Israel Lopez v. The State of Texas--Appeal from County Court of Atascosa County

MEMORANDUM OPINION
No. 04-03-00178-CR
Israel LOPEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court of Atascosa County, Texas
Trial Court No. 22882
Honorable Fred Moore, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: June 9, 2004

AFFIRMED

Israel Lopez appeals his conviction of driving while intoxicated, arguing that the trial court erred in allowing testimony of his breath test results in violation of Texas Rule of Evidence 402 and in encouraging the jury to decide the case based on facts not in evidence. We overrule both issues and affirm the judgment of the trial court.

Background

On October 7, 2001 at around 1:30 in the morning, Appellant Israel Lopez, accompanied by his wife, was driving home from a bar. State Trooper Valerie Galvan stopped Lopez's car for speeding. Upon approaching the vehicle, she requested Lopez's license and insurance information which he provided. Because Trooper Galvan smelled a strong odor of alcohol emitting from inside the car, she asked Lopez whether he had been drinking that night. Lopez replied that he had consumed two beers. Trooper Galvan then asked Lopez to step out of his vehicle and proceeded to administer several field sobriety tests. Based on the results of these tests, she determined that Lopez was intoxicated and placed him under arrest for DWI.

Trooper Galvan took Lopez to the local Texas Department of Public Safety office where she requested that Lopez provide a breath sample. Using an Intoxilyzer 5000 and employing standardized testing procedures, Trooper Galvan administered the breath test. According to Trooper Galvan, she asked Lopez to breathe twice into the intoxilyzer with the samples being taken about a minute and a half to two minutes apart. The first test showed an alcohol concentration of 0.120, and the second one resulted in an alcohol concentration of 0.124. Both results were above the legal limit of 0.08.

During trial, Melinda Casarez, a technical supervisor for the Texas Department of Public Safety, was called to give testimony about the technique for retrograde extrapolation. This technique would determine Lopez's approximate blood alcohol concentration at the time he was driving. However, in order to reach this calculation, Casarez needed information about the time Lopez was stopped, the time he took the breath test, the last time he ate, how much he weighs, what and how much he had to drink, and whether he had taken any medications. Because the State had not previously admitted evidence of the above criteria, Casarez did not have the necessary information for retrograde extrapolation. The trial court, thus, prohibited Casarez from testifying about retrograde extrapolation. However, the trial court did allow the State to admit the breath test results into evidence. Accordingly, although Casarez testified to the meaning of those results without referring to the extrapolation, she was unable to testify about whether Lopez's alcohol concentration was higher or lower when he was driving.

Discussion

In his first issue, Lopez argues that the breath test results were irrelevant and inadmissible pursuant to Texas Rule of Evidence 402. The Texas Court of Criminal Appeals, however, in Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004), recently held that evidence of breath test results is probative and admissible. In doing so, the court of criminal appeals held that this court erred in finding that the results of the defendant's breath tests were irrelevant without retrograde extrapolation evidence. We must, therefore, overrule Lopez's first issue.

In his second issue, Lopez argues that the trial court erred in encouraging the jury to decide the case based on facts not in evidence. According to Lopez, by admitting the breath test results without retrograde extrapolation evidence, the trial court encouraged the jury to engage in its own retrograde extrapolation. The court of criminal appeals also addressed this issue in Stewart and held that the trial court did not commit error:

Here, the jury had to decide whether Stewart was intoxicated under the per se definition--that her blood alcohol concentration was 0.10 or more--or under the impairment theory--that she did not have the normal use of mental or physical faculties by reason of the introduction of alcohol into her body. The breath test results were pieces in the evidentiary puzzle for the jury to consider in determining whether Stewart was intoxicated at the time she drove. The jury had other evidence to decide that issue, such as the arresting officer's testimony about Stewart's driving patterns before he pulled her over, the results of Stewart's field sobriety tests, Stewart's admission to the officer that she had a couple of beers at the concert, Stewart's statement that she "couldn't do [the field sobriety tests] sober," the officer's videotape recording these events, and the fact that the breath tests were conducted an hour and twenty minutes after Stewart's traffic stop. The admission of breath test results did not necessarily encourage the jury to engage in its own crude retrograde extrapolation because the jury did not need to establish Stewart's exact blood alcohol concentration at the time that she drove. The jury only needed to believe beyond a reasonable doubt that either the blood alcohol concentration was 0.10 or more, or that she failed to have the normal use of her mental and physical faculties by reason of introduction of alcohol into her body, at the time she drove. The breath tests were properly admitted evidence to consider with all of the other evidence of intoxication to determine if Stewart was intoxicated at the time she drove. We find that the court of appeals erred in finding that the trial court encouraged the jury to decide the case based on facts not in evidence.

Stewart, 129 S.W.3d at 97-98.

Similarly, here, Trooper Galvan testified that when she stopped Lopez for speeding, she smelled a strong odor of alcohol emitting from the inside of Lopez's car. According to Trooper Galvan, Lopez stated that he was coming from a bar and had drunk two beers. Trooper Galvan testified that Lopez failed three different field sobriety tests. There was, therefore, other evidence of Lopez's intoxication. Following Stewart, we cannot find that the trial court encouraged the jury to decide the case based on facts not in evidence. We overrule Lopez's second issue.

Conclusion

Having overruled both issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

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