State v. Muller , 1990 Tex. App. LEXIS 2158 ( 1990 )

ON MOTION FOR REHEARING

SAM BASS, Justice.

On motion for rehearing, we grant the motion, withdraw our previous opinion, and substitute the following in its place. The State appeals from an order striking a paragraph in an information. We reverse the judgment of the trial court declaring the statute and regulations unconstitutional; we order the information reinstated; and we remand the cause to the trial court.

By information, the State charged Robert Muller with operating a motor vehicle in a public place while intoxicated. Muller filed a motion to strike the paragraph of the information that alleged a .10 alcohol concentration and to suppress all intoxilyzer evidence. Muller contested the constitutionality of Tex.Rev.Civ.Stat.Ann. art. 6701/-5, § 3(a) and (b) (Vernon Supp.1990) (the statute) and the Texas Department of Public Safety’s (DPS) Breath Alcohol Testing Regulations (the regulations).

Muller signed a stipulation of evidence in which he acknowledged: He was arrested on suspicion of driving while intoxicated; he was given the intoxilyzer test; and the police administered the test according to the regulations.

The trial court granted Muller’s motion, struck the paragraph, and held that the regulations and the statute were unconstitutional.

Muller claims the State did not give proper notice of appeal because an assistant prosecutor signed the notice, contending that we have no jurisdiction of the State’s appeal.

The State’s notice of appeal, filed within the proper period, stated:

Now comes the State of Texas, by and through its District Attorney, John B. Holmes, Jr., pursuant to Tex.Code Crim. Proc. art. 44.01(a)(1) and (a)(5) ...

John B. Holmes Jr. by [undecipherable]. The State acknowledges that the signature on the original notice of appeal was that of the first assistant to the district attorney, because Holmes was out of town when the notice was to be filed.

After oral argument, the State filed a motion to file an amended notice of appeal, which we granted. The State filed an amended notice of appeal, signed by John B. Holmes. Muller contends that the amendment did not cure the jurisdictional error. Once the State filed a notice of appeal without the signature of the prosecuting attorney and the time to file a notice of appeal expired, Muller argues it was too late to file an amended notice.

We find nothing in the Code of Criminal Procedure or the Rules of Appellate Procedure that require the prosecuting attorney to put his own signature on the notice of appeal. Article 44.01 of the Texas Code of Criminal Procedure controls appeals by the State. Subsections (d) and (i) provide:

The prosecuting attorney may not make an appeal under subsection (a) or (b) of this article later than the 15th day after the date on which the order, ruling, or sentence to be appealed is entered by the court.

In this article, “prosecuting attorney” means the county attorney, district attorney, or criminal district attorney who has the primary responsibility of prosecuting cases in the court hearing the case and does not include an assistant prosecuting attorney.

Tex.Code Crim.P.Ann. art. 44.01(d), (i) (Vernon Supp.1990) (emphasis added). Nothing in article 44.01 requires the prosecuting attorney to sign the State’s notice of appeal.

Rule 40(b) of the Texas Rules of Appellate Procedure governs the perfection of an appeal in criminal cases. Rule 40(b) requires a party to file a written notice of appeal. Nothing in rule 40(b) states that the notice of appeal must be signed. Rule 4 of the Texas Rules of Appellate Procedure states that each document filed shall be signed by at least one attorney. A party who is not represented by an attorney must sign his own documents. The combined effect of rules 4 and 40(b), is that an attorney or a party must file the notice of appeal.

The notice of appeal was made in name of the prosecuting attorney, John Holmes. His name was signed for him by an assistant district attorney at the bottom of the notice. The only problem with the notice of appeal is that John Holmes did not personally sign it. Article 44.01, however, does not require that the prosecuting attorney personally sign the notice of appeal.

We recognize that our sister court has held that a defendant’s oral notice of appeal made in open court, reduced to writing by the clerk but not signed by defendant or his counsel, was not a notice of appeal in writing. Corbett v. State, 745 S.W.2d 933, 934 (Tex.App.—Houston [14th Dist.] 1988, pet. ref’d). The distinction between Cor-bett and the case before us, is that in Corbett no one signed the notice, while in this case, the State’s notice of appeal was signed.

The courts have held it is permissible to use a stamp to produce a facsimile of an original signature. See Paulus v. State, 633 S.W.2d 827, 849 (Tex.Crim.App.1981) (op. on reh’g); Stigers v. State, 702 S.W.2d 301, 302 (Tex.App.—Houston [1st Dist.] 1985, no pet.) (indictments containing stamp with facsimile signature of grand jury foreman were valid). If a stamp facsimile of an original signature is acceptable, we believe the facsimile signature by an authorized representative is acceptable.

This Court has held that when a notice of appeal does not strictly follow the requirements of a notice, if the notice puts the interested party on notice that appellant intends to appeal, the interested party is not misled or harmed. Campbell v. State, 747 S.W.2d 65, 67 (Tex.App.—Houston [1st Dist.] 1988, no pet.) (substantial compliance with Tex.R.App.P. 40(b)(1)); cf Berger v. State, 780 S.W.2d 321, 323 (Tex.App.—Austin 1989, no pet.).

The State’s appeal is governed by the Texas Rules of Appellate Procedure. Tex.R.App.P. 1; see State v. Demaret, 764 S.W.2d 857 (Tex.App.—Austin 1989, no pet.). Rule 83 of the Texas Rules of Appellate Procedure prohibits us from dismissing an appeal for defects or irregularities, in form or substance, without permitting the party a reasonable time to correct or amend the defects; therefore, when the State filed an amended notice of appeal, it cured any defect in the original notice.

We find it improbable that the legislature intended that the State may only appeal if, but only if, the district attorney personally signs the notice of appeal. There are many occasions when the district attorney may be compelled to be “out of state,” or “at other places,” and is not physically present to sign the notice of appeal. It is, therefore, logical that some other “prosecuting attorney” would be authorized to sign the name of the district attorney, or that an amendment of that notice of appeal could be filed with the court to “show” the district attorney’s intent and consent, as occurred in this cause.

We find that the notice of appeal was proper as amended and we assume jurisdiction.

In point of error three, the State argues that the trial court erred in declaring the statute and regulations unconstitutional.

Muller challenged two subsections in article 67011-5, § (3), that govern the use of intoxilyzer evidence. The challenged sections provide in part:

(a) [In a DWI case], evidence of the alcohol concentration ... as shown by analysis of a specimen of the person’s breath ... or any bodily substances taken at the request or order of a peace officer, shall be admissible.

(b) Analysis of a specimen of the person’s breath, to be considered valid ... must be performed according to rules of [DPS] and by an individual possessing a valid certificate issued by [DPS] for this purpose. [DPS] is authorized to establish rules approving satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analysis, and to issue certificates certifying such fact. These certificates shall be subject to termination or revocation, for cause, at the discretion of [DPS].

(Emphasis added).

In his motion, Muller argued that the statute and regulations were unconstitutional because:

I. [they] violate Article II § 1 of the Texas Constitution in that they breach the Separation of Powers Doctrine;

II. [they] violate due process/due course of law because they fail to give reasonable notice as to their terms, are vague, and allow unbridled discretion by the scientific director;

III. [they] violate due process/due course of law as they fail to ensure either the accuracy or reliability of an In-toxilyzer evidence (the result) on human defendants;

IV. [they] violate due process/due course of law by failing to require multiple breath tests immediately at and/or after the time of driving in that the present Regulations only provide for a single, post driving, Intoxilyzer result, which is insufficient evidence, as a matter of law, to sustain a conviction under article 67011-l(a)(2)(B), Tex.Rev.Civ.St. Ann., because said singular post driving test creates automatic confusion and inherently misleads a fact finder, e.g., R. 403, Tex.R.Cr.Evid.; and,

V. [they] violate due proeess/due course of law under both the federal and state constitutional as they do not require preservation of the Defendant’s breath specimen.

The trial judge declared the statute and regulations unconstitutional.

In reviewing the constitutionality of a statute, we presume the statute is valid, and that the legislature was not unreasonable or arbitrary when it enacted it. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.). The party who attacks the validity of a statute carries the burden of proving that the act is unconstitutional. Id. If a statute is susceptible to more than one construction, we will interpret it to secure the benefit intended by the legislature, and find it constitutional. Alobaidi v. State, 433 S.W.2d 440, 442 (Tex.Crim.App.1968). The Court of Criminal Appeals has stated:

Every reasonable intendment and presumption will be made in favor of the constitutionality and validity of a statute, until the contrary is clearly shown. The legislature is presumed to have regarded constitutional limitations or requirements in enacting laws, as assiduously as the courts do in construing and applying them. And before a legislative act will be set aside, it must clearly appear that its validity cannot be supported by any reasonable intendment or allowable presumption.

Granviel, 561 S.W.2d at 511. The burden on appeal is Muller’s. He must convince us that the statute and the regulations are unconstitutional.

The first ground on which the trial court declared the statute and regulations unconstitutional is that they violate the separation of powers doctrine under article II, section 1 of the Texas Constitution. Muller contends article 67011-5, § 3(a) and (b) is a legislative grant of power from the judicial branch to the executive branch (the DPS), to establish, change, or alter the rules of evidence.

Muller assumes that the courts promulgate the rules of evidence as part of the power of the judicial branch. That is not the case. The legislature granted the judiciary the power to adopt formal rules of criminal evidence. Until the legislature passed Tex.Rev.Civ.Stat.Ann. art. 1811f, § 9 (Vernon Supp.1990), the judiciary had no authority to promulgate rules of evidence. See Wellborn, Article I of the Texas Rules of Evidence and Articles I and XI of the Texas Rules of Criminal Evidence; Applicability of the Rules, Procedural Matters and Preserving Error, 18 StMary’s L.J. 1165, 1169-70 (1987). The power to adopt or amend rules of evidence belongs to the legislature.

Muller concedes that the Court of Criminal Appeals has upheld the right of the legislature to delegate rule-making authority to DPS. See Langford v. State, 532 S.W.2d 91, 95 (Tex.Crim.App.1976). The legislature has the power to delegate the authority to an administrative agency to issue rules designed to carry out the mandate of the statute. Id. at 94. The only authority that the legislature delegated to the DPS in article 6701Z-5, was to prescribe the rules for certification of breath testing equipment and individuals operating the equipment. The legislature did not delegate any authority to DPS, nor has DPS assumed any, to promulgate rules of evidence.

The trial court erred in holding the statute and regulations were unconstitutional under this ground.

The second ground on which the trial court declared the statute and regulations unconstitutional was that they violate due process because they do not give reasonable notice about their terms, they are vague, and they give the scientific director unbridled discretion. Muller argues that the statute is unconstitutionally vague because it does not define “analysis,” it does not provide adequate notice of what “techniques or methods” will be used in the analysis, and it permits the use of unbridled discretion by the scientific director.

To satisfy the due process requirement of specificity, a criminal statute must give the citizens adequate notice of the behavior the State prohibits. Reeves v. State, 566 S.W.2d 630, 632 (Tex.Crim.App. [Panel Op.] 1978). The constitution does not impose impossible standards; all it requires is that a criminal statute convey sufficient warning about the proscribed conduct when measured by common understanding and practices. Id.

Muller was charged with the offense stated under Tex.Rev.Civ.Stat.Ann. art. 6701Z-l(b) (Vernon Supp.1990). This statute prohibits driving while intoxicated. Ex parte Ross, 522 S.W.2d 214, 217 (Tex.Crim.App.1975), cert. denied, 423 U.S. 1018, 96 S.Ct. 454, 46 L.Ed.2d 390 (1975); see also Schultz v. State, 725 S.W.2d 411, 413 (Tex.App.—Houston [1st Dist.] 1987), aff'd, 771 S.W.2d 549 (Tex.Crim.App.1989). The Court of Criminal Appeals has held that terms such as “drunk,” “intoxicated,” or “under the influence of intoxicating liquors,” are nontechnical terms which can be understood in their ordinary sense. Galan v. State, 164 Tex.Crim. 521, 301 S.W.2d 141, 143 (1957); Randolph v. State, 145 Tex.Crim. 526, 169 S.W.2d 178, 180 (1943). Muller had sufficient notice of what conduct is prohibited.

Muller is challenging the constitutionality of article 6701/—5, the statute that delegates authority to DPS to issue rules governing the procedures in breath analysis. He argues that the statute and regulations do not provide adequate notice of the certification requirements for breath testing equipment or for the operators of that equipment.

Article 67011-5, unlike penal statutes, does not define an offense. As such, it was not necessary for the legislature to draft it so that it includes fair notice of proscribed behavior, as penal statutes require. See Langford, 532 S.W.2d at 94. Instead, the statute’s purpose is to prescribe appropriate methods to determine intoxication. Id.

Muller asserts that the statute and regulations give unbridled discretion upon the scientific director of the DPS. The only authority the statute delegates to the DPS is to prescribe the appropriate rules for breath analysis, certification of the equipment, and those operating it. Epperson v. State, 578 S.W.2d 398, 399 (Tex.Crim.App. [Panel Op.] 1979); Tex.Rev.Civ. Stat.Ann. art. 6701/-5, § 3(b). In Ex parte Granviel, the Court of Criminal Appeals held that it was not an unconstitutional delegation of authority to the director of the Texas Department of Corrections to prescribe the appropriate chemical to be used when giving lethal injections. 561 S.W.2d at 513. The court rejected the argument that the delegation of authority was unconstitutional just because the director could choose an arbitrary means of enforcement. Id. The courts will not presume that the scientific director of the DPS will act in an arbitrary manner without evidence. Id.

The trial court erred in holding the statute and regulations were unconstitutional under this ground.

The third ground, that the trial court relied on to make a ruling on the constitutionality issue, was that the statute and regulations violate due process because they .do not insure that the intoxilizer is scientifically appropriate (i.e. accurate and reliable) for breath testing.

The Texas Administrative Code provides: (b) In order to be certified each brand and/or model of breath testing instrument must meet the following criteria.

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(4) The specificity of the procedure shall be adequate and appropriate for the analyses of breath specimens for the determination of alcohol concentration in traffic law enforcement.

(5) Any other tests deemed necessary by the scientific director to correctly and adequately evaluate the instrument to give correct results in routine breath alcohol testing and be practical and reliable for traffic law enforcement purposes.

Tex.Dep’t of Public Safety, 37 Tex.Admin. Code § 19.1(b)(4) & (5) (West 1989) (Breath Testing) (emphasis added). Because the regulations provide that the methods to be used must insure that the test is accurate and appropriate for analyzing human breath, the statute and regulations do not violate due process of law.

The trial court erred in holding the statute and regulations were unconstitutional under this ground.

The fourth ground stated in the trial court’s ruling was that the statute and regulations violate due process because they do not require multiple breath tests immediately at or after the time of driving. The court said that one post-driving test result that indicated intoxication, without more, was not sufficient evidence of intoxication as a matter of law. The court also stated that a single post-driving test misleads the fact finder.

In support of this proposition, Muller’s motion cited several factors which can affect the reliability of the test: delay; faulty machinery; higher alcohol concentration at the time of the test than while driving; and differing metabolisms resulting in skewed readings.

The proper standard in determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989); Barron v. State, 773 S.W.2d 44, 46 (Tex.App.—Houston [1st Dist.] 1989, pet. ref’d).

The trial court seemed to base its ruling on the sufficiency of the evidence. Yet, neither trial nor appellate courts can rule on the sufficiency of the evidence until all facts have been presented at trial. See Dean v. State, 749 S.W.2d 80, 82 (Tex.Crim.App.1988). During the trial on the merits, Muller will have ample opportunity to challenge the factual basis for admission of intoxilyzer evidence. His challenges will go to the weight and sufficiency of the evidence. Slagle v. State, 570 S.W.2d 916, 919 (Tex.Crim.App. [Panel Op.] 1978). The time to raise these issues is at trial. The trial court erred in holding the statute and regulations were unconstitutional under this ground.

In the fifth ground for declaring the statute and regulations unconstitutional, the trial court held that they violated due process because they do not require the preservation of Muller’s breath specimen. The Court of Criminal Appeals has held that failing to preserve breath samples does not violate the state or federal constitutions. Turpin v. State, 606 S.W.2d 907, 917-18 (Tex.Crim.App.1980). The trial court erred in declaring article 6701Z-5, § 3(a) and (b) unconstitutional.

In point of error one, the State asserts that the trial court erred in dismissing the second paragraph of the information. The State argues that the trial court erred in dismissing part of the information. The State argues that nothing in the Texas Code of Criminal Procedure permits a judge to dismiss all or part of an information simply because the statute is unconstitutional.

If a statute is unconstitutional, the trial court has the authority to dismiss a paragraph in the information that alleges an offense under that statute. The Texas Code of Criminal Procedure provides: There is no exception to the substance of an indictment or information except:

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3. That it contains matter which is a legal defense or bar to the prosecution ....

Tex.Code Crim.P.Ann. § 27.08 (Vernon 1989). If a court finds that a statute is unconstitutional, such a finding would obviously bar prosecution under that statute.

Here, the paragraph the court struck from the indictment was not based on the statute that the trial court found unconstitutional. The trial court struck the paragraph in reliance on its ruling that article 6701Z-5, § 3(a) and (b) was unconstitutional. Muller, however, was charged with an offense under article 6701Z-l(b). To state an offense under article 6701Z — 1(b), it was not necessary that article 6701Z-5, § 3(a) and (b) be constitutional. The State may prove intoxication not only by showing that the accused had an alcohol concentration of 0.10 or more, but also, by showing that the accused did not have the normal use of his physical or mental faculties by reason of the introduction of alcohol into the body. Tex.Rev.Civ.Stat.Ann. art. 6701Z-l(a)(2)(A) & (B).

As we said before, Muller did not challenge, and the trial court did not rule, on the constitutionality of article 6701Z-l(b).

In point of error two, the State asserts the trial court erred in granting the motion to suppress the evidence of the intoxilizer test because neither the statute nor the regulations are unconstitutional. The State argues that, even if it had drafted the information without a paragraph defining intoxication in terms of alcohol concentration, the State could still use the intoxilyzer results as evidence. The State maintains that because the other paragraph in the information alleged that defendant was “impaired” by alcohol and/or diazepam, any evidence would be probative of guilt.

Muller contends the trial judge could have sustained the motion to suppress on other grounds than the constitutionality of the statute. Muller urges us to uphold the trial court’s ruling suppressing the evidence on any other theory except the unconstitutionality of the statute.

In Muller’s motion to suppress, the only ground Muller urged was the constitutionality of the statute and regulations. After the trial court ruled the statute and regulations unconstitutional, Muller asked the court to suppress the evidence. The trial court seemed reluctant, but finally gave in, stating:

I don’t want it to get up there [to the court of appeals] and they say I have the right to suppress and not even rule on the constitutional issue, so I am not going to rule on that. Well, maybe I have to for you to be able to appeal. All right. I will suppress the intoxilyzer result. I assume the allegation paragraph can be proven. However, because of the methods in this situation that I happen to know as the result of the intoxilyzer use, I will suppress the results of the intoxi-lyzer, which is the same thing.

We agree that the trial court suppressed the evidence solely on constitutional grounds. Muller, however, argues that the trial court also based its decision to suppress the evidence on statutory grounds.

After the trial court made its ruling, defense counsel asked the court whether it was granting Muller’s motion as to all the bases stated in the motion. The court responded that it was. In Muller’s motion, he says in the prayer:

Said dismissal and suppression is also requested under article 38.23, Tex.C.Cr. Pro.

We must, therefore, address the issue of whether the evidence could also be suppressed under Tex.Code CRIM.P.Ann. art. 38.23 (Vernon Supp.1990). Article 38.23 states that no evidence shall be admitted if it was obtained in violation of Texas laws.

Muller argues the test record slip is invalid because it did not state the date the test was given, in violation of the DPS regulations. Muller argues that suppression was proper under article 38.23. The record prevents this Court from accepting Muller’s proposal. The stipulation of evidence, signed by Muller states:

I agree that the test was performed according to the regulations for breath testing as promulgated by the Department of Public Safety (D.P.S.) and the test was also done according to the rules as set out in the D.P.S. breath test program operator manual which is to be attached as Exhibit # 2.

Muller stipulated to evidence introduced at the suppression hearing. The evidence included: (1) the State’s intoxilyzer test record slip on Muller; (2) the DPS breath testing regulations; and (3) the stipulation of evidence, signed by both Muller and defense counsel.

After Muller stipulated that the intoxi-lyzer test was “done according to the [DPS regulations and rules],” we cannot say that the evidence was suppressed because it was obtained in violation of Texas laws and regulations. The trial court had this stipulation before it when it ruled on suppression of the evidence. We find, therefore, that the trial court erred if it suppressed the evidence pursuant to article 38.23.

In point of error four, the State argues that the trial court should have awarded reasonable attorney’s fees to the State.

At both the hearing on Muller’s motion and in the State’s brief, the State alleges that it is entitled to reasonable attorney’s fees under Tex.Civ.PraC. & Rem. Code Ann. § 37.009 (Vernon 1986). This article allows attorney’s fees only in declaratory judgment cases. This is not a declaratory judgment case. It is a criminal case, ruling on the constitutionality of a statute. The trial court did not commit error when it refused to allow attorney’s fees based on the above civil statute.

We reverse; order the information reinstated; and remand for trial.

O’CONNOR, J., dissenting and concurring.