NO. 1251-02






Hervey, J., filed a dissenting opinion in which Keasler, J., joined.


I respectfully dissent. In cases like this, I agree with the Court's decision that sufficiency of the evidence to support a conviction under an "impairment" theory of intoxication is relevant to, but not necessarily dispositive of, the Rule 44.2(b) harm analysis for the erroneous admission of retrograde analysis evidence. See Bagheri v. State, S.W.3d slip op. at 13 (Tex.Cr.App., No. 1251-02, delivered this date) ("question is not whether there was sufficient evidence to support the verdict") and slip op. at 13-14 (setting out various factors, including the entire record and the testimony, for appellate courts to consider in determining whether erroneous admission of evidence "influence[d] the jury, or had but a slight effect"); compare Griffin v. United States, 112 S.Ct. 466, 469-74 (1991); Kitchens v. State, 823 S.W.2d 256, 259 (Tex.Cr.App. 1991), cert. denied, 112 S.Ct. 2309 (1992). The Court of Appeals, therefore, erred to decide that sufficiency of the evidence to support a conviction under an "impairment" theory is "simply irrelevant" to this harm analysis. See Bagheri v. State, 87 S.W.3d 657, 660 (Tex.App.-San Antonio 2002). (1)

Having decided that the Court of Appeals applied an improper Rule 44.2(b) harm analysis, the Court's opinion, rather than remanding the case to the Court of Appeals, conducts its own Rule 44.2(b) harm analysis and concludes that the error was not harmless. See Bagheri, slip op. at 14-16. I disagree.

The error in this case occurred when McDougall was permitted to testify that, based on "hypothetical" intoxilyzer readings of 0.107 and 0.113 (which happened to be appellant's intoxilyzer readings about an hour after the police stopped him), a subject's alcohol concentration an hour earlier could have been between 0.107 and 0.143. (2) See Bagheri, slip op. at 6-7; Bagheri, 87 S.W.3d at 659. On cross-examination, however, McDougall qualified this with testimony that the "extrapolated range of alcohol concentrations could vary dramatically depending on several factors" that he apparently had not considered See Bagheri, slip op. at 6-7, 9. The defense reminded the jury of this during closing arguments when the defense stated "that the extrapolation testimony was unreliable because the State's expert had not considered variables which could have affected the results." See Bagheri, slip op. at 9. During its closing arguments, the State equally emphasized evidence supporting both theories of intoxication. See Bagheri, slip op at 8-9.

Other properly admitted evidence proved that appellant's intoxilyzer readings about an hour after the police stopped him were 0.107 and 0.113. See Bagheri, 87 S.W.3d at 659. There was other properly admitted evidence that "almost everyone's driving abilities are impaired when their alcohol concentration reaches 0.08." See Bagheri, slip op. at 5. There was a wealth of evidence that appellant was intoxicated and impaired when he was stopped. (3) This also constitutes at least some evidence that even supports the "per se" theory of intoxication. I would hold that, when a record such as the one here contains a wealth of evidence to support the "impairment" theory and some evidence to support the "per se" theory, any error in admitting somewhat qualified retrograde analysis evidence like that here "did not influence the jury, or had but a slight effect."

Even though cases such as Griffin and Kitchens are not necessarily dispositive of the harm analysis, they nevertheless do have something relevant to say about it:

It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance-remote, it seems to us-that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient. (Citation and internal quotes omitted).

Griffin, 112 S.Ct. at 474.


I respectfully dissent.

Hervey, J.

Filed: November 5, 2003


1. The State also claims that the Court of Appeals created an improper presumption of harm with its reliance on a civil standard set out in Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000). See Bagheri, 87 S.W.3d at 660. Casteel decided that "when a trial court submits a single broad-form liability question incorporating multiple theories of liability, the error is harmful and a new trial is required when the appellate court cannot determine whether the jury based its verdict on an improperly submitted invalid theory." See Casteel, 22 S.W.3d at 388. The civil standard in Casteel does not apply because the standard in criminal cases is whether the error "influence[d] the jury, or had but a slight effect." See Bagheri, slip op. at 13-14.

2. The parties agree that this testimony was erroneously admitted under our decision in Mata v. State, 46 S.W.3d 902, 917 (Tex.Cr.App. 2001).

3. This evidence consisted of appellant's erratic driving, his intoxicated appearance at the time of the stop, his failing several field sobriety tests just after he was stopped and his intoxilyzer results about an hour after the stop. See Bagheri, slip op. at 3-4. The jury obviously did not believe the defensive evidence. See Bagheri, slip op. at 8.