Fourth Court of Appeals

San Antonio, Texas

DISSENTING OPINION

No. 04-11-00764-CR

Kiona F. BOUTANG,

Appellant

v.

The STATE of Texas,

Appellee

From County Court at Law No. 9, Bexar County, Texas

Trial Court No. 314520

Honorable Walden Shelton, Jr., Judge Presiding

Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting en banc: Catherine Stone, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Marialyn Barnard, Justice

Rebeca C. Martinez, Justice

Patricia O. Alvarez, Justice

Luz Elena D. Chapa, Justice

Delivered and Filed: June 5, 2013

Respectfully, I dissent from the court’s denial of appellant’s motion for rehearing en banc 

without requesting a response.

I believe the trial court violated Boutang’s rights under the Confrontation Clauses of the 

United States and Texas Constitutions by overruling her objections to the testimony of the 

State’s expert witness, Deborah Stephens, and to the admission of the breath test results and 

breathalyzer maintenance reports. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see 
Dissenting Opinion 04-11-00764-CR

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Crawford v. Washington, 541 U.S. 36, 68 (2004) (in order for testimonial evidence to be 

admissible, Sixth Amendment demands unavailability and prior opportunity for crossexamination). In holding that admission of the challenged evidence did not violate Boutang’s 

confrontation rights, the opinion follows the Fort Worth Court of Appeals’s opinion in Settlemire 

v. State, 323 S.W.3d 520 (Tex. App.—Fort Worth 2010, pet. ref’d), with misplaced reliance on a 

footnote that is more dicta than precedent and that precedes the United States Supreme Court’s 

decision in Bullcoming v. New Mexico.

1

At trial, Stephens was called to testify in place of George Allen McDougall, Jr. who, at 

the time of Boutang’s arrest, was the breath test technical supervisor personally responsible for 

maintaining and operating the Intoxilyzer 5000 machines in Bexar County. Although Stephens 

had no personal knowledge of the evidence proffered through her testimony, the State called her 

to testify even though, as the record reflects, McDougall was not unavailable. As the opinion 

points out, Stephens sponsored the admission of all the inculpatory evidence against Boutang at 

trial. This included State’s Exhibit 10 (breath test slip printed by Officer Charles Marcus who 

administered the test), and State’s Exhibits 11 and 12 (intoxilyzer maintenance records signed 

and verified by McDougall). 

The proponent of scientific or technical evidence has the burden of demonstrating by 

clear and convincing evidence that the evidence is both reliable and relevant. See Kelly v. State, 

824 S.W.2d 568, 573 (Tex. Crim. App. 1992) (applying several factors that may affect 

reliability, including “the experience and skill of the person who applied the technique on the 

occasion in question”) (emphasis added); see also Daubert v. Merrell Dow Pharmaceuticals, 

Inc., 509 U.S. 579, 590-92 (1993). Three criteria must be satisfied for scientific evidence to be 

 1 Bullcoming v. New Mexico, 131 S.Ct. 2705, 2715-16 (2011) (holding it was a violation of defendant’s 

confrontation rights to admit blood alcohol content lab report through testimony of different analyst than the one 

who prepared the report).
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considered reliable: (1) the underlying theory must be valid; (2) the technique applying the 

theory must be valid; and (3) the technique must be properly applied on the occasion in question.

See Kelly, 824 S.W.2d at 573. Kelly applies to all scientific evidence offered under Rule 702,

including intoxilyzer test results. TEX. R. EVID. 702; see Hartman v. State, 946 S.W.2d 60, 63 

(Tex. Crim. App. 1997). Even if the underlying scientific principles of a breath test are 

considered valid as a matter of law,2 the State must still establish that a qualified officer applied 

a valid technique and that it was correctly applied on the particular occasion in question. See id.; 

Maysonet v. State, 91 S.W.3d 365, 371 (Tex. App.—Texarkana 2002, pet. ref’d) (testimony from 

officer who conducted stop for speeding violation satisfied second and third Kelly prongs); Mills 

v. State, 99 S.W.3d 200, 201 (Tex. App.—Fort Worth 2002, pet. ref’d). In this case, whether the 

technique was properly applied on the occasion in question is evidence the State could only 

proffer through McDougall.

In Harrell v. State, the Court of Criminal Appeals established a three-part predicate for 

the admission of an intoxilyzer test result, requiring the State to: (1) show the machine 

functioned properly on the day of the test as evidenced by the running of a reference sample; (2) 

show the existence of periodic supervision over the machine and its operation by one who 

understands the scientific theory of the machine; and (3) prove the result of the test through a 

witness qualified to translate and interpret the result so as to eliminate hearsay. Harrell v. State, 

725 S.W.2d 208, 209-10 (Tex. Crim. App. 1986). The court explained that, “[b]ecause the 

reference sample is so important to the intoxilyzer in Texas, a showing of proper use of a 

 2 “The use of breath testing evidence to prove intoxication was first approved by [the Court of Criminal Appeals] in 

the case of McKay v. State, 155 Tex. Cr. R. 416, 235 S.W.2d 173 (1950) and it continues to be admissible evidence 

provided the proper predicate is shown.” Stevenson v. State, 895 S.W.2d 694, 696 n.3 (Tex. Crim. App. 1995) 

(citing Langford v. State, 532 S.W.2d 91, 95 (Tex. Crim. App. 1976)); see also Hill v. State, 158 Tex. Cr. R. 313, 

256 S.W.2d 93 (1953).
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reference sample satisfies the first prong of the predicate . . . .” Id. at 210 (modifying the threeprong predicate due to the nature of the intoxilyzer instrument). The court held that 

McDougall’s testimony with respect to his preparation and proper use of the reference sample to 

check the functioning of the intoxilyzer satisfied the first prong of the three-prong predicate for 

admission of the intoxilyzer test results. Id. 

As the opinion points out, in this case McDougall personally created a reference solution 

for use in the machines, periodically changed out the solution in the machines, set the machines 

to anticipate the particular amount of alcohol in the reference solution, and created records to 

reflect the same. However, the opinion then ignores the crucial aspects of McDougall’s direct 

involvement in the maintenance and operation of the machines that require his personal 

knowledge and expertise; instead, the opinion effectively holds that this particular machine, the 

Intoxilyzer 5000, is self-authenticating. To distinguish Bullcoming, the opinion describes the 

breath test slip as a “machine-generated print-out” by the machine that is neither testimonial nor 

necessary to “establish or prove past events for use in criminal prosecution.” Disregarding the 

three-prong predicate established in Harrell, the opinion concludes that a surrogate expert 

certified as an Intoxilyzer operator, but only “familiar with” maintenance procedures, may 

translate and interpret the test results. Absent from the opinion is any consideration of reliability, 

or, at a minimum, recognition of a machine’s inherent need to be inspected which itself suggests 

the possibility of malfunction. Forensic evidence, albeit machine-generated, that is created 

specifically to serve as evidence to prove the guilt of the accused in a criminal proceeding is 

“testimonial.” See Michigan v. Bryant, 131 S.Ct. 1143, 1156 (2011) (in determining whether 

evidence is “testimonial,” court makes objective inquiry into primary purpose for creation of the 

evidence); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009) (forensic lab report 
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created and used to prosecute is testimonial); see also Davis v. Washington, 547 U.S. 813, 822 

(2006) (statements made to establish or prove past events for use in criminal prosecution are 

testimonial). A surrogate witness, no matter how credible, can offer no more reliable testimony 

about irregularities observed or disregarded by McDougall than McDougall himself. Simply 

stating “there is only one type of breathalyzer test,” hence no similar concern of what “particular 

test and testing process” was used (as there is for a blood test), suggests a complete disregard for 

the predicate required of any test conducted on an accused in a DWI prosecution. Do we extend 

this rationale to any of the field sobriety tests? 

The trial court, serving as “gatekeeper,” abused its discretion by allowing the State to 

proffer the surrogate testimony of Stephens, whose knowledge was not sufficiently tied to the 

facts of this case and who therefore could not aid the jury in resolving any factual dispute 

regarding the proper application of a valid technique on the particular occasion in question, i.e., 

whether a proper reference solution was generated or used to test the machine on the occasion in 

question. In an analogous situation, consider a speed radar gun. If the accused is entitled to 

confront the officer who operated and maintained the radar gun, to examine whether and how the 

officer calibrated and operated the speed radar gun to ensure that it was functioning properly at 

the time the officer obtained the “evidence” of speeding, the State is no less obligated to proffer 

McDougall as “the only witness qualified to interpret the result and qualified to testify about the 

certification of the equipment used to achieve that result.” Harrell, 725 S.W.2d at 210. 

In conclusion, while Stephens may have been qualified to understand the scientific 

principles upon which the Intoxilyzer 5000 operated, and was trained on the machine, she could 

not certify the machine or the proper use of the reference sample prepared by McDougall. Her 

interpretation of the test results used against Boutang was based on hearsay. See Bryant, 131 
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S.Ct. at 1155. Her testimony, in fact, offers merely a “belief” regarding the truth of the matters 

asserted. She cannot convey what the actual analyst knew or observed about the particular test 

or about the testing process he employed. See Bullcoming, 131 S.Ct. at 2715; Melendez-Diaz, 

557 U.S. at 315-16. Lastly, the breath test slip and maintenance records sponsored by Stephens 

as “custodian of records” for Bexar County, but who neither supervised the officer administering 

the test nor could certify the records signed by McDougall, were improperly admitted as 

“documents prepared in the regular course of equipment maintenance.” “From Hill through 

Harrell, [the Court of Criminal Appeals] has recognized that the rule against hearsay could 

render breath test evidence inadmissible.” Stevenson, 895 S.W.2d at 696. While conceding it 

offers merely a suggestion, the opinion in this case adopts Settlemire’s misinterpretation of a 

footnote in Melendez-Diaz, which constitutes mere dicta.3

 The opinion’s reliance on the 

footnote is misplaced. I believe the trial court violated Boutang’s confrontation rights by 

admitting the testimony of Stephens as a surrogate for McDougall in sponsorship of State’s 

Exhibits 10, 11, and 12.

I therefore respectfully dissent.

Rebeca C. Martinez, Justice

PUBLISH

 3 See Young v. State, 826 S.W.2d 141, 144-45 n.5 (Tex. Crim. App. 1991) (Court of Criminal Appeals has declared 

that its footnotes are dicta).