IN THE COURT OF CRIMINAL APPEALS
OF TEXAS




NO. 324-03

 

DAWN KURETSCH STEWART, Appellant

v.


THE STATE OF TEXAS



ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
BEXAR COUNTY

Price, J., filed a dissenting opinion.

D I S S E N T I N G  O P I N I O N



I write separately for two reasons: first, because the majority does not fully discuss the law governing the admissibility of the evidence, and second, because I believe the trial court erred in allowing the State to present the breath test results without demonstrating that the appellant's blood alcohol concentration was greater than 0.10 while she drove. I dissent because I conclude that the appellant was harmed by the admission of the breath test results into evidence.

The breath test results were inadmissible in this case because, although they were relevant under Texas Rule of Evidence 401, without retrograde extrapolation evidence, the results were substantially more prejudicial than probative under a Texas Rule of Evidence 403 analysis. Pursuant to Rule 401, "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." This means the evidence must be both material and tend to prove the proposition for which it is offered.(1) To be material, evidence must support a proposition that is either provable or a controlling matter.(2) Here, the breath test results were material in that the appellant's consumption of an intoxicating substance was a controlling matter to her conviction for driving while intoxicated. The evidence, even in the absence of retrograde extrapolation evidence, tends to prove the appellant had, at the very least, consumed alcohol before the breath tests were administered. But just the fact that the appellant had consumed alcohol at some time before the breath tests were administered, does not establish that she was intoxicated at the time she drove. Therefore, I believe the breath test results were of limited relevance. Without retrograde extrapolation evidence, the tests were relevant only for the limited purpose of demonstrating that the appellant had consumed alcohol at some time before the tests were administered.

Yet relevancy does not end the inquiry in determining whether the disputed evidence is admissible because the appellant objected on the basis of Texas Rule of Evidence 403, as well. In addition to being relevant, the evidence must clear the additional bar set by Rule 403. Rule 403 permits the exclusion of otherwise relevant evidence, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative issues." The breath test results do not pass muster under Rule 403 because they present a substantial danger of unfair prejudice.

The breath test results are prejudicial because they led the jury to an inference, which the trial court found that the State could not prove through retrograde extrapolation evidence, namely, that because appellant scored greater than 0.10 on the breath tests, she was intoxicated at the time she drove. Additionally, the breath test results are prejudicial because "[t]he prosecutor repeatedly argued that because Stewart's alcohol concentration was more than 0.10, she was intoxicated."(3) As the Court of Appeals astutely described in its opinion below, in the absence of retrograde extrapolation evidence, "[t]his argument fails to make the connection that the offense requires a finding that the defendant was impaired or had an alcohol concentration of more than 0.10 while operating a motor vehicle."(4) This connection is a required element the State must prove in a driving while intoxicated case.

A person may be convicted of driving while intoxicated only "if the person is intoxicated while operating a motor vehicle."(5) In order to prove a person is intoxicated, the State must demonstrate either that, at the time in question, the individual had a blood alcohol level of 0.10 or more, or that the individual did "not have[] the normal use of mental or physical faculties by reason of the introduction of alcohol[] . . . into the body."(6) In the absence of retrograde extrapolation testimony, the breath test results are relevant only to whether the appellant consumed alcohol before the breath tests were administered and not evidence of her intoxication at the time she drove.

Without the retrograde extrapolation evidence, the State was required to prove intoxication, not by demonstrating that she had a blood alcohol concentration of 0.10, but by demonstrating that the appellant did not the have normal use of her faculties by reason of introduction of alcohol into her body. Consequently, while the breath test results were probative of the appellant's introduction of alcohol into her body, they were not proof of appellant's intoxication at the time that she drove.(7) The probative value of the breath test evidence in demonstrating the appellant's consumption of alcohol is substantially outweighed by the unfair prejudice associated with scoring 0.160 or 0.154 on a breath test. Additionally, the State's argument that the appellant was driving while intoxicated because her blood alcohol concentration was greater than 0.10 only added to the substantial prejudice inherent in the initial admission of the breath test results. In sum, the breath test results were inadmissible because their probative value was substantially outweighed by the danger of unfair prejudice.

I agree with the Court of Appeals that the trial court erred in admitting the evidence, albeit for different reasons. Additionally, I believe that the Court of Appeals was correct in concluding that the appellant was harmed by the trial court's error. The admission of the breath test results is nonconstitutional error, and under Texas Rule of Appellate Procedure 44.2(b), a reviewing court should disregard any error that does not affect the appellant's substantial rights. We have interpreted this to mean that the conviction should not be reversed when, after examining the record as a whole, the reviewing court has a fair assurance that the error did not influence the jury or had but a slight effect.(8)

After reviewing the entire record, I do not believe it is a fair statement to say that the erroneous admission of the breath test results did not influence the jury or had only slight effect. The State was required to prove that the appellant was driving while intoxicated in one of three ways. First, the State could have demonstrated that the appellant had a blood alcohol concentration of 0.10 at the time she drove. Because the State could not prove appellant's intoxication - either through retrograde extrapolation or otherwise - at the time she drove, the appellant could not be convicted of driving while intoxicated under this theory of guilt. Second, the State could have demonstrated that the appellant was intoxicated at the time she drove by demonstrating that she lost control of her mental faculties. This too the State could not prove. Rather, the arresting officer testified that he had no opinion one way or the other regarding whether the appellant had the normal use of her mental faculties. Finally, the State was left with demonstrating that the appellant was intoxicated through the loss of control of her physical faculties. The State presented a video of the appellant's driving and subsequent sobriety tests. The evidence presented at trial demonstrated that the appellant passed four of the seven field sobriety tests. I cannot say that this evidence overwhelmingly demonstrated the appellant's loss of her physical faculties. In sum, after reviewing the record as a whole, I do not have a fair assurance that the erroneous admission of the breath test results did not influence the jury or had but a slight effect.

While the breath test results were relevant evidence in tending to prove that the appellant had consumed alcohol before she drove, because the State could not prove that the appellant was intoxicated at the time she drove through the test results, their probative value was limited. The evidence should not have been admitted by the trial court because its limited probative value was substantially outweighed by the danger of the unfair prejudice associated with scoring 0.160 and 0.154 on the breath tests. Because the jury could not have avoided the prejudicial influence of the evidence, the appellant was harmed by the erroneous admission of the breath test results. For the foregoing reasons, I respectfully dissent.



Filed: March 3, 2004

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1. Cathleen C. Herasimchuk, Texas Rules of Evidence Handbook 194 (3d ed. 1998).

2. Ibid.

3. Stewart v. State, 103 S.W.3d 483, 486 (Tex. App.-San Antonio 2003).

4. Ibid. (emphasis in original).

5. Tex. Pen. Code 49.04(a).

6. See Act of June 19, 1993, 73d Leg., R.S., ch. 900, 1.01, 1993 Tex. Gen. Laws 3586, 3696, (amended 1999) (current version at Tex. Pen. Code 49.01).

7. See Manning v. State, 114 S.W.3d 922, 929 (Tex. Crim. App. 2003) (Price, J., concurring).

8. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).