Robert Morris Stephens v. The State of Texas--Appeal from County Court At Law No 2 of Guadalupe County

MEMORANDUM OPINION

No. 04-04-00403-CR

Robert Morris STEPHENS,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court at Law No. 2, Guadalupe County, Texas

Trial Court No. CCL-03-979

Honorable Frank Follis, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 28, 2005

AFFIRMED

Robert Morris Stephens appeals the judgment convicting him of driving while intoxicated, sentencing him to 180 days in jail, probated for four years, and fining him $2000, $1500 of which was probated. We affirm.

1. In his first point of error, Stephens contends the trial court abused its discretion in admitting the results of his breath tests revealing blood alcohol concentrations of .146 and .150 because the results were not relevant in the absence of retrograde extrapolation evidence. Stephens recognizes that the Texas Court of Criminal Appeals held in Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004), that breath test results are relevant despite the absence of retrograde extrapolation evidence. Nevertheless, Stephens devotes his entire argument to discussing (1) how the Texas Court of Criminal Appeals in Stewart failed to follow its own reasoning from previous cases and (2) the principled reasons why breath test results in a DWI case are relevant only if accompanied by reliable retrograde extrapolation evidence. Because we are bound by Stewart and Stephens has given us no reason for holding that Stewart does not apply in this case, we overrule his first point.

2. In his second point, Stephens contends the trial court abused its discretion in overruling his objection under Rule 403 of the Texas Rules of Evidence that the breath test results were substantially more prejudicial than probative as to the issue of his intoxication level, if any, at the time he actually operated his vehicle. However, rather than applying a Rule 403 analysis to the facts of this case, Stephens entire argument under this point consists of an attack on the Texas Court of Criminal Appeals application of the Rule 403 analysis in State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005). Accordingly, Stephens has failed to show the trial court abused its discretion.

We affirm the judgment of the trial court.

Sarah B. Duncan, Justice

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