                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-09-214-CR


MARK EDW ARD SETTLEMIRE                                               APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE

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      FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY

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                                    OPINION

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                                 I. Introduction

      Mark Edward Settlemire appeals following his conviction by a jury of the

misdemeanor offense of driving while intoxicated. In one point of error, he claims

that the admission of his breath test results violated his right to be confronted by

witnesses against him as guaranteed by the Sixth Amendment of the United States

Constitution.   W e conclude no violation of his rights occurred and affirm his

conviction.
                       II. Factual and Procedural History

      Grand Prairie Police Officer Todd Mathew Brannen was on duty the night of

March 1, 2006, when he stopped at a red light behind Settlemire. W hen the light

turned green, Settlemire did not proceed. Settlemire got out of his truck saying that

it had broken down.       Upon talking with Settlemire, the officer noticed that

Settlemire’s breath smelled of alcohol and that his eyes were glassy and red. He

told the officer that he had gone to a bar after work, where he consumed two beers.

The officer suspected that Settlemire was intoxicated.

      After performing several field sobriety tests, all of which Settlemire failed, the

officer arrested Settlemire. The results of the breath test administered to Settlemire

confirmed that he was intoxicated.

      At trial, and over Settlemire’s Confrontation Clause objections, the trial court

admitted into evidence the breath test results and the maintenance logs for the

intoxilyzer machine. Lori Fuller, the technical supervisor in charge of the machine

at the time of the trial, testified and sponsored the test results and maintenance

records. Fuller was not the supervisor in charge of the machine when Settlemire

was arrested.

                     III. No Confrontation Clause Violation

      W e now address the claimed error that the admission of the intoxilyzer

maintenance records and the breath test results violated Settlemire’s constitutional

right to confront the witnesses against him as provided in the Sixth Amendment.


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See U.S. Const. amend. VI. Out-of-court statements of a testimonial nature are not

admissible unless the declarant is unavailable to testify and the defendant has had

a previous opportunity to cross-examine the witness. Crawford v. Washington, 541

U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004).

      Settlemire contends that the intoxilyzer maintenance records and breath test

results are testimonial in nature and that the trial court erred in admitting those

records over his objection. To support his argument, Settlemire relies on the United

States Supreme Court’s holding in Melendez-Diaz v. Massachusetts, 129 S. Ct.

2527 (2009). In Melendez-Diaz, the defendant was on trial for selling cocaine. The

State of Massachusetts offered “certificates of analysis” in the form of affidavits from

lab technicians to prove that the substance in question was cocaine. Id. at 2531.

The Court held that the certificates in question were a “core class of testimonial

statements” covered by the Confrontation Clause. Id. at 2532 (relying on Crawford,

541 U.S. at 51, 124 S. Ct. at 1364). In so holding, the Court explained that the

analysts who prepared the certificates were therefore “witnesses” who the defendant

has a right to confront. Melendez-Diaz, 129 S. Ct. at 2532.

      The Court in Melendez-Diaz was apparently aware that its holding might be

construed to extend to technical analysts who calibrate and operate equipment, such

as the person who supervised Settlemire’s intoxilyzer test equipment here. The

Court explained:




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      [W ]e do not hold, and 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. . . . Additionally, documents prepared in
      the regular course of equipment maintenance may well qualify as
      nontestimonial records.

Id. at 2532 n.1.

      Here, the individual, Fuller, who testified about the intoxilyzer’s status although

she did not supervise it at the time of Settlemire’s intoxilyzer test, is precisely the

type of analyst that the Court anticipated might be challenged based on its holding

in Melendez-Diaz. The Court made clear, however, that it did not intend its holding

to “sweep[] away an accepted rule governing the admission of scientific evidence.”

Id. at 2533.

      W e shall not construe Melendez-Diaz as doing what the Court clearly stated

it was not doing. W e hold that Settlemire’s rights of confrontation were not violated.

W e overruled Settlemire’s sole point.

                                   IV. Conclusion

      Having overruled Settlemire’s sole point, we affirm the trial court’s judgment.



                                               CHARLES BLEIL
                                               JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER, J.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

PUBLISH

DELIVERED: July 8, 2010


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