                                                                                                 ACCEPTED
                                                                                             05-14-01369-CR
                                                                                  FIFTH COURT OF APPEALS
                                                                                             DALLAS, TEXAS
                                                                                       6/16/2015 10:25:20 AM
                                                                                                  LISA MATZ
                                                                                                      CLERK

                                 No. 05-14-01369-CR

                        IN THE COURT OF APPEALS              FILED IN
                    FOR THE FIFTH DISTRICT OF TEXAS 5th COURT    OF APPEALS
                                                           DALLAS, TEXAS
                                AT DALLAS             6/16/2015 10:25:20 AM
                  ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗     LISA MATZ
                                                                          Clerk
                             JOHN BRANDON BURKS,
                                     APPELLANT

                                            v.

                          THE STATE OF TEXAS,
                                    APPELLEE
                  ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

                 On Appeal from the Criminal District Court Number Five
                              Hon. Carter Thompson, Judge
                                 Dallas County, Texas
                              In Cause No. F13-21294-L
                  ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

                        STATE’S RESPONSE BRIEF
                  ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗


                                    Counsel of Record:

Susan Hawk                                  Douglas R. Gladden
Criminal District Attorney                  Assistant District Attorney
Dallas County, Texas                        State Bar No. 24076404
                                            Frank Crowley Courts Building
                                            133 N. Riverfront Boulevard, LB-19
                                            Dallas, Texas 75207-4399
                                            (214) 653-3600
                                            douglas.gladden@dallascounty.org

                              Attorneys for the State of Texas


The State requests oral argument only if Appellant argues.
                                          TABLE OF CONTENTS
TABLE OF CONTENTS ......................................................................................................i
INDEX OF AUTHORITIES ...............................................................................................ii
STATEMENT OF THE CASE .......................................................................................... 1
ISSUE PRESENTED ........................................................................................................... 1
STATEMENT OF FACTS .................................................................................................. 2
SUMMARY OF THE ARGUMENT ................................................................................. 5
ARGUMENT ......................................................................................................................... 5
    Response to Appellant’s Sole Issue ................................................................................. 5
          Appellant has not preserved his authentication complaint, but the
          evidence was nevertheless properly authenticated.
      1. Appellant’s issue was not preserved because the complaint on appeal
         does not comport with the objection at trial. .......................................................... 8
      2. Even if Appellant had preserved his complaint on appeal, the trial court
         did not abuse its discretion in admitting the evidence because it was
         properly authenticated. ............................................................................................... 9
                a. A trial court’s decision regarding the admissibility of evidence must
                   be affirmed if it lies within the zone of reasonable disagreement. ............ 9
                b. Authentication only requires a threshold showing that the evidence
                   is what its proponent purports it to be. ...................................................... 10
                c. The State made the required threshold showing that Exhibit 20 was
                   what it was purported to be: a breath-test record with Appellant’s
                   identifying information.................................................................................. 10
PRAYER ............................................................................................................................... 12
CERTIFICATE OF COMPLIANCE .............................................................................. 12
CERTIFICATE OF SERVICE ......................................................................................... 13




                                                                         i
                                       INDEX OF AUTHORITIES
TEXAS CASES
Guevara v. State,
      97 S.W.3d 579 (Tex. Crim. App. 2003) .................................................................... 8
Ibarra v. State,
       11 S.W.3d 189 (Tex. Crim. App. 1999), cert. denied, 531 U.S.
       828 (2000) .................................................................................................................... 8
Martinez v. State,
      327 S.W.3d 727 (Tex. Crim. App. 2010) .................................................................. 9
Moses v. State,
       105 S.W.3d 622 (Tex. Crim. App. 2003) .................................................................. 9
Rezac v. State,
       782 S.W.2d 869 (Tex. Crim. App. 1986) .................................................................. 9
Stevenson v. State,
       920 S.W.2d 342 (Tex. App.—Dallas 1996, no pet.) ............................................. 11
Tienda v. State,
       358 S.W.3d 633 (Tex. Crim. App. 2012) ................................................................ 10
Walters v. State,
       247 S.W.3d 204 (Tex. Crim. App. 2007) .................................................................. 9
Zimmerman v. State,
      860 S.W.2d 89 (Tex. Crim. App.), judgment vacated on other
      grounds, 510 U.S. 938 (1993) ....................................................................................... 9


STATUTES
Tex. Code Crim. Proc. art. 42.12 (West Supp. 2014) ......................................................... 1
Tex. Penal Code § 49.01 (West 2011) .................................................................................. 7
Tex. Transp. Code § 550.021 (West 2011) .......................................................................... 1
Tex. Transp. Code § 724.016 (West Supp. 2014) ............................................................... 6




                                                                        ii
RULES
Tex. R. App. P. 25.2 (West Supp. 2014) .............................................................................. 1
Tex. R. App. P. 33.1 (West 2003) ......................................................................................... 8
Tex. R. Evid. 803 (West 2003) ............................................................................................ 11
Tex. R. Evid. 901 (West 2003) ............................................................................................ 10


REGULATIONS
37 Tex. Admin. Code § 19.1, et. seq. (Texas Breath Alcohol Testing
      Regulations) ............................................................................................................. 6, 8


OTHER AUTHORITIES
2 Steven Goode et al., Texas Practice Series: Guide to the Texas Rules of
      Evidence § 901.1 (3d ed. 2002) .................................................................................. 10




                                                                      iii
       TO THE HONORABLE COURT OF APPEALS:

       The State of Texas submits this brief in response to the brief of Appellant,

John Brandon Burks.


                           STATEMENT OF THE CASE
       Appellant was indicted on December 18, 2013, for failure to stop and render

aid in an accident involving serious bodily injury, a third-degree felony.1 On October

17, 2014, he pleaded guilty without a recommendation from the State as to

punshment.2 After a hearing, the court assessed punishment at eight years’

confinement.3 This appeal followed.4


                                  ISSUE PRESENTED
       Authentication of Evidence. Authentication requires a showing that evidence
is what it is purported to be. In this case, the trial court admitted a breath-test report
after a technical supervisor testified that it was an exact copy of the report in her
records. Did the trial court abuse its discretion in admitting this evidence?

1
  Clerk’s Record (C.R.) at 12. See Tex. Transp. Code § 550.021(c)(1)(B) (West 2011).
2
  C.R. at 53–57; Reporter’s Record volume (RR) 1:7–8.
3
  C.R. at 53–54; RR 1:111.
4
  Appellant filed a notice of appeal the same day he was sentenced. C.R. at 61. About five and a half
months later, on April 3, 2015, Appellant filed a Motion for Imposition of Shock Probation, which
the court granted the same day. Supplemental Clerk’s Record (C.R.Supp.) at 6–9; see Tex. Code
Crim. Proc. art. 42.12, § 6 (West Supp. 2014). The court suspended Appellant’s eight-year sentence
and placed him on community supervision for five years. C.R.Supp. at 9–10. Both the new judgment
and the court’s docket sheet reflect that this was done with the agreement of the State. C.R.Supp. at
4, 10. Even though this occurred about four months after the record was filed in this Court, it
appears jurisdictionally proper. See Tex. R. App. P. 25.2(g) (West Supp. 2014) (proceedings in trial
court are suspended upon filing of record ―except as provided otherwise by law‖). Appellant does
not raise any issues from these later proceedings and—because the record reflects the State agreed
to them in the trial court—the State cannot find any problems that merit this Court’s attention on
appeal.

                                                     1
                          STATEMENT OF FACTS
The Crash

       On December 28, 2010, Appellant drove his truck across the center line of

south Main Street in Duncanville and collided head-on with a Toyota Camry driven

by Jamie Stanley.5 Stanley, who was 34 weeks pregnant, saw the truck but did not have

enough time to take enough evasive action to avoid the collision.6 She got her car

door open and cried for help.7 A man came up and used Stanley’s cell phone to call

for help and stayed with her.8

       Appellant fled.9 He had been drinking.10

       Duncanville Police Officer Brent Hand was dispatched to the crash scene.11 He

found Appellant’s truck abandoned so he moved on to Stanley’s car, where he kept

her calm until the paramedics arrived.12 After Stanley was taken to the hospital, Hand

tried to determine who had been driving the truck.13 He discovered it was registered

to Appellant and he found Appellant’s passport inside.14




5
  RR1:12, 16–18, 53–56.
6
  RR1:54–56.
7
  RR1:57.
8
  RR1:57.
9
  RR1:57, 83–84.
10
   RR1:83–84.
11
   RR1:11–12.
12
   RR1:14.
13
   RR1:18.
14
   RR1:15–16, 18.

                                              2
       Appellant returned to the scene with a friend.15 Appellant identified himself to

Hand as ―Chris Johnson,‖ but Hand recognized him from his passport photo. 16 Hand

gave Appellant several chances to give his real name.17 Hand smelled alcohol on

Appellant, so he conducted a battery of Standardized Field Sobriety Tests (SFSTs).18

Hand arrested Appellant for public intoxication and failure to ID.19


The DWI
       Appellant bonded out of jail the next morning and continued to drink and

drive while on bond.20 On January 20, 2011—just three weeks later—he was arrested

in Dallas for DWI and possession of marijuana.21 Dallas Police Officer Shane

Johnson stopped Appellant for driving the wrong way on Greenville Avenue.22

Johnson got Appellant out of the car and, after a battery of SFSTs, arrested him for

DWI.23 During the traffic stop, Appellant told Johnson that he had had two mixed

drinks that evening.24 Appellant submitted to a breath test, which showed alcohol

concentrations of .160 and .144.25



15
   RR1:85.
16
   RR1:20.
17
   RR1:20.
18
   RR1:20–21.
19
   RR1:21.
20
   RR1:96.
21
   RR1:25, 30, 88, 96.
22
   RR1:24–26.
23
   RR1:27–30.
24
   RR1:30–31.
25
   RR1:36–37, 39, 96–97; State’s Exhibit (SE) 20.

                                                    3
The Indictment and Bond Violations

       Appellant was finally indicted for failing to stop and render aid in the 2010

crash on December 18, 2013.26 Before that, he had given a statement to the

Duncanville Police Department in which he claimed he had not been driving—that he

had been ―too drunk to drive‖ and had given his keys to someone else.27 He repeated

this story to his insurance company.28

       Appellant was arrested on January 29, 2014.29 An interlock device was put on

his vehicle as a condition of bond.30 On April 18 and May 3, Appellant’s interlock

device registered positive tests for alcohol.31 Appellant claimed the first positive test

was due to his use of mouthwash.32 He claimed the second positive test occurred

when a mechanic blew into the device to work on the car.33 He sent the court a letter,

purportedly from the mechanic, that appeared to confirm this story.34

       At the punishment hearing Appellant admitted that he signed the letter, after

the State presented evidence that it was in his own handwriting.35 He insisted the

mechanic was a real person, but he did not call the mechanic to testify.36


26
   C.R. at 12.
27
   RR1:94.
28
   RR1:94.
29
   C.R. at 15.
30
   C.R. at 22; RR1:97.
31
   RR1:43–46; SE 12 – 13.
32
   RR1:50, 97; Defense Exhibit (DE) 1.
33
   RR1:46–47, 98; SE 22.
34
   RR1:46–47, 98; SE 22.
35
   RR1:46–47, 98; SE 21–22.

                                               4
                       SUMMARY OF THE ARGUMENT
       Appellant has not preserved his complaint on appeal because it does not

comport with his objection at trial. And objection to improper predicate does not

preserve an appellate complaint about authentication. Even if the authentication

complaint were preserved, the court did not abuse its discretion in admitting the copy

of the breath-test record because the testimony showed that it was exactly what it was

purported to be.


                                   ARGUMENT
                        Response to Appellant’s Sole Issue

       Appellant has not preserved his authentication complaint, but the
       evidence was nevertheless properly authenticated.

       Appellant argues in his sole issue on appeal that the court abused its discretion

in admitting State’s Exhibit 20 because it was not properly authenticated. Appellant

did not preserve his complaint for review.


Additional Facts

       State’s Exhibit 20 is the report generated by the Intoxilyzer 5000 instrument

after Appellant submitted to a breath test on January 20, 2011.37 It identifies the

subject of the test as Appellant based on his name and date of birth.38 It identifies the


36
   RR1:98–99.
37
   RR1:36; SE 20.
38
   RR1:38–39; SE 20.

                                               5
operator of the instrument as Officer Johnson based on his name and operator

certificate number.39 It lists the date and time of the breath test.40 It identifies the test

by a unique test record number.41

       At the punishment hearing, the State introduced Exhibit 20 solely through the

testimony of Lori Fuller, a technical supervisor at the Southwestern Institute of

Forensic Sciences (SWIFs).42 In her capacity as technical supervisor, Fuller maintains

the integrity of the Texas Breath Alcohol Program in Dallas, Collin, and Denton

Counties.43 Fuller performs maintenance on the instruments in her area.44 She

maintains care, custody, and control over at least one original document printed by

the instrument following a breath test.45

       Fuller testified that Exhibit 20 is an exact copy of the January 20, 2011 breath-

test report from Appellant’s breath test that she kept in the ordinary course of

business.46 Fuller confirmed that she was not the operator who performed the breath

test on Appellant, nor could she identify Appellant as ―the person‖ who provided the




39
   RR1:39; SE 20.
40
   RR1:36; SE 20.
41
   RR1:37; SE 20.
42
   RR1:35.
43
   RR1:35. See Tex. Transp. Code § 724.016 (West Supp. 2014); 37 Tex. Admin. Code § 19.1, et. seq.
(Texas Breath Alcohol Testing Regulations).
44
   RR1:35.
45
   RR1:35–36.
46
   RR1:36–37.

                                                    6
specimen.47 She testified that Officer Johnson was the operator who performed the

test.48 Johnson had testified before Fuller but did not talk about the breath test.49

       Appellant objected to the admission of Exhibit 20:

       DEFENSE:              ... Judge, I’m going to object to her, improper predicate,
                             with regards to getting this document into evidence.
       THE COURT:            State.
       PROSECUTOR:           Your Honor, it goes to the weight not the admissibility. She
                             has testified this is a business record kept in the ordinary
                             course of business. Defense has stipulated to the entire
                             Court’s file, which has the Defendant’s name and date of
                             birth. We ask that this document be admitted as a business
                             record, in relation to identifying information of the
                             Defendant.
       THE COURT:            Objection overruled. It will be admitted.50

       Fuller then explained that, as part of the breath test, Appellant provided two

specimens.51 She testified that Exhibit 20 showed both specimens revealed alcohol

concentrations well above the ―legal limit‖ of 0.08.52 Fuller confirmed that she was

―not here to say that‖ Appellant was driving while intoxicated; rather, she was ―here

only to authenticate‖ Exhibit 20.53 On cross-examination, Fuller testified that she

knew Officer Johnson performed the breath test correctly, because ―we have a valid




47
   RR1:37.
48
   RR1:37–38.
49
   RR1:24–34.
50
   RR1:38–39.
51
   RR1:39.
52
   RR1:39. See Tex. Penal Code § 49.01(2)(B) (West 2011) (defining ―intoxicated‖ as, among other
things, ―having an alcohol concentration of 0.08 or more‖).
53
   RR1:40.

                                                   7
test record.‖54 She conceded, however, that she did not have personal knowledge

whether Johnson complied with the 15-minute waiting period.55

1. Appellant’s issue was not preserved because the complaint on appeal does
   not comport with the objection at trial.
       On appeal, Appellant complains that the trial court erred in admitting Exhibit

20 because it was not properly authenticated.56 He relies exclusively on Rules 901 and

902 of the Texas Rules of Evidence, which are the requirements for authentication

and the methods of self-authentication of evidence.57 At trial, however, Appellant only

objected to Exhibit 20 out the grounds of failure to lay a proper predicate.58

       To preserve a complaint for appellate review, the record must show the

complaint was made to the trial court by a timely objection that stated the grounds for

the ruling sought with sufficient specificity to make the trial court aware of the

complaint, and the trial court ruled on the objection.59 The objection at trial must

comport with the complaint raised on appeal.60 A trial objection on the grounds of




54
   RR1:40.
55
   RR1:40–41. See 37 Tex. Admin. Code § 19.3(a)(1).
56
   Appellant’s Brief at 2, 4, 6–10.
57
   Appellant’s Brief at 3, 7–10.
58
   RR1:38.
59
   Tex. R. App. P. 33.1(a) (West 2003).
60
   Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003); Ibarra v. State, 11 S.W.3d 189, 197
(Tex. Crim. App. 1999), cert. denied, 531 U.S. 828 (2000).

                                                    8
failure to lay a proper predicate does not comport with—and therefore does not

preserve—a complaint on appeal that an exhibit was not authenticated.61

       Because Appellant only objected to the ―improper predicate‖ at trial, he has not

preserved his complaint on appeal that Exhibit 20 was not authenticated. This court

should overrule his sole issue and affirm the judgment.

2. Even if Appellant had preserved his complaint on appeal, the trial court did
   not abuse its discretion in admitting the evidence because it was properly
   authenticated.
       Nevertheless, Appellant’s argument that Exhibit 20 was not properly

authenticated fails even if he had preserved his complaint.


     a. A trial court’s decision regarding the admissibility of evidence must be
        affirmed if it lies within the zone of reasonable disagreement.
       A trial court’s decision regarding the admissibility of evidence is reviewed for

an abuse of discretion.62 A trial court abuses its discretion when its decision lies

outside the zone of reasonable disagreement.63 If the trial court’s decision is within the

zone of reasonable disagreement, a reviewing court must affirm the decision.64




61
   Zimmerman v. State, 860 S.W.2d 89, 98 (Tex. Crim. App.), judgment vacated on other grounds, 510 U.S.
938 (1993); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1986).
62
   Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).
63
   Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).
64
   Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

                                                      9
     b. Authentication only requires a threshold showing that the evidence is
        what its proponent purports it to be.
        Authentication is a condition precedent to admissibility.65 The requirement of

authentication is satisfied by evidence sufficient to support a finding that the matter in

question is what its proponent claims.66 Making this threshold showing is simply a

preliminary question of admissibility for the trial court based on relevance.67 Put

another way, the authentication requirement ―represent(s) a special aspect of

relevancy.‖68 The Texas Rules of Evidence provide a non-exhaustive list of

illustrations of the numerous ways evidence may be authenticated.69 Evidence may be

authenticated by direct testimony from a witness with knowledge that the matter is

what it is claimed to be.70


     c. The State made the required threshold showing that Exhibit 20 was
        what it was purported to be: a breath-test record with Appellant’s
        identifying information.
        In this case, the State told the court it was offering Exhibit 20 ―as a business

record, in relation to identifying information of the Defendant.‖71 At the outset, it

must be noted that the business-records exception in Rule 803(6) is an exception to



65
   Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). See Tex. R. Evid. 901(a) (West 2003).
66
   Id.
67
   Id.
68
   2 Steven Goode et al., Texas Practice Series: Guide to the Texas Rules of Evidence § 901.1 (3d ed. 2002)
(quoting advisory committee’s note to Fed. R. Evid. 901(a)).
69
   Tex. R. Evid. 901(b) (West 2003).
70
   Tex. R. Evid. 901(b)(1) (West 2003).
71
   RR1:38–39.

                                                        10
the hearsay rule.72 While intoxilyzer maintenance records are hearsay that are nevertheless

admissible as business records, intoxilyzer results are not hearsay.73 Thus, it was not

technically correct to say the breath-test report was a business record.

       Appellant does not challenge the prosecutor’s characterization of the

document, however. Instead, he argues it was not authenticated—that there was no

evidence it was what it was purported to be.

       Exhibit 20 was purported to be a copy of a breath-test report that was: 1) made

on January 20, 2011, after Appellant submitted to a breath test; and 2) kept in Lori

Fuller’s records. Fuller testified that Exhibit 20 was an ―exact copy‖ of the report in

her records.74 She testified how those records are kept, that each report has a unique,

sequential record number, and that Exhibit 20 matched the number of the report in

her records.75

       The report also contained Appellant’s name and date of birth, which were

confirmed in the court’s file that Appellant had previously stipulated to.76 The report

documented that date and time of the breath test which corresponded with the date

and time of Appellant’s arrest as recounted by Officer Johnson.77




72
   Tex. R. Evid. 803(6) (West 2003).
73
   Stevenson v. State, 920 S.W.2d 342, 344 (Tex. App.—Dallas 1996, no pet.).
74
   RR1:36.
75
   RR1:37.
76
   RR1:7–8, 38.
77
   RR1:25.

                                                     11
      Thus, the evidence showed Exhibit 20 to be a copy of the breath-test report

from Appellant’s breath test the night he was arrested for DWI. The trial court did

not act outside the zone of reasonable disagreement in admitting the evidence because

it was exactly what it was purported to be. If this Court chooses to address

Appellant’s unpreserved argument, it should still overrule his sole issue.


                                      PRAYER
      The State prays that this Honorable Court affirm the judgment in its entirety.

                                                       Respectfully submitted,


                                                       ______________________
Susan Hawk                                             Douglas R. Gladden
Criminal District Attorney                             Assistant District Attorney
Dallas County, Texas                                   State Bar No. 24076404
                                                       133 N. Riverfront Blvd., LB-19
                                                       Dallas, Texas 75207-4399
                                                       (214) 653-3600


                    CERTIFICATE OF COMPLIANCE
     I certify that this document contains 2,469 words, according to Microsoft
Word 2010, exclusive of the sections excepted by Tex. R. App. P. 9.4(i)(1).


                                                       ______________________
                                                       Douglas R. Gladden




                                              12
                       CERTIFICATE OF SERVICE
      I certify that a true copy of the foregoing brief was served on Nanette
Hendrickson, attorney for Appellant, at 133 N. Riverfront Blvd., LB–2, Dallas, Texas
75207-4399,     on     June     16,     2015,     by    electronic     service    to
Nanette.Hendrickson@dallascounty.org


                                                   ______________________
                                                   Douglas R. Gladden




                                            13
