Affirmed and Memorandum Opinion filed November 3, 2015.




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-14-00454-CR

                          BROGAN MELCHIOR, Appellant
                                               V.
                          THE STATE OF TEXAS, Appellee

            On Appeal from the County Criminal Court at Law No. 4
                            Harris County, Texas
                        Trial Court Cause No. 1848384

                    MEMORANDUM                          OPINION


       In two related issues, appellant challenges her driving while intoxicated
(DWI) conviction, complaining of the trial court’s exclusion of testimony relevant
to whether appellant was observed as required by law before receiving a breath
alcohol test.1 The jury found appellant guilty and assessed punishment at one year

       1
         The Texas Administrative Code requires the operator of a breath alcohol test to observe
the subject before administering the test as follows: “An operator shall remain in the continuous
presence of the subject at least 15 minutes immediately before the test and should exercise
in county jail. The sentence was suspended, and appellant was placed on
community supervision for 18 months. We affirm.

                                         Background

       An officer observed appellant driving and stopped her for speeding. After
DWI officers arrived and administered several field sobriety tests on appellant, she
agreed to provide a specimen of her breath. She was transported to the police
“central intox” station. She and two officers—Guerin and Lincoln—arrived at the
station at 2:04 a.m., as indicated by the patrol unit video recording equipment.2
Guerin could not remember whether he escorted appellant into a holding cell or an
intoxication testing room. The evidence technician who administered the breath
test testified that before it is administered, the subject must be observed for 15
minutes “to make sure that they don’t burp or vomit or anything that could
interfere with the breath test.” He testified that he observed appellant for 15
minutes before testing her at 2:29 a.m.

       Appellant’s counsel called Lincoln as a witness. Lincoln could not
remember any of the details regarding appellant’s arrest and often referred to the
police report during his testimony. Lincoln initially testified that appellant was
placed into a holding cell for 15 minutes before she came in contact with the
technician who administered the breath test, but then he said, “I don’t remember if
[the technician] was in the cell with [appellant].”

       State’s counsel subsequently conducted a voir dire examination of Lincoln.
Lincoln admitted he “didn’t remember the facts of th[e] case” without reading the

reasonable care to ensure that the subject does not place any substances in the mouth.” 37 Tex.
Admin. Code § 19.3(a)(1).
       2
        Guerin was in training on the night of appellant’s arrest, and Lincoln was a certified
DWI investigator. During its case-in-chief, the State called Guerin as a witness but not Lincoln,
who was no longer with the police force.

                                               2
police report. Lincoln testified that even though it was the usual policy to place
someone in a holding cell once they arrived at central intox, he did not remember
putting appellant into a holding cell or whether she was in a holding cell for 15
minutes. The police report indicated that Lincoln put appellant into a holding cell
but did not include the period of time that she was in the cell. The State objected to
Lincoln’s testimony regarding the amount of time appellant had been in the
holding cell on the basis that Lincoln did not remember and had no personal
knowledge of that detail. The trial court granted the objection and admonished the
jury and Lincoln as follows:

      Ladies and gentlemen, before y[’a]ll went out, the witness stated
      earlier that the defendant was in the holding tank for 15 minutes. That
      statement, alone, is stricken from the record. You are not to consider
      that. . . . And please let me instruct the witness: Only testify to things
      that you remember you did and observed, and nothing else.

                                           Discussion

      In two issues, appellant challenges the trial court’s exclusion of Lincoln’s
testimony that appellant had been in the holding cell for 15 minutes. Appellant
contends that this testimony, if true, would mean the required observation period
had not transpired before the breath test was administered. Appellant argues in her
second issue that the trial court abused its discretion in excluding the testimony.3

      We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion; we will not reverse the decision if it is within the zone of reasonable
disagreement. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).
A witness may not testily to a matter about which he lacks personal knowledge.
Tex. R. Evid. 602. Rule of Evidence 602, entitled “Need for Personal Knowledge,”
provides in pertinent part, “A witness may testify to a matter only if evidence is
      3
          As discussed below, we do not reach appellant’s first issue.

                                                 3
introduced sufficient to support a finding that the witness has personal knowledge
of the matter.” Id.

      The context of Lincoln’s testimony indicates that he did not have personal
knowledge that appellant was in the holding cell for 15 minutes before coming into
contact with the evidence technician. During defense counsel’s direct examination
of Lincoln, Lincoln stated that appellant was in the holding cell for 15 minutes. He
did not remember if the evidence technician was in there with appellant but
testified that “[i]t’s not normal for the evidence technician to be in the holding
cell.” On voir dire, Lincoln clarified that even though it was the usual policy to
place someone into a holding cell once they arrived at central intox, he did not
remember doing so with appellant or how long she was in there. The police report
did not include any information regarding the length of time appellant was in the
holding cell. In response to the question, “Do you know whether or not the
defendant was in a holding cell for 15 minutes once she got to Central Intox?”
Lincoln replied, “No, because I can’t remember.” He further testified, “I can’t
remember about anything unless I look at the report, honestly.” Lincoln testified
that the only reason he knew he put appellant into a holding cell was because it
was in the police report.

      The State requested at that point during voir dire for the jury to be instructed
to disregard Lincoln’s testimony regarding the amount of time appellant was in the
holding cell and requested that the testimony be stricken from the record on the
basis that Lincoln did not have personal knowledge as to the amount of time
appellant was in the holding cell. The trial court sustained the objection as follows:
“I’m not going to let him testify to something that he doesn’t remember and
doesn’t know.” The trial court subsequently admonished the jury to disregard
Lincoln’s statement “that the defendant was in the holding tank for 15 minutes”

                                          4
and struck the statement from the record.

       We conclude that the trial court did not abuse its discretion in excluding the
testimony because, from the context of the record, it was not based on Lincoln’s
personal knowledge. He had no memory of placing appellant into a holding cell or
of the period of time that she was in there. See Oliver v. State, 32 S.W.3d 300, 304
(Tex. App.—San Antonio 2000, pet. ref’d) (acknowledging lack of memory of
event is also lack of personal knowledge). Although an officer on the witness stand
may refresh his memory by reviewing a police report he made when his memory
was fresh, see Guerra v. State, 676 S.W.2d 181, 183 (Tex. App.—Corpus Christi
1984, pet. ref’d), there was no information in the police report indicating the length
of time appellant was in the holding cell.4

       Appellant argues, however, that the State’s objection to the testimony was
not timely. Lincoln initially testified that appellant was in the holding cell for 15
minutes and that the evidence technician was not with him. The State objected that
testimony was based on hearsay, presumably because Lincoln was referring to the
police report. The trial court responded to Lincoln, “[J]ust answer to what you
actually know and remember. Don’t speculate, don’t guess, don’t assume. Just


       4
          The parties debate whether the information in the police report was hearsay because it
did not refresh Lincoln’s memory. Testimony based solely on a police report that does not
refresh the officer’s memory is inadmissible. See Guerra, 676 S.W.2d at 183 (noting officer
testimony that “was not based upon a refreshed memory” but “was based totally upon the report
itself” was inadmissible). The police report could be offered as a recorded recollection to be read
into the record if certain prerequisites are met, but appellant did not offer the police report into
evidence under this hearsay exception. See Tex. R. Evid. 803(5) (providing exception to hearsay
rule for recorded recollections to be read into record on matters that “witness once knew about
but now cannot recall well enough to testify fully and accurately” if certain prerequisites are
met); see also Guerra, 676 S.W.2d at 183 (noting even though police report “could have been
admitted as a past recollection recorded, the State did not undertake those steps necessary to
properly do so”). We note that although public records generally are not hearsay, police reports
are. See Tex. R. Evid. 803(8)(B); Baker v. State, 177 S.W.3d 113, 122 (Tex. App.—Houston [1st
Dist.] 2005, no pet.).

                                                 5
answer what you know. That’s all we need you to do.” Lincoln then testified that
he did not remember whether the evidence technician was with appellant.

      Appellant’s counsel subsequently elicited testimony from Lincoln regarding
when appellant was taken out of the police car and when the breath test started:

      Q.     She’s still in the car, right?
      A.     Yes, sir.

      Q.     So, obviously, she’s not in a holding cell yet, right?

      A.     Yes, sir.

      Q.     And, obviously, she’s not in a breath test room being observed
             by [the evidence technician yet], is she?

      A.     No, sir.
      Q.     Okay. And then you said—you told the jury a couple of
             minutes ago that she was in the holding cell for about 15
             minutes—

      At that point, State’s counsel interjected, and asked to conduct a voir dire
examination of Lincoln, which established that Lincoln had no memory of what
transpired. We conclude on these facts that the State lodged a timely objection.
State’s counsel continually objected to Lincoln’s testimony that appellant was in
the holding cell for 15 minutes based on Lincoln’s lack of memory, and the trial
court sustained that objection. As soon as appellant’s counsel referred back to that
testimony, State’s counsel requested to conduct a voir dire examination, which
established that Lincoln did not know how long appellant was in the cell. The State
objected once Lincoln’s lack of knowledge was established. Thus, the State’s
objection was timely. See McLean v. State, 312 S.W.3d 912, 915 (Tex. App.—
Houston [1st Dist.] 2010, no pet.) (“An objection is timely when it is made at the
earliest possible opportunity.”). Because the trial court did not abuse its discretion

                                              6
in excluding Lincoln’s testimony and the State lodged a timely objection, we
overrule appellant’s second issue.5

       We affirm the judgment of the trial court.



                                                      Martha Hill Jamison
                                                      Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




       5
          Accordingly, we need not reach appellant’s first issue, complaining that the trial court
did not instruct the jury to resolve a fact issue involving whether the observation period was
observed. Appellant argues the jury should have been able to determine whether the observation
period was observed because when there is a fact question on this issue, a DWI defendant is
entitled to an instruction that the jury must disregard the test if it believes or has a reasonable
doubt as to whether the observation period was conducted. See Adams v. State, 67 S.W.3d 450,
453 (Tex. App.—Fort Worth 2002, pet. ref’d). Because the trial court did not abuse its discretion
in excluding Lincoln’s testimony as to the observation period, there is no fact issue for the jury to
resolve.

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