                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00169-CR

TONY EUGENE BEARD,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                              From the County Court
                             Limestone County, Texas
                               Trial Court No. 35374


                                     OPINION


       Tony Eugene Beard was convicted of driving while intoxicated and sentenced to

180 days in jail. See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2013). His sentence was

suspended, and he was placed on community supervision for one year. On appeal,

Beard argues that “the trial court erred in failing to exclude the testimony of the State’s

technical supervisor, [Scott Brown,] denying Mr. Beard’s constitutional right of

confrontation.” See U.S. CONST. art. VI. We affirm the trial court’s judgment.
        Scott Brown was not the technical supervisor of the Intoxilyzer 5000 at the time

Beard submitted to a breath test analysis. Thus, he did not test the instrument to make

sure it was working properly and did not formulate the reference sample solution used

by the instrument.     Those tests and formulations were conducted by the former

technical supervisor for the area, Ron Oliver, who, at the time of Beard’s trial, had been

reassigned to Houston because the territories of the technical supervisors were

reconfigured.

        Beard filed a motion to suppress the breath test, or Intoxilyzer, results but not

due to a violation of the Confrontation Clause. However, in a pretrial hearing, Beard

complained to the trial court that because the technical supervisor who was going to be

testifying, that being Brown, was not the technical supervisor of the Intoxilyzer at the

time Beard submitted a breath specimen, the Confrontation Clause was violated. After

hearing argument and testimony from Brown, the trial court overruled the motion to

suppress “those results.” At trial, Beard re-urged his objection argued at the pretrial

hearing both before Brown testified and when the State offered the Intoxilyzer results

into evidence. The trial court overruled those objections.

        Testimony from the technical supervisor as to 1) the proper use of the reference

sample, 2) the existence of periodic supervision over the instrument by one who

understands the scientific theory of the instrument, and 3) proof of the result of the test

by one who is qualified to translate and interpret such result, is a predicate to the


Beard v. State                                                                       Page 2
introduction of the Intoxilyzer results. See Harrell v. State, 725 S.W.2d 208, 209 (Tex.

Crim. App. 1986). Beard argues on appeal that a technical supervisor’s observations,

records, and other work product regarding the first two prongs of this predicate is

testimonial and that his right to confront the witness was violated when the State

presented the alleged testimonial evidence of Ron Oliver through Scott Brown.

        Beard’s issue was recently addressed by the San Antonio Court of Appeals in

two cases, Boutang v. State and Alcaraz v. State. Boutang v. State, 402 S.W.3d 782 (Tex.

App.—San Antonio 2013, pet. ref’d); Alcaraz v. State, 401 S.W.3d 277 (Tex. App.—San

Antonio 2013, no pet.).

        In Boutang, the appellant argued that the trial court violated her rights under the

Confrontation Clause by overruling her objection to the testimony of a “surrogate”

analyst who was not employed by the Department of Public Safety during the time the

appellant’s breath specimen was provided and analyzed. Boutang, 402 S.W.3d at 786.

One of the appellant’s specific arguments addressed by the court of appeals was that,

for admissibility of the breath test results, the State must show that the Intoxilyzer

functioned properly on the day of the test and that the former analyst, as the person in

charge of maintaining the Intoxilyzer used, was the only witness who could provide

evidence as to the proper functioning of the machine. Id. at 787. The court of appeals

disagreed, noting that neither the Court of Criminal Appeals nor any appellate court in

this State has required the State to produce the actual person who mixed a reference


Beard v. State                                                                       Page 3
solution for an Intoxilyzer machine before the breath-test results could be admitted in

court, and noting that the analyst did not testify she prepared or created a report that

was actually created by another analyst, nor was she certifying such a report based on

the machine's results. Id. at 788. Rather, the court of appeals determined, the analyst

merely interpreted the results from the Intoxilyzer’s own print-out. Id. The court

concluded that the analyst’s testimony did not violate the appellant’s rights under the

Confrontation Clause.     Id. at 789.   The court of appeals also concluded that the

Intoxilyzer maintenance records created by the former analyst were not testimonial in

nature and did not violate the appellant’s rights under the Confrontation Clause. Id. at

790.

        A month later, the same court of appeals, but with a different panel of justices,

agreed with the court’s previous analysis in Boutang and concluded that the appellant’s

Confrontation Clause rights were not violated when the breath test results were

admitted into evidence without the former analyst’s testimony. Alcaraz, 401 S.W.3d at

280-281. The court of appeals also concluded that the creation of “reference samples”

for use in establishing the accuracy and validity of the Intoxilyzer was not "testimonial"

for purposes of the Confrontation Clause. Id. at 282.

        In this case, Scott Brown testified that he was a technical supervisor for the

Department of Public Safety who had the responsibility of supervising all things

regarding breath tests in 15 counties in east Texas. He supervised and maintained the


Beard v. State                                                                      Page 4
instruments used for breath alcohol testing and was the custodian of the reports that are

generated by those instruments. He was required to conduct on-site inspections of

every instrument under his supervision at least once per calendar month.

        Although he had not prepared the maintenance records of the Intoxilyzer during

the month Beard was administered a breath test, he reviewed those records and

determined the Intoxilyzer was operating properly when the breath test was

administered to Beard. Brown further testified that several safeguards were built into

the breath test program that would ensure the instrument itself would not produce a

valid test unless it was operational. Brown also explained what a reference sample

solution was and its purpose. And, although Brown did not prepare this particular

reference sample, Brown knew that the former operator prepared his solution the same

way that Brown prepared the solution. Brown testified that the test slip which reflected

the results of Beard’s breath test also reflected that the result was within the predicted

range of the reference sample. If the sample was not within the predicted range, the

Intoxilyzer would show that the test was invalid.

        Based on the reasoning and conclusions of Boutang and Alcaraz, we agree with

the San Antonio Court of Appeals and hold that Brown’s testimony regarding the

operation of the Intoxilyzer and the use of the reference sample solution were not

testimonial and did not violate Beard’s right to confront witnesses.

        Beard’s sole issue is overruled.


Beard v. State                                                                      Page 5
        The trial court’s judgment is affirmed.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 21, 2013
Publish
[CR25]




Beard v. State                                            Page 6
