Opinion issued February 3, 2015




                                     In The
                             Court of Appeals
                                     For The
                          First District of Texas


                              NO. 01-13-00975-CR


                      ANDREW J. SERRANO, 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. 1842255
                         MEMORANDUM OPINION

      Appellant Andrew J. Serrano was charged and found guilty of driving while

intoxicated. The trial court sentenced him to 180 days’ confinement, probated for

one year. Serrano contends that the trial court’s judgment should be reversed

because the trial court (1) erred by admitting the results of a breath alcohol test

obtained in violation of the Texas Administrative Code and (2) abused its
discretion in refusing to submit an article 38.23 jury instruction. Finding no error,

we affirm.

                                      Background

      At trial, Deputy O. Trevino of the Harris County Traffic Division testified

that he pulled Serrano over because his radar gun indicated that Serrano was

driving 81 miles per hour in a 65 mile-per-hour zone. Trevino approached the

vehicle and “immediately . . . could smell obviously the odor of alcoholic beverage

emitting from within the car.” Trevino further testified that he suspected that

Serrano was intoxicated because he had bloodshot eyes and slurred speech.

Serrano refused to perform standardized field sobriety tests. Trevino called for a

backup unit to transport Serrano to the Houston Police Department’s central

intoxication facility (“central intox”) for further tests.

      Deputy J. Fuselier testified that when he arrived at the scene Serrano showed

indications of being intoxicated, including “a strong odor of alcoholic beverage,”

“red, glassy eyes,” and “slurred speech.” Fuselier transported Serrano to central

intox, where they met with the breath test operator, whose name Fuselier could not

remember. Fuselier agreed with Serrano’s counsel that the operator first “came in

contact” with Serrano when they entered the intox room where the breath test is

conducted.




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      Fuselier testified that once in the intox room, the operator turned on a video

recording device, read Serrano a statutory warning, and requested a breath sample

from Serrano.    The video recorded for approximately six minutes before the

operator turned it off to conduct the breath test. According to Fuselier, there was

no time lapse from when the video ended until the time that Serrano provided his

breath sample.

      Bianca Wooten, who worked as an evidence technician for the Houston

Police Department at the time Serrano was arrested, testified that she administered

Serrano’s breath test. Wooten explained that the breath test operator has to “make

sure that the suspect is watched over for 15 minutes” before taking a breath test.

The suspects spend these 15 minutes in the intox facility’s holding cell, which has

a metal door that is “see-through.” The breath test operator is not permitted to be

inside the holding cell, so she stands outside of it for 15 minutes. Wooten testified

that there is frequently more than one evidence technician working at a time, so

frequently one is in the hallway outside the holding cell observing the suspects,

while another is in the intox room administering a breath test. Wooten noted that

operators assign each suspect a timer to ensure that he spends 15 minutes in the

holding cell before a breath test is administered. After a suspect has been in the

holding cell for 15 minutes, he is taken into the intox room where the operator




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turns on a video recorder, reads the suspect his statutory warnings, and administers

the breath test on the Intoxilyzer.

      When Serrano’s counsel asked Wooten if she recalled observing Serrano for

15 minutes before administering the breath test, Wooten admitted that she did not

specifically remember observing Serrano for 15 minutes. But she testified that she

must have administered the test because her identification information is on

Serrano’s test results and “there’s no way that [someone else] can use your

information” to do a breath test.          Additionally, Wooten testified that she

remembered recording the video of Serrano before the breath test and that she

appears on the video.

      Because Wooten testified on cross-examination that she did not recall

observing Serrano for 15 minutes before administering the test, Serrano moved to

suppress the breath test results on the ground that the requirement that the suspect

be observed for 15 minutes before the test was not observed. The trial court heard

arguments on Serrano’s motion outside the presence of the jury and stated sua

sponte that it would submit an article 38.23(a) jury instruction regarding whether

the 15 minute requirement was met.          Upon recross-examination by Serrano’s

counsel, Wooten again testified that, “I can’t say I actually remember observing

[Serrano] specifically, but I had to in order to administer the test.”




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       Camille Stafford, a technical supervisor with the Texas Department of

Public Safety Breath Alcohol Laboratory, also testified. During her testimony, the

State offered the breath test results into evidence. Serrano’s counsel objected “on

the basis of the test not being conducted properly,” and the trial court nevertheless

admitted the test results, which reflect that “Wooten, B, D” was the operator and

include the operator’s certificate number. Stafford then testified that the results

indicated that Serrano’s blood alcohol concentration was .11, and that she found

the tests to be “reliable.”

       Although the trial court previously stated that it would submit an article

38.23(a) instruction, the charge did not include the instruction. When Serrano

objected to its omission at the charge conference, the trial court overruled his

objection without explanation. The jury found Serrano guilty, and the trial court

sentenced him to 180 days’ confinement, probated for one year.

                               Motion to Suppress

       In his first issue, Serrano argues that the trial court erred in denying his

motion to suppress the breath test results because “there is no affirmative evidence

that the 15 minute rule was followed while there is affirmative evidence that it was

not followed.”




                                         5
A.    Standard of Review

      In reviewing a trial court’s ruling on a motion to suppress evidence, we

apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327

(Tex. Crim. App. 2000); Wiley v. State, 388 S.W.3d 807, 815 (Tex. App.—

Houston [1st Dist.] 2012, pet. ref’d). We give almost total deference to the trial

court’s determination of historical facts that depend on credibility, and we conduct

a de novo review of the trial court’s application of the law to those facts.

Carmouche, 10 S.W.3d at 327.

      When a trial court does not make explicit findings of historical fact, we

review the evidence in the light most favorable to the trial court’s ruling. Id. at

328. That is, “we will assume that the trial court made implicit findings of fact

supported in the record that buttress its conclusion.” Id.

B.    Applicable Law

      “A breath specimen taken at the request or order of a peace officer must be

taken and analyzed under the rules of the department [of public safety] . . . .” TEX.

TRANSP. CODE ANN. § 724.016 (West 2011). The rules for breath-alcohol-testing

procedures are set forth in the Texas Administrative Code. See 37 TEX. ADMIN.

CODE § 19.4(c) (2014).        A presumption of admissibility applies when the

procedures prescribed by the Department of Public Safety are followed.           See




                                          6
Reynolds v. State, 204 S.W.3d 386, 309 (Tex. Crim. App. 2006); Stevenson v.

State, 895 S.W.2d 694, 696 (Tex. Crim. App. 1995).

          Here, Serrano contends that the State did not comply with one such rule. It

states:

          [a]n operator shall remain in the presence of the subject at least 15
          minutes before the test and should exercise reasonable care to ensure
          that the subject does not place any substances in the mouth. Direct
          observation is not necessary to ensure the validity or accuracy of the
          test result . . . .

37 TEX. ADMIN. CODE § 19.4(c)(1). The term “presence” is not defined, but the

San Antonio Court of Appeals has considered the term’s meaning in a case

involving this same provision. It wrote:

          “Presence” has been defined as an [a]ct, fact, or state of being in a
          certain place and not elsewhere, or within sight or call, at hand, or in
          some place that is being thought of. The existence of a person in a
          particular place at a given time particularly with reference to some act
          done there and then. Besides actual presence, the law recognizes
          constructive presence, which [the] latter may be predicated of a
          person who, though not on the very spot, was near enough to be
          accounted present by the law, or who was actively cooperating with
          another who was actually present.

State v. Reed, 888 S.W.2d 117, 122 (Tex. App.— San Antonio 1994, no pet.)

(emphasis in original) (citations omitted).

C.        Preservation of Error

          The State contends that Serrano failed to preserve his complaint that the

operator violated the Texas Administrative Code because he failed to object each


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time Stafford testified about the breath test results and because Serrano cross-

examined Stafford about the results. We disagree.

      Here, Serrano moved to suppress the breath test results because, according to

him, nobody was able to confirm that Serrano was observed for the required 15

minutes. The trial court heard argument on the motion outside the presence of the

jury and implicitly denied the motion, but stated that it would submit an article

38.23 instruction regarding whether the 15-minute waiting period was observed.

Thus, his motion to suppress preserved this issue for appeal. See Black v. State,

358 S.W.3d 823, 829 (Tex. App.—Fort Worth 2012, pet. ref’d) (When “an

objection is presented as a motion to suppress heard outside the presence of the

jury, that single objection preserves the issue for appellate review.”).

      The State also contends that Serrano waived this complaint because his

counsel discussed the breath alcohol test results during cross-examination of

Stafford. But Serrano’s counsel referred to the evidence during Stafford’s cross-

examination to rebut, explain, or undermine her previous testimony about the test

results. We conclude that he did not waive any complaint by doing so. See Rogers

v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993) (defendant does not waive

issue for appeal by subsequent cross-examination of witness on allegedly

improperly admitted evidence); Rodriguez v. State, 274 S.W.3d 760, 764 (Tex.

App.—San Antonio 2008, no pet.) (“A defendant does not waive his previous


                                           8
objection to testimony by cross-examining the witness about his direct

testimony.”).

D.      Analysis

        Serrano contends that the trial court erred in denying his motion suppress

because there is affirmative evidence demonstrating that the operator did not

observe the 15-minute waiting period required by section 19.4(c)(1) of the Texas

Administrative Code. In support of this contention, he points out that Deputy

Fuselier (1) could not recall the name of the operator who administered the test for

Serrano, and (2) testified that Serrano spent less than 15 minutes in the intox room

and did not “make contact” with a breath test operator before entering the intox

room.

        Wooten testified that a breath test operator observes a suspect for 15 minutes

while the suspect is in the holding cell, and before the suspect enters the intox

room. She explained that multiple breath test operators may be present at one

time, that the suspect in the holding cell is visible to the operators even when the

operators are in the area outside the holding cell, and that the operators use a timer

for each suspect to ensure that each spends at least 15 minutes in the holding cell

before taking a breath test.      Wooten also testified that she knows that she

administered Serrano’s test both because her name and identification information

are on his results and because she appears on the video taken of Serrano in the


                                           9
intox room. Finally, although Wooten did not specifically recall observing Serrano

in the holding cell, she testified that she performed his test in accordance with

proper procedures, which includes observing the 15-minute waiting period

required by Texas Administrative Code section 19.4(c)(1). Giving the required

deference to the trial court’s credibility determination, we conclude that the trial

court could have credited Wooten’s testimony and reasonably concluded that

Wooten complied with section 19.4(c)(1). Thus, it did not err in denying Serrano’s

motion to suppress.     See Stalknecht v. State, No. 09-06-463-CR, 2007 WL

4991416, at *2 (Tex. App.—Beaumont Mar. 12, 2008, no pet.) (mem. op., not

designated for publication) (evidence was sufficient to sustain DWI conviction

where officer who administered breath test testified he “had no independent

recollection” of appellant but “was sure he observed [appellant] for fifteen minutes

prior to asking him to blow into the intoxilyzer because that was standard

procedure”); Currey v. State, No. 01-01-00091-CR, 2002 WL 123355, at *3 (Tex.

App.—Houston [1st Dist.] Jan. 31, 2002, no pet.) (not designated for publication)

(trial court did not abuse discretion in denying motion to suppress and admitting

breath test results where appellant testified that he did not see sergeant who

administered test until entering intox room and sergeant testified that he could not

recall administering the test, but “explained that observation begins in the booking

area”).


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      We overrule Serrano’s first issue.

                             Section 38.23 Instruction

      In his second issue, Serrano contends that the trial court erred in failing to

submit an article 38.23 instruction because the evidence raised a fact issue about

whether the State observed the 15-minute waiting period in Texas Administrative

Code section 19.4(c)(1).

A.    Standard of Review

      We review a claim of jury charge error using the standard set out in

Alamanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). First, we

determine whether error exists in the jury charge. Second, if error exists, we

determine whether sufficient harm was caused by that error to require reversal.

Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). We review a trial

court’s decision to not submit an instruction in the jury charge for an abuse of

discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000).

B.    Applicable Law

      A defendant’s right to the submission of jury instructions under article 38.23

of the Texas Code of Criminal Procedure is “limited to disputed issues of fact that

are material to his claim of a constitutional or statutory violation that would render

evidence inadmissible.” Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App.

2007). Before a defendant is entitled to the submission of a jury instruction under


                                           11
article 38.23, (1) the evidence heard by the jury must raise an issue of fact, (2) the

evidence on that fact must be affirmatively contested, and (3) that contested factual

issue must be material to the lawfulness of the challenged conduct in obtaining the

evidence. Id. at 510.

      Under the first requirement, there must be a genuine dispute about a material

issue of fact before an article 38.23 instruction is warranted; if there is no disputed

fact issue, the legality of the conduct is determined by the court alone, as a matter

of law. Id. at 510. In order for there to be a conflict in the evidence that raises a

disputed fact issue, there must be some affirmative evidence in the record that puts

the existence of that fact in question. Id. at 513. Furthermore, if other facts, not in

dispute, are sufficient to support the lawfulness of the challenged conduct, then the

disputed fact issue is not material to the ultimate admissibility of the evidence and

is not to be submitted to the jury. Id. The disputed fact issue must be essential to

deciding the lawfulness of the challenged conduct. Id. at 511.

C.    Analysis

      Serrano argues that article 38.23’s first requirement is met because the

evidence raised a fact issue about whether Wooten observed the 15-minute waiting

period required by Texas Administrative Code section 19.4(c)(1). In support,

Serrano argues that Wooten testified that she did not remember observing Serrano

for 15 minutes, Deputy Fuselier testified that Serrano did not “make contact with”


                                          12
Wooten before entering the Intox room, and 15 minutes did not lapse between the

beginning of the video recording in the intox room and the breath test.

      Serrano points to no evidence that contradicts Wooten’s testimony that she

must have observed Serrano for 15 minutes while he was in the holding cell

because she followed standard procedures. Further, the Administrative Code does

not require direct observation, much less “contact.” See 37 TEX. ADMIN. CODE

§ 19.4(c)(1) (“Direct observation is not necessary to ensure the validity or accuracy

of the test result . . . .”). Thus, Fuselier’s testimony that Serrano did not make

contact with Wooten until entering the Intox room is not affirmative evidence that

Wooten did not comply with Texas Administrative Code section 19.4(c)(1).

      We conclude that Serrano failed to raise a fact issue about whether Wooten

complied with Texas Administrative Code section 19.4(c)(1) and that Serrano

therefore was not entitled to the submission of an article 38.23 instruction.

Accordingly, we hold that the trial court did not abuse its discretion in refusing to

submit an article 38.23 jury instruction. See Correa v. State, No. 05-12-01197-CR,

2014 WL 1797690, at *2 (Tex. App.—Dallas May 2, 2014, no pet.) (mem. op., not

designated for publication) (overruling appellant’s point of error because he

proffered no evidence that operator did not remain in appellant’s presence for 15

minutes); Mbugua v. State, 312 S.W.3d 657, 669 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d) (no error in jury charge because there was no conflict in evidence


                                         13
raising a disputed fact that would have mandated a 38.23 jury instruction);

Shpikula v. State, 68 S.W.3d 212, 217 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d) (jury’s right to disbelieve officers’ testimony did not create a factual dispute

requiring a jury instruction under article 38.23).

      We overrule Serrano’s second issue. 1

                                     Conclusion

      We affirm the trial court’s judgment.



                                               Rebeca Huddle
                                               Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).




1
      In light of our holdings regarding Serrano’s first and second issues, we need not
      reach his third issue, in which he argued that he was harmed by the trial court’s
      alleged errors discussed in his first and second issues.
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