BRYAN DAVID STILES, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 18, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01293-CR
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BRYAN DAVID STILES, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from County Court at Law No. 2
Collin County, Texas
Trial Court Cause No. 2-613-87
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O P I N I O N
Before Justices Howell, Baker and Burnett
Opinion By Justice Burnett
        A jury found appellant, Bryan David Stiles, guilty of driving while intoxicated and assessed punishment at seventy hours' confinement, probated for one year, and a $100 fine. Appellant raises five points of error. We overrule all of appellant's points, and for the reasons discussed herein, affirm the judgment of the trial court.
        On May 10, 1987, Officer Kent Paluga of the Texas Department of Public Safety (DPS) was conducting routine patrol activities on U.S. Highway 75 in Collin County. Around 2:00 a.m., Officer Paluga's radar indicated that appellant's truck was travelling in excess of the speed limit. Officer Paluga began to follow appellant's truck and observed that it was driving erratically and that it failed to remain in a single marked lane. Officer Paluga also observed that the truck made an abrupt exit from the highway. After following the truck for several minutes, Officer Paluga then turned on his red lights to signal the truck to stop.
        After appellant's truck stopped, Officer Paluga conducted a field sobriety test on appellant. Officer Paluga testified that, after conducting the test, he concluded appellant was intoxicated. Officer Paluga then placed appellant under arrest and took him to the Collin County jail. At the jail, Officer Paluga took appellant into the intoxilyzer room and administered an intoxilyzer test. James Hughes, technical supervisor responsible for the maintenance of the intoxilyzer, testified that the results of appellant's intoxilyzer test showed that appellant had an alcohol concentration level of 0.10. The jury found appellant guilty of driving while intoxicated based upon the results of the intoxilyzer test.
        In his first point of error, appellant contends that the trial court erred in admitting into evidence the results of the intoxilyzer test because the proper predicate for the test had not been established. Specifically, appellant contends that he was not observed for the required length of time before he took the intoxilyzer test.
        Analysis of a person's breath for alcohol concentration is admissible as evidence of intoxication. Tex. Rev. Civ. Stat. Ann. art. 6701l-5 § 3(a) (Vernon Supp. 1989). For the procedure to be considered valid, however, an analysis of a person's breath must be performed according to the rules promulgated by the DPS. Id. § 3(b); Tex. Dep't. Pub. Safety, 37 Tex. Admin. Code §§ 19.1 - 19.6 (Breath Alcohol Testing Regulations) [hereinafter DPS Breath Regulations]. Section 19.3(c) of the DPS Breath Regulations provides:
 
            All breath alcohol testing techniques, in order to be approved, shall meet, but not be limited to, the following:
            (1) continuous observation of the subject for a minimum period of time as set by the scientific director prior to collection of the breath specimen, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, smoked, or introduced any substances into the mouth.
DPS Breath Regulations, 37 Tex. Admin. Code § 19.3(c)(1).
        There was testimony from Hughes that the scientific director established fifteen minutes as the minimum period of time of continuous observation. See McGinty v. State, 740 S.W.2d 475, 476 (Tex. App.--Houston [1st Dist.] 1987, pet. ref'd). Appellant contends that he was not observed for fifteen minutes prior to taking the intoxilyzer test. Appellant further contends that any observation of appellant was not "continuous."
        The record reveals that Officer Paluga testified as to his observation of appellant before administering the intoxilyzer test.
        [State]:        Are you certified as an operator of an intoxilyzer instrument by the Texas Department of Public Safety?
 
        [Officer Paluga]:        Yes, I am.
 
        [State]:        At approximately 1:50 or 2:00 o'clock in the morning, did you have an occasion to administer the test to the defendant?
 
        [Officer Paluga]:        Yes, sir, I did.
 
        [State]:        As part of this test sequence, did you continuously observe him for at least 15 minutes immediately preceding the administration of the test?
 
        [Officer Paluga]:        Yes, sir, I did.
 
        [State]:        All right. Why do you watch a suspect for 15 minutes before you administer an intoxilyzer test?
 
        [Officer Paluga]:        To make sure there's no residual alcohol in the subject's mouth.
 
* * *
        [State]:        And during this 15-minute observation period, did the defendant eat, drink or smoke anything prior to taking the test?
 
        [Officer Paluga]:        No, sir.
        This testimony was sufficient to establish that Officer Paluga continuously observed appellant for the requisite fifteen minutes as established by the scientific director and pursuant to DPS Breath Regulations section 19.3(c)(1). McGinty, 740 S.W.2d at 476. There has been no showing that there was a violation of DPS Breath Regulations section 19.3(c)(1). Therefore, we need not reach the question of whether an affirmative showing of compliance with the fifteen minute observation period is part of the predicate to admit the results of the intoxilyzer test. We overrule appellant's first point of error.
        In his second point appellant contends that the trial court erred in its response to a question submitted by the jury during its deliberations. The jury asked:
        Is it within the province of this jury to determine what constitutes compliance with the Texas Department of Public Safety's requirement of a continuous fifteen minute observation period prior to administering the breath test?
The trial court gave the following response:
        You are instructed that the jury is the sole determiner of what the facts are in this case. You must first decide from the admitted evidence what the facts show the evidence to be; and then, the jury must apply the law that it has received to those facts.
 
        Please refer to your previous instructions regarding the breath test and continue your deliberations.
        Appellant contends that the trial court's initial charge only instructed the jury to determine whether the analysis phase of appellant's breath test was performed according to approved methods. Appellant argues that because the question submitted by the jury was directed toward the fifteen minute observation and the specific topic of the fifteen minute observation was not included in the initial charge, the trial court's answer informing the jury to consider only the initial charge was, in effect, a negative answer to the jury's question.
        The charge to the jury informed them that an "[a]nalysis of a specimen of a person's breath, to be considered valid under the law of this state, must be performed according to the rules of the Texas Department of Public Safety . . . ." The charge later required the jury "to find beyond a reasonable doubt that the analysis . . . was performed according to the methods approved by the Texas Department of Public Safety . . . ."
        The trial court was not required to instruct the jury in the initial charge that the jury specifically consider the fifteen minute observation period. See Ray v. State, 749 S.W.2d 939, 944 (Tex. App.--San Antonio 1988, pet. ref'd). Furthermore, if the trial court's answer to the jury question had instructed the jury to consider the fifteen minute observation period, the answer would have been an improper comment on the weight of the evidence because it would have singled out a piece of the evidence for heightened scrutiny by the jury. See id.; Moore v. State, 700 S.W.2d 193, 206 (Tex. Crim. App. 1985), cert. denied, 474 U.S. 1113 (1986). We overrule appellant's second point of error.
        In his third point of error, appellant contends that the trial court erred in admitting the results of the intoxilyzer because there was insufficient proof regarding the proper use of the reference sample. Section 19.3(c)(4) of the DPS Breath Regulations states all breath alcohol testing techniques require:
 
            (4) the analysis of a reference sample, such as headspace gas from a mixture of water and a known weight of alcohol at a constant 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 analysis shall immediately precede or immediately follow the analysis of the breath of the subject as determined by the scientific director.
DPS Breath Regulations, 37 Tex. Admin. Code § 19.3(c)(4).
        A showing of the proper use of the reference sample must be made before the results of the intoxilyzer test are admissible. Harrell v. State, 725 S.W.2d 208, 210 (Tex. Crim. App. 1986). Hughes, the DPS technical supervisor, testified that he prepared in a five gallon container a reference sample solution calculated to have an alcohol concentration of 0.08. He tested the reference sample on an intoxilyzer machine and received a result of 0.08. An independent laboratory also tested the reference sample and found that it had an alcohol concentration of 0.08. Hughes dispersed the reference sample throughout his district in smaller containers, affixing to each container a sticker which stated that the predicted alcohol concentration of the reference sample was 0.08. Immediately following appellant's breath test on the intoxilyzer machine, Officer Paluga tested the reference sample on the intoxilyzer and received a result of 0.09.
        Appellant contends that certain improprieties in the testing of the reference sample invalidate appellant's intoxilyzer result of 0.10. First, appellant notes Hughes' testimony that the alcohol concentration of a reference sample should decrease slightly from its predicted value each time the reference sample is used to test an intoxilyzer. Hughes also testified that the reference sample had been in use at least six days when it was used following appellant's intoxilyzer test. Thus, appellant contends that the reference sample should have had an alcohol concentration level of 0.08 or lower. Hughes speculated that the increase in the alcohol concentration of the reference sample occurred because the reference sample was overheated. Appellant also contends that while the reference sample tested within the prescribed 0.01 of its predicted value, the actual variance between the reference sample and its predicted value could have been as great as 0.019 if the reference sample had an alcohol concentration of 0.099. Because the intoxilyzer gives its results in printouts which contain only two digits, not three, the intoxilyzer printouts will report a result of 0.099 as 0.09, not 0.10. For these reasons, appellant contends that the trial court erred in admitting the intoxilyzer results because it was not shown that the use of the reference sample was proper.
        While the possibility exists that the difference between the alcohol concentration of the reference sample and its predicted value could be as great as 0.019, the intoxilyzer printout contains the percentage of alcohol in only two digits, and in the case before us, the printouts showed a difference of 0.01. This difference of 0.01 is within the prescribed range as set by the DPS in section 19.3(c)(4) of the DPS Breath Regulations. Because there was a proper use of the reference sample, the trial court did not err in admitting the intoxilyzer results. We overrule appellant's third point of error.
        In his fourth point of error, appellant contends that the evidence is insufficient to prove appellant had an alcohol concentration of 0.10 at the time of the offense. Specifically, appellant argues that a breath test result obtained after an individual has been driving a motor vehicle is only circumstantial evidence of guilt and insufficient as a matter of law to sustain the conviction. Hughes testified that an intoxilyzer test only indicates a person's alcohol concentration at the time the test was administered and that the results do not necessarily indicate the alcohol concentration of the person at the time that the person was driving a motor vehicle. Hughes testified that as alcohol is consumed, the rate of a person's absorption of the alcohol in the bloodstream and the rate of elimination of the alcohol from the body determine the amount of alcohol concentration within the body at any particular time. He further testified that many different factors affect each rate.
        Appellant, relying on Hughes' testimony, contends that three possible correlations exist between appellant's intoxilyzer results and appellant's actual alcohol concentration at the time Officer Paluga stopped his truck: (1) his alcohol concentration was lower when he took the intoxilyzer test than at the time he was stopped; (2) his alcohol concentration was the same when he took the intoxilyzer test than at the time he was stopped; and (3) his alcohol concentration was higher when he took the intoxilyzer test than at the time he was stopped. Thus, appellant contends that because the possibility that his alcohol concentration at the time he was stopped was less than 0.10 was equal to the possibility that his actual alcohol concentration was 0.10 or higher, the State has failed to prove beyond a reasonable doubt that appellant had at least a 0.10 alcohol concentration at the time he drove his truck.
        Appellant also relies heavily on McCafferty v. State, 748 S.W.2d 489 (Tex. App.--Houston [1st Dist.] 1988, no pet.) for support of his contention. In McCafferty, the defendant took a breath test more than two hours after the time she had driven a motor vehicle. The State failed to show that the defendant had not consumed alcohol from the time she stopped driving to the time of the test. Id. at 491. The court held that the evidence was insufficient to show that the defendant was intoxicated while driving. Id. at 492.
        Thus, in considering the sufficiency of the evidence, we must review the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Marroquin v. State, 746 S.W.2d 747, 750 (Tex. Crim. App. 1988). There was testimony from Officer Paluga that he stopped appellant while appellant was driving his truck. Officer Paluga's testimony indicated that he administered the intoxilyzer test on appellant within thirty minutes of the time appellant had been driving and that appellant did not consume any alcohol from the time he was stopped until the time his breath was tested. Also, Hughes testified that the results of appellant's intoxilyzer test showed an alcohol concentration level of 0.10. Viewing this evidence in its most favorable light, we find that a rational jury could have determined beyond a reasonable doubt that appellant had a 0.10 alcohol concentration in his body at the time of the offense. We overrule appellant's fourth point of error.
        In his fifth point of error, appellant contends that the trial court erred in admitting Officer Paluga's written case summary. During State's direct examination of Officer Paluga, State attempted to introduce into evidence Officer Paluga's written case summary. Appellant's counsel objected and the trial court sustained the objection. Later, on cross-examination, appellant's counsel interrogated Officer Paluga concerning items in the case summary.
        During State's redirect examination of Officer Paluga, State attempted to again introduce into evidence the case summary. The trial court allowed all of the case summary except a part concerning the results of the intoxilyzer report. The trial court "masked" the parts involving the intoxilyzer results, and called the report "State's Exhibit 6." The trial court at the same time identified the complete "unmasked" case summary as "State's Exhibit 6-A."
        Later, during State's redirect of James Hughes, State again attempted to offer the case summary in its entirety.
 
    [STATE]:        All right, Your Honor, at this time, we're going to reintroduce the videotape in its entirety and also the police arrest report in its entirety. Upon any objections by [Appellant's counsel].
 
    [APPELLANT'S COUNSEL]:        Fine with me.
 
    [COURT]:        All right. State's Exhibit 6-A (Officer Paluga's complete written case summary) is admitted. And the entire audio of State's Exhibit 4 is admitted. Therefore rendering State's Exhibit 4 admitted in its entirety. You may continue.
 
        Appellant's counsel failed to object to the introduction of the written case summary. It is well-settled that an error in the admission of evidence is cured when the same evidence comes in elsewhere without objection. Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). Thus, we need not discuss the admissibility of Officer Paluga's written case summary. We overrule appellant's fifth point of error.
        The trial court's judgment is affirmed.
 
 
 
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
881293F.U05
 
 
File Date[12-18-89]
File Name[881293F]