a technical supervisor. See Henderson v. State, 14 S.W.3d 409, 412 (Tex. App.—
Austin 2000, no pet.). According to the record, on November 18, 2009, although Spino
prepared the reference sample solution outside of Martinez’s presence, Martinez, herself,
poured the reference sample solution into the chamber of the machine. See id. (involving
an expert witness technical supervisor who testified about a reference sample solution
prepared by a different technical supervisor). Together, the two technical supervisors
conducted tests on the machine to ensure it functioned properly and verified the accuracy
of the solution. Had the solution been improperly formulated, the machine would have
indicated “out of tolerance” and would have invalidated the breath test. According to
Martinez, the machine functioned properly following these tests and again on December
18, 2009, when she next checked the machine on-site, without the need for maintenance
or repairs in the interim. Martinez testified that if the reference sample is not within the
accepted tolerance range, the test would be invalidated and “can’t be run.” Based on the
fact that the machine was functioning properly at the on-site check prior to appellant’s
test and at the December on-site check after appellant’s test, Martinez opined that the
machine was functioning properly during appellant’s test.

       Likewise, Martinez also stated that during her remote monitoring of the machine,
the diagnostic check of the machine’s calibrations reflected that the reference sample was
within the appropriate tolerance range. Although Martinez did not personally calibrate
the machine or have records of the calibration history prior to November 18, 2009, she

                                             7
testified that the machine would not have been released into her supervision if it had not
been properly calibrated and certified for use by the State.

       Appellant contends that, because Martinez had no first-hand knowledge about the
calibration of the machine and could not produce records of the machine’s calibration
history, the admission of the breath-test results violated appellant’s right to confrontation.
The Sixth Amendment of the United States Constitution provides that “in all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. CONST. amend. VI. Testimonial, out-of-court statements are not
admissible unless it is shown that the declarant is unavailable to testify and the accused
had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68,
124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004).

       Appellant cites to Bullcoming for the proposition that “any and all analytical,
scientific data that the State intends to use at trial must be presented to the defense by a
person who authored the data.” See 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011). In
Bullcoming, the Supreme Court of the United States addressed the issue of “surrogate
testimony” for a forensic report that established an element, intoxication, of the charged
offense; the report was deemed testimonial. See id., 131 S. Ct. at 2713, 2715–18. While
the calibration history of the Intoxilyzer machine in this case may be relevant to the
foundation for the admissibility of the breath-test results, documents prepared in the
regular course of equipment maintenance may be non-testimonial. See Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 2532 & n.1, 174 L. Ed. 2d 314 (2009)
(declining, expressly, to hold that anyone whose testimony that may be relevant to
establishing the chain of custody, authenticity of a sample, or accuracy of a testing device
must appear in person). Testimony of a supervisor about the maintenance and upkeep of
the machine does not amount to a violation of appellant’s right of confrontation, as such
records are not testimonial. See id.; see also Settlemire v. State, 323 S.W.3d 520, 522
(Tex. App.—Fort Worth 2010, pet. ref’d) (noting that testimony of “technical analysts

                                              8
who calibrate and operate equipment,” such as a technical supervisor in charge of
Intoxilyzer machine, was admissible for purposes of maintenance records even though
the supervisor was not in charge of the machine when the accused was arrested);
Henderson, 14 S.W.3d at 412–13.

       Given Martinez’s testimony, we cannot conclude the trial court abused its
discretion in denying appellant’s motion to suppress. See Henderson, 14 S.W.3d at 412–
13 (providing that trial court did not err in denying motion to suppress breath-test results
when technical supervisor testified about a reference sample prepared by a different
technical supervisor, who, at the time, was supervising the machine); see also Settlemire,
323 S.W.3d at 522 (providing trial court did not err in admitting evidence of breath-test
results into evidence at trial when technical supervisor, who was not in charge of
Intoxilyzer machine at time of an accused’s arrest, testified about the maintenance
records of Intoxilyzer machine). We overrule appellant’s sole issue.

       The trial court’s judgment is affirmed.


                                               /s/       Kem Thompson Frost
                                                         Justice



Panel consists of Justices Frost, McCally, and Mirabal.*
Do Not Publish — TEX. R. APP. P. 47.2(b).




*
Senior Justice Margaret Garner Mirabal sitting by assignment.
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