Corby Jack Griffin v. The State of Texas--Appeal from County Court At Law No 2 of Guadalupe County

MEMORANDUM OPINION

No. 04-05-00122-CR

Corby Jack GRIFFIN,

Appellant

v.

The STATE of Texas,

Appellee

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

Trial Court No. CCL-04-791-CR

Honorable Frank Follis, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 14, 2005

AFFIRMED

Corby Jack Griffin challenges his conviction of driving while intoxicated, asserting that the trial court erred in admitting intoxilyzer test results without retrograde extrapolation testimony in violation of Rule 403 of the Texas Rules of Evidence. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court s judgment in this memorandum opinion.

Griffin was stopped at 11:58 p.m. when Guadalupe County Deputy Sheriff Robert Perez noticed him weaving in and out of his lane. The deputy smelled alcohol on Griffin and had him perform a series of roadside sobriety tests. After the tests, Griffin was arrested for driving while intoxicated and taken to the Guadalupe County Jail where he took a breath, or intoxilyzer, test at 1:19 a.m. and at 1:22 a.m. The results of the test were blood alcohol concentrations of .141 and .135, both of which are above the legal limit of 0.08. The State s information charged Griffin with driving while intoxicated, alleging intoxication under both an impairment definition and a per se definition. At trial, the State attempted to introduce retrograde extrapolation testimony to show that Griffin s alcohol concentration was above the legal limit at the time he was driving. The trial court excluded the retrograde extrapolation testimony but nevertheless allowed the breath test results to be admitted into evidence. The court s charge instructed the jury to find the defendant guilty if it found that Griffin had lost the normal use of his mental or physical faculties by introduction of alcohol into his body.

In his sole issue, Griffin asserts that the admission of his breath test results without retrograde extrapolation evidence was unfairly prejudicial, confusing, and misleading to the jury. We review a trial court s ruling on the admissibility of evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). The test for whether a trial court abused its discretion is whether the action was arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). An appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement. Id. at 440.

Under Rule 403 of the Texas Rules of Evidence, all relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. Unfair prejudice pertains only to relevant evidence s tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged. Mechler, 153 S.W.3d at 440.

We assess four nonexclusive factors when determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice. Id.; Gigliobianco v. State, No. 04-02-00895-CR, 2005 WL 2085249, *1 (Tex. App. San Antonio Aug. 31, 2005, pet. filed). These factors include: (1) how compellingly the evidence serves to make a fact of consequence more or less probable ; (2) the potential the evidence has to impress the jury in some irrational but indelible way ; (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense ; and (4) the force of the proponent s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. Mechler, 153 S.W.3d at 440-41; Manning v. State, 114 S.W.3d 922, 928 (Tex. Crim. App. 2003).

Griffin was stopped at 11:58 p.m. and submitted two breath test samples approximately one hour and twenty-one minutes afterwards. Those samples showed a blood alcohol content level of .141 and .135. These results are probative of whether Griffin consumed alcohol, see Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004), and given the high blood alcohol concentrations revealed by the tests, the results are more probative than if the concentrations were closer to the legal limit of 0.08. See Mechler, 153 S.W.3d at 449 (Cochran, J., concurring) (noting higher test results and shorter time between driving and testing makes inference that defendant had a BAC level at or above 0.08% at the time of driving more logical). Next, although the breath test results are prejudicial to Griffin, they are not unfairly prejudicial [as to irrationally impress the jury] because [they relate] directly to the charged offense. Mechler, 153 S.W.3d at 440-41. Furthermore, [b]ecause the intoxilyzer results relate directly to the charged offense, a jury could not be distracted away from the charged offense regardless of the required time to present the results. Id. at 441. Although the State [did] not have a great need for the test results, Id. at 441-42, because the record includes Deputy Perez s testimony regarding his observations of Griffin and Griffin s performance on the field sobriety tests, we conclude the trial court s ruling that the test results were not unfairly prejudicial was not outside the zone of reasonable disagreement. Id. at 440. The judgment of the trial court is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH