                                   NO. 07-08-00418-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                      JULY 20, 2010


                               JUSTIN R. CHEEK, APPELLANT

                                            v.

                           THE STATE OF TEXAS, APPELLEE


           FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

                NO. 2008-448,675; HONORABLE DRUE FARMER, JUDGE


Before QUINN, C.J., AND CAMPBELL, and PIRTLE, JJ


                                 MEMORANDUM OPINION

       Appellant, Justin R. Cheek, appeals from his jury conviction of the misdemeanor

offense of driving while intoxicated1 and the resulting sentence of 180 days of

confinement, probated for eighteen months, and a fine of $500. Through one issue,

appellant challenges the trial court=s admission of the results of appellant=s breath test.

Finding no error, we affirm.




       1
           See Tex. Penal Code Ann. ' 49.04(a) (Vernon 2003).
                                         Background


       After a traffic stop by a Lubbock policeman and field sobriety tests, appellant was

arrested. He was taken to the county jail where a certified operator performed a breath

test on appellant using the Intoxilyzer 5000. The operator testified use of the computer-

driven machine first required that he enter certain information, including that identifying

the operator and the subject of the test, appellant.      Appellant provided two breath

samples. The State=s Intoxilyzer expert testified that the Intoxilyzer generated a “slip”

showing appellant=s blood alcohol concentration from the two samples was .120 and

.123, respectively, at the time of the test.


       Appellant presented his case through cross-examination of the State=s witnesses

through which he attempted to cast doubt on the validity of the traffic stop, the officer=s

conclusion that appellant was intoxicated, and the results of the breath test.


       Following the presentation of the evidence, the jury found appellant guilty as

charged in the information. A pre-sentence investigation report was ordered and at a

later hearing on punishment the court assessed punishment at confinement for 180

days, probated for eighteen months, and imposed a $500 fine. The trial court certified

appellant=s right to appeal. This appeal followed.


                                           Analysis


       Via his appellate issue, appellant argues the trial court erred when it allowed the

State to introduce into evidence the results of appellant=s breath test because the


                                               2
results of the test were out-of-court testimonial statements admitted in violation of the

Sixth Amendment to the United States Constitution and Article 1, Section 10, of the

Texas Constitution.


Confrontation Clause


       The Sixth Amendment to the United States Constitution, made applicable to the

states via the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct.

1065, 13 L.Ed.2d 923 (1965), provides that A[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him.@ In Crawford v.

Washington, after reviewing the Clause's historical underpinnings, the Supreme Court

held that it guarantees a defendant's right to confront those Awho >bear testimony=@

against him. Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d

177 (2004). A witness's testimony against a defendant is thus inadmissible unless the

witness appears at trial or, if the witness is unavailable, the defendant had a prior

opportunity for cross-examination. Id. at 54.


       Appellant’s analysis begins with a discussion in Murray v. State, 804 S.W.2d 279

(Tex.App.—Fort Worth 1991, pet. ref’d), in which the court addressed a hearsay

objection to the admissibility of a computer printout.      The court drew a distinction

between printouts that constitute “the feeding back of data placed into the computer by

a person” and those reflecting “computer self-generated data.” The former may be

hearsay, the court held, but the latter may not be hearsay because a mechanical device

like a computer is not a person and cannot be a declarant under the hearsay rules. Id.

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at 284. In Stevenson v. State, 920 S.W.2d 342 (Tex.App.—Dallas 1996 no pet.) (op. on

remand), the Dallas court of appeals applied the same analysis to the report generated

by an Intoxilyzer.    It found an Intoxilyzer “self-generates” data, and noted that the

Intoxilyzer does not present “a situation in which the information in the printout is merely

feedback of computer-stored data . . . .” Id. at 343 (citing, inter alia, Murray, 804 S.W.2d

at 284).


       Appellant urges that the testimony here establishes that the reverse is true, that

is, that the Intoxilyzer 5000 results here reflect information entered by the operator, and

thus should be regarded as reflecting data not “self-generated” by the Intoxilyzer but

stored by a person, the machine’s operator. It follows, appellant argues, that the breath

analysis produced by the Intoxilyzer constitutes an out-of-court statement by its

operator.


       We need not address the correctness, vel non, of appellant’s argument that the

introduction of results from an Intoxilyzer may present a Confrontation Clause issue

under Crawford, for the simple reason that the Intoxilyzer operator testified at

appellant’s trial. The officer testified to his twenty-year service as a police officer, to his

certification to operate the Intoxilyzer 5000, and to the necessary protocols for

administering breath tests.         He presented detailed testimony concerning his

performance of each of the protocols when he administered the breath test to appellant.

Appellant’s cross-examination of the officer was not restricted.




                                              4
       Assuming then, without deciding, that the Intoxilyzer results constituted an out-of-

court testimonial statement of the Intoxilyzer, no Confrontation Clause issue is present

because, “when the declarant appears for cross-examination at trial, the Confrontation

Clause places no constraints at all on the use of his prior testimonial statements.”

Crawford, 541 U.S. at 59 n.9 (also stating, “The Clause does not bar admission of a

statement so long as the declarant is present at trial to defend or explain it”). Crawford

cites California v. Green, 399 U.S. 149, 26 L.Ed.2d 489, 90 S. Ct. 1930 (1970) on the

point, which opinion states, “none of our decisions interpreting the Confrontation Clause

requires excluding the out-of-court statements of a witness who is available and

testifying at trial.” 399 U.S. at 161.


       We find admission of appellant’s breath test results involved no Confrontation

Clause issue, and the trial court did not err by overruling appellant’s Sixth Amendment

objection.2    Appellant does not present a contention the Texas Constitution’s

requirements differ, so we do not address his objection based on our State’s

constitution. See Muniz v. State, 851 S.W.2d 238, 251-52 (Tex.Crim.App. 1993).

Accordingly, appellant’s sole issue is overruled, and the trial court’s judgment is

affirmed.

                                                               James T. Campbell
                                                                    Justice
Do not publish.

       2
         Appellant’s argument suggests that a part of his complaint is that his cross
examination of the Intoxilyzer operator was hindered because the State offered the
Intoxilyzer test results through the testimony of the Intoxilyzer expert rather than through
that of the operator. Appellant does not explain, and we do not perceive, how such a
circumstance leads to a Confrontation Clause violation.
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