Objection to An Intoxilyzer Operator Testimony
In Harrell v. State, 725 S.W.2d 208, 209-10 (Tex. Crim. App. 1986), the certified intoxilyzer operator testified that he administered an intoxilyzer test to Harrell and that the machine produced a result of "0.13". See Harrell, 725 S.W.2d at 209.
Harrell did not object to this testimony.
He objected later in the trial during the testimony of the technical supervisor on the grounds that the State had failed to lay a proper predicate.
The State argued on appeal that because Harrell did not object during the intoxilyzer operator's testimony about the intoxilyzer test result, he did not preserve his complaint for appeal. See id.
The court of criminal appeals disagreed.
It found that Harrell did not need to object during the intoxilyzer operator's testimony. See Harrell, 725 S.W.2d at 210.
The intoxilyzer operator had only testified to the first prong of the predicate and was not qualified to testify to the last two.
The court stated that an objection during this testimony would have been meaningless since the intoxilyzer operator was not qualified to provide the information necessary to address the objection and satisfy the last two prongs of the predicate.
The court found that the objection was timely and properly made during the testimony of the technical supervisor, who was the only witness qualified to explain and interpret the intoxilyzer test result, thus satisfying the remainder of the predicate.
The court of criminal appeals in Harrell required the State to establish each prong of the predicate even though the intoxilyzer result "0.13" was already in evidence through the testimony of the certified intoxilyzer. See Harrell, 725 S.W.2d at 209-10.
At the time of Harrell's objection, the State had only satisfied the first prong of the predicate through the intoxilyzer operator's testimony.
The fact that the intoxilyzer results were already in evidence did not excuse the State from establishing the remaining two prongs through a qualified expert witness.