Robert Edwin Kercho v. State ( 2007 )

Affirmed on Remand and Memorandum Opinion filed May 31, 2007

Affirmed on Remand and Memorandum Opinion filed May 31, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-01176-CR

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ROBERT EDWIN KERCHO, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 5

Harris County, Texas

Trial Court Cause No. 1057265

M E M O R A N D U M    O P I N I O N

Appellant Robert Edwin Kercho challenges his conviction for driving while intoxicated.  In three issues, Kercho argues the trial court improperly denied his two motions to suppress.  The State responds that Kercho failed to preserve error, or alternatively, the trial court=s rulings are correct.  Although we agree that Kercho preserved his arguments for appellate review, we affirm.  Kercho=s motion to suppress was based on the premise that the State lacked probable cause for his warrantless arrest because the prosecutor presented no evidence that appellant failed field sobriety tests and did not link appellant=s unsafe driving to his intoxication. Because the trial court could properly have found that the arresting officer reached his conclusions based on other first-hand observations of common signs of intoxication, we hold the arrest was supported by probable cause.  With regard to Kercho=s supplemental motion to suppress evidence relating to his breath test, we further hold the trial court=s implied findings of fact are supported by the evidence.        

I.  Factual and Procedural History

Robert Edwin Kercho was arrested for driving while intoxicated on May 1, 2001. Houston police officers John Miller and Craig Bellamy observed Kercho driving fifty-one m.p.h. in a thirty-five m.p.h. zone and weaving out of his lane without signaling.  Bellamy stopped Kercho and noticed a strong odor of alcoholic beverage on Kercho=s breath.  According to Bellamy, Kercho=s eyes were red and his movements were slowed.  Bellamy administered field sobriety tests, including the horizontal gaze nystagmus (AHGN@) test.  He concluded that Kercho had lost the normal use of his mental and physical faculties and was not able to drive safely.  Bellamy arrested Kercho, and Officer Ray Cibulski transported him to the police station.  After Cibulski read Kercho statutory warnings, Kercho agreed to take a breath test.  Using the Intoxilyzer 5000, Cibulski administered breath tests.  Each test indicated that Kercho had a blood alcohol level well in excess of legal limits.

As relevant to this appeal, Kercho filed a motion to suppress on the grounds that evidence was acquired without his consent during his warrantless arrest.  This motion was supported by Kercho=s affidavit attesting that he was arrested without a warrant.  Kercho also filed a supplemental motion to suppress his breath test results on the grounds that (a) the State=s expert witness could not reliably extrapolate from the results to determine his blood-alcohol concentration at the time he was driving, and (b) the test was not performed in accordance with governing regulations.  At a combined evidentiary hearing on both motions, the State offered to stipulate that Kercho=s arrest was warrantless.  Although Kercho rejected the stipulation, it was accepted by the trial court.  After the hearing, the trial court denied Kercho=s motion to suppress and stated that it refused to rule on the supplemental motion to suppress.  Kercho entered a negotiated plea of guilty, and the trial court imposed a 180-day suspended sentence, one year of community supervision, a fine of $300.00, and court costs of $265.25.  Kercho=s appeal ensued.^[1]

II.  Issues

In his first issue, Kercho argues that the trial court erred in denying his first motion to suppress evidence because the State failed to demonstrate that police had probable cause for his arrest.  In his second issue, Kercho contends that the trial court erred in denying his supplemental motion to suppress because the State failed to demonstrate sufficient evidence upon which its expert could base a scientifically reliable opinion concerning retrograde extrapolation. Finally, Kercho argues in his third issue that the trial court erred in denying his supplemental motion to suppress because the State failed to establish that Kercho=s breath test was conducted in accordance with governing regulations.

III.  Standard of Review

The trial court is the sole finder of fact at a suppression hearing, and is therefore responsible for evaluating witness testimony and credibility.  Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005) (en banc).  Accordingly, we therefore afford great deference to a trial court=s determination of historical facts. Id.  When no written findings are stated or requested, we must uphold the ruling on any applicable theory of law that is supported by the evidence when viewed in the light most favorable to the trial court=s ruling.  State v. Kelly, 204 S.W.3d 808, 818B19 (Tex. Crim. App. 2006); State v. Ross, 32 S.W.3d 853, 855B56 (Tex. Crim. App. 2000) (en banc). We review the trial court=s legal ruling de novo unless the implied fact findings supported by the record are also dispositive of the legal ruling.  Kelly, 204 S.W.3d at 818B19. 

IV.  Analysis

A.      Motion to Suppress

The trial court=s ruling on Kercho=s initial motion to suppress is premised on the court=s conclusion that Kercho=s arrest was based on probable cause.  Probable cause for a warrantless arrest is determined by reviewing the Atotality of the circumstances.@  Torres, 182 S.W.3d at 902.  Specifically, A[p]robable cause for a warrantless arrest requires that the officer have a reasonable belief that, based on facts and circumstances within the officer=s personal knowledge, or of which the officer has reasonably trustworthy information, an offense has been committed . . . .@  Id. (citations omitted).

1.       Preservation of Error

With regard to the trial court=s denial of Kercho=s original motion to suppress, the State contends that Kercho failed to preserve error, if any, because he produced no evidence that his arrest was warrantless.  In addition, the State argues that Kercho invited error by refusing to accept the State=s stipulation that the arrest was warrantless. 

These arguments overlook relevant facts.  Kercho never disputed that his arrest was warrantless, and he offered both a judicial admission and a sworn affidavit attesting to his warrantless arrest.  In both his motion to suppress and his supporting affidavit, Kercho insisted that he was arrested without a warrant.  Although Kercho=s defense counsel refused the State=s offered stipulation, no stipulation was required to establish this uncontested fact.^[2] We conclude the trial court properly found that the arrest was warrantless and shifted the burden of proof to the State to prove the arrest was made with probable cause.  See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) (A[T]he suppression hearing began with the State stipulating that this case involved a warrantless arrest . . . . [which] shifted the burden of proof to the State . . . .@); see also Richards v. State, 150 S.W.3d 762, 767 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d) (en banc) (holding that a defendant may rely on circumstantial evidence to show an arrest was warrantless). 

The State=s argument that Kercho invited error by rejecting the proposed stipulation is also without merit.  Under the doctrine of invited error, a party may not complain on appeal about Athose actions of the trial court actually sought by the party in that tribunal.@  Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (en banc).  Here, Kercho neither requested nor accepted the State=s stipulation concerning the warrantless arrest.  Thus, Kercho cannot be said to have invited error.  Moreover, as previously discussed, the trial court=s conclusion was not erroneous.  We therefore reject the State=s arguments that Kercho failed to preserve error, if any, in the trial court=s denial of his motion to suppress.

2.       Evidence of Probable Cause

Kercho argues that his arrest was unlawful because Officer Bellamy offered no more than his subjective conclusion that Kercho had lost the normal use of his mental and physical faculties.  Kercho correctly points out that Bellamy did not testify that Kercho failed the field sobriety tests, or that the reason Kercho was unable to drive safely was due to intoxication. Thus, he argues, the testimony presented at the hearing on his motions to suppress was insufficient to establish probable cause for his arrest, and all evidence arising from his arrest is inadmissible.

a.       Absence of Testimony Regarding the Results of Field Sobriety Tests

In support of his argument that the State=s failure to present evidence of the results of his field sobriety tests requires reversal, Kercho first relies on Torres, 182 S.W.3d at 902B03.  In Torres, the arresting officer arrived to investigate a single-vehicle accident after two sheriff=s deputies were already at the scene.  Id. at 901.  The deputies told the arresting officer that they believed the driver, who had driven his car 150 feet off the road and into a porch,  was intoxicated.  Id.  The officer asked the driver how the accident occurred, and the driver answered that he was unfamiliar with the road and made a wrong turn.  Id.   Based only on this information, the officer arrested the driver.  Id.  The court held, AThis one question and answer is insufficient to show probable cause to believe that appellant was intoxicated.@  Id. at 903.  In reaching this conclusion, the court emphasized that the arresting officer Alacked any personal knowledge about the accident or the circumstances surrounding it.@  Id. Moreover, the officer did not testify that he administered any field sobriety tests, detected the odor of alcoholic beverages on the driver=s breath, or observed common signs of intoxication.  See id.  He performed no independent investigation and had no personal knowledge of the facts.  Id. Nevertheless, he arrested the driver based solely on the deputies= opinions. 

The present case is readily distinguished from Torres. Here, the arresting officer had personal knowledge of the facts and circumstances surrounding the traffic violation that led to Kercho=s arrest.  Bellamy personally observed Kercho weaving and driving fifty-one m.p.h. in a thirty-five m.p.h. zone.  Bellamy also testified that he observed common signs of intoxication and performed field sobriety tests.  Therefore, his decision to arrest Kercho was not based on a second-hand opinion, but on his own first-hand observations and investigation.

Kercho correctly points out that Bellamy was not questioned regarding the results of the field sobriety tests, and thus, there is no evidence in the record that Kercho failed the tests.  To support his argument that this omission is fatal to the State=s case, Kercho relies on State v. Hopper, 842 S.W.2d 817, 821 (Tex. App.CEl Paso 1992, no pet.).

In Hopper, the testifying officer stated that he detained a driver after he witnessed the driver traveling at an unspecified excessive speed.  Id. at 818.  The officer began field sobriety testing, but then asked a second officer to perform the tests.  Id. at 818B19.  The second officer conducted or completed the unspecified sobriety tests, and arrested the driver for driving while intoxicated.  Id. at 819.  Although the officer who initially detained the driver testified at the hearing on the motion to suppress, the published opinion does not indicate that the second officer, who actually performed the sobriety tests and arrested the driver, testified.  The court held, AOther than the implied conclusion that [the driver] failed the tests, there is nothing specific in the record which provides any basis upon which the trial court could reasonably determine that the officers had probable cause to effect the arrest . . . .@  Id. at 821.  As in Torres, the testifying officer in Hopper relied on the opinion of another officer, and presented no evidence Aas to the specific facts and circumstances which warranted the officers to prudently believe that [the driver] was intoxicated . . . .@  Id.

Hopper is distinguishable from the present case for the same reasons that Torres is distinguishable: here, the testifying officer did not rely on the opinion of another officer  based on facts unknown to the witness.  To the contrary, Bellamy formed his conclusions based on his personal observations and investigation.  Whereas the testifying officers in  Hopper and Torres had personal knowledge only of traffic violations, Bellamy=s observations included common signs of intoxication.

Thus, the issue presented might be rephrased as: AHas the State established that an officer has probable cause for a warrantless arrest on the charge of driving while intoxicated when the arresting officer testifies only that he (a) observed the driver weaving and driving fifty-one m.p.h. in a thirty-five m.p.h. zone, (b) noticed the driver=s red eyes, (c) observed the driver=s slowed movements, (d) noticed the strong odor of alcoholic beverage on the driver=s breath, (e) characterized these behaviors as common signs of intoxication, (f) performed field sobriety tests, and (g) concluded that the driver had decreased mental and physical capacity and was unable to drive safely?@  Reviewing the totality of the circumstances under the applicable standard of review, we conclude the evidence rises above the level of A[a]n unarticulated >hunch,= a suspicion, or the good faith of the arresting officer . . . .@  Torres, 182 S.W.3d at 902 (citing McDougald v. State, 547 S.W.2d 40, 42 (Tex. Crim. App. 1977)).

Although Kercho correctly points out that Bellamy did not describe the administration or results of the horizontal gaze nystagmus test given to assess Kercho=s sobriety, Bellamy did testify that he observed several other common signs of intoxication.  A trained and experienced police officer=s opinion that a driver is intoxicated is a Areasonable belief@ sufficient to establish probable cause for arrest when based on his personal observation of such specific, articulable signs of intoxication.  See, e.g., Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985) (en banc) (collecting cases and stating that evidence of intoxication may include slurred speech, bloodshot eyes, the odor of alcohol on the person, unsteady balance, staggered gait, or the odor of alcohol on the breath); Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (holding that the experienced arresting officer=s opinion that a driver was intoxicated was sufficient to establish intoxication when the opinion was based on his observation that the vehicle swerved and the driver appeared disorderly, had red eyes and a swaying gait, his breath smelled of alcohol, and Ahis speech was >mush-mouthed.=@).

b.       Absence of Testimony Regarding Causation

Kercho next argues that the State was required to show the arresting officer related specific, objective, articulable facts that would warrant a person of reasonable caution in the belief that, more likely than not, Kercho had lost the normal use of his mental or physical faculties as the result of intoxication.  He contends that the evidence presented at the hearing is insufficient because Bellamy did not testify that Kercho=s impairment was caused by intoxication.  In the absence of testimony regarding causation, Kercho contends the State failed to establish probable cause for his arrest. We disagree.

Probable cause for a warrantless arrest is determined by reviewing the Atotality of the circumstances.@  Torres, 182 S.W.3d at 902.  It Arequires an evaluation of probabilities, and probabilities >are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.=@  Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)). When reviewing a trial court=s ruling that depends on probable cause, Aa >divide-and-conquer= or piecemeal approach is prohibited.@  Id. at 25 (quoting United States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002)).  Moreover, in reviewing the trial court=s ruling, we afford almost total deference to a trial court=s express or implied determination of historical facts.  Id.

We conclude the trial court found that Kercho=s intoxication was the reason for his inability to drive safely.  We further hold that this implied finding of fact is supported by the inferences reasonably drawn from the evidence, including Bellamy=s testimony that Kercho demonstrated several signs of intoxication and was not able to drive safely.  As the sole finder of fact in determining whether there was probable cause to support Kercho=s arrest, the trial court was free to use its Acommon sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence.@  See Wawrykow v. State, 866 S.W.2d 96, 99 (Tex. App.CBeaumont 1993, no pet.).  As demonstrated by the wealth of authority affirming convictions for driving while intoxicated based on lay opinion testimony that the driver was intoxicated, it is common knowledge that intoxication can be the cause of impaired driving.  See, e.g., McCown v. State, 192 S.W.3d 158, 164B65 (Tex. App.CFort Worth 2006, pet. ref=d).

          We overrule Kercho=s first issue.

B.      Supplemental Motion to Suppress

1.       Preservation of Error

Before reaching the merits of Kercho=s issues regarding his supplemental motion to suppress, we must first address the State=s argument that Kercho failed to preserve error, if any, arising from the trial court=s ruling or failure to rule on this motion.  Specifically, the State points to the trial court=s refusal to rule on the motion, and argues that Kercho failed to preserve error because he did not object to the trial court=s refusal to rule.  See Tex. R. App. P. 33.1(a)(2)(B).  In contrast, Kercho argues that the trial court implicitly denied the motion, and thus, no objection was required.  See Tex. R. App. P. 33.1(a)(2)(A). 

Our review of the record of the combined hearing on the two motions to suppress reveals that the trial court initially denied Kercho=s supplemental motion:

Court: Well, I=m ruling with the State basically on this one, Mr. Palmie.^[3] I thought [I] made that clear.  I=m not going to go into those issues, I think those go into the weight and not admissibility.  If you feel I=m wrong, of course, you can appeal meC

Defense:      I would like to do that, Judge.

. . .

Court: But anyway, I=m not going into all the issues about extrapolation, about the test and so on.  The State can present that testimony at trial and if the jury finds it convincing, they can, you know, give whatever weight they feel.

When the trial court later stated that it had not ruled, Kercho=s defense counsel pressed the court for a ruling:

Defense:      [B]asically, do I understand, Your Honor, that you=re denying my Supplemental Motion to Suppress at this time?

Court: No, I think we should hear from the officers and hear what=s going on.

Defense:      I=m sorry, maybe the Court hasn=t had a chance to look at the supplemental motion?

Court: I have, I glanced through it.

Defense:      Then you know that the Supplemental Motion to Suppress deals exclusively with the breath test and the breath test results?

Court: Mr. Palmie, let=s get started on something.  Let=s hear from the witnesses from the State.

Defense:      Well, I=m pressing the Court for a ruling on that.

Court: I know.  I know that, Mr. Palmie.

Defense:      Do I understandC

Court: I know when I=m being pressed.  And I=m smiling when I=m saying that.

Defense:      I appreciate that, Your Honor.  I=ll [sic] smiling when I say it.

Court: Okay.  All right.

Defense:      Do I understand, Your Honor, that in this motion to suppressCand my understanding from dealing with you previously is that you carry no motions to suppress with the trial?

Court: Correct.

Defense:      SoC

Court: Unless they ariseCwe didn=t anticipate them, some emergency; that=s right.

Defense:      And in anticipation of a motion to suppress suppressing [sic] the breath test, I have filed a Supplemental Motion to Suppress which deals exclusively with the breath test results.  So my question to you is, Your Honor, if you=re prepared to deal with that right now perhaps you could give me just a minute to talk to the State?  We may obviate the need for any further hearing because if you=re not going to let us address that, I think we=d like to take that up.         

. . .

Defense:      Where we are, Your Honor, is that if you=re going to preclude me from getting into theCyou=re not going to rule on the admissibility of the breath test results, if you=re going to overrule the supplemental motion, then we will plead this right now.

Court: I=m not overruling anything, Mr. Palmie.  I keep telling you that.  I haven=t heard any testimony, I haven=t heard anything.  You don=t seem to want to get into that, I haven=t ruled on anything.

Defense:      Do I understandC

Court: I=m just telling you that when the officers come up we are not going to get into the test and so on, we are going to focus on the issue of reasonable suspicion and the defendant=s statements, if any, on the way to the station.

. . .

Defense:      If you deny my Supplemental Motion to SuppressC

Court: Uh-huh.

Defense:      Cthen I=ll plea and I would like to take that up [on appeal].  If you are not going to rule on that and you=re going to require evidence from the officers before you ruleCand I assume when the officers conclude their testimony you would rule on all motions; is that right?

Court: Correct.

Defense:      Okay.  Then I will sit and listen to the State go through reasonable suspicion for the stop and probable cause for the arrest; but I will tell you, as I=ve told the State, that the thrust of my [supplemental] motion and the reason I specifically enumerated the areas into which I was going and gave them to you and to the State is that I am focusing on breath test results.

[Evidentiary Hearing conducted on both motions]

Court: Okay.  All right.  Based on the evidence and the arguments cited by counsel, Mr. Palmie, I=m going to deny your Motion to Suppress.  And I=m not going to rule on your Supplemental Motion to Suppress, I feel those are questions for the jury and not for the court.  Those go to the weight and not admissibility, it=s [for] the jury to decide those issues.  They=re not issues for the Court.        

Defense:      Judge, if they=re not issues for the Court, then you=re denying the Supplemental Motion; is that right?

Court: I=ve ruled, Mr. Palmie.  If you want to appeal me, go ahead.

State:           Thank you, Your Honor.

Court: Okay.

Defense:      Judge, are you carrying the Supplemental Motion to Suppress that deals with the admissibility of the breath tests results with the trial?

Court: No.

Defense:      How are you disposing with [sic] the Supplemental Motion to Suppress?

Court: I=ve already stated that, Mr. Palmie.

[End of Hearing]

On appeal, Kercho contends the trial court implicitly overruled his supplemental motion, and thus, no further objection was required.  The State responds that this court would not be justified in implying a ruling in contravention of the trial court=s explicit refusal to rule.  See State v. Cullen, 195 S.W.3d 696, 698 (Tex. Crim. App. 2006) (A[C]ourts of appeals should not be forced to make assumptions (or outright guesses) about a trial court=s ruling on a motion to suppress evidence.@); compare Tex. R. App. P. 33.1(a)(2)(A) (providing in pertinent part that, to preserve error for review, the party must Aeither expressly or implicitly@ obtain a ruling on the motion) with Tex. R. App. P. 33.1(a)(2)(B) (requiring that, if the trial court refuses to rule, a party must object to the refusal in order to preserve error). 

On this record, we conclude the trial court overruled Kercho=s supplemental motion to suppress.  First, it is clear that the trial court disposed of the motion in some fashion.  The trial court stated that the supplemental motion would not be carried with the trial, and when asked how the court disposed of the motion, the trial court replied, AI=ve already stated that . . . .@  But the trial court=s only statement that appears to dispose of the motion is its initial statement, AI=m ruling with the State basically on this one . . . .@  The trial court also explained its reasons for this ruling: AI feel those are questions for the jury and not for the court.  Those go to the weight and not admissibility, it=s [for] the jury to decide those issues.@  Although the trial court stated that these were its reasons for refusing to rule, the trial court earlier gave these as the same reasons for overruling the motion.

Moreover, even if we agreed with the State that the trial court did not rule on the motion, Kercho=s response to any such refusal was adequate to preserve error.  As the Court of Criminal Appeals has explained, 

[t]he standards of procedural default . . . are not to be implemented by splitting hairs in the appellate courts.  As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.  Of course, when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost.  But otherwise, they should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known.

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (en banc).  Although Kercho=s attorney did not use the word Aobject,@ it is evident from the record that he complained to the trial court about its purported refusal to rule.  It is equally evident that all parties timely understood the nature of Kercho=s complaint.  This was acknowledged by the prosecutor, who stated, ACan I just say for the record, a part of [defense counsel=s] complaint was that [the trial court] wouldn=t address the motion.@ 

Based on the transcript of the hearing, we reject the State=s arguments that Kercho failed to preserve his challenges to the error, if any, in the trial court=s ruling on the supplemental motion to suppress.  

2.       Sufficiency of Evidence as a Basis for Scientifically Reliable Opinion

On appeal, Kercho contends the trial court erred in denying his supplemental motion to suppress the breath test results because the State failed to offer sufficient evidence on which its expert could base a scientifically reliable opinion concerning retrograde extrapolation.  ARetrograde extrapolation is the computation back in time of the blood-alcohol levelCthat is, the estimation of the level at the time of driving based on a test result from some later time.@  Mata v. State, 46 S.W.3d 902, 908B09 (Tex. Crim. App. 2001) (en banc).  Kercho argues that his breath test results should be suppressed because the technician responsible for this particular machine lacked sufficient information to extrapolate from Kercho=s test results and determine his blood-alcohol level at a time that he was driving.  In the trial court, Kercho similarly argued that in the absence of such retrograde expolation evidence, the breath test results were inadmissible under Texas Rule of Evidence 702 and Mata. 

But Kercho moved to suppress his breath test results, not retrograde extrapolation evidence or expert opinion testimony regarding his likely blood-alcohol level at any time before his breath was actually tested. Thus, Mata does not support his argument because it concerns only the admissibility of expert testimony and does not address the admissibility of breath test results.  See Mata, 46 S.W.3d at 910 (stating that the Court did not Aaddress whether test results showing a defendant=s [blood-alcohol concentration] at some time after the alleged offense are admissible at trial in the absence of retrograde extrapolation@); see also State v. Mechler, 153 S.W.3d 435, 438 (Tex. Crim. App. 2005) (confirming that Mata addresses the admissibility of expert testimony rather than breath test results). 

Moreover, retrograde extrapolation evidence is not a prerequisite to the admission of breath test results.  Stewart v. State, 129 S.W.3d 93, 97 (Tex. Crim. App. 2004) (en banc); Garcia v. State, 112 S.W.3d 839, 849B50 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  Thus, even if we agreed with Kercho that the State=s expert would have insufficient information at trial on which to base an expert opinion regarding Kercho=s likely blood-alcohol level at the time he was last seen drivingCan issue not properly before usCsuch agreement would still afford no basis for excluding the breath test results.  We therefore overrule Kercho=s second issue.^[4]

3.       Compliance with Texas Breath Alcohol Testing Regulations

In his third issue, Kercho contends the trial court erred in denying his supplemental motion to suppress because his breath test was not conducted in accordance with governing regulations.  See Reynolds v. State, 204 S.W.3d 386, 391 (Tex. Crim. App. 2006) (holding that, to rule on the admissibility of the test results, the trial court need only determine whether the technique was properly applied on the occasion in question).

On appeal, Kercho argues that his breath test was not conducted in accordance with a regulation in effect at that time, which required:

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).^[5] According to Kercho, the reference sample analyzed by the Intoxilyzer used to perform his breath test was not maintained at a known constant temperature.

But this argument is contradicted by the record.  Technical Supervisor Debra Stephens testified that the Intoxilyzer used to perform the test was operating correctly that day and that it maintains a reference sample solution at a constant temperature of thirty-four degrees Centigrade, plus or minus two-tenths of a degree.  Kercho argues that Stephens conceded it was Aopen to interpretation@ whether the reference sample was maintained at a constant temperature.  In fact, Stephens testified as follows:

Defense:      And are you telling the Court that the reference sample used in this case was maintained at a constant temperature?  AConstant@ by definition means no fluctuation or variance.

Stephens:     I think that=s open to interpretation.

Defense:      Okay.  Can you tell the Court whether the reference sample was being maintained at a constant temperature at the time this test was given?

Stephens:     Yes, it was at a constant temperature.

Defense:      Tell me then why you felt it necessary to talk about a variance earlier of plus or minus 0.02? [sic]

Stephens:     Because 0.02 [sic] is allowed in the regulations and, therefore, it is considered to be a constant temperature by the scientific director who wrote those regulations.

(emphasis added).  Stephens=s testimony clarified that, under the regulations, the definition of Aconstant temperature@ does not necessarily require a complete absence of fluctuation, but includes a variance of 0.02 degrees.  Stephens then corrected her testimony, and stated that the temperature may vary by two-tenths of a degree.^[6] In addition, the officer who performed the test testified that the machine would fail to operate if the reference sample was not maintained at its required temperature.  Thus, the trial court=s implied finding that the reference sample was maintained at a known temperature is supported by the record.

We overrule Kercho=s third issue.

V.  Conclusion

Having overruled each of Kercho=s three issues, we affirm the judgment of the trial court.

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed May 31, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  Kercho=s original appeal was dismissed on the ground that he had signed a standardized form containing a waiver of the right to appeal.  Kercho v. State, No. 14-01-01176-CR, 2002 WL 15932 (Tex. App.CHouston [14th Dist.] Jan. 3, 2002) (per curiam) (mem. op., not designated for publication).  After the decision was issued, the Court of Criminal Appeals decided Alzarka v. State, 90 S.W.3d 321 (Tex. Crim. App. 2002) (en banc), reversing the dismissal of an appeal on similar facts.  As a result, the original Kercho opinion was vacated and the case remanded for reconsideration in light of Alzarka.  Kercho v. State, No. 0656-02, 2002 WL 32069150 (Tex. Crim. App. Jan. 29, 2002) (per curiam) (not designated for publication).

^[2]  Kercho=s trial counsel was therefore mistaken when he represented to the trial court that A[t]here is no evidence before the Court that this is a warrantless arrest . . . . There is no testimony in front of the Court at this time that it is a warrantless arrest.@

^[3]  Kercho was represented at trial by attorney Ross Palmie.

^[4]  Although Kercho=s attorney called and examined a witness regarding retrograde extrapolation, the parties do not contend that the suppression of such evidence was tried by consent.  Moreover, the trial court repeatedly cautioned Kercho=s attorney that his examination was Awandering all over the map@ but stated that it was faster to allow the questioning than to permit argument regarding the scope of the hearing.

^[5]  Amended, 31 Tex. Reg. 2189.

^[6]  See also Gamez v. State, No. 04-02-00087-CR, 2003 WL 145554, at *3 (Tex. App.CSan Antonio Jan. 22, 2003, no pet.) (mem. op., not designated for publication) (affirming the admission of breath test results and summarizing similar testimony that the Intoxilyzer uses a reference sample maintained at thirty-four degrees Centigrade plus or minus two-tenths of a degree).