Erica Lourdes Sedeno v. The State of Texas--Appeal from Co Crim Ct at Law No 7 of Harris County

Affirmed and Memorandum Majority and Memorandum Concurring Opinions filed November 25, 2008

Affirmedand Memorandum Majority and Memorandum Concurring Opinions filed November 25, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00327-CR

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ERICA LOURDES SEDENO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 7

Harris County, Texas

Trial Court Cause No. 1385835

M E M O R A N D U M C O N C U R R I N G O P I N I O N

In her second issue, appellant argues the trial court erred when it prohibited appellant from admitting evidence from the National Highway Traffic Safety Administration (ANHTSA@) manual that the Horizontal Gaze Nystagmus (AHGN@) test was only 77% accurate in predicting intoxication and not completely accurate as the State led the jury to believe. The majority concludes that the trial court did not abuse its discretion in impliedly determining that allowing the jury to hear this information would not impair the effective presentation of the evidence, unduly delay the proceedings, or risk confusion of this issues.[1] Rather than basing its conclusion on this analysis, the court should instead hold that the trial court did not abuse its discretion because it had before it evidence that the 77% accuracy figure in the manual applies to states whose definition of intoxication includes a blood-alcohol concentration of 0.10; whereas, under applicable Texas law, the definition of intoxication includes a blood-alcohol concentration of 0.08. Though the officer denied knowing the accuracy for tests with a 0.08 level of blood-alcohol concentration, he indicated that such tests yield an even higher average for accuracy than tests based on a 0.10 blood-alcohol concentration. For this reason, the trial court did not abuse its discretion in excluding this evidence.

In addition, if, as the majority states in the alternative, the trial court had abused its discretion by excluding this evidence, testimony that the test is only 77% accurate is not equivalent to testimony that the test is less than 100% accurate. So, this error would not be harmless on that basis.

For these reasons, I do not join in the court=s analysis, but I respectfully concur in the court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Majority and Memorandum Concurring Opinions filed November 25, 2008.

Panel consists of Justices Anderson, Frost, and Senior Justice Hudson.* (Anderson, J., majority).

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] See ante at p.8.

* Senior Justice J. Harvey Hudson sitting by assignment.