Affirmed and Memorandum Opinion filed November 3, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00454-CR

BROGAN MELCHIOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 1848384

M E M O R A N D U M O P I N I O N

In two related issues, appellant challenges her driving while intoxicated 

(DWI) conviction, complaining of the trial court’s exclusion of testimony relevant 

to whether appellant was observed as required by law before receiving a breath 

alcohol test.

1

The jury found appellant guilty and assessed punishment at one year 

 

1

The Texas Administrative Code requires the operator of a breath alcohol test to observe 

the subject before administering the test as follows: “An operator shall remain in the continuous 

presence of the subject at least 15 minutes immediately before the test and should exercise 
2

in county jail. The sentence was suspended, and appellant was placed on 

community supervision for 18 months. We affirm.

Background

An officer observed appellant driving and stopped her for speeding. After 

DWI officers arrived and administered several field sobriety tests on appellant, she 

agreed to provide a specimen of her breath. She was transported to the police 

“central intox” station. She and two officers—Guerin and Lincoln—arrived at the 

station at 2:04 a.m., as indicated by the patrol unit video recording equipment.2

Guerin could not remember whether he escorted appellant into a holding cell or an 

intoxication testing room. The evidence technician who administered the breath 

test testified that before it is administered, the subject must be observed for 15

minutes “to make sure that they don’t burp or vomit or anything that could 

interfere with the breath test.” He testified that he observed appellant for 15

minutes before testing her at 2:29 a.m.

Appellant’s counsel called Lincoln as a witness. Lincoln could not 

remember any of the details regarding appellant’s arrest and often referred to the 

police report during his testimony. Lincoln initially testified that appellant was

placed into a holding cell for 15 minutes before she came in contact with the 

technician who administered the breath test, but then he said, “I don’t remember if 

[the technician] was in the cell with [appellant].”

State’s counsel subsequently conducted a voir dire examination of Lincoln. 

Lincoln admitted he “didn’t remember the facts of th[e] case” without reading the 

 

reasonable care to ensure that the subject does not place any substances in the mouth.” 37 Tex. 

Admin. Code § 19.3(a)(1).

2 Guerin was in training on the night of appellant’s arrest, and Lincoln was a certified 

DWI investigator. During its case-in-chief, the State called Guerin as a witness but not Lincoln, 

who was no longer with the police force.
3

police report. Lincoln testified that even though it was the usual policy to place 

someone in a holding cell once they arrived at central intox, he did not remember 

putting appellant into a holding cell or whether she was in a holding cell for 15

minutes. The police report indicated that Lincoln put appellant into a holding cell 

but did not include the period of time that she was in the cell. The State objected to 

Lincoln’s testimony regarding the amount of time appellant had been in the 

holding cell on the basis that Lincoln did not remember and had no personal 

knowledge of that detail. The trial court granted the objection and admonished the 

jury and Lincoln as follows: 

Ladies and gentlemen, before y[’a]ll went out, the witness stated 

earlier that the defendant was in the holding tank for 15 minutes. That 

statement, alone, is stricken from the record. You are not to consider 

that. . . . And please let me instruct the witness: Only testify to things 

that you remember you did and observed, and nothing else.

Discussion

In two issues, appellant challenges the trial court’s exclusion of Lincoln’s 

testimony that appellant had been in the holding cell for 15 minutes. Appellant 

contends that this testimony, if true, would mean the required observation period

had not transpired before the breath test was administered. Appellant argues in her 

second issue that the trial court abused its discretion in excluding the testimony.3

We review a trial court’s decision to admit or exclude evidence for an abuse 

of discretion; we will not reverse the decision if it is within the zone of reasonable 

disagreement. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).

A witness may not testily to a matter about which he lacks personal knowledge. 

Tex. R. Evid. 602. Rule of Evidence 602, entitled “Need for Personal Knowledge,” 

provides in pertinent part, “A witness may testify to a matter only if evidence is 

 

3 As discussed below, we do not reach appellant’s first issue.
4

introduced sufficient to support a finding that the witness has personal knowledge 

of the matter.” Id.

The context of Lincoln’s testimony indicates that he did not have personal 

knowledge that appellant was in the holding cell for 15 minutes before coming into 

contact with the evidence technician. During defense counsel’s direct examination 

of Lincoln, Lincoln stated that appellant was in the holding cell for 15 minutes. He 

did not remember if the evidence technician was in there with appellant but 

testified that “[i]t’s not normal for the evidence technician to be in the holding 

cell.” On voir dire, Lincoln clarified that even though it was the usual policy to 

place someone into a holding cell once they arrived at central intox, he did not 

remember doing so with appellant or how long she was in there. The police report 

did not include any information regarding the length of time appellant was in the 

holding cell. In response to the question, “Do you know whether or not the 

defendant was in a holding cell for 15 minutes once she got to Central Intox?” 

Lincoln replied, “No, because I can’t remember.” He further testified, “I can’t 

remember about anything unless I look at the report, honestly.” Lincoln testified 

that the only reason he knew he put appellant into a holding cell was because it 

was in the police report.

The State requested at that point during voir dire for the jury to be instructed 

to disregard Lincoln’s testimony regarding the amount of time appellant was in the 

holding cell and requested that the testimony be stricken from the record on the 

basis that Lincoln did not have personal knowledge as to the amount of time 

appellant was in the holding cell. The trial court sustained the objection as follows: 

“I’m not going to let him testify to something that he doesn’t remember and 

doesn’t know.” The trial court subsequently admonished the jury to disregard 

Lincoln’s statement “that the defendant was in the holding tank for 15 minutes” 
5

and struck the statement from the record.

We conclude that the trial court did not abuse its discretion in excluding the 

testimony because, from the context of the record, it was not based on Lincoln’s 

personal knowledge. He had no memory of placing appellant into a holding cell or 

of the period of time that she was in there. See Oliver v. State, 32 S.W.3d 300, 304 

(Tex. App.—San Antonio 2000, pet. ref’d) (acknowledging lack of memory of 

event is also lack of personal knowledge). Although an officer on the witness stand 

may refresh his memory by reviewing a police report he made when his memory 

was fresh, see Guerra v. State, 676 S.W.2d 181, 183 (Tex. App.—Corpus Christi 

1984, pet. ref’d), there was no information in the police report indicating the length 

of time appellant was in the holding cell.4

Appellant argues, however, that the State’s objection to the testimony was 

not timely. Lincoln initially testified that appellant was in the holding cell for 15

minutes and that the evidence technician was not with him. The State objected that 

testimony was based on hearsay, presumably because Lincoln was referring to the 

police report. The trial court responded to Lincoln, “[J]ust answer to what you 

actually know and remember. Don’t speculate, don’t guess, don’t assume. Just 

 

4

The parties debate whether the information in the police report was hearsay because it

did not refresh Lincoln’s memory. Testimony based solely on a police report that does not 

refresh the officer’s memory is inadmissible. See Guerra, 676 S.W.2d at 183 (noting officer 

testimony that “was not based upon a refreshed memory” but “was based totally upon the report 

itself” was inadmissible). The police report could be offered as a recorded recollection to be read 

into the record if certain prerequisites are met, but appellant did not offer the police report into 

evidence under this hearsay exception. See Tex. R. Evid. 803(5) (providing exception to hearsay 

rule for recorded recollections to be read into record on matters that “witness once knew about 

but now cannot recall well enough to testify fully and accurately” if certain prerequisites are 

met); see also Guerra, 676 S.W.2d at 183 (noting even though police report “could have been 

admitted as a past recollection recorded, the State did not undertake those steps necessary to 

properly do so”). We note that although public records generally are not hearsay, police reports

are. See Tex. R. Evid. 803(8)(B); Baker v. State, 177 S.W.3d 113, 122 (Tex. App.—Houston [1st 

Dist.] 2005, no pet.).
6

answer what you know. That’s all we need you to do.” Lincoln then testified that 

he did not remember whether the evidence technician was with appellant. 

Appellant’s counsel subsequently elicited testimony from Lincoln regarding 

when appellant was taken out of the police car and when the breath test started: 

Q. She’s still in the car, right?

A. Yes, sir.

Q. So, obviously, she’s not in a holding cell yet, right?

A. Yes, sir.

Q. And, obviously, she’s not in a breath test room being observed 

by [the evidence technician yet], is she?

A. No, sir.

Q. Okay. And then you said—you told the jury a couple of 

minutes ago that she was in the holding cell for about 15 

minutes—

At that point, State’s counsel interjected, and asked to conduct a voir dire 

examination of Lincoln, which established that Lincoln had no memory of what 

transpired. We conclude on these facts that the State lodged a timely objection. 

State’s counsel continually objected to Lincoln’s testimony that appellant was in 

the holding cell for 15 minutes based on Lincoln’s lack of memory, and the trial 

court sustained that objection. As soon as appellant’s counsel referred back to that 

testimony, State’s counsel requested to conduct a voir dire examination, which 

established that Lincoln did not know how long appellant was in the cell. The State 

objected once Lincoln’s lack of knowledge was established. Thus, the State’s 

objection was timely. See McLean v. State, 312 S.W.3d 912, 915 (Tex. App.—

Houston [1st Dist.] 2010, no pet.) (“An objection is timely when it is made at the 

earliest possible opportunity.”). Because the trial court did not abuse its discretion 
7

in excluding Lincoln’s testimony and the State lodged a timely objection, we 

overrule appellant’s second issue.5

We affirm the judgment of the trial court.

Martha Hill Jamison

Justice

Panel consists of Chief Justice Frost and Justices Jamison and Busby.

Do Not Publish — TEX. R. APP. P. 47.2(b).

 

5 Accordingly, we need not reach appellant’s first issue, complaining that the trial court 

did not instruct the jury to resolve a fact issue involving whether the observation period was 

observed. Appellant argues the jury should have been able to determine whether the observation 

period was observed because when there is a fact question on this issue, a DWI defendant is 

entitled to an instruction that the jury must disregard the test if it believes or has a reasonable 

doubt as to whether the observation period was conducted. See Adams v. State, 67 S.W.3d 450, 

453 (Tex. App.—Fort Worth 2002, pet. ref’d). Because the trial court did not abuse its discretion 

in excluding Lincoln’s testimony as to the observation period, there is no fact issue for the jury to 

resolve.