Opinion filed August 6, 2015




                                              In The


           Eleventh Court of Appeals
                                           ____________


                                    No. 11-13-00219-CR
                                           __________

                         AFRIM HYSENAJ, Appellant
                                    V.
                        THE STATE OF TEXAS, Appellee

                  On Appeal from the County Criminal Court No. 2
                               Denton County, Texas
                      Trial Court Cause No. CR-2011-08412-B

                         MEMORANDUM OPINION
       The jury convicted Afrim Hysenaj of driving while intoxicated. The trial
court assessed Appellant’s punishment at confinement in jail for 365 days and a
$1,000 fine. The trial court suspended the imposition of Appellant’s confinement
and placed him on community supervision for a term of twenty-four months.
Appellant presents us with two points of error.1 We affirm.
       In Appellant’s first point of error, he argues that the trial court violated his
rights under the Confrontation Clause of the Sixth Amendment when it admitted

       1
         Under a docket equalization order, the Supreme Court of Texas transferred this appeal from the
Second Court of Appeals to the Eleventh Court of Appeals. As required under TEX. R. APP. P. 41.3, we
will decide this case in accordance with the precedent of the Second Court of Appeals.
Appellant’s breath test results through an intoxilyzer supervisor who was not in
charge of the supervision and maintenance of the intoxilyzer at the time of
Appellant’s arrest. In his second point of error, Appellant argues that the trial court
erred when it admitted, for demonstrative purposes only, a video of a horizontal gaze
nystagmus (HGN) test that showed an unknown individual’s eyes that presented
nystagmus and an unknown individual’s eyes that did not present nystagmus.
      The evidence shows that, at approximately 1:19 a.m. on the date of the
offense, Officer Keith Putman with the Frisco Police Department saw Appellant
driving his vehicle at a speed of ninety-six miles an hour on Main Street in Frisco.
The speed limit there was forty-five miles per hour. Officer Putman stopped
Appellant. Officer Putman testified that, when he went up to Appellant’s vehicle,
he noticed that Appellant smelled of alcohol and that his eyes were bloodshot and
glassy. Further, when Officer Putman asked Appellant for identification, Appellant
attempted to hand Officer Putman his credit card instead of his driver’s license.
Appellant admitted that he had consumed two alcoholic drinks that night.
Officer Putman asked Appellant to get out of his vehicle. After Appellant was out
of his vehicle, Officer Putman administered several field sobriety tests. After
Officer Putman conducted the field sobriety tests, he concluded that Appellant was
intoxicated and arrested him.
      After his arrest, Appellant agreed to take an intoxilyzer test. The intoxilyzer
was operated at the time by Officer Brent Stafford, a detention officer with the Frisco
Police Department and a certified intoxilyzer operator/officer supervised by Fondren
Forensics. The results of the breath test showed a blood alcohol content of 0.115.
      A technical supervisor is in charge of the intoxilyzer maintenance and the
oversight of intoxilyzer operators in the area that they serve. On the date that
Officer Stafford administered the breath test to Appellant, Lisa Fondren was the
technical supervisor over the intoxilyzer that Officer Stafford used to administer the
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breath test to Appellant. At the time of trial, Katie Scott, not Fondren, was the
technical supervisor over intoxilyzers and operators in that area. Scott testified that
the intoxilyzer that Officer Stafford used to administer the breath test to Appellant
was in working order at the time of the test. Fondren did not testify.
      Appellant objected to the admission of the breath test results and claimed that
the admission of the results would be a violation of his right to confrontation under
the Sixth Amendment.        The trial court admitted the breath test results over
Appellant’s objection.
      In Crawford v. Washington, the Supreme Court of the United States held that
testimonial statements made out of court by available witnesses are inadmissible in
a criminal trial because the admission of the statements would violate the
Confrontation Clause of the Sixth Amendment. 541 U.S. 36, 53–54 (2004). We
review a Confrontation Clause issue de novo. Wall v. State, 184 S.W.3d 730, 742–
43 (Tex. Crim. App. 2006).
      Previously, in Settlemire, the Fort Worth Court of Appeals answered the
precise question now before this court. Settlemire v. State, 323 S.W.3d 520, 522
(Tex. App.––Fort Worth 2010, pet. ref’d). There, the State charged the defendant
with driving while intoxicated. At trial, the court admitted breath test results, as well
as maintenance records, for the breath test machine that had been used to administer
a breath test to the defendant. Id. at 521. Lori Fuller was the supervisor over the
involved breath test machine at the time of trial. She was also the testifying witness.
Id. The supervisor over the machine at the time that the defendant’s breath test was
administered did not testify. Id.
      In affirming the trial court’s decision, the court in Settlemire had occasion to
consider the Supreme Court’s decision in Melendez-Diaz. There, the United States
Supreme Court held that certificates of analysis that contained the results of forensic
analysis performed on substances seized when the defendant was arrested were
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testimonial statements admitted in violation of the Confrontation Clause. Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 310–12 (2009). In so holding, however, the
Court noted that “it is not the case[] that anyone whose testimony may be relevant
in establishing the chain of custody, authenticity of the sample, or accuracy of the
testing device, must appear in person as part of the prosecution’s case.” Id. at 311
n.1 (emphasis added). The Fort Worth court considered the scenario in Settlemire
to be the type of situation to which the Supreme Court referred in that portion of the
Melendez-Diaz opinion that we have quoted above, and it held that the trial court did
not violate the defendant’s right to confrontation. Settlemire, 323 S.W.3d at 522.
      Appellant relies on Bullcoming and Burch, both of which were decided after
the Settlemire decision, to support his argument that the trial court violated his rights
under the Confrontation Clause of the Sixth Amendment. Bullcoming v. New
Mexico, 131 S. Ct. 2705 (2011); Burch v. State, 401 S.W.3d 634 (Tex. Crim. App.
2013). Bullcoming and Burch are distinguishable from the case before us.
      Unlike this case, Bullcoming and Burch both involved laboratory tests and
analyses of submitted specimens: blood in Bullcoming and cocaine in Burch. In each
of those cases, the prosecution called analysts who did not participate in or observe
the tests or prepare the analyses to testify about the results of those tests. Bullcoming,
131 S. Ct. at 2709; Burch, 401 S.W.3d at 635–36. In both cases, the courts held that
reports admitted through witnesses who did not perform the tests and analyses
violated the defendants’ rights under the Confrontation Clause of the Sixth
Amendment. Bullcoming, 131 S. Ct. at 2710; Burch, 401 S.W.3d at 635–36.
      However, the case before us is distinguishable. Here, a technical supervisor
with current oversight over the intoxilyzer testified to the accuracy of the testing
device. Appellant had the opportunity to cross-examine her. The individual who
actually conducted the test testified, and Appellant had the opportunity to cross-
examine him. Further, the laboratory report admitted in Bullcoming included
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notations and certifications made by the analyst who did not testify. Bullcoming,
131 S. Ct. at 2710–11. Conversely, here, the breath test results admitted through
Scott did not include any separate notations or analyses by Fondren, Officer Stafford,
or Officer Putman. Rather, the document was simply a printout of the breath test
results from the intoxilyzer.
       Moreover, in line with Settlemire, the Court of Criminal Appeals recently
acknowledged that the holdings in Bullcoming and in Burch are not so broad as to
require testimony from every individual involved in the analysis of a piece of
evidence in order to comply with the Confrontation Clause of the Sixth Amendment.
See Paredes v. State, No. PD-1043-14, 2015 WL 3486472, at *6–8 (Tex. Crim. App.
June 3, 2015).
       In this case, we hold that, under the authorities cited, including Settlemire—
which we are required to follow—the trial court did not violate Appellant’s right to
confrontation when it admitted the test results. We overrule Appellant’s first point
of error.
       In Appellant’s second point of error, he argues that the trial court erred when
it admitted, over his Rule 403 objection, a demonstrative video that showed
unknown human eyes with and without nystagmus. Rule 403 provides that “[t]he
court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” TEX. R. EVID. 403. Demonstrative
evidence serves as an aid to the jury in understanding a witness’s testimony and must
meet the standards in the Texas Rules of Evidence. Hartsock v. State, 322 S.W.3d
775, 778–79 (Tex. App.—Fort Worth 2010, no pet.). Appellant does not argue that
the evidence is irrelevant or immaterial; rather, he argues that the evidence is
substantially more prejudicial than probative and that the trial court should not have
admitted the video for demonstrative purposes. We review a trial court’s decision
to admit or exclude evidence under an abuse of discretion standard. Montgomery v.
                                          5
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). We will reverse
a trial court’s ruling only if it is outside the “zone of reasonable disagreement.” Id.
      The video in this case merely depicted unknown eyes that showed the jury the
signs of nystagmus and other unknown eyes without signs of nystagmus. The State
used the demonstrative video during Officer Putman’s testimony to help the jury
understand what exactly Officer Putman was looking for when he conducted the
HGN test on Appellant. In his testimony, Officer Putman told the jury that the video
was not of Appellant’s eyes and that it was merely to aid his testimony. Further, the
trial court gave the following limiting instruction to the members of the jury:
            Members of the jury, this is being admitted solely for the purpose
      of demonstrating for you what horizontal gaze nystagmus looks like
      and it’s not intended to show what the defendant’s eyes looked like on
      the evening in question, nor does it show the defendant’s eyes at all,
      purely for the purpose of demonstrating what horizontal gaze
      nystagmus looks like.
In Hartsock, the Fort Worth court held that the trial court did not err when it admitted
a video that showed what HGN looks like. Hartsock, 322 S.W.3d at 779. The officer
testified that the eyes in the video did not belong to the defendant, and the judge
gave a limiting instruction. Id. Although the court held that demonstrative evidence
must comply with Rule 403, the question before the court did not concern Rule 403,
and the court held that the video was properly admitted for demonstrative purposes
without the need to prove scientific reliability. Id.
      In Winstead, relying on cases such as Hartsock, we held that an HGN video
similar to the one before us in this appeal was not substantially more prejudicial than
probative. Winstead v. State, No. 11-13-00053-CR, 2014 WL 4536379, at *6–7
(Tex. App.––Eastland Sept. 11, 2014, no pet.) (mem. op., not designated for
publication). Winstead concerned facts and evidence similar to this case. See id. In
Winstead, the defendant argued that the HGN video used for demonstrative purposes

                                           6
was irrelevant and substantially more prejudicial than probative. Id. We held such
arguments lacked merit under Rule 403. Id.
       There are four factors used to analyze arguments under Rule 403: “(1) the
probative value of the evidence; (2) the potential to impress the jury in some
irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the
proponent’s need for the evidence.” State v. Mechler, 153 S.W.3d 435, 440 (Tex.
Crim. App. 2005); accord Montgomery, 810 S.W.2d at 389–90. In this case, the
time needed to develop the evidence was negligible. Presentation of the video took
very little time out of Officer Putman’s testimony, and the State used it to assist
Officer Putman as he described what HGN signs he looked for and found in
Appellant’s eyes the morning of the offense. The State’s need for the evidence was
low because Officer Putman’s testimony about HGN and the other signs of
intoxication fully developed the signs of Appellant’s intoxication. The potential to
impress the jury was marginal due to Officer Putman’s testimony that the video was
not a video of Appellant’s eyes. Further, the video was used solely to aid his
testimony; we also note the court’s limiting instruction. See Keller v. State, No. 06-
13-00042-CR, 2014 WL 1260611, at *2 (Tex. App.––Texarkana Mar. 27, 2014, no
pet.) (mem. op., not designated for publication). We find that the Rule 403 balancing
test weighs in favor of admissibility. Consequently, we cannot say that the trial court
abused its discretion when it admitted the video for demonstrative purposes. We
overrule Appellant’s second point of error.
      We affirm the judgment of the trial court.


August 6, 2015                                              JIM R. WRIGHT
Do not publish. See TEX. R. APP. P. 47.2(b).                CHIEF JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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