AFFIRM; and Opinion Filed May 2, 2014.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-12-01197-CR

                             JOSE JOFFRE CORREA, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                On Appeal from the County Criminal Court of Appeals No. 2
                                  Dallas County, Texas
                            Trial Court Cause No. M09-57654

                              MEMORANDUM OPINION
                         Before Justices O’Neill, Lang-Miers, and Evans
                                   Opinion by Justice O'Neill
       Jose Joffre Correa appeals his conviction for driving while intoxicated. After a jury

found appellant guilty, the trial court assessed punishment at 150 days’ confinement, probated

for eighteen months, and a $600 fine. In three points of error, appellant contends (1) the trial

court erred in admitting his blood-alcohol concentration (BAC) test results into evidence, (2) the

trial court erred in failing to give an article 38.23 instruction to the jury regarding the BAC test

results, and (3) the evidence is insufficient to support the cost bill. For the following reasons, we

affirm the trial court’s judgment.

       At trial, the State presented evidence that appellant was stopped for a traffic violation and

consented to a breath test. Officer Jackie Cork, a certified intoxilyzer operator, administered the

breath test, which showed appellants’ BAC was almost twice the legal limit. Cork explained the

procedure in procuring a breath sample. He testified that he first ensures that the suspect has
nothing in his mouth, and then conducts a fifteen minute “observation” period. He said the

fifteen minutes is mandated by the State and that he cannot give a test without first observing the

suspect for fifteen minutes. He said if the suspect burps or regurgitates, the fifteen minutes must

restart. Cork testified “None of that happened in this case. He didn’t have any chewing gum or

anything in his mouth. The observation period time went through.”

        On cross-examination, appellant attempted to discredit Cork’s testimony that he waited

the necessary fifteen minutes because a videotape that was taken of the testing was lost and there

was no written evidence to corroborate his testimony. Cork reaffirmed he waited the fifteen

minutes, and testified he would not, and has never, taken a test without waiting the requisite

fifteen minutes. Appellant objected to admission of the test results asserting Cork’s testimony

was insufficient to establish that he remained in appellant’s “presence” for fifteen minutes. The

trial court overruled appellant’s objection.

        In his first point of error, appellant asserts the trial court erred in overruling his objection

to admission of the results of his breath test.           Title 37, section 19.4(c) of the Texas

Administrative Code requires a breath test operator to remain in the “presence” of a subject for at

least fifteen minutes before the test and should exercise “reasonable care” to ensure that the

subject does not place any substances in his mouth. 37 TEX. ADMIN. CODE § 19.4(c). The Code

further states “direct observation” is not necessary to ensure the validity or accuracy of the test

result. Id.

        Here, appellant asserts the BAC results should have been suppressed because the State

did not prove Cork remained in appellant’s “presence” for the requisite fifteen minutes.

According to appellant, Cork testified only that he waited fifteen minutes before giving the test.

However, Cork testified that he is required to do a fifteen minute “observation period” to make

sure the subject has nothing in his mouth and does not regurgitate and that the period in this case

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“went through.”              We conclude Cork’s testimony was sufficient to show he remained in

appellant’s presence for the requisite period. 1 See State v. Reed, 888 S.W.2d 117, 122 (Tex.

App—San Antonio 1994, no pet.) (defining presence as including being within sight). We

overrule appellant’s first point of error.

           In his second point of error, appellant asserts the trial court erred in failing to instruct the

jury to disregard the BAC test results unless it first determined, beyond a reasonable doubt, that

Cork remained in appellant’s presence for fifteen minutes before giving the test. See TEX. CODE

CRIM. PROC. ANN. art. 38.23(a) (West 2005).

           A defendant is entitled to the submission of a jury instruction under Article 38.23(a) if a

disputed issue of fact that is material to a claim of a constitutional or statutory violation would

render evidence inadmissible. TEX. CODE CRIM. PROC. ANN. art. 38.23(a); Madden v. State, 242

S.W.3d 504, 510 (Tex. Crim. App. 2007). To be entitled to an instruction, there must be

evidence before the jury raising an issue of fact that is affirmatively contested. Madden, 242

S.W.3d at 510. If there is no disputed factual issue, the legality of the conduct is determined by

the trial judge alone, as a question of law. Id.

           Here, appellant directs us to no evidence that Cork did not remain in appellant’s presence

for the requisite fifteen minutes before taking appellant’s breath specimen, but simply reurges his

assertion the State failed to show he waited the requisite fifteen minutes. We have previously

resolved this issue against him. We overrule appellant’s second point of error.

           In his third point of error, appellant asserts we should reform the trial court’s judgment to

delete the requirement that he pay court costs because the clerk’s record does not contain a bill of


     1
       At trial, appellant contended Cork’s testimony that he “observed” appellant for fifteen minutes did not show Cork remained in appellant’s
“presence” as required by the Code. The Code specifically states direct observation is not required to show presence. Cork’s testimony thus met
a higher burden than required by the Code. See State v. Reed, 888 S.W.2d 117, 121 (Tex. App—San Antonio 1994, no pet.) (explaining 1990
amendment to the Code removing the requirement that operator continuously observe subject in favor of current requirement that the operator
merely remain in subject’s “presence.”).



                                                                     –3–
costs. The record before us now contains a bill of costs. See Johnson v. State, 423 S.W.3d 385,

392-94 (Tex. Crim. App. 2014). We overrule appellant’s third point of error.

       We affirm the trial court’s judgment.




                                                     /Michael J. O'Neill/
                                                     MICHAEL J. O'NEILL
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47

121197F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JOSE JOFFRE CORREA, Appellant                        On Appeal from the County Criminal Court
                                                     of Appeals No. 2, Dallas County, Texas
No. 05-12-01197-CR        V.                         Trial Court Cause No. M09-57654.
                                                     Opinion delivered by Justice O'Neill.
THE STATE OF TEXAS, Appellee                         Justices Lang-Miers and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 2nd day of May, 2014.




                                                    /Michael J. O'Neill/
                                                    MICHAEL J. O'NEILL
                                                    JUSTICE




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