The Texas Department of Public Safety v. Kent Washburn--Appeal from County Court at Law No 7 of Bexar County

CONCURRING OPINION
No. 04-97-00490-CV
The TEXAS DEPARTMENT OF PUBLIC SAFETY,
Appellant
v.
Kent WASHBURN,
Appellee
From the County Court at Law No. 7, Bexar County, Texas
Trial Court No. 236625
Honorable H. Paul Canales, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Concurring opinion by: Sarah B. Duncan, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 9, 1998

I concur in the majority's judgment. But I cannot join the majority opinion because it mischaracterizes the plurality and concurring opinions in Mireles v. Texas Dep't of Pub. Safety, No. 04-97-01007-CV, 1998 WL 758032 (Tex. App.--San Antonio Oct. 30, 1998).

In Mireles, a majority of this court concluded a factfinder could not reasonably infer an alcohol concentration of 0.10 or more at the time of a stop from "evidence establishing (1) at that time, the person was exceeding the speed limit and exhibiting slurred speech, glassy eyes, a strong odor of alcohol on his breath, and poor balance and (2) approximately one hour later, the person's breath specimens indicated alcohol concentrations of 0.161 and 0.162." Id. at *1 (plurality opinion); see id. at *12 (concurring opinion). Neither the plurality opinion nor the concurring opinion concluded "that an intoxilyzer reading is less than a scintilla of evidence of intoxication, within the meaning of the statute, absent testimony extrapolating this result back to the time when a defendant was operating or in actual control of the vehicle," as the majority opinion states. Nor does "Mireles control[] the resolution of this case." Neither the plurality opinion nor the concurring opinion constitutes an opinion of this court. However, the record in this case is similar to that in Mireles, and I concur in the judgment in this case for the reasons set forth in Mireles.

Sarah B. Duncan, Justice

Do Not Publish

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