No. 4-02-00626-CR
Delivered and Filed: September 7, 2005. DO NOT PUBLISH.
Appeal from the County Court at Law No. 12, Bexar County, Texas, Trial Court No. 743147, Honorable Michael E. Mery, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
Opinion by: KAREN ANGELINI, Justice.
The State appeals the trial court's order granting Juan Garza III's motion to suppress his intoxilyzer test results. Because the trial court did not abuse its discretion when it ruled that evidence of Garza's intoxilyzer test was inadmissible, we affirm the order of the trial court.
Background
Garza was charged by information with driving while intoxicated under both definitions of the term; that is, he did not have normal use of his mental and physical faculties due to the consumption of alcohol ("impairment theory" of intoxication), and his alcohol concentration was 0.08 or more ("per se" theory of intoxication). Before trial, Garza filed a motion to suppress the intoxilyzer test results. The trial court denied Garza's motion. At trial, the test results and retrograde extrapolation evidence were introduced. Garza was convicted of driving while intoxicated. Shortly after Garza's conviction, the Texas Court of Criminal Appeals handed down its decision in Mata v. State, 46 S.W.3d 902 (Tex.Crim.App. 2001) (holding that science of retrograde extrapolation, as used in DWI cases to estimate a defendant's blood alcohol content (BAC) at time of alleged offense, can be reliable in a given case, depending on factors including expert's ability to explain the science with clarity, timing and number of tests performed, and expert's knowledge of a defendant's personal characteristics). Following the court's holding in Mata, Garza moved for a new trial, arguing that the retrograde extrapolation evidence was erroneously admitted at trial because the State's expert did not know enough of Garza's personal characteristics. The trial court granted Garza's motion and ordered a new trial. In his second trial, Garza again filed a motion to suppress the intoxilyzer test results, arguing that, without retrograde extrapolation testimony, the intoxilyzer test results and any testimony regarding those results should be excluded at trial. This time, the trial court granted Garza's motion. The State appealed from the order of the trial court. On appeal, relying on our opinion in Stewart v. State, 103 S.W.3d 483 (Tex.App.-San Antonio 2003), we affirmed the trial court's decision on the grounds that the intoxilyzer test results were irrelevant in the absence of retrograde extrapolation testimony. The Texas Court of Criminal Appeals recently reversed our decision in Stewart, however, holding that breath test results are relevant even without retrograde extrapolation evidence because they provide evidence of alcohol consumption, thus making it more probable that the defendant was intoxicated at the time he drove. Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App. 2004). Because we did not have the benefit of the court's opinion in Stewart before we decided this case, the Court of Criminal Appeals granted the State's petition for discretionary review, vacated our earlier judgment, and remanded the cause to us for reconsideration. ADMISSIBILITY OF INTOXILYZER TEST RESULTS
In its sole issue on appeal, the State argues that the trial court erred when it held that evidence of Garza's intoxilyzer test results was inadmissible without testimony that the intoxilyzer's reference sample was operating at a "known" temperature at the time the test was administered. We disagree. Generally, to be admissible, scientific testimony must be both "sufficiently reliable and relevant to help the jury in reaching accurate results." Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App. 1992). The proponent of the evidence satisfies this burden by establishing: (1) the validity of the underlying scientific theory; (2) the validity of the technique applying the theory; and (3) proper application of the technique on the occasion in question. Id. at 573. However, when offering evidence of intoxilyzer test results in which the specimen was taken and analyzed by individuals who were certified by, and used methods approved by, the Department of Public Safety (the "Department"), the first two prongs need not be met. That is, by enacting section 724.064 of the Texas Transportation Code, the legislature already has held the underlying theory and technique of the intoxilyzer to be valid. See TEX. TRANSP. CODE ANN. § 724.064 (Vernon 1999); Henderson v. State, 14 S.W.3d 409, 411 (Tex.App.-Austin 2000, no pet.). Thus, to admit the results of the test as evidence of intoxication, the State generally need only show that the technique was properly applied, in accordance with the rules of the Department of Public Safety (the "Department"), on the occasion in question. See Hartman v. State, 946 S.W.2d 60, 63-64 (Tex.Crim.App. 1997) (Keller, J., concurring and dissenting); Henderson, 14 S.W.3d at 411. Here, the State failed to establish that the intoxilyzer test was properly applied to Garza on the occasion in question. Specifically, at the suppression hearing, Garza argued that there was no evidence that the intoxilyzer's reference sample was operating at a "known" temperature at the time the test was administered. Pursuant to the Texas Breath Alcohol Testing Regulations (the "Regulations"), a "reference sample" must be tested in conjunction with each subject analysis. See 37 Tex. Admin. Code § 19.3(c)(4) (2002). The reference sample must contain a known amount of alcohol "at a known temperature," and the test results of the sample must agree with its predicted value within "plus or minus 0.01g/210L." Id. Here, the arresting officer did not record the temperature of the reference sample at the time he administered the test to Garza. Instead, to establish that the reference sample operated at a "known" temperature, the State relied upon the testimony of Dr. George Allen McDougall, breath test technical supervisor for Bexar County. According to McDougall, without personal knowledge or direct evidence, it still was reasonable to infer that the known temperature of the reference sample at the time Garza was tested was 34 degrees centigrade because he measured this temperature in the weeks both preceding and following Garza's test. On appeal, the State argues that our decision in Gamez v. State is "[o]f some guidance on this issue." See Gamez v. State, No. 04-02-00087-CR, 2003 WL 145554 (San Antonio Jan. 22, 2003, no pet.) (not designated for publication). Indeed, in Gamez, we addressed the issue of whether the trial court erred in finding that the "known" temperature of the reference sample was 34 degrees centigrade, plus or minus two-tenths of a degree, where the arresting officer did not record the actual temperature at the time he administered the test. Id. However, Gamez is distinguishable from our case on its facts. In Gamez, McDougall testified that he tested the temperature of the reference sample on both the day immediately preceding and on the day immediately following the subject analysis. Id. Given these facts, we held that the trial court did not abuse its discretion in finding that the temperature was "known," as required under the Regulations, on the occasion in question. Id. Conversely, here, McDougall testified that he checked the temperature of the reference sample not one day before or one day after, but rather approximately a week before, and weeks after the subject analysis. Thus, given this testimony, we cannot hold that the trial court abused its discretion in finding that there was no credible testimony that the temperature was "known," or that the intoxilyzer test was properly applied to Garza, on the occasion in question. At a hearing on a motion to suppress the evidence, the trial judge is the sole trier of the facts and, as such, may choose to believe or disbelieve any or all of the witnesses' testimony, as well as the weight to be given their testimony. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App. 1993). Given this predicate, we hold that the trial judge was well within his discretion when he found that McDougall's inference was less than the knowledge required by the Regulations. Conclusion
Accordingly, we affirm the order of the trial court.