The State of Texas v. Juan Garza, III--Appeal from County Court at Law No 12 of Bexar County

MEMORANDUM OPINION
No. 04-02-00626-CR
The STATE of Texas,
Appellant
v.
Juan GARZA, III,
Appellee
From the County Court at Law No. 12, Bexar County, Texas
Trial Court No. 743147
Honorable Michael E. Mery, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 16, 2003

AFFIRMED

In this appeal, the State appeals the trial court's granting of Juan Garza III's motion to suppress his breath test results. Because the trial court did not abuse its discretion, we affirm the trial court's order.

Background

Garza was charged by information with the offense of Driving While Intoxicated. See Tex. Pen. Code Ann. 49.04 (Vernon 2003). The information alleges that at the time Garza was driving, he had a blood-alcohol level above 0.08 and he had lost the normal use of mental and physical faculties due to the introduction of alcohol into his body. Before trial, Garza filed a motion to suppress the breath test results. The trial court denied Garza's motion. At trial, the breath test results and retrograde extrapolation evidence were introduced. Garza was convicted of driving while intoxicated.

Shortly after Garza's trial, the Texas Court of Criminal Appeals handed down its decision in Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001). Based on Mata, Garza moved for a new trial, arguing that the retrograde extrapolation evidence was erroneously admitted at trial. The trial court granted Garza's motion and ordered a new trial. Garza then filed another motion to suppress, arguing that the breath test results and any testimony regarding those results should be excluded at trial. The trial court granted Garza's motion. The State has appealed.

Motion to Suppress

We will not disturb a trial court's decision to admit scientific evidence absent an abuse of discretion. Mata, 46 S.W.3d at 908. Moreover, if the trial court's decision is correct on any theory of law applicable to the case, it will be sustained. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002); Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990). This principle holds true even when the trial court gives the wrong reason for its decision. Osbourn, 92 S.W.3d at 538; Romero, 800 S.W.2d at 543-44. (1)

At the hearing on the motion to suppress, Garza argued that any evidence related to his breath test results should be excluded because (1) with respect to the intoxilyzer machine, there was no evidence of the known temperature of the reference sample, and (2) Mata prevented the State from introducing evidence of retrograde extrapolation and as such, any evidence relating to the breath test results was irrelevant. On appeal, the State argues that there was evidence of the known temperature of the reference sample. The State, however, fails to contest Garza's second ground. Because we agree with Garza's second ground, we affirm the trial court's order.

In order to find the results of an alcohol-concentration test reliable, the trial court must find that: (1) the underlying scientific theory is valid; (2) the technique applying the theory is valid; and (3) the expert who applied the technique on the occasion in question did so properly. Mata, 46 S.W.3d at 908; Stewart v. State, 103 S.W.3d 483, 485 (Tex. App.--San Antonio 2003, pet. granted). By statute, the scientific theory underlying breath tests of alcohol concentration is deemed valid. See Tex. Transp. Code Ann. 724.016, 724.064 (Vernon 1999); 37 Tex. Admin. Code 19.3 (2002). "Before breath test evidence will be admitted, however, the State must prove that the witness testifying about the breath test evidence can properly explain the theory and properly applied it on the occasion in question." Stewart, 103 S.W.3d at 486. Here, the trial court properly excluded all evidence of retrograde extrapolation because the State's witness did not have enough information to link the results of the breath test to the alcohol concentration in Garza's system at the time he was driving. Id.

At the suppression hearing, George Alan McDougal, the breath test technical supervisor for Bexar County, admitted that he did not know (1) how much Garza had to drink, (2) what kind of alcohol Garza drank, (3) when Garza had had his last drink before taking the breath test, or (4) how much food Garza had in his stomach at the time of the test. And, McDougal did not know, at the time Garza took the breath test, what Garza's absorption or elimination rates were or whether Garza was in the absorption or elimination phase. Thus, McDougal conceded that he did not have enough information to determine what Garza's alcohol concentration was at the time he was driving. Based on McDougal's testimony, the trial court properly excluded the retrograde extrapolation evidence. Stewart, 103 S.W.3d at 486.

And, the trial court also properly excluded any evidence of the breath test results. As pointed out by Garza, the results of the breath test are irrelevant. Tex. R. Evid. 402; Stewart, 103 S.W.3d at 486. Based on the results of the breath test, McDougal could not determine whether Garza was intoxicated at the time he was driving. No retrograde extrapolation evidence was admitted linking Garza's breath test to his possible alcohol concentration levels at the time he was driving. Without retrograde extrapolation to show whether Garza's body was absorbing or eliminating alcohol at the time of the test, those test results are irrelevant to whether Garza's alcohol concentration was more than 0.08 at the time he was driving. See Stewart, 103 S.W.3d at 486.

Additionally, based on McDougal's testimony about the breath test results, those results present no evidence. See id. McDougal testified that at the time Garza was driving, his alcohol concentration could have been higher, lower, or at the same level. McDougal's testimony that no one result was more probable than another shows those results to be no evidence. Id. Because those results are no evidence of whether Garza was driving while intoxicated, the trial court did not err in excluding them.

The State's sole issue is overruled.

Conclusion

Because the trial court did not abuse its discretion in granting Garza's motion to suppress, we affirm the trial court's order.

Karen Angelini, Justice

Do not publish

1. Both the State and Garza state in their briefs that the trial judge, in open court, explained that he was granting the motion to suppress because there was no evidence of the known temperature of the intoxilyzer. Both parties cite to volume III of the reporter's record. There is no such volume in our appellate record. However, because we can affirm on any theory of law applicable to the case, for our purposes, the trial judge's reasons for his decision are not determinative.