                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-15-00284-CR


JOHN HERNANDEZ                                                APPELLANT

                                     V.

THE STATE OF TEXAS                                                  STATE


                                  ----------

         FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. F-2014-1924-A

                                  ----------

                       MEMORANDUM OPINION1

                                  ----------

     Appellant John Hernandez appeals his conviction of driving while

intoxicated (DWI), enhanced by two prior convictions of DWI. See Tex. Penal

Code Ann. §§ 49.04, 49.09 (West Supp. 2015). We affirm.




     1
      See Tex. R. App. P. 47.4.
                                 I. BRIEF FACTS

      On July 18, 2014, Appellant was stopped by Officer Ryan Stanford of the

Denton Police Department for driving the wrong way down the roadway.

Appellant was unsteady, had slurred speech and red and watery eyes, smelled of

alcohol, admitted to drinking at a bar, and could not recite the alphabet or count.

He admitted that he may have been on the wrong side of the roadway because

he had been drinking.        Officer Stanford administered the horizontal gaze

nystagmus test (HGN) on Appellant and observed all six clues, indicating

intoxication. Officer Stanford next directed Appellant to perform a walk-and-turn

test during which he observed seven of eight clues, also indicating intoxication.

Finally, Officer Stanford had Appellant perform the one-leg-stand test and

observed three of four clues, indicating intoxication.

      Officer Stanford provided Appellant with the DIC-24 warnings2 and asked

him to consent to the taking of a breath sample. Appellant agreed to give a

breath sample, and the results were 0.123 and 0.124.3 Because Appellant had




      2
       The DIC-24 is the Texas Department of Public Safety’s standard form
containing the written warnings required by the transportation code to be read to
an individual arrested for DWI before a peace officer requests a voluntary blood
or breath sample from a person. See Tex. Transp. Code Ann. § 724.015 (West
Supp. 2015); State v. Neesley, 239 S.W.3d 780, 782 n.1 (Tex. Crim. App. 2007).
      3
         The legal limit is 0.08. See Tex. Penal Code Ann. § 49.01(2)(B) (West
2011).




                                          2
two intoxication offense convictions prior to July 18, 2014, he was charged with

felony DWI.

      At trial, Officer Stanford testified regarding Appellant’s behavior, the arrest,

and the operation of the breath test. The State also offered the testimony of

Terry Robinson, the technical supervisor of the breath-test machine—the

Intoxilyzer—at the time of trial, but not the technical supervisor in charge of

maintenance and testing of the Intoxilyzer at issue at the time that Appellant took

his breath test.4 Robinson testified to his experience as a technical supervisor,

how the Intoxilyzer works, and the maintenance of the Intoxilyzer, and he also

interpreted the results of Appellant’s breath test.

      The jury found Appellant guilty of felony DWI and sentenced him to eighty

years’ confinement. See Tex. Penal Code Ann. §§ 49.04, 49.09.

                                  II. DISCUSSION

A. Evidence of prior convictions

      We address Appellant’s first and fifth issue together because both relate to

evidence of Appellant’s prior convictions. In his first issue, Appellant complains

of the denial of his motion for directed verdict on the ground that one of his prior

convictions was void as a matter of law and, therefore, could not support an

indictment or conviction for felony DWI. In his fifth issue, Appellant argues that


      4
       Lori Fuller was the technical supervisor who was in charge of
maintenance and testing of the Intoxilyzer at the time the test was taken by
Appellant. She did not testify at trial.


                                          3
the trial court abused its discretion by admitting the complaint and information

from his prior conviction for “driving/boating while intoxicated.”    We address

Appellant’s fifth issue first.

       i. Admission of the complaint and information

       Absent a stipulation by Appellant as to his prior convictions for DWI, the

State was required to prove them during the guilt-innocence stage of trial. See

Barfield v. State, 63 S.W.3d 446, 448 (Tex. Crim. App. 2001). The State sought

to accomplish this by offering into evidence both prior judgments.5 One of the

State’s exhibits—Exhibit 3—was a Judgment of Community Supervision dated

September 17, 2013, reflecting a conviction for “driving/boating while

intoxicated.” For clarification purposes, the State also offered State’s Exhibit 8,

the complaint and information related to the “driving/boating while intoxicated”

conviction, indicating that Appellant was charged with driving while intoxicated,

not boating while intoxicated.

       Appellant argues that the trial court’s admission of the complaint and

information was error because a complaint and information are not evidence of

guilt and, therefore, are irrelevant. We review a trial court’s decision to admit

evidence under an abuse of discretion standard. Ellison v. State, 86 S.W.3d 226,

227 (Tex. Crim. App. 2002); Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim.

App. 1996). We may reverse the trial court’s decision only if the ruling is outside

       5
       Appellant does not contest that he was the subject of each of these prior
convictions.


                                        4
the zone of reasonable disagreement. Ford v. State, 919 S.W.2d 107, 115 (Tex.

Crim. App. 1996). We disagree with Appellant’s contention that the complaint

and information were irrelevant. During testimony at trial, Appellant questioned

the validity of the judgment6 because it recited a conviction for both driving while

intoxicated and boating while intoxicated.7 Thus, the complaint and information

were not admitted as proof of Appellant’s guilt—the judgment itself was evidence

of his guilt—but to clarify what crime he was charged with and adjudicated guilty

of. See Tex. R. Evid. 401. We therefore overrule Appellant’s fifth issue.

      ii. Denial of Appellant’s motion for instructed verdict

      Appellant argues in his first issue that the trial court erred in denying his

motion for instructed verdict because his prior conviction for “driving/boating


      6
         Appellant asked Christie Perry, an investigator with the district attorney’s
office, the following:

             Q:    So it’s impossible from reading this judgment [for
      driving/boating while intoxicated] for you to say with any certainty
      what offense he was convicted of, isn’t it?

             A: Correct.

     Appellant additionally questioned Officer Stanford regarding the difference
between driving while intoxicated and boating while intoxicated.
      7
        Appellant did not appeal this conviction, but he did bring it to our attention
in his appeal of the trial court’s denial of his application for a writ of habeas
corpus relating to that conviction. Ex parte Hernandez, No. 02-15-00277-CR,
2016 WL 354136 (Tex. App.—Fort Worth Jan. 28, 2016, no pet. h.) (mem. op.,
not designated for publication). As we discuss below, in affirming the trial court’s
decision, we held that the record supported the trial court’s determination that the
inclusion of the term “boating” was a clerical error. Id. at *3.


                                          5
while intoxicated” was void as a matter of law and, therefore, could not support

an indictment or conviction for felony DWI.

      A challenge to the denial of a motion for instructed verdict is actually a

challenge to the sufficiency of the evidence. Canales v. State, 98 S.W.3d 690,

693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003). In our due-process

review of the sufficiency of the evidence to support a conviction, we view all of

the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). This

standard gives full play to the responsibility of the trier of fact to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs,

434 S.W.3d at 170.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188,

192 (Tex. Crim. App. 2012).        Instead, we determine whether the necessary

inferences are reasonable based upon the cumulative force of the evidence

when viewed in the light most favorable to the verdict. Murray v. State, 457


                                           6
S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015). We

must presume that the factfinder resolved any conflicting inferences in favor of

the verdict and defer to that resolution. Id. at 448–49.

      A person may be charged with felony DWI if he has two previous

convictions for DWI. Tex. Penal Code Ann. § 49.09(b)(2). The two prior DWI

offenses are necessary elements of the offense of felony DWI; they are

jurisdictional, as opposed to mere enhancement allegations. See Martin v. State,

200 S.W.3d 635, 640 (Tex. Crim. App. 2006); State v. Wheeler, 790 S.W.2d 415,

416 (Tex. App.—Amarillo 1990, no pet.). Therefore, to obtain a conviction for

felony DWI, the State must prove the two prior DWI convictions at the guilt-

innocence stage of trial. See Barfield, 63 S.W.3d at 448; Mapes v. State, 187

S.W.3d 655, 658 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).

      Appellant first contends that his second conviction for an intoxication

offense is void as a matter of law because the judgment states that it is for

“driving/boating while intoxicated.” We have previously addressed this issue in

Appellant’s appeal of the trial court’s denial of habeas corpus relating to that

second conviction. See Hernandez, 2016 WL 354136 at *2–3. In that case, the

trial court issued findings, including a finding that “[t]he term ‘boating’ on

[Appellant’s] judgment was a clerical error.” Id. at *2. We held that the record

supported the trial court’s finding and that such a clerical error did not render the




                                         7
judgment void.8 Id. at *3. Accordingly, we do not agree with Appellant that he

was entitled to an instructed verdict on the ground that the prior judgment was

void as a matter of law.

      To prove the prior convictions, the State offered into evidence both State’s

Exhibit 2 and State’s Exhibit 3. State’s Exhibit 2 is a Judgment of Conviction of

Sentence dated November 6, 2006, reflecting a conviction for DWI.                    As

previously discussed, State’s Exhibit 3 is a Judgment of Community Supervision

dated September 17, 2013, reflecting a conviction for “driving/boating while

intoxicated.” Also as previously discussed, the State additionally offered State’s

Exhibit 8, the complaint and information related to the “driving/boating while

intoxicated” conviction, to clarify that Appellant was charged with driving while

intoxicated.

      It was in the province of the jury to weigh the evidence and to draw

reasonable inferences therefrom. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Dobbs, 434 S.W.3d at 170.         The jury was presented evidence of two prior

convictions and evidence that the charge underlying the conviction reflected in

State’s Exhibit 3 was DWI, even if the resulting judgment erroneously included a

conviction for “boating while intoxicated.” Viewing this evidence in the light most

      8
        In our opinion affirming the trial court’s denial of Appellant’s application for
writ of habeas corpus, we noted that the trial court had authority to correct the
clerical error but had not done so at that time. Hernandez, 2016 WL 354136 at
*3, n.7. We do not know if the trial court has since issued a nunc pro tunc order
but note again that it would be within the trial court’s power to do so. See State
v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994).


                                           8
favorable to the verdict, the jury could reasonably conclude that Appellant had

been charged with and convicted of DWI twice prior to the DWI charge resulting

from the events of July 18, 2014.9 We therefore overrule Appellant’s first issue.

B. Testimony of technical supervisor Terry Robinson

      In his second issue, Appellant argues that because evidence of the

maintenance of the Intoxilyzer machine is testimonial in nature, he was denied a

fair trial through denial of the opportunity to cross-examine the technical

supervisor who had actually performed the monthly service of the Intoxilyzer

machine before and after Appellant’s breath test. In his third issue, Appellant

argues that we should overrule our prior holding in Settlemire v. State, which held

directly to the contrary.   323 S.W.3d 520 (Tex. App.—Fort Worth 2010, pet.

ref’d). Because these issues are related, we will address them together.

      i. Predicate for admission of breath-test results

      In order to properly lay the predicate for admission of breath-test results,

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 test results by a

      9
        At oral argument, Appellant suggested that the State should have called
the trial judge who presided over the case resulting in the conviction for
“driving/boating while intoxicated.” We decline to impose such a burden on the
State, especially considering that a trial judge in such a situation would
presumably rely upon the very documents from the prior case that were admitted
into evidence—the complaint, information, and judgment.


                                        9
witness or witnesses qualified to translate and interpret such results. Harrell v.

State, 725 S.W.2d 208, 209–10 (Tex. Crim. App. 1986); Rhyne v. State, 387

S.W.3d 896, 902 (Tex. App.—Fort Worth 2012, no pet.).

      This predicate is generally met by the testimony of both the test operator—

the person who administered the breath test in question—and the technical

supervisor—the person who was responsible for ensuring that the test equipment

was properly maintained and functioned properly. See Rhyne, 387 S.W.3d at

902–03 (holding breath-test results were inadmissible because the State had

only offered the testimony of the test operator and had not shown proper

maintenance of the Intoxilyzer), 37 Tex. Admin. Code § 19.4 (2015) (Tex. Dep’t

of Pub. Safety, Operator Certification); see also 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 results.”).   We noted the typical manner in which breath-test

evidence is presented at trial in Rhyne:

                    First, the officer who administers the test testifies
             that he is certified as an [I]ntoxilyzer 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.




                                           10
                   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.

Rhyne, 387 S.W.3d at 903 (quoting 40 George E. Dix & John M. Schmolesky,

Texas Practice Series: Criminal Practice & Procedure § 14:84 (3d ed. 2011)).

      In this case, the State used the testimony of Officer Stanford, the

administrator of the breath test, and Terry Robinson, a technical supervisor of the

Intoxilyzer used to conduct the test, to lay the predicate for admission of the

breath-test results.   Officer Stanford first testified to the administration of the

breath test generally and then specifically described some of the safeguards the

Intoxilyzer has in place to ensure it is operating correctly, including a temperature

readout of the reference sample to make sure it is kept at the correct

temperature. He also explained how the Intoxilyzer reports the accuracy of its

own calibration by providing a predictive value and an actual test reference value

on the breath-test result printout. Officer Stanford testified that, in his opinion,

the Intoxilyzer was operating correctly at the time he administered the breath test

to Appellant.




                                         11
      Robinson testified to his experience as a Breath Alcohol Supervisor and

Toxicology Scientist, including his knowledge of how the Intoxilyzer works, and to

the maintenance of the Intoxilyzer in question. Robinson outlined the regular

maintenance performed on the machine, including an explanation about

diagnostic checks conducted monthly during on-site inspections of the

instrument.10 He also described a second check that uses a software program to

enable daily diagnostic tests on the Intoxilyzer machine to be performed and the

machine’s data to be retrieved remotely.11

      Although Fuller had conducted the on-site inspections of the Intoxilyzer

before and after Appellant’s breath test, Robinson also participated. He testified

that he, Fuller, and a third technical supervisor had prepared the reference




      10
       In particular, Robinson testified:

             At least once each calendar month, we’re required to go to the
      testing site, and when we do so, we do a diagnostic check of the
      instrument and its associated equipment.

            We change the standard or reference analysis solution that is
      used with the instrument and with each analysis. We do an overall
      inspection of the site itself, and we make sure that the supplies that
      the operators need to run the tests are in good number.

       Robinson testified, “Beginning each weekday morning, each one of our
      11

instruments is contacted, and when it is contacted, three things happen: We
perform a diagnostic check, we perform a calibration check, and we download
any data or any tests that have been run in the past twenty-four hours.”


                                        12
solution—by diluting ethyl alcohol to a known concentration—which was used to

test the Intoxilyzer.12

       Robinson testified that prior to Appellant’s breath test on July 19, 2014,

Fuller conducted an on-site inspection of the Intoxilyzer used in this case, that

this inspection occurred on June 27, 2014, and that Fuller conducted a second

on-site inspection on July 24, 2014, five days after Appellant’s breath test. He

testified that based upon the maintenance records resulting from those

inspections—records that were made during the regular course of business—the

Intoxilyzer was in operational condition when Officer Stanford conducted the

breath test on Appellant.13

       ii. Confrontation Clause

       Appellant argues that his right to confrontation was violated when

Robinson was permitted to testify in lieu of Fuller.

       The Sixth Amendment to the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right to . . . be confronted

with the witnesses against him.” U.S. Const. amend. VI. The central concern of

the Confrontation Clause is to ensure the reliability of the evidence against a

criminal defendant by subjecting it to rigorous testing in the context of an

       12
        After the reference solution is poured into the machine, the Intoxilyzer
tests the reference solution and gives a “predictive value” as part of the printout
of the breath-test results. If the predictive value is outside the tolerated range,
the Intoxilyzer itself terminates the test.
       13
        The maintenance records were not offered or admitted into evidence.


                                         13
adversarial proceeding before the trier of fact. Lilly v. Virginia, 527 U.S. 116,

123–24, 119 S. Ct. 1887, 1894 (1999). On this matter, the Supreme Court has

been clear: “Where testimonial evidence is at issue . . . , the Sixth Amendment

demands what the common law required: unavailability and a prior opportunity

for cross-examination.” Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct.

1354, 1374 (2004). Thus, unless the prosecution can show that a declarant is

unavailable to testify in court and that the accused had an opportunity to cross-

examine him, out-of-court statements offered against the defendant that are

testimonial in nature are objectionable. Id.; Langham v. State, 305 S.W.3d 568,

575–76 (Tex. Crim. App. 2010).

      Whether an out-of-court statement is testimonial is an issue of law.

Langham, 305 S.W.3d at 576 (citing De La Paz v. State, 273 S.W.3d 671, 680

(Tex. Crim. App. 2008)). We review de novo the trial court’s determination that

an out-of-court statement is or is not testimonial in nature, looking to whether “the

surrounding circumstances objectively indicate that the primary purpose of the

interview or interrogation is to establish or prove past events potentially relevant

to later criminal prosecution.” Id.; see also Wall v. State, 184 S.W.3d 730, 734–

35 (Tex. Crim. App. 2006).

      We have previously addressed the very facts at issue in this appeal in

Settlemire v. State.   In Settlemire, the trial court admitted into evidence the

breath test results and the maintenance logs for the Intoxilyzer machine when

they were sponsored by the technical supervisor who was in charge of the


                                         14
machine at the time of trial but who had not been the supervisor at the time the

defendant was arrested.14 323 S.W.3d at 521. The defendant argued that the

admission of those records violated his right to confront the witnesses against

him, specifically the technical supervisor who was in charge of the machine at the

time the defendant took the breath test. Id. Relying upon the Supreme Court’s

footnote in Melendez-Diaz v. Massachusetts,15 we held that the admission of the

breath test results and the maintenance logs did not violate the defendant’s rights

to confrontation. Id. at 522 (citing Melendez-Diaz v. Massachusetts, 557 U.S.

305, 311 n.1, 129 S. Ct. 2527, 2532 n.1 (2009)). We explained in Settlemire that

the technical supervisor who testified was “precisely the type of analyst that the

[Supreme] Court anticipated might be challenged based on its holding in

Melendez-Diaz” and that the Supreme Court had “made clear . . . that it did not

intend its holding to ‘sweep away an accepted rule governing the admission of

scientific evidence.’” Id. (quoting Melendez-Diaz, 557 U.S. at 312, 129 S. Ct. at


      14
        Incidentally, in Settlemire, the sponsoring witness complained of was
Fuller—she was in charge of the machine at the time of trial but had not been the
supervisor at the time the defendant was arrested. 323 S.W.3d at 521. Here,
Appellant objects that Fuller was not the sponsoring witness, as she was the
technical supervisor in charge of the Intoxilyzer used at the time of Appellant’s
arrest.
      15
        Specifically, Melendez-Diaz noted that it was not holding that the right to
confrontation extended to every individual that “may be relevant in establishing
the chain of custody, authenticity of the sample, or accuracy of the testing
device” and that “documents prepared in the regular course of equipment
maintenance may well qualify as nontestimonial records.” 557 U.S. at 311 n.1,
129 S. Ct. at 2532 n.1.


                                        15
2533). Our holding in Settlemire has been adopted or favorably discussed by a

number of our sister courts. See Trigo v. State, No. 01-15-00382-CR, 2016 WL

430879, at *7 (Tex. App.—Houston [1st Dist.] Feb. 4, 2016, pet. filed); Hysenaj v.

State, No. 11-13-00219-CR, 2015 WL 4733068, at *2–3 (Tex. App.—Eastland

Aug. 6, 2015, no pet.) (mem. op., not designated for publication); Boutang v.

State, 402 S.W.3d 782, 788–89 (Tex. App.—San Antonio 2013, pet. ref’d), cert.

denied, 134 S. Ct. 2290 (2014); Weber v. State, No. 14-11-00863-CR, 2012 WL

3776362, at *5 (Tex. App.—Houston [14th Dist.] Aug. 30, 2012, no pet.) (mem.

op., not designated for publication); Torres v. State, No. 08-09-00266-CR, 2011

WL 3199065, at *2 (Tex. App.—El Paso July 27, 2011, no pet.) (not designated

for publication).

      Appellant argues that the holding in Settlemire is incorrect because the

breath-test results and any maintenance records are testimonial in nature in light

of the technical supervisor’s role as defined by the administrative code:

      The primary function of the technical supervisor is to provide the
      technical, administrative and supervisory expertise in safeguarding
      the scientific integrity of the breath alcohol testing program and to
      ensure the breath alcohol testing program’s acceptability for
      evidential purposes.

37 Tex. Admin. Code § 19.5(a) (2015) (Tex. Dep’t of Pub. Safety, Technical

Supervisor Certification) (emphasis added).16 Appellant specifically focuses on


      16
        The sections of the administrative code relating to the administration of
breath tests were amended in 2015, prior to Appellant’s trial, but no substantive
changes were made that relate to Appellant’s argument in this case. See 37
Tex. Admin. Code §§ 19.5, 19.6 (2013) (Tex. Dep’t of Pub. Safety, Operator

                                        16
the rule’s language that the technical supervisor’s role is to assure the breath-test

program’s “acceptability for evidential purposes,” arguing that this proves that

breath-test results and maintenance records for an Intoxilyzer are testimonial

under the Supreme Court’s direction that we are to look at whether the “primary

purpose” of a document or testimony “is to establish or prove past events

potentially relevant to later criminal prosecution.” Langham, 305 S.W.3d at 576;

see Wall, 184 S.W.3d at 734–35.

      Appellant argues that the administrative code and the Rhyne decision

support the conclusion that the maintenance records of an Intoxilyzer machine

are testimonial in nature because the records are made for the specific purpose

of proving a fact at trial. Rhyne, 387 S.W.3d at 903 (holding that breath-test

results were inadmissible without testimony showing the Intoxilyzer in question

was properly maintained); See, e.g., Davis v. Washington, 547 U.S. 813, 822,

126 S. Ct. 2266, 2273–74 (2006) (holding that statements are testimonial when

“the primary purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution”).   He further relies upon the

Supreme Court’s decision in Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct.

2705 (2011). Bullcoming concerned a prosecution for DWI in which a forensic

laboratory report analyzing the defendant’s blood alcohol content was admitted at

trial and sponsored by a forensic scientist who was not the scientist who had

Certification, Technical Supervisor Certification), repealed by 40 Tex. Reg. 250,
255 (2015).


                                         17
conducted the testing and certified the results. Id. at 653–57, 131 S. Ct. at 2711–

12. The Court held that the forensic testimony of the second scientist violated

the defendant’s rights under the Confrontation Clause because the report did

more than report a machine-generated number:              in it, the original scientist

certified that he received the blood sample intact, that he checked the forensic

report number and the sample number and they “correspond[ed],” that he

performed a particular test on the sample, adhering to a precise protocol, and

that “no circumstance or condition . . . affect[ed] the integrity of the sample or . . .

the validity of the analysis.” Id. at 660, 131 S. Ct. at 2714. Therefore, the report

was testimonial in nature, and the author of the report had to be available for

cross-examination. Id., 131 S. Ct. at 2714.

      In Boutang v. State, the San Antonio court encountered a situation similar

to the facts here. In Boutang, the technical supervisor who had been responsible

for maintaining the Intoxilyzer machine at the time the defendant was tested was

not available to testify at trial because he had retired. 402 S.W.3d at 785–86.

Instead, the new technical supervisor testified about the maintenance of the

Intoxilyzer based upon the maintenance records for the machine that were kept

in accordance with Department of Public Safety regulations. Id. The appellant

argued that her rights under the Confrontation Clause were violated by overruling

her objection to the second technical supervisor’s testimony, the admission of the

breath tests, and the admission of the Intoxilyzer maintenance reports. Id. at

786. The appellate court held that her rights to confrontation were not violated


                                          18
and distinguished the facts from those in Bullcoming. Id. at 787–88. First, it

noted that the report at issue in Bullcoming was more than just a signed printout

from a machine but was instead a written report containing the analyst’s own

certifications and conclusions. Id. at 787. Indeed, Justice Sotomayor, in her

concurring opinion, noted that Bullcoming does not address a situation “in which

the State introduced only machine-generated results, such as a printout from a

gas chromatograph.”         Bullcoming, 564 U.S. at 673, 131 S. Ct. at 2722

(Sotomayor, J., concurring).     The court in Boutang then noted that the only

statement by the previous technical supervisor in the maintenance records was a

notation of the predicted reading from the Intoxilyzer based upon the reference

solution used to test and calibrate the machine. Boutang, 402 S.W.3d at 788.

The court went on to state that “it is the Intoxilyzer machine itself, not an

individual, which reads the concentration of the reference solution, despite the

number predicted by the technical supervisor.” Id.

      Finally, the court in Boutang noted that neither the court of criminal

appeals nor any other appellate court in Texas has “required the State to

produce the actual person who mixed a reference solution for an Intoxilyzer

machine before the breath-test results can be admitted in court.” Id. “Thus, as

an expert familiar with the maintenance of Intoxilyzer machines and lab

procedures associated with its maintenance, [the new technical supervisor]

testified as to the maintenance of the machine and what the particular numbers

meant on the report.” Id.


                                        19
      Appellant argues that he has no reassurance of Fuller’s accuracy or

truthfulness in keeping the maintenance records for the Intoxilyzer.17 A similar

complaint was addressed in Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App.

2015).     In Paredes, the State offered the testimony of a forensic-laboratory

director to testify about the DNA analysis of a blood sample from the defendant.

Id. at 512.    The director testified that the DNA testing was conducted in an

assembly-line batch process by other lab analysts and that she analyzed the raw

data to determine whether there was a DNA match. Id. The court of criminal

appeals held that the defendant’s Confrontation Clause rights were not violated

by the fact that the lab analysts did not testify, and it emphasized that the State

did not introduce into evidence the raw data, which was computer-generated. Id.

at 518–19. The court noted:



      17
         Related to this point, Appellant filed a supplemental brief in this court
asserting that, after both parties had submitted their briefs in this appeal, the
State provided to Appellant certain material regarding Fuller that had not been
previously disclosed to Appellant. Appellant argues that we must consider this
evidence as Brady material that is relevant to the issue of Fuller’s absence from
trial. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). However, “[a]n
appellate court may not consider factual assertions that are outside the record . .
. . While the record may be supplemented under the appellate rules if something
has been omitted, the supplementation rules cannot be used to create new
evidence.” Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004);
see also Newman v. State, 331 S.W.3d 447, 450 n.7 (Tex. Crim. App. 2011).
Generally, our review of the record is limited to the evidence before the trial court
at the time of the trial court’s ruling. Whitehead, 130 S.W.3d at 872. Appellant
has not provided us, nor have we found, any authority providing that we can
consider such evidence that is not part of the record. We therefore decline to do
so.


                                         20
      Appellant contends that the analysts could misreport information or
      mishandle the samples, but the Supreme Court has held that the
      Confrontation Clause does not mandate ‘that anyone whose
      testimony may be relevant in establishing the chain of custody,
      authenticity of the sample, or accuracy of the testing device’ must
      testify. Melendez-Diaz, 557 U.S. at 311 n. 1, 129 S. Ct. [at 2532
      n.1]. More importantly, Freeman testified about the safety measures
      in place at [the forensic laboratory] to detect such errors and stated
      that, if part of the analysis were done improperly, the laboratory
      procedure would not generate an incorrect DNA profile. The testing
      would yield no result at all rather than an improper result.

Id. at 518.

      In this case, unlike in Boutang, Robinson was actually involved in the

maintenance process because he, Fuller, and another technical supervisor

worked together in preparing the reference solution used to test the Intoxilyzer in

question. And, as was also noted in the Paredes decision, Robinson testified

that, if a reference solution were incorrectly prepared or part of the maintenance

check process was performed improperly and as a result the predictive value

was outside the tolerated range, the Intoxilyzer would terminate the test and yield

no result at all rather than an improper result.    The results of the Intoxilyzer

maintenance and breath tests are computer-generated, and it was the Intoxilyzer

machine itself, not Fuller, which read the concentration of the reference solution.

See, e.g., Boutang, 402 S.W.3d at 782.18        The raw data in this case was


      18
         Appellant urges us to follow the reasoning of the dissenting opinion
rather than the majority opinion in Boutang. The dissent in that case argued that
the original technical supervisor was personally involved in the maintenance and
operation of the machine and, therefore, was essential to showing that the
Intoxilyzer in that case was operating properly at the time the breath test took
place. 402 S.W.3d at 795–96 (Martinez, J., dissenting). We note that no other

                                        21
produced by the Intoxilyzer, a computer, and is therefore “not the functional

equivalent of live, in-court testimony because [it] did not come from a witness

capable of being cross-examined.” Paredes, 462 S.W.3d at 519.

       We decline Appellant’s invitation to overrule Settlemire because it remains

true that the testimony at issue here is just the sort of testimony addressed by the

Supreme Court when it noted that the Confrontation Clause does not mandate

“that anyone whose testimony may be relevant in establishing the . . . accuracy

of the testing device” must testify. Melendez-Diaz, 557 U.S. at 311 n.1, 129 S.

Ct. at 2532 n.1. We hold that Appellant’s Confrontation Clause rights were not

violated by allowing Robinson to testify and by admitting the breath-test results.

We therefore overrule Appellant’s second and third issues.

C. Admission of breath-test results

       In his fourth issue, Appellant argues that the trial court abused its

discretion by admitting the breath-test results because the State failed to prove

“(1) [that] the reference sample [was] properly mixed and utilized in the

Intoxil[y]zer; (2) that the machine at issue was periodically supervised and

operated by one who understands the scientific theory of the machine; and, (3)

that . . . there was a qualified witness who could translate and interpret the result

of the test.”




Texas court that has considered this issue has adopted the reasoning of this
dissenting opinion.


                                         22
      We review the trial court’s decision to admit scientific evidence for an

abuse of discretion.   Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App.

2008). Under this standard, we do not disturb the trial court’s decision if the

ruling was within the zone of reasonable disagreement.          Id.   As we have

previously noted in addressing Appellant’s second and third issues, 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 test results by a witness or

witnesses qualified to translate and interpret such results. Harrell, 725 S.W.2d at

209–10; Rhyne, 387 S.W.3d at 902.

      In disposing of Appellant’s second and third issues, we have determined

that the State established the existence of periodic supervision over the machine

through Robinson’s testimony and that Robinson was qualified to translate and

interpret the breath-test results.   Robinson testified to his qualifications and

experience as a technical supervisor. Robinson testified that the Intoxilyzer was

functioning properly on the day of the test as evidenced by the reference sample

run through it and reported on the breath-test result printout and the maintenance

records for the machine.19 He also testified to the supervision and maintenance


      19
        As we mentioned above, Robinson testified that the Intoxilyzer would
have terminated the breath test and yielded no result at all if the reference
solution had been incorrectly prepared. That did not occur in this case, as
evidenced by the breath-test results that were obtained.


                                        23
of the machine, including his involvement in making the reference sample used in

the Intoxilyzer. He testified to the scientific theory behind the machine. And he

testified to his experience and training as a technical supervisor, showing that he

was qualified to translate and interpret the breath-test results.

      Officer Stanford testified to his certification to run an Intoxilyzer machine

and to the administration of the breath test.         He testified to some of the

safeguards in place within the Intoxilyzer, including the predictive value and

actual test reference value that is included on the printout at the end of a breath

test. And, according to Officer Stanford, the Intoxilyzer was operating correctly at

the time he conducted the breath test of Appellant.

      The testimony of Robinson and Officer Stanford was sufficient to establish

the proper predicate for admission of the breath-test results. See Rhyne, 387

S.W.3d at 902. Contrary to Appellant’s arguments, their testimony established

that the Intoxilyzer was properly maintained and was operating properly at the

time of Appellant’s breath test. Id. And Robinson’s testimony established that he

was qualified to translate and interpret the results. The trial court did not abuse

its discretion in admitting the breath-test results, and as such we overrule

Appellant’s fourth issue.




                                         24
                                  Conclusion

       Having overruled all of Appellant’s issues, we affirm the judgment of the

trial court.



                                                 /s/ Bonnie Sudderth
                                                 BONNIE SUDDERTH
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 16, 2016




                                       25
