Anthony Gigliobianco v. The State of Texas--Appeal from County Court at Law No 4 of Bexar County

MEMORANDUM OPINION
No. 04-02-00895-CR
Anthony GIGLIOBIANCO,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 4, Bexar County, Texas
Trial Court No. 767385
Honorable Sarah Garrahan-Moulder, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 3, 2003

REVERSED AND REMANDED

Anthony Gigliobianco ("Gigliobianco") appeals his misdemeanor conviction of driving while intoxicated. In his first issue, Gigliobianco contends that the trial court erred by admitting intoxilyzer test results in the absence of retrograde extrapolation evidence. In Stewart v. State, 103 S.W.3d 483, 486-87 (Tex. App.--San Antonio 2003, pet. granted), this court held that a trial court commits reversible error in admitting the results of a breath test in the absence of retrograde extrapolation evidence. The State acknowledges our holding in Stewart but urges us to revisit the holding. We decline to do so. Based on our holding in Stewart, we sustain Gigliobianco's first issue, reverse the trial court's judgment, and remand the cause to the trial court for a new trial. Because Gigliobianco's first issue is dispositive of the appeal, we do not address Gigliobianco's remaining issues. See Tex. R. App. P. 47.1, 47.4.

Alma L. L pez, Chief Justice

DO NOT PUBLISH