                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00410-CR


Adam Terrell Rhyne                        §    From County Court

                                          §    of Clay County (13538)

v.                                        §    November 21, 2012

                                          §    Opinion by Justice Gabriel

The State of Texas                        §    (p)

                                   JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was error in the trial court‘s judgment. It is ordered that the judgment of the

trial court is reversed and this case is remanded for a new trial.


                                     SECOND DISTRICT COURT OF APPEALS



                                     By_________________________________
                                       Justice Lee Gabriel
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00410-CR


ADAM TERRELL RHYNE                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

                  FROM COUNTY COURT OF CLAY COUNTY

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

                                   Introduction

      Appellant Adam Terrell Rhyne appeals, seeking a reversal and remand for

a new trial after a jury found him guilty of driving while intoxicated (DWI). In two

points, he claims that (1) the trial court abused its discretion by admitting breath-

test results, and (2) the State failed to prove venue. We sustain his first point

and reverse.

      1
       See Tex. R. App. P. 47.4.


                                          2
                  Background Facts and Procedural History

      Texas Department of Public Safety (DPS) Trooper Zachary Ward was the

only witness called to testify at Appellant‘s trial. He stopped Appellant‘s pickup

truck around five minutes before one o‘clock on a weekend morning after

observing it drift across the white line that separates the shoulder from the

roadway and then back across the center line of southbound U.S. Highway 287

near the ―Gainesville overpass.‖ Trooper Ward conceded that Appellant was not

speeding or committing any traffic offenses other than failing to stay in his lane.

      Appellant pulled over without incident.     Trooper Ward approached him,

asked him for his driver‘s license and insurance, and also asked if he had been

drinking. Appellant admitted that he had.

      Trooper Ward ordered him out of his truck, administered field sobriety

tests, and formed the opinion that Appellant was ―intoxicated by alcohol.‖ He

arrested Appellant for DWI, and took him to the Clay County Sheriff‘s Office,

which was ―a minute or two‖ away.

      The trooper‘s patrol car was equipped with a dash-cam video recorder that

recorded the stop, but the recording was lost by the time Appellant‘s case went to

trial. On the stand, Trooper Ward could not recall whether Appellant‘s eyes had

been bloodshot or his speech slurred, and Trooper Ward admitted that the

offense report indicated neither of these facts nor that Appellant had fumbled for

his license or insurance. Trooper Ward also admitted that the report did not

mention that Appellant smelled of alcohol, but the trooper explained that he had a


                                          3
cold on the night he arrested Appellant that had interfered with his sense of

smell.

         Appellant agreed to take a breath test at the jail.        Trooper Ward

administered the test on an Intoxilyzer 5000, and Appellant provided two breath

samples that yielded results of 0.148 and 0.141, respectively.

         When the State offered these results at trial, Appellant objected that the

State had not laid the proper predicate because it had offered no testimony that

the intoxilyzer had been properly operating on the day of Appellant‘s breath test.

The trial court replied, ―I‘m going to overrule your objection. I realize where you

are coming from. The intoxilyzers have been around long enough that I feel like

that the State has proved their reliability.‖

         Trooper Ward then testified that the intoxilyzer was working properly on

that day because otherwise it would have ―kicked out a negative results [sic].‖

He further testified that the intoxilyzer is maintained periodically by a technical

supervisor who inspects it and makes sure it is working properly.

         Trooper Ward continued to refer to the technical supervisor as Appellant

questioned him on voir dire:

         BY [Counsel for Appellant]:

               Q. Trooper Ward, can you give us a scientific basis for the
         operation of the Intoxilyzer 5000?

               A. No. You would have to subpoena a technical supervisor to
         do that.




                                           4
      Q. And as far as –– you just answered a question that you
believe this is checked and maintained by a technical supervisor.
Do you have the records of this instrument with you?

      A. No, I do not.

      Q. Do you know if it was tested to determine whether the ––
the known sample was correct or not?

      A. If it wasn‘t, the technical supervisor would have previously
taken it out of service and replaced it with another intoxilyzer.

      Q. Yeah. If that had happened.         But you don‘t have the
records of this, right?

      A. No, I do not.

       Q. Okay. So you don‘t know if that next test –– if there was
another test of that intoxilyzer machine showed it to be out of –– out
of tolerance, do you?

      A. No, I do not.

     Q. Okay. And as far as the pressure switch on there, do you
know if the pressure switch was working properly so that the tone
sounded when enough pressure was going through there?

      A. The tone sounded so it must have been.

        Q. What if the pressure switch wasn‘t operating correctly and
still sounded a tone, do you know if that can happen?

        A. You would have to take that up with the technical
supervisor. I do not know the internal workings. I‘ve only been
certified to operate it.

       Q. Right. Right. And so your –– the limits of your ability are
to go into the machine, turn it on, and march it through the steps that
you have been trained to do?

      A. Yes.




                                  5
       Q. But as far as how that works or the reliability of that
specific machine on the date of November 25th, 2007, the only thing
you can say is that that printed out a result that day?

      A. That is correct.

       Q. But whether it was actually working correctly or not as
tested by the technical supervisor as you say on a routine basis, you
don‘t know that?

      A. It would have not printed out a result if it hadn‘t been
operating correctly? [sic]

      Q. How do you know that?

      A. ‗Cause they never have in the past.

      Q. Well, you‘re saying that it can‘t print out and be wrong?

      A. You would have to take that up with a technical supervisor.

      Q. So you don‘t know if it could print out and be wrong, right?

      A. I have been instructed in class that it will not.

        Q. But you don‘t know that it will or will not so if you get a slip
out you‘re going to take that as being true and you don‘t really know
whether it is or not because that‘s what the technical supervisor‘s job
is, right?

      A. The technical supervisor advised us that ––

      Q. No. I didn‘t ask you ––

      A. –– if it prints out a result ––

      Q. I‘m not asking what you were told. I am asking what you
can testify to as you sit here today.

      A. That‘s what I know. A technical supervisor told me if it
printed that out it worked correctly.




                                    6
        Q. Okay. But if a technical supervisor comes and five days
later finds out that that sample, reference sample, is out of tolerance
but yet prints out right they‘d have to go back and invalidate all those
test[s], right?

        A. I don‘t know.

      Q. Okay. Again, I think I‘ve asked you this. On November
25th, at 1:26 a.m. of 2007, you don‘t know whether –– you can‘t sit
here and say of your own knowledge that that Intoxilyzer 5000 was
working correctly that morning?

       A. It printed out a test sample and it would have given an
invalid test if it hadn‘t been working correctly.

        Q. And that‘s because ––

        A. That‘s –– it‘s been designed to do that.

        Q. And that‘s really outside of your ––

        A. I cannot give you the ––

        Q. –– training?

        A. –– I cannot give you the internal workings of it, no.

       Q. Okay. And so if the pressure switch wasn‘t working and so
they weren‘t getting deep alveolar air from the lungs of the person in
order to test, you don‘t know that?

        A. It would have kicked out an invalid test.

        Q. Unless the pressure switch was not working right, correct?

      A. I don‘t believe the pressure switch would have allowed it to
do that.

        Q. What do you mean you don‘t believe that? Do you know
that?

     A. Yeah, I‘ve been told if it prints out a test record then the
machine is operating correctly.


                                      7
       Q. Okay. Same thing. So if I ask you, what if the reference
sample is out of tolerance but it prints out close enough but really
the true value was different but your answer is going to be if the test
record prints out it‘s operating properly?

      A. If the reference sample is out of tolerance there is a
reference sample in there and we have been trained to replace the
reference sample and change it out.

       Q. Yeah. But I am saying if it‘s supposed to be a certain
value but the machine reads it at a value that‘s different than what
the real value of it is wrong, you‘re going to say, well, if it prints out, it
prints out?

       A. It wouldn‘t print out.

       Q. Oh, it wouldn‘t?

       A. The instrument would recognize that the reference sample
was out of tolerance and would not –– it would kick out an invalid
test and I‘d have to ––

       Q. What if ––

       A. –– to request a blood sample.

       Q. What if the light source –– ‗cause you‘re familiar with
infrared spectroscopy, right?

       A. Sure.

       Q. And you know how that works in the machine?

       A. Vaguely.

       Q. Okay.

       A. They gave us a little spin down of it.

     Q. Okay. So if the light source is weak and doesn‘t produce
as much light as it should and so reads it incorrectly about how



                                      8
      much light is being absorbed by the alcohol molecules in there and
      prints it out wrong, it‘s going to be right because it prints out, right?

             A. Could you restate the question?

             Q. Can the light source ––

             A. You lost me there.

             Q. Can the light source be weak and not produce the amount
      of light that should be in there and the amount that should be
      absorbed –– ‗cause you know that‘s how they measure it are the
      molecules of alcohol that absorb light from one side to the other,
      right?

             A. That‘s correct.

              Q. All right. So if the light source that comes out of there is
      weaker and not as much as absorbs as it should be but it still prints
      out, it‘s still right; is that right?

            A. I couldn‘t say. You‘d have to talk to a technical supervisor
      about that.

           Q. But as far as you know if it prints out it‘s right; that‘s your
      answer?

             A. That is what I have been told.

      Appellant re-urged his objection that the proper predicate had not been

laid, the objection was overruled, and the breath-test results were admitted and

published to the jury.

      After the parties had rested and as the trial court recessed the jury to

prepare the charge, one juror asked if the jury would be allowed to look at the

evidence of Appellant‘s breath-test results, which had been admitted as State‘s

Exhibit Number One.



                                          9
               JUROR: Excuse me, Judge?

               THE COURT: Yes?

               JUROR: Are we allowed to look at that Exhibit No. 1?

           THE COURT: Not until you go to the deliberation room. It has
      been passed to you once already.

               JUROR: Right.

               THE COURT: But you can request it at that time.

               JUROR: Okay.

      During closing arguments, the prosecutor noted that Appellant was

arrested after he had drifted out of his lane and failed the field sobriety tests.

      But the prosecutor stressed the evidence of the breath-test results. He

observed that it showed Appellant‘s alcohol concentration was almost twice the

legal limit, and he argued that it substantiated the facts obtained at the scene.

Further, he conceded that it was the ―best evidence‖ of whether Appellant was

intoxicated:

      And you‘ve got a test that‘s 40–something minutes, 45 minutes, after
      the time of driving and that test is .14. That is the best evidence we
      have of what –– of whether or not this Defendant was intoxicated.

      The prosecutor also argued that the intoxilyzer was working properly

because Trooper Ward said it was and that Appellant, himself, could have

subpoenaed a technical supervisor:

            That –– the machine was working properly. You heard
      Trooper Ward testify that it was working properly. The Defense has
      the exact same subpoena power that I have. They could have
      subpoenaed the technical breath test operator [sic] also. But it‘s


                                          10
      easier to tell what the State didn‘t do than what actually did happen.
      I mean, that‘s a .14.

      The jury found Appellant guilty and the trial court sentenced him to six

months in jail, probated for six months, and a $2000 fine.

                                      Venue

      In his second point, Appellant raises for the first time the issue whether the

State proved venue, that is, whether the events forming the basis of Appellant‘s

conviction occurred in Clay County.

      Unless an appellant timely disputed venue in the trial court, or unless the

record affirmatively shows the contrary, the rules require that we presume that

venue was proven in the county as alleged in the charging instrument. See Tex.

R. App. P. 44.2(c); Holdridge v. State, 707 S.W.2d 18, 20–21 (Tex. Crim. App.

1986). Appellant did not challenge the State‘s proof of venue in the trial court.

He did not object to the information‘s allegation that the offense occurred in Clay

County, he did not cross-examine the State‘s witness on the issue, he did not

present evidence showing that the events for which he was prosecuted occurred

in some county other than Clay County (and we have found none), he did not

move for a directed verdict on the ground (or any other ground) that the State

failed to prove venue, he did not object to the jury charge, he did not argue to the

jury that the State had not proven venue, and he did not move for a new trial.

Accordingly, we hold that Appellant failed to raise the issue of venue and that the




                                        11
presumption that venue was proved in the trial court stands. See Holdridge, 707

S.W.2d at 22. We overrule Appellant‘s second point.

                                  Breath-Test Predicate

      In his first point, Appellant contends that the trial court abused its discretion

by admitting the results of his breath test over his objection that the State failed

to lay the proper predicate. More specifically, he complains that the State failed

to establish that (1) the intoxilyzer machine was functioning properly on the day

of Appellant‘s test; (2) the intoxilyzer was periodically supervised by one

understanding the scientific theory behind it; and (3) the results were interpreted

by a witness qualified to do so. See Harrell v. State, 725 S.W.2d 208, 209 (Tex.

Crim. App.1986). We agree.

      In Harrell, the court of criminal appeals established the predicate for

intoxilyzer-test results, holding that if the State seeks to introduce the results in

evidence the State must establish: (1) that the machine functioned properly on

the day of the test as evidenced by a reference sample having been run through

it; (2) the existence of periodic supervision over the machine and operation by

one who understands the scientific theory behind it; and (3) proof of the results of

the test by a witness or witnesses qualified to translate and interpret such results.

See id., at 209–10; Kercho v. State, 948 S.W.2d 34, 37 (Tex. App.––Houston

[14th Dist.] 1997, pet. ref‘d).

      Professors Dix and Schmolesky have observed that the predicate for

breath-test results is typically met by testimony of two witnesses. 40 George E.


                                           12
Dix & John M. Schmolesky, Tex. Practice: Criminal Practice & Procedure, §

14:84 (3d ed. 2011); see Reynolds v. State, 204 S.W.3d 386, 387 (Tex. Crim.

App. 2006); Kercho, 948 S.W.2d at 37; Guardiola v. State, No. 03-08-00399-CR,

2010 WL 1170204, at *3–4 (Tex. App.––Austin Mar. 23, 2010, no pet.) (mem.

op., not designated for publication); Smith v. State, No. 05-96-01724-CR, 1998

WL 908905, at *1 (Tex. App.––Dallas Dec. 31, 1998, pet. ref‘d) (not designated

for publication). The certification framework established by DPS distinguishes

between persons who are certified to administer breath tests—operators of

breath testing devices––and those certified to function in a supervisory

capacity—technical supervisors.      See French v. State, 484 S.W.2d 716, 719

(Tex. Crim. App. 1972) (―[A]n officer may administer a breath test even though he

is not otherwise qualified to interpret the results, and the standards required to

qualify one to administer the test are far less than those qualifying to interpret the

result[.]‖); 37 Tex. Admin. Code §§ 19.5 (operator certification), 19.6; (technical-

supervisor certification) (West Mar. 26, 2006). Certification in the latter capacity

requires ―knowledge and understanding of the scientific theory and principles as

to the operation of the instrument and reference sample device.‖               Id., §

19.6(b)(4).   ―Thus,‖ Professors Dix and Schmolesky have noted, ―a person

certified as a technical supervisor is generally required to meet the second and

third requirements of the Harrell predicate.‖ Dix & Schmolesky, § 14:84. In other

words, the technical supervisor is usually the one who testifies that he or she

understands the scientific theory behind the intoxilyzer; periodically supervises


                                         13
the intoxilyzer program in the locale where the defendant took the test; has the

qualifications necessary to interpret the results; and actually does so at trial. See

Harrell, 725 S.W.2d at 209–10.

      With these principles in mind, Professors Dix and Schmolesky have

outlined the typical manner in which breath-test evidence is presented at trial:

              First, the officer who administers the test testifies that he is
      certified as an intoxilyzer operator, that he administered the test to
      the defendant and did so in accordance with the Department‘s
      regulations, and that the results are contained in a data readout that
      the State offers as an exhibit. As part of this testimony, the operator
      testifies that he ran a reference test on the intoxilyzer and what
      results were produced by this reference test.

             Second, an officer who was the technical supervisor with
      supervisory responsibility for the machine used in the test testifies
      that he is certified by the Department as a technical supervisor, the
      machine used was certified by the Department for testing purposes,
      the machine used was checked periodically to assure that it
      operated properly, and that the reference sample used by the officer
      administering the test was properly prepared. This witness generally
      asserts that he understands the scientific theory of the device and
      interprets the numbers on the data readout. He may also explain
      the reference test and what is meant by the results of this process.

Dix & Schmolesky, § 14:84.

      Here, Appellant‘s argument is that the trial court erred by admitting the

results of his breath test because no one testified that the machine used was

certified by DPS for testing purposes and was checked periodically to assure that

it operated properly or that the reference sample used by the officer

administering the test was properly prepared.       Further, no one asserted any

understanding of the scientific theory of the device, and no one interpreted the



                                         14
numbers on the data readout. In fact, whenever Appellant asked any questions

touching on the scientific theory of the intoxilyzer, Trooper Ward referred him to

the technical supervisor.

      The State responds that in order to satisfy the predicate for intoxilyzer

results, it only had to satisfy the three-part Kelly test for reliability of scientific

evidence. In other words, the State argues that it had to prove by clear and

convincing evidence only that (1) the underlying theory is valid; (2) the technique

applying the theory is valid; and (3) the technique was properly applied in this

case. See Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992); see also

Hartman v. State, 946 S.W.2d 60, 63 (Tex. Crim. App. 1997) (holding that Kelly

applies to all scientific evidence). Further, the State asserts, it needed only to

have proven the third of the Kelly criteria because, as the court of criminal

appeals observed in Reynolds, the legislature has already determined that the

underlying science behind intoxilyzer testing is valid and that the technique

applying it is valid as long as the test is administered by individuals certified by

and using methods approved by DPS rules. See Reynolds, 204 S.W.3d at 390.

Thus, the State argues, in order for the trial court to have properly served its

―gate-keeper‖ function, it need only have determined that the intoxilyzer

technique was properly applied in this case.

      The State points to Trooper Ward‘s testimony that he was certified to

administer the intoxilyzer test, he waited the requisite fifteen-minute period, and

he administered two tests as required by law.


                                          15
      We do not read Appellant‘s claim to contest these aspects of Trooper

Ward‘s testimony. He does not appear to challenge the evidence that Trooper

Ward was qualified to administer the test. Rather, the rubbing point in this case

is whether the intoxilyzer was maintained by someone with an understanding of

the scientific theory behind it and, more importantly, whether the intoxilyzer was

operating properly on the day that Appellant submitted to testing.

      On this latter point, the State offers up Trooper Ward‘s testimony that he

knew the machine was operating properly because otherwise ―it would have

kicked out a negative results [sic] saying it was not working properly.‖ This begs

the question––as Appellant‘s counsel put to the trooper at numerous points on

voir dire––what if the machine was not working properly but still printed a result

that was plausible but inaccurate? Trooper Ward‘s response to questions along

these lines varied from denying the premise to suggesting that counsel subpoena

the technical supervisor. It started with the first question:

      Q. Trooper Ward, can you give us a scientific basis for the operation
      of the Intoxilyzer 5000?

      A. No. You would have to subpoena a technical supervisor for that.

And it continued:

      Q. Do you know if it was tested to determine whether the –– the
      known sample was correct or not?

      A. If it wasn‘t, the technical supervisor would have previously taken
      it out of service and replaced it with another intoxilyzer.

      .....



                                          16
      Q. What if the pressure switch wasn‘t operating correctly and still
      sounded a tone, do you know if that can happen?

      A. You would have to take that up with the technical supervisor. . . .
      I‘ve only been certified to operate it.

      .....

      Q. But whether it was actually working correctly or not as tested by
      the technical supervisor as you say on a routine basis, you don‘t
      know that?

      A. It would have not have printed out a result if it hadn‘t been
      operating correctly[.]

      Q. How do you know that?

      A. ‗Cause they never have in the past.

      Q. Well, you‘re saying that it can‘t print out and be wrong?

      A. You would have to take that up with a technical supervisor.

      .....

      Q. All right. So if the light source that comes out of there is weaker
      and not as much as absorbs as it should be but it still prints out, it‘s
      still right; is that right?

      A. I couldn‘t say. You‘d have to talk to a technical supervisor about
      that?

      Q. But as far as you know if it prints out it‘s right; that‘s your
      answer?

      A. That is what I have been told.

      We review the trial court‘s decision to admit scientific evidence for an

abuse of discretion, which means that we will not disturb it if the ruling was within




                                          17
the zone of reasonable disagreement. Bigon v. State, 252 S.W.3d 360, 367

(Tex. Crim. App. 2008).

      We are not persuaded by the State‘s assertion that Trooper Ward‘s

testimony was sufficient because ―[e]vidence of one who holds a DPS‘

certification is sufficient to meet the Kelly criteria.‖ The State cites Reynolds for

this assertion, but omits an important qualifier from that opinion: the complete

sentence from Reynolds is, ―The fact of certification is sufficient to meet the Kelly

criteria with respect to the competence of the breath test operator.‖ 204 S.W.3d

at 390 (emphasis added). As we have indicated, Appellant does not challenge

Trooper Ward‘s competence as an operator.

      Moreover, the issue and the critical facts in Reynolds differ from those

presented in this case. There, the issue was whether the operator of the breath-

testing apparatus was required to understand the scientific and technological

principles behind the device. Id. at 387. The court of criminal appeals held that

the operator need not demonstrate such understanding.            Id. at 391.    And,

importantly for our purposes, in Reynolds the State was able to produce another

witness, a certified technical supervisor who was responsible for overseeing the

particular intoxilyzer the trooper in that case operated. Id. at 387. The technical

supervisor testified that she was familiar with the science and technology upon

which the device was based and that she had first-hand knowledge that it was

maintained and in good working order on the date the trooper used it to test the

appellant. Id. Similar testimony is what the State failed to produce here.


                                         18
      While we defer to the trial court‘s implied determination that Trooper Ward

was credible, we hold that it was outside the zone of reasonable disagreement

for the trial court to have concluded from the trooper‘s testimony, credible though

it may have been, that the State had shown by clear and convincing evidence

that the intoxilyzer had been properly maintained by someone who understood

the science behind it and that it was operating properly on the day of Appellant‘s

breath test. Accordingly, we hold that the trial court abused its discretion by

admitting the breath-test results in evidence. See Harrell, 725 S.W.2d at 209.

      Having held that the trial court abused its discretion, we must determine

whether the error affected Appellant‘s substantial rights. Tex. R. App. P. 44.2(b).

A substantial right is affected when the error had a substantial and injurious

effect or influence in determining the jury‘s verdict. Morales v. State, 32 S.W.3d

862, 867 (Tex. Crim. App. 2000) (quoting King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997)).

      Upon review of the entire record, we are left with no fair assurance that the

trial court‘s error did not affect the jury‘s deliberations or had but a slight effect.

See Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003). The jury

was instructed that it could find that Appellant had been intoxicated if it found that

he had lost normal use of mental or physical faculties by reason of the

introduction of alcohol into the body, or if he had an alcohol concentration of 0.08

or more. The record shows that Trooper Ward pulled Appellant over late one

night after observing his car weave twice from its lane. Appellant pulled over


                                          19
appropriately and without incident. Trooper Ward determined after administering

field sobriety tests that Appellant was intoxicated. The breath test subsequently

administered at the jail showed that Appellant‘s breath alcohol concentration was

nearly twice the legal limit, a fact that the State emphasized during closing

argument. In fact, the State advised the jury that the breath-test evidence was

the ―best evidence‖ that Appellant was intoxicated, conceding that evidence that

Appellant had lost normal use was weaker. Even before deliberations, one juror

asked whether the jury would be allowed to see the exhibit showing the breath-

test results. Given the record before us, we cannot say that the trial court‘s

erroneous admission of the breath-test results did not affect the jury‘s

deliberations or had but a slight affect.          See Bagheri, 119 S.W.3d 755.

Accordingly, we sustain Appellant‘s first point.




                                         20
                                       Conclusion

      Because we hold that no reasonable view of the record supports the trial

court‘s conclusion that the intoxilyzer had been properly maintained and was

properly operating when Appellant gave a breath sample, and because the

record gives us no fair assurance that the error did not affect the jury‘s

deliberations or had but a slight effect, we sustain Appellant‘s first point, reverse

the judgment, and remand for a new trial.


                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 21, 2012




                                         21
