                             Fourth Court of Appeals
                                    San Antonio, Texas
                                           OPINION
                                       No. 04-11-00881-CR

                                    Michael Scott ALCARAZ,
                                            Appellant

                                                v.

                                      The STATE of Texas,
                                            Appellee

                    From the 437th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008CR5853
                              Honorable Pat Priest, Judge Presiding

Opinion by:      Sandee Bryan Marion, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice (not participating)

Delivered and Filed: March 13, 2013

AFFIRMED

           Appellant, Michael Scott Alcaraz, appeals his conviction for felony driving while

intoxicated (third offense). The jury assessed punishment at thirteen years and six months’

confinement and a $10,000 fine. Appellant’s sole issue on appeal is that the trial court violated

his rights under the Confrontation Clause of the Sixth Amendment of the United States

Constitution by overruling his objection to the testimony of the State’s witness, Debra Stephens.

We affirm.
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                                        BACKGROUND

       On January 20, 2006, appellant picked up his former girlfriend, Denna Sage, from work

in a white Ford van and they went to a strip club where they ate and drank. Sage testified that

appellant “possibly had a slight buzz” when he picked her up. After Sage and appellant left the

club, an off-duty police officer, Deputy Spaulding, witnessed a van driving erratically.

Spaulding testified he witnessed the van weaving in and out of lanes, running cars off the road,

and the driver making “obscene hand gestures” to another driver. Sage also testified that

appellant was driving erratically and was “going too fast, swerving back and forth to the lanes,

tailgating people, ran a couple of people off the road.” Spaulding radioed in to dispatch to

request another unit and followed appellant as he exited the freeway and stopped at an EZ Mart.

       In response to the radio request, Officer Ortega arrived at the EZ Mart where Spaulding

informed him of what he had witnessed while appellant was inside purchasing beer. When

appellant exited the EZ Mart, Ortega approached him and asked if he was the driver of the van,

to which appellant replied, “yes.” Ortega testified he could detect a “very strong” odor of

alcohol on his breath. Ortega also asked appellant if he had been drinking, to which he replied

that he had. At that point, Ortega detained appellant on suspicion of driving while intoxicated

and contacted Deputy Lopez, an officer who was more proficient in the administration of

standard field sobriety tests. Lopez administered multiple field sobriety tests and, based on

appellant’s performance, placed him under arrest for driving while intoxicated.

       Lopez took appellant to the Sherriff’s Office where appellant agreed to give a breath

sample. The breathalyzer, an Intoxilyzer 5000, printed out a report that the State introduced as

State’s Exhibit 3. The report was signed by Lopez as the operator, and reported a blood-alcohol

concentration (BAC) between .189 and .195. The report also displayed a “reference” test of .078

and four separate “air blanks” in between the tests.
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        At trial, the State introduced the testimony of five witnesses, including Lopez and Debra

Stephens. Stephens is a senior forensic scientist and technical supervisor with the Bexar County

Breath Testing Program. She is the custodian of records for all the breathalyzer machines in Bexar

County. Stephens recently assumed the position of senior forensic analyst—a position previously held

by George Allen McDougall, who had retired.

        Stephens testified about how the Intoxilyzer 5000 works, about the machine’s accuracy, the

machine’s maintenance and inspection records, and whether the instrument was working properly on

the day appellant’s test was administered. She described the various tests included in the breathalyzer

report and what the numbers in the report meant. The “analysis” section of the machine’s report

contained two samples from appellant separated by a “reference sample.” Stephens described the

“reference sample” as follows:

                The reference portion of the test we formulate an alcohol concentration within
        what’s called a simulator device. We introduce that vapor concentration into the
        instrument for measurement. We can make any concentration we want and evaluate
        that alcohol concentration over a very wide range. And so that is known or predicted.
        It’s pumping that alcohol vapor into the instrument for a set amount of time, at a set
        pressure. And so that’s very controlled conditions.

                A subject that’s being tested is a much more uncontrolled condition and so
        there’s going to be more variation in the sample that’s delivered from a human subject
        than from a known reference device.

        Stephens testified her job includes maintaining the reference solutions used in the

administration of breath tests.      However, at the time appellant’s breath test was administered,

McDougall was still the person in charge of maintaining the Intoxilyzer machines and creating the

reference solutions. The reference solution used in appellant’s case was created in McDougall’s

laboratory. McDougall did not testify at the trial. Appellant objected to Stephens’s testimony and the

trial court overruled the objection in its entirety.




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                                              ANALYSIS

         On appeal, appellant contends the trial court erred in admitting the breathalyzer report over his

Confrontation Clause objection. Specifically, appellant’s argument covers two issues: (1) whether

appellant’s rights under the Confrontation Clause were violated when the State introduced the

breathalyzer test results that reported his BAC without the in-court testimony of McDougall, and (2)

whether creating the “reference samples” used in the administration of the breathalyzer is

“testimonial,” requiring the creator to personally testify at trial to satisfy the Confrontation Clause

upon the admission of the results of a breathalyzer test.

A. DID THE ADMISSION OF THE BREATHALYZER RESULTS CERTIFYING APPELLANT’S BAC
   WITHOUT TESTIMONY FROM MCDOUGALL VIOLATE HIS RIGHTS UNDER THE
   CONFRONTATION CLAUSE?

         Testimonial statements are those made “under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a later trial.” Crawford

v. Washington, 541 U.S. 36, 52 (2004); Wall v. State, 184 S.W.3d 730, 735 (Tex. Crim. App. 2006).

The Confrontation Clause permits the admission of out-of-court, “testimonial” statements of witnesses

who do not appear at trial “only where the declarant is unavailable, and only where the defendant has

had a prior opportunity to cross-examine.” Crawford, 541 U.S. at 59; see U.S. CONST. amend. VI

(Confrontation Clause).

         This court, in the recent opinion Boutang v. State, held the admission of

breathalyzer results in a trial for driving while intoxicated did not violate a defendant’s

rights    under     the   Confrontation   Clause.         Boutang   v.   State,   No.      04-11-00764-CR,

slip     op.   at    8    (Tex.   App.—San       Antonio      February    27,     2013),     available   at

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=7e60eb07-376c-4eb8-9486-

0c89e1c1e573&MediaID=190d3d7c-f2ae-42ad-a8cd-ce7114b10b82&coa=coa04&DT=Opinion.

The facts in Boutang are essentially the same as in this case. In Boutang, Stephens also testified and
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sponsored the breath test results over the appellant’s objection that McDougall, not Stephens, was

required to testify to satisfy her rights under the Confrontation Clause. Id. We agree with the analysis

of this issue in Boutang and conclude the appellant’s confrontation rights in this case were not

violated.

        Upon admission of the breathalyzer report that demonstrated his BAC, appellant had the

opportunity to confront both Deputy Lopez, the operator of the Intoxilyzer machine at the time

the test was administered, and Stephens, an expert who, as senior forensic analyst, was qualified

to give her opinion, based on her review of maintenance and inspection records, regarding the

machine’s accuracy and whether the instrument was working properly on the day appellant’s test

was administered. Stephens was qualified to “sponsor” the report and explain what the various

numbers in the report meant.

        Appellant was entitled to confront the “witnesses against him” upon the admission of the

breathalyzer results alleging he was intoxicated. Appellant “confronted” both Deputy Lopez and

Stephens. Accordingly, we conclude there was no violation of appellant’s rights under the

Confrontation Clause when the breathalyzer test results reporting his BAC were admitted into

evidence without the testimony of McDougall.

B. IS CREATING “REFERENCE SOLUTIONS” FOR USE IN BREATHALYZER MACHINES
   “TESTIMONIAL?”

        The second issue we must address is whether creating and maintaining the “reference

samples” to be used in breathalyzer machines is “testimonial” for purposes of the Confrontation

Clause, requiring the creator to personally testify at trial. Appellant’s argument is that because the

“reference solution” was not prepared by Stephens herself, his rights under the Confrontation Clause

were violated when she testified instead of McDougall because Stephens had “no personal knowledge

of the contents of the ‘known sample,’” and appellant was therefore denied the opportunity to confront


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                                                                                         04-11-00881-CR


the “witness who played a crucial role in formatting the device which created the inculpatory evidence

employed against him.”

        According to Stephens’ testimony, the “reference solution” serves to show whether the

machine is operating correctly by demonstrating that, at the time of testing, it can detect a known

concentration of alcohol with accuracy. In her testimony, Stephens described the way a “reference

sample” factors into the breathalyzer’s analysis:

                 If the instrument—if the solution was not made correctly, it would be
        documented on this test record and his inspection records. The solution itself is not
        calibrating the instrument. The instrument is previously calibrated. The reference
        solution is just a demonstration of the time of the test, if the instrument is operating
        correctly. And it would indicate to me that it was operating correctly.

The “reference test,” essentially, is a control test. Stephens testified, “the predicted reference [test]

result is known to us. And [the breathalyzer machine] must read accurately or it will invalidate this

test and stop the testing procedure right then.” She further explained that if the breathalyzer machine

does not read the reference sample properly the machine will tell the operator “invalid test, reference

out of tolerance” and end the test with no results.

        In Bullcoming v. New Mexico, the question presented to the Supreme Court was “whether

the Confrontation Clause permits the prosecution to introduce a forensic laboratory report

containing a testimonial certification—made for the purpose of proving a particular fact—

through the in-court testimony of a scientist who did not sign the certification or perform or

observe the test reported in the certification.” Bullcoming v. New Mexico, 131 S.Ct. 2705, 2710

(2011) (emphasis added). Appellant relies on Bullcoming for the proposition that the Supreme

Court’s ruling requires the in-court testimony of McDougall—the creator of the reference

solutions. However, Bullcoming’s holding implicates the Confrontation Clause in situations

where forensic reports contain “testimonial certifications” that are “made for the purpose of

proving a particular fact.” Id. McDougall was not making a testimonial certification as a
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witness against appellant when he created the reference samples; instead, the reference samples

were created for the purpose of confirming the breathalyzer machine’s accuracy by

demonstrating whether the machine was working at the time of administration. Any testimony

from McDougall about the creation of the “reference solution” would be considered “relevant in

establishing the . . . accuracy of the testing device.” See Melendez-Diaz v. Massachusetts, 557

U.S. 305, 311 n.1. The Melendez-Diaz Court specifically stated this type of witness is not

required to testify. See id. (“. . . we do not hold, and it is not the case, that anyone whose

testimony may be relevant in establishing the . . . accuracy of the testing device, must appear in

person as part of the prosecution’s case.”).

          Based on the foregoing, we conclude creating “reference samples” for use in establishing

the accuracy and validity of a breathalyzer testing machine is not “testimonial” for purposes of

the Confrontation Clause. Therefore, the in-court testimony of McDougall was not required.

                                           CONCLUSION

          We conclude appellant’s rights under the Confrontation Clause were not violated when

the breathalyzer result reporting his BAC was admitted over his objection. We also conclude

creating “reference samples” for use in breathalyzer testing is not considered “testimonial” for

purposes of the Confrontation Clause. We affirm the judgment of the trial court.



                                                      Sandee Bryan Marion, Justice

Publish




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