JOHN WILLIAM AMEND, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed March 5, 2010.
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01656-CR
............................
JOHN WILLIAM AMEND, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Criminal Court No. 2
Dallas County, Texas
Trial Court Cause No. MB05-50745-M
.............................................................
OPINION
Before Justices Moseley, Bridges, and Murphy
Opinion By Justice Moseley
        John William Amend was convicted by a jury of driving while intoxicated. The trial court assessed punishment at 150 days in jail, probated for fifteen months, and a $800 fine. Amend appeals, arguing in two points of error that the trial court erred by overruling his oral motion to suppress the breath alcohol test results (made outside the jury's presence) and his trial objection to their admission.
        The breath alcohol tests were conducted in accordance with the regulations in existence when the tests were administered. However, several months later but before trial, an oral directive from the Department of Public Safety changed some of the procedures for conducting the tests. The change at issue relates to the requirement that the defendant must be continuously monitored for a fifteen-minute period before a breath alcohol test is administered. Prior to the change, the time period could include time that the defendant was in the officer's presence in the squad car; thereafter, the observation period could not commence before the officer and the defendant arrived in the intoxilizer room. It is undisputed that the tests were not conducted in conformance with the subsequent, new procedures.
        Amend argues that the trial court erred by denying his motion to suppress the test results because they (1) were conducted in violation of article 38.23 of the code of criminal procedure, see Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005); and (2) violated Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
        We conclude the oral directive as described in the record did not apply to the tests, and the DPS regulations enacted pursuant to legislative authority preserve the procedures and regulations in effect at the time a test was conducted. Thus, we reject Amend's article 38.23 argument. We also conclude that appellant's Daubert issue was not preserved for review. Thus, we affirm the trial court's judgment.
APPLICABLE LAW
        In a DWI trial, evidence of alcohol concentration as shown by analysis of a specimen of the person's breath taken at the request or order of a peace officer is admissible. Tex. Transp. Code Ann. § 724.064 (Vernon 1999). A breath specimen taken at the request or order of a peace officer must be taken and analyzed under the rules of the DPS by an individual possessing a certificate from the DPS certifying the individual is qualified to perform the analysis. Tex. Transp. Code Ann. § 724.016(a). The DPS is granted specific rule-making authority to adopt rules approving satisfactory analytical methods. Id. § 724.016(b)(1). “In the context of breath test results, the Legislature has already determined that the underlying science is valid, and that the technique applying it is valid as long as it is administered by individuals certified by, and using methods approved by the rules of, DPS.” Reynolds v.State, 204 S.W.3d 386, 390 (Tex. Crim. App. 2006).
        Regulations adopted by the DPS under its legislative authority require all breath alcohol testing techniques, methods, and programs to be approved by the scientific director. 37 Tex. Admin. Code § 19.4(a) (2009) (Tex. Dept. Pub. Safety, Approval of Techniques, Methods And Programs). To be approved, breath alcohol testing techniques must meet, but are not limited to, certain specified requirements. See id. at § 19.4(c). One of those requirements is that the operator of the breath test “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.” Id. at § 19.4(c)(1). However, “[d]irect observation is not necessary to ensure the validity or accuracy of the test result.” Id. This regulation was in effect at the time of Amend's test with one minor difference. See 23 Tex. Reg. 7842, 7843 (1998) (formerly codified at 37 Tex. Admin. Code § 19.3(c)(1)) (stating direct observation is “no longer” necessary), repealed 31 Tex. Reg. 2189 (2006) (current version at 37 Tex. Admin. Code § 19.4(c)(1)).
BACKGROUND
        Amend was stopped for speeding at 11:00 p.m. on February 9, 2005 by Dallas police officer Anthony Foster. Foster is an experienced officer with specialized training in DWI investigations and conducting field sobriety tests. He is also a certified intoxilyzer operator. Foster smelled alcohol and asked if Amend had been drinking. Amend said he had attended a wine tasting that evening and consumed a few glasses of wine. Foster had Amend perform a series of field sobriety tests, but Amend refused to take a portable breath alcohol test. After conducting his investigation, Foster arrested Amend for driving while intoxicated and read him the statutory warnings required before an officer requests a specimen. See Tex. Transp. Code Ann. § 724.015 (Vernon Supp. 2009). At that point, Amend agreed to submit to a breath alcohol test. Foster then drove Amend to the county jail and administered two breath alcohol tests. The tests were done at 12:12 a.m. Foster testified he was in the presence of Amend continuously for at least fifteen minutes before administering the tests. Part of that time included time driving in the patrol vehicle. Foster testified that Amend was handcuffed and had no way of putting anything in his mouth.
        After Foster's testimony, and outside the presence of the jury, technical supervisor Alvin Finkley testified that at a conference for technical supervisors in October 2005, the DPS scientific director told them that after October 31, 2005, the fifteen minute pre-test period had to be conducted outside the police vehicle if the officer transporting the suspect was also the test administrator. If this procedure was not followed after October 31, 2005, Finkley would not certify the test results because of a procedural violation. Finkley described this policy as a verbal directive from the DPS, and said there was no written document evidencing the new requirement. Finkley also testified there was no regulation prohibiting certification of a test that occurred before the new policy directive.
        Amend objected to the admission of the test results, arguing that if the tests had been conducted in the same manner after October 2005, Finkley would not have certified the results and it would be unfair not to apply the policy retroactively. The State responded that it would be unfair to require an officer to comply with testing procedures that did not even exist at the time he administered the test; the officer complied with the regulations in effect at the time the test was conducted and could not have known that the procedures would change several months later.
        The trial court denied the motion to suppress and overruled Amend's renewed objection when the test results were offered in evidence before the jury. The trial court later granted Amend's request for an instruction to the jury to disregard the evidence if they believed or had a reasonable doubt that the evidence was obtained in violation of the law. See Tex. Code Crim. Proc. Ann. art. 38.23(a).
ANALYSIS
        Amend argues that the trial court erred in denying his motion to suppress the test results because they (1) were conducted in violation of article 38.23 and (2) violated Daubert.
        We review a trial court's ruling on a motion to suppress evidence under the well-known bifurcated standard explained in Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). See also Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997).
A.
 
Amend's Article 38.23 Issue
 
        Amend's article 38.23 argument is based entirely on Finkley's testimony about the oral policy directive issued in October 2005. The oral directive is not contained in the administrative rules adopted by the DPS pursuant to its legislative authority. See 37 Tex. Admin. Code § 19.4(c). According to Finkley's testimony, the directive did not apply to tests, such as Amend's, conducted before October 31, 2005. Thus, assuming without deciding that the oral directive could qualify as a rule of the DPS in addition to the requirements of section 19.4(c), the terms of the directive as described by Finkley did not apply to Amend's test.
        Further, the DPS regulations expressly state that revisions to the regulations “apply only to breath tests that are done after the date of this revision.” 37 Tex. Admin. Code § 19.8 (2009); 23 Tex. Reg. 7842, 7847 (1998) (formerly codified at 37 Tex. Admin. Code § 19.7(r)), repealed 31 Tex. Reg. 2189 (2006) (current version at 37 Tex. Admin. Code § 19.8). Under this section, the previous regulations are preserved and “nothing herein should be construed as limiting or canceling the effect of old regulations on tests done under these previous regulations.” 37 Tex. Admin. Code § 19.8. Thus, any change in the administrative regulations after the date of Amend's breath test did not apply to that test. Id.         Foster's testimony that he remained in the presence of Amend for at least fifteen minutes before the test and that Amend was handcuffed and could not put anything in his mouth was sufficient to allow the trial court to conclude the testing technique complied with the regulations in effect at the time of the test and at the time of trial. We conclude the trial court did not err in denying Amend's motion to suppress based on article 38.23. See Reynolds, 204 S.W.3d at 390. We overrule Amend's first point of error.
B.
 
Amend's Daubert Issue
 
        Amend's second point of error contends the test result was unreliable under the Daubert standard because Foster did not follow the oral directive issued several months after the breath test was performed. Rule 33.1(a) requires the record show “a timely, specific objection and a ruling by the trial court” to preserve a complaint for appellate review. Tex. R. App. P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Amend's motion to suppress did not raise the issue of the reliability of the test result under the Daubert standard. Because his complaint on appeal does not comport with his objection below, we conclude Amend failed to preserve this issue for our review. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (point of error on appeal must comport with objection made at trial); Taylor v. State, 55 S.W.3d 584, 585 (Tex. Crim. App. 2001) (because appellant's trial objection did not comport with issue raised on appeal, he did not preserve error). We overrule Amend's second point of error.
        We affirm the trial court's judgment.
 
        
 
 
 
 
 
 
 
 
 
        
 
 
 
 
 
JIM MOSELEY
 
 
 
        
 
 
 
 
 
JUSTICE
 
 
 
Do Not Publish
Tex. R. App. P. 47.2(b)
081656F.U05