Opinion issued September 29, 2015

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-14-00575-CR

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VIBHA HARISH PATEL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 13

Harris County, Texas

Trial Court Case No. 1909929

MEMORANDUM OPINION

Appellant, Vibha Harish Patel, was charged by information and found guilty 

by a jury of driving while intoxicated. The trial court sentenced her to five days’ 

confinement in the Harris County Jail. In her sole issue on appeal, Patel contends 
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that the trial court erred by admitting the results of a breath-alcohol test obtained in 

violation of the Texas Administrative Code. Finding no error, we affirm.

Background

At trial, Officer J. Sampson of the Tomball Police Department (“TPD”),

testified that at approximately 4:00 a.m. on July 27, 2013, he responded to a 

distress call from a car stranded in a ditch in Harris County. Sampson testified that 

when he arrived at the scene, Patel showed signs of intoxication, including “a 

strong odor of an alcoholic beverage,” “red, bloodshot glassy eyes,” and “slurred 

speech.” Sampson therefore administered field sobriety tests. He testified that 

Patel’s performance on them indicated that she was intoxicated.

Corporal B. Patin of the TPD testified that he arrived at the scene and 

administered an additional field sobriety test. Patin transported Patel to the TPD 

station after her performance on the test indicated that she was intoxicated. 

Patin testified that, according to the time stamp of his patrol car’s video 

camera, he and Patel left the scene at 4:29 a.m. Patin then described his best 

“estimates” of how long it took him to perform several other tasks that night. Patin

estimated that he spent “[p]robably less than ten minutes” driving Patel to the TPD 

station, around five minutes securing his guns, and “[close] to 20 [minutes]” 

waiting for Officer Sampson to arrive. Patin testified that about another five 
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minutes elapsed while Sampson read Patel her statutory rights and Patin used the 

restroom. 

But Patin testified clearly that he observed Patel for 15 minutes before the 

breath test was administered. Specifically, Patin remembered using “the stopwatch 

on [his] watch” to perform the “15 minute observation period” required by theneffective Texas Administrative Code section 19.4(c)(1).1

 37 TEX. ADMIN. CODE

§ 19.4(c)(1) (2014) (Tex. Dep’t of Pub. Safety, Approval of Techniques, Methods, 

and Programs), repealed by 40 Tex. Reg. 129, 255 (2015).

Outside the presence of the jury, Patel moved to suppress the breath test 

results. According to the Intoxilyzer time stamp, the breath test was administered 

at 4:57 a.m. Patel argued that the results should be suppressed because the 15-

minute observation period required by the Texas Administrative Code could not 

have been observed given the evidence that Patin left the scene at 4:29 a.m. and 

spent 40 minutes performing various tasks before the test was administered at 4:57 

a.m. 

 1 While Patel’s appeal was pending, the Department of Public Safety reorganized 

and revised the Breath Alcohol Testing Regulations. See 40 Tex. Reg. 129, 250–

55 (2015). The 15-minute observation period is now governed by section 19.3 of 

the Texas Administrative Code. See 37 TEX. ADMIN. CODE § 19.3 (2015) (Dep’t 

of Pub. Safety, Techniques and Methods), adopted by 40 Tex. Reg. 129, 252

(2015). For purposes of this opinion, our analysis is confined to the former section 

19.4 which governed the procedures to be followed at the time Patel was arrested. 
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After a hearing, the trial court denied the motion and admitted the breath test 

results, which showed that Patel had a blood-alcohol concentration level of 0.179. 

The jury found Patel guilty.

Discussion

In her sole issue, Patel contends that the trial court abused its discretion in 

admitting her breath test results because the evidence shows that the breath test 

operator failed to perform the 15-minute observation period required by the 

Department of Public Safety and then-effective section 19.4(c)(1) of the Texas 

Administrative Code.

A. Standard of Review

When reviewing a trial court’s ruling on a motion to suppress evidence, we 

apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 

(Tex. Crim. App. 2000); Wiley v. State, 388 S.W.3d 807, 815 (Tex. App.—

Houston [1st Dist.] 2012, pet. ref’d). We conduct a de novo review of the trial 

court’s application of the law to historical facts. Carmouche, 10 S.W.3d at 327. 

But we give almost total deference to the trial court’s determination of those facts 

that depend on the credibility of the evidence. Id.

Unless a trial court abuses its discretion by making a finding unsupported by 

the record or rendering a decision “outside the zone of reasonable disagreement,”

we defer to its findings and will not disturb them on appeal. Flores v. State, 177 
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S.W.3d 8, 14 (Tex. App—Houston [1st Dist.] 2015, pet ref’d); Higginbotham v. 

State, 416 S.W.3d 921, 924 (Tex. App—Houston [1st Dist.] 2013, no pet.). If the 

trial court does not enter findings of fact, we must “view the evidence in the light 

most favorable to the trial court’s ruling” and “assume that the trial court made 

implicit findings of fact that support its ruling as long as those findings are 

supported by the record.” Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 

2007).

B. Applicable Law

“A breath specimen taken at the request or order of a peace officer must be 

taken and analyzed under the rules of the [D]epartment [of Public Safety] . . . .” 

TEX. TRANSP. CODE ANN. § 724.016 (West 2011). The rules for breath-alcoholtesting procedures are set forth in the Texas Administrative Code. See 37 TEX.

ADMIN. CODE ch. 19 (2015). A presumption of admissibility applies when the

procedures prescribed by the Department of Public Safety are followed. See 

Reynolds v. State, 204 S.W.3d 386, 390 (Tex. Crim. App. 2006); Stevenson v. 

State, 895 S.W.2d 694, 696 (Tex. Crim. App. 1995). Here, Patel contends that the 

State did not comply with one such rule. It stated in relevant part that 

[a]n operator shall remain in the presence of the subject at least 15 

minutes before the [breath-alcohol] test and should exercise 

reasonable care to ensure that the subject does not place any 

substances in the mouth. Direct observation is not necessary to ensure 

the validity or accuracy of the test result . . . .” 
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See 37 TEX. ADMIN. CODE § 19.4(c)(1) (2014) (Tex. Dep’t of Pub. Safety, 

Approval of Techniques, Methods, and Programs), repealed by 40 Tex. Reg. 129, 

255 (2015).

C. Analysis

Patel contends that the trial court erred in admitting her breath test results 

because the evidence demonstrates that Patin did not comply with the mandatory 

15-minute waiting period required by then-effective section 19.4(c)(1) of the Texas 

Administrative Code. Patel argues that Patin could not have finished every task he 

claims he accomplished after leaving the scene that morning—driving to the 

station, checking in weapons, waiting for Officer Sampson, using the restroom—

and observed the mandatory 15-minute waiting period because the video time 

stamp and Intoxilyzer time stamp indicated that only 28 minutes elapsed between 

the time he left the scene (4:29) and the time the test was administered (4:57).

We conclude that the trial court did not err in denying Patel’s motion to 

suppress. Patin unequivocally testified that he knew he complied with the 15-

minute observation period because he used the stopwatch on his watch to ensure 

that 15 minutes elapsed before he administered Patel’s breath test. Patin’s time 

estimates in response to cross-examination discredited his timeline—there was not 

enough time to perform each of the tasks he described if they indeed took as long 

as he estimated, observe the 15-minute waiting period, and administer the test by 
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4:57 a.m. However, there was no evidence that the car’s time stamp was 

synchronized with the Intoxilyzer time stamp. See Gutierrez v. State, 221 S.W.3d 

680, 687 (Tex. Crim. App. 2007) (conflicting evidence should be resolved in favor 

of trial court’s ruling on motion to suppress); Howes v. State, 120 S.W.3d 903, 907 

(Tex. App.—Texarkana 2003, pet. ref’d) (stating that unless “the time stamp 

generated by the video camera [of the officer’s patrol car] was synchronized with 

the internal clock in the intoxilyzer machine . . . [a reviewing court] cannot find 

that the trial court abused its discretion by denying a motion to suppress”). It was 

the trial court’s province to resolve this conflict in the evidence, and we afford 

almost total deference to the trial court to determine the credibility of the evidence.

See Walker v. State, 588 S.W.2d 920, 924 (Tex. Crim. App. 1979) (trial court

determines whether officer’s or appellant’s version of events is true). 

Giving the required deference to the trial court’s credibility determination, 

we conclude that the trial court could have credited Patin’s testimony that he 

observed the mandatory 15-minute waiting period using his stopwatch and 

reasonably concluded that Patin complied with section 19.4(c)(1) of the Texas 

Administrative Code. See Serrano v. State, 464 S.W.3d 1, 8 (Tex. App.—Houston 

[1st Dist.] 2015, pet. ref’d) (holding trial court did not abuse its discretion in 

denying motion to suppress where breath test operator testified that she knew she 
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performed mandatory 15-minute waiting period even though she could not 

specifically recall observing appellant).

We overrule Patel’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Rebeca Huddle

Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).