HOLMES v. The State of Tex.

• Decision Date: 24 February 2010
• Docket Number: No. PD-0453-07 to PD-0460-07.,PD-0453-07 to PD-0460-07.
• Citation: 323 S.W.3d 163
• Parties: Terry M. HOLMES, David Woodall, Gabriel J. Williams, Gabriel Contreras, Jr., April Harlow, Alfonso R. Rodriguez, Michael Brice, & Walter Widener, Jr. v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

323 S.W.3d 163

Terry M. HOLMES, David Woodall, Gabriel J. Williams, Gabriel Contreras, Jr., April Harlow, Alfonso R. Rodriguez, Michael Brice, & Walter Widener, Jr. v. The STATE of Texas.

Nos. PD-0453-07 to PD-0460-07.

Court of Criminal Appeals of Texas.

April 29, 2009.

Opinion on Rehearing Feb. 24, 2010.

Vernard Solomon, Marshall, for Appellant.

Al Davis, Asst. Crim. Dist. Atty., Marshall, Jeffrey L. Van Horn, State's Attorney, Austin, for State.

WOMACK, J., delivered the opinion of the Court, in which MEYERS, PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

The appellant David Woodall was charged with driving while intoxicated. ¹ The County Court at Law found him guilty. The Court of Appeals reversed the conviction and remanded the case. ²

Relying on its decision in Woodall's case, the Court of Appeals reversed the judgments of conviction in seven other driving-while-intoxicated cases from the same trial court and remanded them for further proceedings. ³ We consolidated the eightcases and granted the State's petitions for discretionary review.

In the case of David Woodall, we shall reverse the Court of Appeals' judgment and affirm the judgment of the trial court. In the other seven cases we shall affirm the judgments of the Court of Appeals.

The distinction between Woodall's case and the others is the preservation of error for appeal.

Woodall's Case

Just before the jury trial of Woodall's case began, the State, relying on a ruling recently made by the same trial court in a case that is not before us, ⁴ made an oral request that the trial court take judicial notice of the underlying science of the Intoxilyzer 5000 (a machine which tests samples of breath for alcohol content). Defense counsel objected, arguing:

My cross-examination of an expert from the State of Texas in regard to the Intoxilyzer 5000 goes to testing the techniques and the principles and the application by the machine of the recognized breath testing science. And to deny me the right to go into question [ sic ] the techniques and the application done by the machine prevents the Defendant from presenting a defense. And it prevents us the right of due process of law because what the Court is doing with that kind of a ruling is creating something that the legislature has refused to do for the past 25 years and that is create a per se guilt issue on intoxication based upon breath testing.

In ruling on the motion in favor of the State, the trial court said:

Well, I think admissibility is the ultimate test of reliability. And I have read cases in which it appears to me that the Courts have upheld and found that reliability of the techniques used by the Intoxilyzer 5000. The test for admissibility has long been a very simple test, which appears to me, among-also along with reading those other cases, that the Courts have long upheld the reliability of this particular machine.Now, absent some expert testimony that would indicate some problems with the machine-and we have tried many, many, many cases involving the Intoxilyzer 5000 and I have never heard not one shred of evidence from an expert witness that would indicate any problem with the machine-I'm going to grant your application just like I did in the other case.

Defense counsel sought clarification:

[DEFENSE COUNSEL]: Judge, so I know for sure, what you are ordering me is not to question the expert in regard to the principles of the Intoxilyzer and how it applies the rules of science in regard to attempting to apply the science of breath testing. In essence, I always have a question about the lack of the-or the ability of the machine to correlate the temperature. I have a-[TRIAL COURT]: What temperature?[DEFENSE COUNSEL]: The temperature of the breath sample.[TRIAL COURT]: All right.

[DEFENSE COUNSEL]: You are saying that I can't go into that?

[TRIAL COURT]: That's right.[DEFENSE COUNSEL]: I always question as to the way the tube is heated, the way the breath is heated and there being no correlation to that. I can't go into that?[TRIAL COURT]: That's correct.[DEFENSE COUNSEL]: I've always contested the temperature in the simulator and the law, Henry's Law, as it applies to the simulator. I can't go into that?[TRIAL COURT]: Only if there is some indication that there is something wrong-if the test before and after the admissibility test show there is something wrong with the machine. But you are right.[DEFENSE COUNSEL]: Okay.[TRIAL COURT]: If the evidence is that they tested it before the test in question and tested it after the test in question and it was working both times and the evidence is that it was working that day, you are correct.[DEFENSE COUNSEL]: So if they present an expert, in his opinion, that says that the machine has valid operation to apply to principles of breath testing, I cannot question that expert in the principles and application of the breath testing science. Is that what the Court is saying?[TRIAL COURT]: That is correct.

Defense counsel again objected to the court's ruling, and his objection again was overruled. Defense counsel then asked for a running objection and stated that he needed to perfect a bill. The judge suggested he do so by making a statement into the record of what he would prove. Defense counsel replied that he would be glad to do it later.

But he never did.

In the trial before the jury, the State introduced evidence of the arresting officer's testimony that he pulled Woodall's vehicle over after seeing it weave and swerve, that he smelled alcohol on Woodall's breath, and that Woodall had red and watery eyes. The officer also testified that he conducted various field-sobriety tests at the scene and again at the jail, and that Woodall performed poorly in those tests. The State then played videotapes of the sobriety tests for the jury. Finally, the officer described the procedure involved in operating the Intoxilyzer 5000 and stated that Woodall had submitted to a breath test. But when the State offered a copy of the report which contained the results of the tests, the trial court sustained Woodall's objection that the State had failed to lay a proper predicate. The officer never testified to the results, and the trial court never admitted them into evidence.

After the arresting officer's testimony and a recess for lunch, the defense counsel said, “I would like to also-and I'll keep it short-make a proffer in regards to what questions I would have asked if permitted to do so.”

The Court said, “We've been talking about a potential resolution of the case.” A trial without a jury began.

The defense counsel moved “for permission to cross-examine any expert called on behalf of the State of Texas concerning the reliability of the Intoxilyzer 5000. And more in particular into the techniques and application of the techniques and principles of breath testing applied by the Intoxilyzer 5000.”

The Court overruled and denied the motion.

The appellant Woodall withdrew his plea of not guilty and pleaded no contest pursuantto a plea agreement. After the trial court found him guilty, the appellant Woodall appealed the denial of his oral motion for cross-examination.

The Other Cases

Each of the other seven appellants' cases came to court after Woodall's trial. Each appellant was charged with driving while intoxicated. Before trial, each appellant filed a motion to cross-examine the State's expert on the operation of the Intoxilyzer 5000. Included in each motion was a list of eight “areas of concern about the internal workings of the Intoxilyzer 5000:

“1. The simulator, which the state presents as proof that the machine is working properly on the date in question, is based on Henry's Law. It requires that the simulator is maintained at a constant temperature, in a closed container, and at a constant pressure. It simulates a person which is offered to give a sample of their breath [ sic ]. The human body is not a closed container which prevents a constant pressure and the temperature of the breath is unknown to the machine.“2. The partition ratio between the gas above the fluid and the substance in the fluid is incorrect as it relates to the partition ratio assumed by the machine to be the that [ sic ] of the subject.“3. The machine heats certain parts that are used to produce a result including the collection chamber to between 115 deg. To [ sic ] 145 deg. which effects [ sic ] the breath sample by producing a false high.“4. The temperature of the human breath is unknown to the machine and has no way [ sic ] of measuring the same in order to give an accurate result. If the temperature of the breath is above 34 deg. The [ sic ] results will be a false high.“5. A rise of three (3) deg. C will increase the results by a false high of .02. A body temperature of 37 deg. C is 98.6 deg. F. which is normal body temperature.“6. The Intoxilyzer is not specific to Ethel [ sic ] alcohol and that others substances [ sic ] will indicate a false high in the results.“7. The Intoxilyzer has a slop or tolerance or error factor of .02.“8. That if the temperature of the simulator is unknown to the operator he would not be able to predict the simulator results.”

The trial court denied each motion.

Each appellant entered a no-contest plea without a trial, and no evidence was heard in the seven cases. The trial court found each of the seven appellants guilty.

The Appeals

On appeal, Woodall and the seven other appellants argued that the trial court erred in denying their motions to cross-examine the State's breath-test expert about the operation of the Intoxilyzer 5000. ⁵ The Court of Appeals held that the appellants had preserved the error for review, that complete denial of the right to cross-examine was error, that the right to present a defense is a fundamental element of due process of law, and that a violation of that right amounts to constitutional error. ⁶ The Court also concluded that it could not determine beyond a reasonable doubt that...