Mark Edward Settlemire v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-214-CR
MARK EDW ARD SETTLEMIRE APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY
------------
OPINION
------------
I. Introduction
Mark Edward Settlemire appeals following his conviction by a jury of the
misdemeanor offense of driving while intoxicated. In one point of error, he claims
that the admission of his breath test results violated his right to be confronted by
witnesses against him as guaranteed by the Sixth Amendment of the United States
Constitution. W e conclude no violation of his rights occurred and affirm his
conviction.
II. Factual and Procedural History
Grand Prairie Police Officer Todd Mathew Brannen was on duty the night of
March 1, 2006, when he stopped at a red light behind Settlemire. W hen the light
turned green, Settlemire did not proceed. Settlemire got out of his truck saying that
it had broken down. Upon talking with Settlemire, the officer noticed that
Settlemire’s breath smelled of alcohol and that his eyes were glassy and red. He
told the officer that he had gone to a bar after work, where he consumed two beers.
The officer suspected that Settlemire was intoxicated.
After performing several field sobriety tests, all of which Settlemire failed, the
officer arrested Settlemire. The results of the breath test administered to Settlemire
confirmed that he was intoxicated.
At trial, and over Settlemire’s Confrontation Clause objections, the trial court
admitted into evidence the breath test results and the maintenance logs for the
intoxilyzer machine. Lori Fuller, the technical supervisor in charge of the machine
at the time of the trial, testified and sponsored the test results and maintenance
records. Fuller was not the supervisor in charge of the machine when Settlemire
was arrested.
III. No Confrontation Clause Violation
W e now address the claimed error that the admission of the intoxilyzer
maintenance records and the breath test results violated Settlemire’s constitutional
right to confront the witnesses against him as provided in the Sixth Amendment.
2
See U.S. Const. amend. VI. Out-of-court statements of a testimonial nature are not
admissible unless the declarant is unavailable to testify and the defendant has had
a previous opportunity to cross-examine the witness. Crawford v. Washington, 541
U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004).
Settlemire contends that the intoxilyzer maintenance records and breath test
results are testimonial in nature and that the trial court erred in admitting those
records over his objection. To support his argument, Settlemire relies on the United
States Supreme Court’s holding in Melendez-Diaz v. Massachusetts, 129 S. Ct.
2527 (2009). In Melendez-Diaz, the defendant was on trial for selling cocaine. The
State of Massachusetts offered “certificates of analysis” in the form of affidavits from
lab technicians to prove that the substance in question was cocaine. Id. at 2531.
The Court held that the certificates in question were a “core class of testimonial
statements” covered by the Confrontation Clause. Id. at 2532 (relying on Crawford,
541 U.S. at 51, 124 S. Ct. at 1364). In so holding, the Court explained that the
analysts who prepared the certificates were therefore “witnesses” who the defendant
has a right to confront. Melendez-Diaz, 129 S. Ct. at 2532.
The Court in Melendez-Diaz was apparently aware that its holding might be
construed to extend to technical analysts who calibrate and operate equipment, such
as the person who supervised Settlemire’s intoxilyzer test equipment here. The
Court explained:
3
[W ]e do not hold, and it is not the case, that anyone whose testimony
may be relevant in establishing the chain of custody, authenticity of the
sample, or accuracy of the testing device, must appear in person as
part of the prosecution’s case. . . . Additionally, documents prepared in
the regular course of equipment maintenance may well qualify as
nontestimonial records.
Id. at 2532 n.1.
Here, the individual, Fuller, who testified about the intoxilyzer’s status although
she did not supervise it at the time of Settlemire’s intoxilyzer test, is precisely the
type of analyst that the Court anticipated might be challenged based on its holding
in Melendez-Diaz. The Court made clear, however, that it did not intend its holding
to “sweep[] away an accepted rule governing the admission of scientific evidence.”
Id. at 2533.
W e shall not construe Melendez-Diaz as doing what the Court clearly stated
it was not doing. W e hold that Settlemire’s rights of confrontation were not violated.
W e overruled Settlemire’s sole point.
IV. Conclusion
Having overruled Settlemire’s sole point, we affirm the trial court’s judgment.
CHARLES BLEIL
JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER, J.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).
PUBLISH
DELIVERED: July 8, 2010
4