Opinion issued September 29, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                          ————————————
                              NO. 01-14-00575-CR
                           ———————————
                     VIBHA HARISH PATEL, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 13
                           Harris County, Texas
                       Trial Court Case No. 1909929



                         MEMORANDUM OPINION

      Appellant, Vibha Harish Patel, was charged by information and found guilty

by a jury of driving while intoxicated. The trial court sentenced her to five days’

confinement in the Harris County Jail. In her sole issue on appeal, Patel contends
that the trial court erred by admitting the results of a breath-alcohol test obtained in

violation of the Texas Administrative Code. Finding no error, we affirm.

                                        Background

      At trial, Officer J. Sampson of the Tomball Police Department (“TPD”),

testified that at approximately 4:00 a.m. on July 27, 2013, he responded to a

distress call from a car stranded in a ditch in Harris County. Sampson testified that

when he arrived at the scene, Patel showed signs of intoxication, including “a

strong odor of an alcoholic beverage,” “red, bloodshot glassy eyes,” and “slurred

speech.” Sampson therefore administered field sobriety tests. He testified that

Patel’s performance on them indicated that she was intoxicated.

      Corporal B. Patin of the TPD testified that he arrived at the scene and

administered an additional field sobriety test. Patin transported Patel to the TPD

station after her performance on the test indicated that she was intoxicated.

      Patin testified that, according to the time stamp of his patrol car’s video

camera, he and Patel left the scene at 4:29 a.m. Patin then described his best

“estimates” of how long it took him to perform several other tasks that night. Patin

estimated that he spent “[p]robably less than ten minutes” driving Patel to the TPD

station, around five minutes securing his guns, and “[close] to 20 [minutes]”

waiting for Officer Sampson to arrive. Patin testified that about another five




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minutes elapsed while Sampson read Patel her statutory rights and Patin used the

restroom.

       But Patin testified clearly that he observed Patel for 15 minutes before the

breath test was administered. Specifically, Patin remembered using “the stopwatch

on [his] watch” to perform the “15 minute observation period” required by then-

effective Texas Administrative Code section 19.4(c)(1).1 37 TEX. ADMIN. CODE

§ 19.4(c)(1) (2014) (Tex. Dep’t of Pub. Safety, Approval of Techniques, Methods,

and Programs), repealed by 40 Tex. Reg. 129, 255 (2015).

       Outside the presence of the jury, Patel moved to suppress the breath test

results. According to the Intoxilyzer time stamp, the breath test was administered

at 4:57 a.m. Patel argued that the results should be suppressed because the 15-

minute observation period required by the Texas Administrative Code could not

have been observed given the evidence that Patin left the scene at 4:29 a.m. and

spent 40 minutes performing various tasks before the test was administered at 4:57

a.m.




1
       While Patel’s appeal was pending, the Department of Public Safety reorganized
       and revised the Breath Alcohol Testing Regulations. See 40 Tex. Reg. 129, 250–
       55 (2015). The 15-minute observation period is now governed by section 19.3 of
       the Texas Administrative Code. See 37 TEX. ADMIN. CODE § 19.3 (2015) (Dep’t
       of Pub. Safety, Techniques and Methods), adopted by 40 Tex. Reg. 129, 252
       (2015). For purposes of this opinion, our analysis is confined to the former section
       19.4 which governed the procedures to be followed at the time Patel was arrested.

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      After a hearing, the trial court denied the motion and admitted the breath test

results, which showed that Patel had a blood-alcohol concentration level of 0.179.

The jury found Patel guilty.

                                     Discussion

      In her sole issue, Patel contends that the trial court abused its discretion in

admitting her breath test results because the evidence shows that the breath test

operator failed to perform the 15-minute observation period required by the

Department of Public Safety and then-effective section 19.4(c)(1) of the Texas

Administrative Code.

A.    Standard of Review

      When 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 conduct a de novo review of the trial

court’s application of the law to historical facts. Carmouche, 10 S.W.3d at 327.

But we give almost total deference to the trial court’s determination of those facts

that depend on the credibility of the evidence. Id.

      Unless a trial court abuses its discretion by making a finding unsupported by

the record or rendering a decision “outside the zone of reasonable disagreement,”

we defer to its findings and will not disturb them on appeal. Flores v. State, 177



                                          4
S.W.3d 8, 14 (Tex. App—Houston [1st Dist.] 2015, pet ref’d); Higginbotham v.

State, 416 S.W.3d 921, 924 (Tex. App—Houston [1st Dist.] 2013, no pet.). If the

trial court does not enter findings of fact, we must “view the evidence in the light

most favorable to the trial court’s ruling” and “assume that the trial court made

implicit findings of fact that support its ruling as long as those findings are

supported by the record.” Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.

2007).

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 [D]epartment [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 ch. 19 (2015). A presumption of admissibility applies when the

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

Reynolds v. State, 204 S.W.3d 386, 390 (Tex. Crim. App. 2006); Stevenson v.

State, 895 S.W.2d 694, 696 (Tex. Crim. App. 1995). Here, Patel contends that the

State did not comply with one such rule. It stated in relevant part that

      [a]n operator shall remain in the presence of the subject at least 15
      minutes before the [breath-alcohol] 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 . . . .”



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See 37 TEX. ADMIN. CODE § 19.4(c)(1) (2014) (Tex. Dep’t of Pub. Safety,

Approval of Techniques, Methods, and Programs), repealed by 40 Tex. Reg. 129,

255 (2015).

C.    Analysis

      Patel contends that the trial court erred in admitting her breath test results

because the evidence demonstrates that Patin did not comply with the mandatory

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

Administrative Code. Patel argues that Patin could not have finished every task he

claims he accomplished after leaving the scene that morning—driving to the

station, checking in weapons, waiting for Officer Sampson, using the restroom—

and observed the mandatory 15-minute waiting period because the video time

stamp and Intoxilyzer time stamp indicated that only 28 minutes elapsed between

the time he left the scene (4:29) and the time the test was administered (4:57).

      We conclude that the trial court did not err in denying Patel’s motion to

suppress. Patin unequivocally testified that he knew he complied with the 15-

minute observation period because he used the stopwatch on his watch to ensure

that 15 minutes elapsed before he administered Patel’s breath test. Patin’s time

estimates in response to cross-examination discredited his timeline—there was not

enough time to perform each of the tasks he described if they indeed took as long

as he estimated, observe the 15-minute waiting period, and administer the test by



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4:57 a.m.    However, there was no evidence that the car’s time stamp was

synchronized with the Intoxilyzer time stamp. See Gutierrez v. State, 221 S.W.3d

680, 687 (Tex. Crim. App. 2007) (conflicting evidence should be resolved in favor

of trial court’s ruling on motion to suppress); Howes v. State, 120 S.W.3d 903, 907

(Tex. App.—Texarkana 2003, pet. ref’d) (stating that unless “the time stamp

generated by the video camera [of the officer’s patrol car] was synchronized with

the internal clock in the intoxilyzer machine . . . [a reviewing court] cannot find

that the trial court abused its discretion by denying a motion to suppress”). It was

the trial court’s province to resolve this conflict in the evidence, and we afford

almost total deference to the trial court to determine the credibility of the evidence.

See Walker v. State, 588 S.W.2d 920, 924 (Tex. Crim. App. 1979) (trial court

determines whether officer’s or appellant’s version of events is true).

      Giving the required deference to the trial court’s credibility determination,

we conclude that the trial court could have credited Patin’s testimony that he

observed the mandatory 15-minute waiting period using his stopwatch and

reasonably concluded that Patin complied with section 19.4(c)(1) of the Texas

Administrative Code. See Serrano v. State, 464 S.W.3d 1, 8 (Tex. App.—Houston

[1st Dist.] 2015, pet. ref’d) (holding trial court did not abuse its discretion in

denying motion to suppress where breath test operator testified that she knew she




                                          7
performed mandatory 15-minute waiting period even though she could not

specifically recall observing appellant).

      We overrule Patel’s sole issue.


                                     Conclusion

      We affirm the judgment of the trial court.




                                                Rebeca Huddle
                                                Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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