                                                                                     PD-0473-15
                          PD-0473-15                            COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                                Transmitted 5/13/2015 9:51:09 AM
                                                                 Accepted 5/15/2015 10:37:47 AM
                                 IN THE                                           ABEL ACOSTA
                                                                                          CLERK
                    TEXAS COURT OF CRIMINAL APPEALS


ANDREW J. SERRANO,

            Petitioner,

vs.                                             No.PD-0473-15

THE STATE OF TEXAS,

            Respondent.

******************************************************************************


      PETITION FOR DISCRETIONARY REVIEW
******************************************************************************

       BRADLEY WALTERS
       ATTORNEY FOR PETITIONER
       713-705-9692
       BWALTERS56@YAHOO.COM
       500 E. HARRIS AVE
       PASADENA, TEXAS 77506

       ALAN CURRY                                         May 15, 2015
       Attorney for the State, Respondent
       Harris County ADA AppellateDivision,
       1201 Franklin, Suite 600,
       Houston, Texas 77002,
       TEL. 713-755-5800,
       curry_alan@dao.hctx.net



             NO ORAL ARGUMENT REQUESTED




                                                                                 1
                             TABLE OF CONTENTS

Index of Authorities                                                               3

Statement Regarding Oral Argument                                                  4

Statement of the Case                                                              4

Statement of Procedural History                                                    4

Abbreviations                                                                      4

Grounds for Review                                                               5,6

Argument                                                                           7

      1. Suppression of evidence or a jury instruction to disregard is required under
         Texas law. Fuselier says no operator present until contact withWootenwho
         was with subject for slightly over 6 minutes before breath test. 38.23 CCP
         says not admissible.                                                       7.
      2. Once admitted, 38.23 Jury instruction should have been given to prevent
         reversible harm. An issue of material fact regarding not following the 15
         minute operator in the presence rule was raised by the testimony of Fuselier
         and the intox video length of six minutes                                  10.
      3. The court of appeals’ opinion has so far departed from the usual and
         accepted course of judicial proceedings and has sanctioned such a
         departure by a lower court as to call for an exercise of the Court of
         Criminal Appeals’ power of supervision. The rule stated by the court
         has been designated for publication and is not a coherent statement of law.
         The court of appeals has ruled that because direct observation is not
         required by the statute TAC 19.3 (a) (1) evidence of no contact is no
         evidence of a violation of the statute. This holding disregards the
         requirement that an operator remain in the presence of the subject in order
         to ensure nothing is place in the subjects mouth prior to a breath test.
         Evidence of no contact is strong evidence that a person with normal senses
         was not in the presence of the subject and fulfilling the purpose of the
         statute. The court of appeals also misstated the rule in Shpikula v. State, 68
         S.W.3d 212, 217 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). The
         case involved two officers with consistent uncontroverted stories so no
         jury instruction was required, it was not refused because the jury had a
         right to disbelieve them even though the jury had the right to disbelieve.

                                                                                       2
         Their statement of the rule would lead someone to believe that no 38.23
         jury instruction is ever required because of jury’s right to disbelieve. 11



Prayer for Relief                                                               12

Certificate of Service                                                          13

Certificate of Compliance                                                      13
Appendix                                                                      post



                                  AUHORITIES

Cases

  Statutes

  Code of Criminal Procedure art. 38.23                                     7, 12-13

  Texas Administrative Code 19.3 (a) (1)                                          15




                                                                                     3
               STATEMENT REGARDING ORAL ARGUMENT

       Petitioner believes oral argument would not be helpful to the Court because the
issues raised are straight forward issues of fact raised by the testimony of two state
witnesses one of whom admits to no memory of the disputed facts and one who
remembers the facts which limit the time frame the breath test operator could have
been in the presence of the petitioner to less time than required by statute.

                           STATEMENT OF THE CASE

       This case concerns a conviction for driving while intoxicated based on
unsuppressed evidence and a jury charge that does not conform to Texas law. Code
of Criminal Procedure Article 38.23. There was not, according to the 1st Court of
Appeals, evidence or testimony creating a factual issue as to whether the fifteen
minute waiting period was followed prior to the submission of a breath test sample.
Texas Administrative Code section 19.4(c)(1). Petitioner requested reconsideration
and if not granted that the case be designated for publication. The court of appeals
elected to stand by its ruling and designate it for publication.

                 STATEMENT OF PROCEDURAL HISTORY

(1)    Date of opinion from COA:                           February 3, 2015

(2)    Date of Motion for Rehearing:                       February 18, 2015

(3)    Date Motion for Rehearing Disposed:                 March 13, 2015

(4)   Date of Motion to extend time to file PDR:            April 27, 2015

(5)    Date Motion Granted to extend time to file PDR:      April 29, 2015

                     ABBREVIATIONS AND REFERENCES

       The required documents and several other key documents from the trial are
attached to this Petition in the Appendix.

       The Clerk’s Record (CR) is referred to by page number (e.g., CR422).

     The Reporter’s Record (RR) is referred to by volume number, then page
number (e.g. 3 RR 88-90).
                                                                                         4
                             GROUNDS FOR REVIEW


1.      The court of appeals in its decision finding no error in trial court’s failure to
provide a CCP section 38.23 jury instruction, ruled erroneously that no evidence
was presented in the record which raised an issue of material fact regarding whether
the fifteen minute rule was followed in the administration of the breath alcohol test.
The court of appeals ruled that because direct observation is not required by the
statute, Texas Administrative Code (TAC) Rule 19.3(a)(1), that evidence of when the
breath test operator first made contact with the petitioner is no evidence that the
statute was not followed. Petitioner believes this is a non sequitor. The court of
appeals overlooked testimonial evidence from officer Fuselier that the breath test
operator first came into contact with petitioner following his arrival at the intox
center where no BTO was present with them until the operator came into contact
with petitioner at the intox room and immediately began recording a video (State’s
exhibit. 4) in evidence of only six minutes duration with petitioner and breath test
operator present, then submitting a sample with no delay. Evidence of no BTO until
they entered the intox room, along with a six minute video followed immediately by
a breath test, is evidence that the operator was not in the presence of the subject
constructively or otherwise for 15 minutes regardless of the fact that direct
observation is not required. 2RR75-80.


 2.    The court of appeals, regarding petitioner’s motion to suppress the breath test,
found, in error, that evidence only existed in the record to support that Texas
Administrative Code Rule 19.3(a)(1) was followed despite the lack of memory or
knowledge of the breath test operator (BTO) regarding actual exercise of the fifteen
minute rule in the case at hand. 2RR143-146. The court of appeals disregarded the
testimony of officer Fuselier which pinned down the time frame the breath test
operator was in the presence of petitioner to substantially less than fifteen minutes
prior to the breath sample submission. The court of appeals reasoned erroneously
that because direct observation is not required, evidence of no contact by the
operator was not evidence that the 15 minute rule was violated, while overlooking
the timeline established by Fuselier when they arrived at intox central which did not
include a stop at the holding area for the 15 minutes with an operator before testing.
2RR75-80. It was error to allow the trial court not to suppress the results of the
breath test in light of the breath test operator’s mere conclusory statements
unsupported by memory or knowledge to confirm adherence to the fifteen minute
rule when officer Fuselier remembers arriving at central intox, next going to the
intox room where the BTO first came into contact with petitioner, beginning a six
minute video (State’s exhibit 4) with the breath test operator present and subject
submitting a sample without delay following the end of the video and corroborated
by times on the video and breath test slip.
                                                                                            5
3. The Criminal Court of Appeals should grant review of this case because the
court of appeals rather than reconsider its analysis and logic in deciding this
case elected to pass on the opportunity to reconsider its reasoning. The court
of appeals elected to change the case’s publication status to designated for
publication not only getting it wrong, but creating mandatory precedent that
defies logic and the purpose of the violated statute requiring that an operator
remain in the presence of a breath test subject for 15 minutes prior to
obtaining a sample in order to ensure nothing enters the mouth which may
affect the test The court of appeals reasoned incorrectly that evidence of no
contact with the subject is no evidence that the statute was violated, because
the statute does not require direct observation. However, Petitioner would
show the Court that the court of appeals missed what the evidence does show,
that being that the operator was not in the presence of the subject for the time
required by the statute. The idea that an operator with ordinary sensory
perception could have no contact with someone they are charged with
ensuring does not place anything in their mouth is absurd on its face. How
could the operator take reasonable care that nothing enters the mouth of the
subject without making contact them by sight, hearing or smell whether by
direct observation or indirect while doing paperwork or other tasks? No
contact prior to entering the intox room along with the officer testifying that
no BTO was with them prior to entering the intox room, (no mention of a
holding area in the presence of the operator before contacting Wooten)
strongly affirms that the operator was not in the presence of the subject until
the six minute video(State’s exhibit 4) began, followed immediately by
submission of a breath sample. The court of appeals also misstated the rule in
Shpikula v. State, 68 S.W.3d 212, 217 (Tex. App.—Houston [1st Dist.] 2002,
pet. ref’d). The case involved two officers with consistent uncontroverted
stories so no jury instruction was required, it was not refused because the jury
had a right to disbelieve them even though the jury had the right to disbelieve.
The statement of the rule would lead someone to believe that no 38.23 jury
instruction is ever required because of jury’s right to disbelieve.




                                                                               6
                                      ARGUMENT

1.    Suppression of evidence or a jury instruction to disregard is required under
Texas law.
       In Texas, the exclusionary rule is statutory and requires suppression of
evidence where the legal or Constitutional rights of the suspect are violated. CCP
art. 38.23 states in relevant part:

       Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence
       obtained by an officer or other person in violation of any
       provisions of the Constitution or laws of the State of Texas, or of
       the Constitution or laws of the United States of America, shall be
       admitted in evidence against the accused on the trial of any
       criminal case.

       (b) In any case where the legal evidence raises an issue hereunder, the jury
       shall be instructed that if it believes, or has a reasonable doubt, that the
       evidence was obtained in violation of the provisions of this Article, then
       and in such event, the jury shall disregard any such evidence so obtained.


       In Texas, the statute below informs us on the purpose and requirements of
the 15 minute waiting period:


       Texas Administrative Code 19.3 (a) (1) a period during which an operator
       is required to remain in the presence of the subject. An operator shall
       remain in the continuous presence of the subject at least 15 minutes
       immediately 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 accuracy of the test result;

      The court of appeals correctly points out that direct observation is not

required. However, the court makes a leap of logic when it states that, thus the

evidence of no contact is not evidence that the statute was violated. The court of
                                                                                      7
appeals overlooked the order of events established by Fuselier and the time frame

established by the 6 minute video (State’s exhibit 4) followed by a breath test with

no delay. The 15 minute rule is to ensure that the test measures alcohol from the

lungs and not alcohol or interferants placed in the mouth or regurgitated from the

stomach. The statute states that the operator should take reasonable care that

nothing enters the subject’s mouth and must be in the continuous presence of the

subject for the 15 minute period before the sample is taken. An ordinary person

in the position of the operator with all five senses would certainly have contact

with the subject if in their presence, whether or not that constitutes direct

observation during this time frame. How else would the operator know if she was

in his presence as required if she made no visual, auditory or other sensory contact

with the subject and no one advised her that she was in his presence? Evidence

that the operator first made contact with the subject at a particular point in time

and obtained a breath sample less than 15 minutes later is most certainly strong

evidence that the operator was not in the continuous presence of the subject for

fifteen minutes as required. The operator did not satisfy the purpose of the statute

by ensuring that any alcohol which may have entered the mouth from the stomach

or other source had time to dissipate prior to obtaining a sample. There was no

evidence of constructive presence such as video or audio equipment or having

another breath test operator remain in the presence of the subject in her stead. The


                                                                                       8
court of appeals’ correct observation that direct observation is not required is not

relevant to and is a red herring distracting from the issue of whether the operator

was in the continuous presence of the subject for 15 minutes prior to the

submission of a breath sample for testing. Presence is plainly is required by the

statute.

       The operator consistently testified that she had no memory of being in the

presence of the subject prior to the time frame described by the officer. She only

testified that she must have observed the rule because she always does and

described how she always does it though not remembering placing or seeing

petitioner in the holding area she described always using. That is akin to a

defendant fighting a ticket for running a red light by saying that she doesn’t

remember stopping for the red light, but must have because she always does. That

would not work to get out of a ticket and it should not work for this operator to

trying to controvert the previous testimony of Fuselier which shows that she was

not in the subject’s presence for the 15 minutes immediately preceding the breath

test as required by law.

       Officer Fuselier on cross examination testified that after arriving at central

intox he and the subject were with the other officer and there was no BTO present

while waiting, then next went to the intox room where the operator first came

into contact with petitioner. 2RR75-80. He stated that the video (State’s exhibit 4)

                                                                                        9
began without delay. The video is six minutes long. He testified that there was no

delay after the video ended before a sample was obtained. The times on the video

(State’s exhibit 4) and the breath test (State’s exhibit 6) corroborate his testimony.

His testimony was unrebutted except for conclusory statements that the testing

regulations were followed. The testimony of the operator with no memory of the

event should not have been sufficient to create an issue of fact in light of the

conclusive nature of evidence Fuselier gave regarding the time the operator was in

the presence of the subject.2RR75-80. The breath test should have been excluded

per objection of the petitioner and trial motion to suppress. The court of appeals

erred by not reversing the trial court on this issue.

2.    The court of appeals erred by finding that a CCP 38.23 instruction was
not required and reasoning that because no direct observation is required there
was no evidence that TAC 19.3 (a) (1), the 15 minute rule was not obeyed.

      As argued in the first point above the operator testified that she “must have”

observed the 15 minute rule, while the officer testified that upon arrival at intox

central no one was with them while they waited besides the other officer and neither

officer was a BTO, they next met the operator at the intox room where she first came

into contact with the subject and started a 6 minute (State’s exhibit 4) video of the

subject, the operator and the officer without delay. He testified that the breath sample

was obtained without delay immediately following the end of the video. This is




                                                                                         10
strong evidence that the operator was not in the presence of the subject for 15

minutes as the law requires before obtaining a breath sample. See 2RR75-80.


3.    The court of appeals’ opinion has so far departed from the usual and
accepted course of judicial proceedings and has sanctioned such a departure by
a lower court as to call for an exercise of the Court of Criminal Appeals’ power
of supervision.
The court of appeals got most of the facts right although they overlooked that

Fuselier after arrival at intox central said that while they were waiting no one was

with them except the other deputy and neither was a BTO, 2RR75-80, next went to

the intox room (not the holding area for the 15 minute time in the presence of the

operator) where operator was not in the presence of the subject for 15 minutes as the

law requires before obtaining a breath sample as previously described above. The

court of appeals referenced the applicable law correctly. What they did was apply

the facts to the law incorrectly. Petitioner would agree that the evidence from

Fuselier and the video do not show a violation regarding observation direct or

otherwise. The violation supported by the evidence is the operator not being in the

presence, constructively or otherwise of the Petitioner for the required time of 15

minutes immediately prior to obtaining a breath sample for testing. To allow a

holding in a published case that stands for the proposition that no contact with the

subject is no evidence of a violation of the 15 minute statute, because direct

observation is not required must not be allowed to stand, because it is strong

evidence of not being in the presence of the subject as required. The court of

                                                                                       11
appeals also misstated the rule in Shpikula v. State, 68 S.W.3d 212, 217 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d). The case involved two officers with

consistent uncontroverted stories so no jury instruction was required, it was not

refused because the jury had a right to disbelieve them even though the jury had the

right to disbelieve. Their statement of the rule would lead someone to believe that no

38.23 jury instruction is ever required because of jury’s right to disbelieve.




                               PRAYER FOR RELIEF


       This Petition should be granted.

       The breath test should be suppressed because it was obtained in violation of

the law requiring the operator to be in the continuous presence of the subject for 15

minutes prior to obtaining a sample.

       The jury charge lacking a 38.23 instruction should be found to be harmful

and grounds for a new trial.

       The court of appeals having designated this case for publication rather than

reconsidering their decisions, needs to be reversed to avoid a bad mandatory

precedent regarding their holding that evidence of no contact with the subject is not

evidence that the 15 minute rule was violated.
                                                                                       12
     Petitioner also requests such other and further relief as is just.
                                               RESPECTFULLY SUBMITTED
                                               //S// Bradley Walters
                                               Bradley Walters
                                               500 E. Harris Ave,
                                               Pasadena, Texas 77506
                                               Bar # 24053540
                                               bwalters56@yahoo.com


                         CERTIFICATE OF SERVICE

      I hereby certify that on June 13, 2015, a copy of the foregoing Petition for
Discretionary Review was served on the following by email to:

     ALAN CURRY
     Attorney for the State, Respondent
     Harris County ADA AppellateDivision,
     1201 Franklin, Suite 600,
     Houston, Texas 77002,
     TEL. 713-755-5800,
     curry_alan@dao.hctx.net

                                               //S// Bradley Walters
                                                 24053540

                        CERTIFICATE OF COMPLIANCE



      I hereby certify that this Petition conforms to the requirements of TRAP 9,
and consists of 2,997 words per and is fewer than 15 pages no including
appendix. TRAP 9.4(i)(2)(D).



                                                    //S// Bradley Walters
                                                           24053540
                                                                                     13
                                IN THE TEXAS
                         COURT OF CRIMINAL APPEALS
                                     IN THE
                        TEXAS COURT OF CRIMINAL APPEALS


ANDREW J. SERRANO,

           Petitioner,

vs.                                                  No.PD-0473-15

THE STATE OF TEXAS,

           Respondent.
 ******************************************************************************


                  APPENDIX –
      PETITION FOR DISCRETIONARY REVIEW
 ******************************************************************************

 Index:

 15,16      Court of Appeals Corrections dated March 12. 2015

 17-31      Court of Appeals Opinion dated February 3, 2015

 32         Parties and contacts




                                                                                  14
                                                                                  CHRISTOPHER A. PRINE
                                                                                  CLERK OF THE COURT
SHERRY RADACK
CHIEF JUSTICE                                                                     JANET WILLIAMS
                                                                                  CHIEF STAFF ATTORNEY
TERRY JENNINGS
EVELYN KEYES
LAURA CARTER HIGLEY
                                     Court of Appeals                             PHONE: 713-274-2700
                                                                                  FAX: 713-755-8131
JANE BLAND
MICHAEL MASSENGALE
                                   First District of Texas                        www.txcourts.gov/1stcoa.aspx
HARVEY BROWN                           301 Fannin Street
REBECA HUDDLE                      Houston, Texas 77002-2066
RUSSELL LLOYD
JUSTICES
                                            March 12, 2015

   Bradley Walters                                                Eric Kugler
   500 E. Harris                                                  Assistant District Attorney of
   Pasadena, TX 77506                                             Harris County
   * DELIVERED VIA E-MAIL *                                       1201 Franklin Ste 600
                                                                  Houston, TX 77002
   Alan Curry                                                     * DELIVERED VIA E-MAIL *
   Chief Prosecutor, Appellate
   Division
   Harris County District Attorney's
   Office
   1201 Franklin Ste 600
   Houston, TX 77002-1923
   * DELIVERED VIA E-MAIL *

   RE:     Court of Appeals Number: 01-13-00975-CR
           Trial Court Case Number: 1842255

   Style: Andrew J. Serrano v. The State of Texas

          We substitute this page 1 and page 15 of the opinion to correctly reflect the opinion’s “do
   not publish” notation be changed to “publish.” See TEX. R. APP. P. 47.2(b). No changes to the
   substance of the opinion have been made.


                                                        Sincerely,


                                                        Christopher A. Prine, Clerk of the Court

                                                        By Michelle Gentile, Deputy Clerk



            cc:   Hon. Chris Daniel (DELIVERED VIA E-MAIL)
                    Judge County CR Court @ Law #4 (DELIVERED VIA E-MAIL)




                                                                                                             15
                                                                                      FILE COPY



SHERRY RADACK                                                                     CHRISTOPHER A. PRINE
CHIEF JUSTICE                                                                     CLERK OF THE COURT

TERRY JENNINGS                                                                    JANET WILLIAMS
EVELYN KEYES                                                                      CHIEF STAFF ATTORNEY
LAURA CARTER HIGLEY
JANE BLAND
MICHAEL MASSENGALE
                                     Court of Appeals                             PHONE: 713-274-2700
                                                                                  FAX: 713-755-8131
HARVEY BROWN
REBECA HUDDLE
                                   First District of Texas                        www.txcourts.gov/1stcoa.aspx
RUSSELL LLOYD                          301 Fannin Street
JUSTICES
                                   Houston, Texas 77002-2066

                                        March 12, 2015

   Library Service                                                Opinions Clerk
   Lexis Nexis                                                    West Group D4-40
   9473 Springboro Pike                                           610 Opperman Drive
   Miamisburg, OH 45342-4425                                      Egan, MN 55123


   RE: Court of Appeals Number: 01-13-00975-CR
   Trial Court Case Number: 1842255

   Style: Andrew J. Serrano v. The State of Texas

          We substitute this page 1 and page 15 of the opinion to correctly reflect the
   opinion’s “do not publish” notation be changed to “publish.” See TEX. R. APP. P. 47.2(b). No
   changes to the substance of the opinion have been made.

                                                        Sincerely,


                                                        Christopher A. Prine, Clerk of the

                                                        Court By Michelle Gentile,

                                                        Deputy Clerk




                                                                                                    16
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
                                    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

                                                                                 17
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.


                                            2

                                                                                   18
      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


                                         3

                                                                                   19
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.”


                                            4

                                                                                  20
       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

                                                                                  21
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

                                                                                     22
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).




                                              7

                                                                                     23
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

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


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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

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


                                           9

                                                                                    25
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

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.


                                         10

                                                                                    26
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”).

      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




                                           11

                                                                                  27
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

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


                                          12

                                                                                        28
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”

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).


                                          13

                                                                                    29
      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

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




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.
                                           14

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                                 31
                              Conclusion

                  We affirm the trial court’s judgment.

                                          Rebeca Huddle Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Publish. TEX. R. APP. P. 47.2(b).




                                   15
                                   32
     1. State of Texas, APPELLEE

     2. ANDREW JAVIER SERRANO, APPELLANT, 6430 Tea Tree Dr.,

Katy, Texas 77494. TEL. 713-894-1721

     3.ALAN CURRY, Harris County ADA Appellate Division, 1201

Franklin, Suite 600, Houston, Texas 77002, TEL. 713-755-5800,

curry_alan@dao.hctx.net

     4. RYAN McLEAREN, Harris County ADA Trial Counsel 1201

Franklin, Suite 600, Houston, Texas 77002, TEL. 713-755-5800,

mclearen_ryan@dao.hctx.net

     5. WILL MEJIA, Harris County ADA Trial Counsel 1201 Franklin,

Suite 600, Houston, Texas 77002, TEL. 713-755-5800,

mejia_will@dao.hctx.net

     6. BRADLEY WALTERS, ATTORNEY FOR APPELLANT, 500 E

Harris Pasadena, Texas 77506. TEL. 713-705-9692, bwalters56@yahoo.com

    7. Trial Court=Hariis County Criminal Court at Law #10, Judge Clinton
