Gerald Gamez v. The State of Texas--Appeal from County Court at Law No 8 of Bexar County

MEMORANDUM OPINION
No. 04-02-00087-CR
Gerald GAMEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 8, Bexar County, Texas
Trial Court No. 797055
Honorable Joe Terracina, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: January 22, 2003

AFFIRMED

Gerald Gamez was charged with the misdemeanor offense of driving while intoxicated. After the trial court denied Gamez's motion to suppress, Gamez, without benefit of a plea-bargain agreement, pled no contest to the charge. Gamez was sentenced to 120 days in jail probated for one year, a $700 fine with $350 of that fine probated, and forty hours of community service. Gamez brings two issues on appeal. We overrule both issues and affirm the judgment of the trial court.

Background

On September 20, 2001, the San Antonio Fire Department responded to a call "for a person down" on Interstate Loop 410. Upon arriving at the scene, Fireman Jorge Cardenas saw a black vehicle stopped in between the right lane and the exit lane. When Cardenas approached the vehicle, he saw Gamez sitting in his vehicle, apparently asleep. Because the car was still in drive, Cardenas reached over Gamez, placed the car in park, turned off the ignition, and took the keys. Gamez then awoke and told Cardenas that he was going home. Gamez said that he had been drinking and playing darts with friends. Although Gamez mentioned that he had been drinking, Cardenas could not remember smelling alcohol on Gamez's breath.

Officer Peter Knutson of the San Antonio Police Department then arrived on the scene. According to Knutson, Gamez's breath did smell of alcohol and Gamez's speech was slurred and slow. Under Knutson's supervision, Gamez performed several field sobriety tests. After Gamez performed these tests, Knutson arrested him for driving while intoxicated. On the fifteen minute ride to the police station, Gamez fell asleep in the back of the patrol car. At the police station, Gamez agreed to give a specimen of his breath. Knutson administered the intoxilyzer test. The result of the test showed that Gamez was legally intoxicated.

At the hearing on the motion to suppress, the trial court heard testimony from Cardenas and Knutson, viewed the videotape of Gamez performing the field sobriety tests, and heard testimony from Allen McDougall, the technical supervisor of the intoxilyzer machine. The trial court denied Gamez's motion. Gamez appeals that ruling.

Jurisdiction

The State argues that we lack jurisdiction over this appeal, because Gamez entered a plea of no contest without the benefit of a plea bargain. For support, the State cites Avila v. State, 796 S.W.2d 294, 295 (Tex. App.--San Antonio 1990, no pet.). Avila, in turn, relied on Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App.1972), which established the general rule that a plea of guilty or nolo contendere waives all nonjurisdictional errors. Helms, however, has been abrogated by Young v. State, 8 S.W.3d 656 (Tex. Crim. App. 2000).

Young noted that if the judicial system required a defendant who has lost one or more pre-trial motions to go through an entire trial simply to preserve the pre-trial issues for later appellate review, the result would be a waste of prosecutorial and judicial resources. 8 S.W.3d at 665. Thus, Young modified the Helms rule and held that whether entered with or without an agreed recommendation of punishment by the State, a valid plea of guilty or nolo contendere "waives" or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error. Id. at 666-67. Here, the judgment of guilt is not independent of the trial court's ruling on the motion to suppress the evidence of the offense, and the judgment would not be supported without that evidence. Id. at 667. We must, therefore, examine the merits of Gamez's issues.

Next, the State argues that because Gamez's motion is not based on illegally obtained evidence, Gamez's motion is not a motion to suppress, but is, in substance, a motion in limine. As such, the State argues that any opinion by this court would be in the nature of an advisory opinion. In support of this assertion, the State relies on State v. Kaiser, 822 S.W.2d 697 (Tex. App.--Fort Worth 1991, pet. ref'd), which held that only a motion that challenged the evidence as being illegally obtained is a motion to suppress under article 44.01 of the Texas Code of Criminal Procedure. Article 44.01 is the procedural rule allowing the State to challenge pretrial rulings suppressing evidence in criminal cases. In State v. Roberts, 940 S.W.2d 655, 660 (Tex. Crim. App. 1996), the court of criminal appeals approved of Kaiser and held that the phrase "motion to suppress evidence" was limited to motions which sought to suppress evidence on the basis that such evidence was "illegally obtained."

However, in State v. Medrano, 67 S.W.3d 892, 903 (Tex. Crim. App. 2002), the court of criminal appeals overruled Roberts and held that article 44.01 is not limited solely to pretrial rulings that suppress "illegally obtained" evidence. "The State may appeal an adverse ruling on any pretrial motion to suppress evidence as long as the other requirements of the statute are met." Id. Although Kaiser, Roberts, and Medrano all analyzed the meaning of the phrase "motion to suppress" under article 44.01, the procedural rule allowing the State to appeal pretrial motions, we see no reason that a motion to suppress under article 44.01 would be any different from any other motion to suppress. Thus, under Medrano, "motion to suppress" no longer means a motion seeking to suppress the evidence because it was illegally obtained, but as here, could be any motion seeking to suppress evidence because the evidence is not reliable. We, therefore, turn to the merits of Gamez's appeal.

Reliability of the Intoxilyzer

In Beard v. State, No. 0282-00, 2002 WL 31116936, at *6 (Tex. Crim. App. Sept. 25, 2002), the court of criminal appeals held that

when evidence of alcohol concentration as shown by the results of analysis of breath specimens taken at the request or order of a peace officer is offered in the trial of a DWI offense, (1) the underlying scientific theory has been determined by the legislature to be valid; (2) the technique applying the theory has been determined by the legislature to be valid when the specimen was taken and analyzed by individuals who were certified by, and were using the methods approved by the rules of, the Department of Public Safety; and (3) the trial court must determine whether the technique was properly applied, in accordance with the department's rules, on the occasion in question.

Id. Here, Gamez argues that the intoxilyzer test was not properly applied because there is no evidence of the temperature of the intoxilyzer machine at the time the specimen from Gamez was tested or evidence of Gamez's temperature.

Pursuant to the Texas Breath Alcohol Testing Regulations,

All breath alcohol testing techniques, in order to be approved, shall meet, but not be limited to, the following... (4) the analysis of a reference sample, prepared by the technical supervisor or a designee of the scientific director, such as headspace gas from a mixture of water and a known weight of alcohol at a known temperature, the results of which must agree with the reference sample predicted value within 0.01g/210L, or such limits as set by the scientific director. This reference sample shall be performed in conjunction with subject analyses...

37 Tex. Admin. Code 19.3(c)(4) (2002) (emphasis added). Thus, for every intoxilyzer test that is administered, the regulations require there to be a reference sample test run. At the suppression hearing, George McDougall testified about the testing procedures and scientific theory underlying the intoxilyzer machine. According to McDougall, the test measures "the amount of alcohol concentration that's created by the vapor of bubbles bubbling through a solution at 34 degrees centigrade (1) that appears in the reference device." On cross-examination, McDougall was asked, "You can't maintain a reference sample device at 34 degree centigrade or [at] a constant temperature. Do you agree or disagree with that?" McDougall disagreed, stating that the temperature can vary two-tenths of a degree in either direction. Thus, according to McDougall, the known temperature is 34 degrees centigrade plus or minus two tenths of a degree. Although the arresting officer did not record the actual temperature at the time that he administered the test to Gamez, McDougall testified that he routinely checks the temperature of the intoxilyzer and that the temperature always remains at 34 degrees centigrade plus or minus two tenths of a degree centigrade, its "known temperature." Furthermore, McDougall checked the intoxilyzer the day before and the day after the test was administered to Gamez. Both times, the intoxilyzer was at its known temperature. Given McDougall's testimony, we hold that the technique applied by the police department complied with section 19.3(c)(4) of the Texas Breath Alcohol Testing Regulations.

Gamez also argues that the results from the intoxilyzer are not reliable, because his temperature was not taken at the time the test was administered. During the suppression hearing, the defense questioned McDougall about the "Fox study." According to that study, when the intoxilyzer was administered to individuals who were immersed in hot bath water that raised their core body temperature two-and-a-half degrees centigrade, the intoxilyzer produced artificially high results. McDougall admitted that the intoxilyzer assumes the test subject's breath temperature is at 34 degrees centigrade, the average breath temperature, and that the intoxilyzer would produce erroneous results when administered to a person with a high fever:

I think [the Fox study is] accurate in the sense that it's measuring an elevated alcohol concentration on the breath when the body temperature is elevated about four-and-a-half to five degrees Fahrenheit, which would mean a body temperature of about 103. I think a person with a 103 degree fever would have an overstated alcohol concentration.

The State sufficiently admitted evidence that it complied with the Texas Breath Alcohol Testing Regulations. See Beard, 2002 WL 31116936 at *6. Nowhere in the regulations does it require the administrator of the intoxilyzer to take the temperature of the subject to ensure that the subject is not suffering from a high fever. We, therefore, overrule both issues.

Conclusion

Having overruled both issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

Do not publish

1. Thirty-four degrees centigrade is the average temperature of a person's breath.