                                                                               ACCEPTED
                                                                          01-14-00575-CR
                                                                FIRST COURT OF APPEALS
                                                                        HOUSTON, TEXAS
                                                                    2/11/2015 11:18:33 PM
                                                                     CHRISTOPHER PRINE
                                                                                   CLERK




                     No. 01-14-00575-CR
                                                      FILED IN
                 In the Court of Appeals for the
                                               1st COURT OF APPEALS
                First District of Texas at Houston HOUSTON, TEXAS
                                               2/11/2015 11:18:33 PM
                                               CHRISTOPHER A. PRINE
       ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯
                                                        Clerk
                         No. 1909929
 In the County Criminal Court at Law No. 13, Harris County, Texas
       ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯
                   VIBHA HARISH PATEL,
                                     Appellant
                                v.
                   THE STATE OF TEXAS
                                     Appellee
       ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯
        APPELLANT’S BRIEF ON DIRECT APPEAL
       ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯

                           PEYTON Z. PEEBLES, III
                           CAPITAINE, SHELLIST, PEEBLES
                           & MCALISTER, LLP
                           405 Main Street, Suite 200
                           Houston, Texas 77002
                           Tel.:   (713) 715-4500
                           Fax:    (713) 715-4505
                           Email: peebles@texaslegalteam.net
                           SBOT: 24013307
                           Attorney for Appellant,
                           Vibha Harish Patel


ORAL ARGUMENT REQUESTED



                                1
         IDENTITY OF PARTIES AND COUNSEL

   Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of
the names of all interested parties is provided below:

   Counsel for Appellant:

     Peyton Z. Peebles, III ⎯ Appeal
                               Capitaine, Shellist, Peebles
                               & McAlister, LLP
                               405 Main Street, Suite 200
                               Houston, TX 77002

     Alexander Defrietas ⎯     Trial
                                2800 Post Oak Blvd. #4100
                                Houston, TX 77056

     Steven D. Shellist ⎯      Trial
                                Capitaine, Shellist, Peebles
                                & McAlister, LLP
                                405 Main Street, Suite 200
                                Houston, TX 77002

   Appellant (Criminal Defendant):

     Vibha Harish Patel

   Counsel for the State:

     Devon Anderson ⎯          District Attorney
     Alan Curry ⎯              Assistant District Attorney
     Kristena A. Glenn ⎯       Assistant District Attorney
     Kyle J. Watkins ⎯         Assistant District Attorney




                                i
                      Harris County, Texas
                      1201 Franklin Street, Ste. 600
                      Houston, Texas 77002

Trial Judge:
  Hon. Don Smyth ⎯   Presiding Judge
                      Harris County Criminal Court
                      at Law No. 13
                      Harris County, Texas
                      Criminal Justice Center
                      1201 Franklin, 11th Floor
                      Houston, Texas 77002




                      ii
     STATEMENT REGARDING ORAL ARGUMENT

   Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1,
appellant requests oral argument because the case presents
important issues that will affect future cases.




                                iii
                           TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL .................................... i

STATEMENT REGARDING ORAL ARGUMENT ....................... iii

INDEX OF AUTHORITIES .......................................................... v

STATEMENT OF THE CASE ...................................................... 1

STATEMENT OF FACTS ............................................................2

SUMMARY OF THE ARGUMENT ............................................... 7

ARGUMENT ............................................................................... 7

POINT OF ERROR— THE TRIAL COURT ABUSED ITS DISCRETION IN
   ADMITTING APPELLANT’S BREATH TEST RESULT (STATE’S
   EXHIBIT 7) OVER HER OBJECTION. .............................................. 7

    A. STANDARD OF REVIEW ....................................................... 7

    B. APPLICABLE LEGAL PRINCIPALS .......................................... 9

    C. ARGUMENT—ERROR ........................................................ 10

    D. ARGUMENT—HARM ......................................................... 13

PRAYER ................................................................................... 15

CERTIFICATE OF COMPLIANCE ............................................. 16

CERTIFICATE OF SERVICE ..................................................... 17




                                             iv
                    INDEX OF AUTHORITIES


CASES
Atkinson v. State,
  923 S.W.2d 21 (Tex. Crim. App. 1996).................................... 9
Carmouche v. State,
  10 S.W.3d 323 (Tex. Crim. App. 2000) ................................... 8
Dixon v. State,
  206 S.W.3d 587 (Tex. Crim. App. 2006) ............................ 8, 11
Morales v. State,
 32 S.W.3d 862 (Tex. Crim. App. 2000) ................................. 14
Motilla v. State,
 78 S.W.3d 352 (Tex. Crim. App. 2002) .............................. 9, 14
State v. Duran,
  396 S.W.3d 563 (Tex. Crim. App. 2013) ............................ 9, 11
State v. Story,
  445 S.W.3d 729 (Tex. Crim. App. 2014)...............................8, 9
Turrubiate v. State,
  399 S.W.3d 147 (Tex. Crim. App. 2013) ..........................8, 9, 11
Valtierra v. State,
  310 S.W.3d 442 (Tex. Crim. App. 2010) ................................. 8
Worku v. State,
 No. 14-13-00047-CR, 2014 WL 1330278 (Tex. App.—
 Houston (14th Dist.) April 3, 2014, no pet.) .......................... 12




                                     v
STATUTES
37 TEX. ADMIN. CODE § 19.4(c) (2014) ........................................ 10
37 TEX. ADMIN. CODE § 19.4(c)(1) (2014) ................................ 9, 10
TEX. CODE CRIM. P. ANN. art. 38.23 (Vernon 2005) ...................... 7
TEX. PENAL CODE ANN. § 49.04 (Vernon 2011) ............................. 1
TEX. TRANS. CODE ANN. § 724.016 (Vernon 2011) ........................ 9


RULES
TEX. R. APP. P. 38.2(a)(1)(A) ........................................................ i
TEX. R. APP. P. 39.1 .................................................................... iii
TEX. R. APP. P. 44.2(b)............................................................... 13
TEX. R. APP. P. 9.4(g)................................................................. iii




                                             vi
TO THE HONORABLE COURT OF APPEALS:
                   STATEMENT OF THE CASE
    The State charged appellant by information with driving
while intoxicated in violation of TEX. PENAL CODE ANN. §
49.04(a) and (d) (Vernon 2011) (CR at 14).1 Appellant pled not
guilty, but a jury returned a guilty verdict (CR at 72-74; RR3 at
10). The judge then assessed her punishment at confinement
for 5 days in the Harris County Jail (CR at 73-74).
    Appellant properly noticed her intent to appeal and the trial
court certified her right to do so (CR at 76-78). This appeal
follows.




1
  The record is cited as follows:
    CR          Clerk’s record
    RR#
    CR          Reporter’s   record (with # corresponding to the volume
                Clerk’s record
    RR#         number)
                Reporter’s record (with # corresponding to the volume
2               number)
  Sampson incorrectly    testified that the walk and turn test had a total of 6




                                      1
                 STATEMENT OF FACTS
   In July, 2013, Tomball Police Department Officer Johnny
Sampson answered a distress call regarding a car stranded in a
ditch (RR3 at 17-22). He arrived between 3:30 and 4:00 a.m.
and found appellant inside the vehicle (RR3 at 22-23). The
vehicle was running and its brake lights were on, suggesting
that appellant’s foot was pressing the brake pedal (RR3 at 22-
23).
   Appellant was upset and said her GPS had misdirected her
to turn and she followed its directions, thinking she was
turning into her driveway despite being miles from her house
(RR3 at 28-31, 45, 67). Sampson smelled alcohol; appellant said
she had consumed about two beers between 11:00 p.m. and
12:00 a.m. (RR3 at 29, 54-55). Sampson also noted that
appellant’s eyes were red, bloodshot, and glassy and that her
speech seemed slurred (RR3 at 45). Appellant performed field
sobriety tests wearing no shoes because her feet were blistered
and hurting (RR3 at 45, 62-63). She displayed 6 of 6 clues on




                              2
the HGN test, 4 of 6 clues2 on the walk and turn test, and 3 of 4
clues on the one-leg-stand test (RR3 at 41-46, 53). Sampson
believed these clues indicated intoxication (RR3 at 41-46, 53).
He arrested appellant at around 4:20 a.m. (RR3 at 84).
    Corporal Brandon Patin was supervising the Tomball patrol
officers and arrived at Sampson’s scene (RR3 at 88-92). He did
a secondary HGN test on appellant and thought that appellant
smelled of alcohol and suffered slurred speech, although he
noted that she had no problem getting out of her car or
navigating the ditch in bare feet (RR3 at 107-10). Patin left to
visit another scene and then returned and took appellant to the
Tomball jail (RR3 at 92). Sampson stayed behind at the scene
for another 5-10 minutes (RR3 at 81-82).
    Patin, a certified breath test operator, ultimately adminis-
tered a breath test to appellant (RR3 at 95-150). He testified
that a breath test subject must be monitored for 15 minutes
leading up to the breath test to ensure that the subject does not
belch, vomit, or cough because those things could invalidate
the test (RR3 at 96-99). Thus, a breath test operator’s failure to


2
 Sampson incorrectly testified that the walk and turn test had a total of 6
clues and, further, was unable to remember what all the clues were (RR3
at 46, 60-61).




                                    3
honor the 15-minute observation period renders any breath test
invalid (RR3 at 144). Patin testified that his typical procedure is
to watch the person for 15 minutes, unlock the Intoxilyzer 5000
cabinet, verify that the Intoxilyzer sample temperature is
within tolerance, and then push the green button to activate it
(RR3 at 97-99).
    Patin testified that his best estimate of the timing in appel-
lant’s case is as follows:
       • Patin left the scene with appellant at 4:29 a.m. accord-
         ing to his patrol car video (RR3 at 143-44);
       • Patin transported appellant to the Tomball police sta-
         tion, taking about 10 minutes (RR3 at 130, 140-42);
       • Removed appellant from his car, scanned his ID card,
         and entered the station with her (RR3 at 131-32, 140-
         42);
       • Took appellant with him to secure his gun in the gun
         locker before entering the jail, taking about 5 minutes
         (RR3 at 134, 140-42);
       • Entered the jail and handcuffed appellant to a bench
         (RR3 at 134-35);
       • Waited for Sampson to arrive, which took more than
         5 minutes and probably closer to 20 minutes (RR3 at
         136, 140-42);
       • Walked to a different part of the jail, used the re-
         stroom, and returned to appellant and Sampson
         about 5 minutes later (RR3 at 135-36, 140-42);




                                4
      • Upon returning, learned that Sampson had read ap-
        pellant her statutory warnings and she’d agreed to
        provide a breath sample (RR3 at 136-37);
      • Watched appellant for 15 minutes in accordance with
        Texas statutes, using a timer on his watch (RR3 at 137,
        147);
      • Took appellant into the Intoxilyzer room and turned
        on the Intoxilyzer, taking 3-4 minutes (RR3 at 140-
        42); and
      • Inputted appellant’s personal information, taking 5
        minutes (RR3 at 142).

   It took a little over an hour from the time Patin left the
scene until appellant began her breath test (RR3 at 142-43).
Thus, Patin estimated that appellant would have begun her
breath test at approximately 5:29 a.m. (RR3 at 144).
   Texas Department of Public Safety (“DPS”) employee Carly
Davies testified that she was a technical supervisor over the
department’s breath alcohol testing program (RR3 at 154). She
confirmed that a breath test is invalid if the testing subject was
not monitored for a minimum of 15 minutes leading up to the
test (RR3 at 166). Davies testified that appellant began her
breath test at 4:57 a.m. and, therefore, Patin’s estimated
timeline is impossible (RR3 at 167-69). She also testified that it
would have been impossible for Patin to have left the scene at




                                5
4:29 a.m. and begin the 15-minute observation period at the
station at 4:42 a.m. given Patin’s recollection of the events (RR3
at 169).
    The trial judge admitted appellant’s breath test results over
her objection. The testing showed that appellant’s alcohol
concentration was over twice the legal limit (RR4 at 15-20; RR5
at State’s Exhibit 7).
    The jury convicted appellant of driving while intoxicated,
and further determined that her test result showed an alcohol
concentration of at least 0.15 grams of alcohol per 210 liters of
breath (CR at 72-74; RR4 at 83-84).
      ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯




                                6
               SUMMARY OF THE ARGUMENT
   The trial court clearly abused its discretion in denying
appellant’s motion to suppress the breath test results in her
DWI case. The evidence overwhelmingly shows that the breath
test operator failed to perform the 15-minute observation
period required by DPS and the Texas Administrative Code,
yielding the resulting test inadmissible at appellant’s trial.
        ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯

                           ARGUMENT

POINT    OF   ERROR— THE   TRIAL COURT ABUSED ITS DISCRETION IN
        ADMITTING APPELLANT’S BREATH TEST RESULT   (STATE’S EXHIBIT
        7) OVER HER OBJECTION.

   Appellant challenges the trial court’s decision to admit her
breath test result over her objection that the government
violated the 15-minute observation requirement.


A. STANDARD OF REVIEW
   Any evidence obtained in violation of the law must be sup-
pressed, i.e. excluded, from a criminal trial. TEX. CODE CRIM. P.
ANN. art. 38.23 (Vernon 2005). The trial judge, as evidentiary
gatekeeper, has the duty to determine whether evidence was




                                 7
legally obtained, which includes the duty to make credibility
determinations on factual issues relevant to its decision.
   Appellate courts review a trial court’s ruling on a motion to
suppress evidence using a bifurcated standard of review.
Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).
The standard requires almost total deference to the trial court’s
factual determinations that depend on a credibility assessment,
but allows for de novo review of legal determinations and the
application of the law to those factual determinations. Valtierra
v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
   When a trial court does not make explicit factual findings,
an appellate court must “assume that the trial court made
implicit findings of fact supported in the record that buttress its
conclusion.” Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim.
App. 2000). This requires the appellate court to view the
evidence in the light most favorable to the trial court’s ruling
and reverse the judgment “only if it is arbitrary, unreasonable,
or ‘outside the zone of reasonable disagreement.’” State v. Story,
445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (quoting State v.
Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). The court
affords the prevailing party the strongest legitimate view of the




                                8
evidence and all reasonable inferences that may be drawn
therefrom. State v. Duran, 396 S.W.3d 563, 571 (Tex. Crim. App.
2013). The appellate court will uphold the trial court’s ruling if
it is reasonably supported by the record and is correct on any
theory of law applicable to the case. Story, 445 S.W.3d at 732;
Turrubiate, 399 S.W.3d at 150.


B. APPLICABLE LEGAL PRINCIPALS
   Applicant objected to her breath test results’ admission on
the basis that the government failed to honor the 15-minute
observation period required by 37 TEX. ADMIN. CODE § 19.4(c)(1)
(2014) (Dep’t of Pub. Safety, Approval of Techniques, Methods,
and Programs) (RR3 at 170-78; RR4 at 5-11). The judge denied
appellant’s motion (RR4 at 111).
   Breath test results are inadmissible if secured in violation
of DPS’s rules: “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. TRANS. CODE ANN. §
724.016 (Vernon 2011); see also Atkinson v. State, 923 S.W.2d
21, 23 (Tex. Crim. App. 1996), abrogated on other grounds by
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002). The




                                 9
rules for breath-alcohol-testing procedures are set forth in the
Texas Administrative Code. See 37 TEX. ADMIN. CODE § 19.4(c)
(2014). Those rules require an operator to continuously observe
the person tested for at least 15 minutes before administering
the test:
            an 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 neces-
            sary to ensure the validity or accuracy of the
            test result....

37 TEX. ADMIN. CODE § 19.4(c)(1) (2014) (Dep’t of Pub. Safety,
Approval of Techniques, Methods, and Programs). Thus, a
judge must suppress a breath test if the operator failed to
honor the 15-minute observation period.


C. ARGUMENT—ERROR
    Appellant went to great lengths to show that the govern-
ment failed to honor the 15-minute observation period prior to
her breath test, and then moved to suppress the results on that
basis. The State’s contrary argument was that: (1) Patin
testified that he watched appellant for 15 minutes using his




                                  10
watch; (2) Patin testified that his timeline of events were
merely estimated times; and (3) Patin testified that the patrol
car video clock was not synchronized with the clock on the
Intoxilyzer machine (RR3 at 145-50).
   Although Patin did testify as outlined above, the trial
court’s decision to give it credence was unreasonable (Dixon,
206 S.W.3d at 590), was not a legitimate view of the evidence
(Duran, 396 S.W.3d at 571), and is not reasonably supported by
the record (Turrubiate, 399 S.W.3d at 150).
   Patin’s best, good-faith estimate of the timeline leading to
appellant’s breath test placed her breath test at about 5:29 a.m.
based upon the following:
      • Left the scene with appellant at 4:29 a.m. according to
        his patrol car video;
      • Spent about 10 minutes driving appellant to the police
        station;
      • Removed appellant from his car, scanned his ID card,
        and entered the station with her;
      • Spent about 5 minutes taking appellant with him to
        secure his gun in the gun locker;
      • Entered the jail and handcuffed appellant to a bench;
      • Waited more than 5 and closer to 20 minutes for
        Sampson to arrive;
      • Spent about 5 minutes using the restroom;




                               11
      • Began the 15-minute observation period;
      • Took appellant into the Intoxilyzer room and turned
        on the Intoxilyzer, taking 3-4 minutes; and
      • Inputted appellant’s personal information, taking 5
        minutes, before her test began.

   Appellant’s first breath sample took place at 4:57 a.m. based
on the Intoxilyzer printout. Therefore the 15-minute observa-
tion period would have to have begun no later than 4:42 a.m.
and remained continuous until her test. But according to Patin,
roughly 40 minutes expired from the time he left the scene
until the time he began the observation period. The patrol
video showed, and Patin confirmed, that he left the scene with
appellant at 4:29 a.m.—a mere 13 minutes before the observa-
tion period was required to begin in order to comply with the
statute.
   The trial court merely dismissed his gatekeeping duty by
noting that the patrol car clock and the Intoxilyzer clock were
not synchronized, and saying that “non-synchronized clocks”
are a fact issue for the jury to decide pursuant to Worku v. State,
No. 14-13-00047-CR, 2014 WL 1330278 (Tex. App.—Houston
(14th Dist.) April 3, 2014, no pet.) (RR4 at 10). This conclusion,
however, is completely unreasonable, illegitimate, and illogical




                                12
given the entire record. First, it requires the gatekeeper to
conclude that the police patrol car clock and the Intoxilyzer
clock might reasonably be out of sync by 32 minutes.3 This is
simply not reasonable. Second, the trial court wholly ignored
Davies’ testimony that it was impossible for Patin to comply
with the 15-minute observation period given Patin’s best, good-
faith timeline estimate.
    The trial court’s suppression ruling was simply outside the
zone of any reasonable disagreement. The Court erred.


D. ARGUMENT—HARM
    A trial court’s erroneous suppression ruling is subject to
harmless error review. When the error involves a statutory,
non-constitutional violation, the appellate court will not
reverse the case unless the error affected an accused’s substan-
tial rights. TEX. R. APP. P. 44.2(b). In making this determina-
tion, the court reviews the record as a whole, including any
testimony or physical evidence admitted for the jury’s consid-
eration, the nature of the evidence supporting the verdict, and
the character of the error and how it might be considered in

3
 Patin’s best estimate for when he gave the breath test was 5:29 a.m., whereas the
actual test slip says that appellant first blew at 4:57 a.m.




                                       13
connection with other evidence in the case. Motilla, 78 S.W.3d
at 355 (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim.
App. 2000)).
   This Court can be 100% sure that the trial court’s error
affected appellant’s substantial rights because the breath test
slip was the only source of evidence upon which the jury could
have found the 0.15 breath concentration applicable and
convicted her of a Class A misdemeanor. Moreover, the jury
almost certainly placed great weight on the breath test in light
of Sampson’s and Patin’s testimony of appellant’s behavior that
was consistent with sobriety, and with a young lady misled by
her GPS and subject to an accident after dark (see Statement of
Facts, supra).
   This Court should sustain appellant’s point of error, reverse
her judgment and sentence, and order a new trial.
      ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯




                              14
                           PRAYER
   This Court should sustain appellant’s point of error, reverse
her judgment and sentence, and remand her case to the trial
court for a new trial.


                         /s/ Peyton Z. Peebles III
                          ______________________________
                         PEYTON Z. PEEBLES, III
                         CAPITAINE, SHELLIST, PEEBLES
                         & MCALISTER, LLP
                         405 Main Street, Suite 200
                         Houston, Texas 77002
                         Tel.:   (713) 715-4500
                         Fax:    (713) 715-4505
                         Email: peebles@texaslegalteam.net
                         SBOT: 24013307
                         Attorney for Appellant,
                         Vibha Harish Patel




                               15
            CERTIFICATE OF COMPLIANCE
(a) This brief complies with the type-volume limitation of TEX.
   R. APP. P. 9.4(i) because it was produced on a computer and
   contains 2,459 words, including headings and footnotes but
   excluding the parts of the brief exempted by TEX. R. APP. P.
   9.4, according to the computer software’s word count func-
   tion.
(b) This brief complies with the typeface requirements of TEX.
   R. APP. P. 9.4(e) because it has been prepared in a propor-
   tionately spaced typeface using Ingeborg 14-point font in
   text and Ingeborg 12-point font in footnotes.



                        /s/ Peyton Z. Peebles III
                         ______________________________
                        PEYTON Z. PEEBLES, III




                              16
               CERTIFICATE OF SERVICE
   I certify that a copy of the foregoing instrument has been
delivered to Assistant District Attorney Alan Curry at the
following address on February 11, 2015:
   Assistant District Attorney Alan Curry
   Harris County District Attorney’s Office
   1201 Franklin, Suite 600
   Houston, Texas 77002
   (Service by e-file)


                        /s/ Peyton Z. Peebles III
                         ______________________________
                        PEYTON Z. PEEBLES, III




                              17
