Steven Gene Eanes v. The State of Texas--Appeal from Co Crim Ct at Law No 7 of Harris County

NO. 10-89-142-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

STEVEN GENE EANES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From County Criminal Court

at Law Number 7

Harris County, Texas

Trial Court #8835285

* * * * * * * * * * * * *

OPINION ON APPELLANT'S

MOTION FOR REHEARING

* * * * * * *

Appellant asks us to rehear this case and withhold our decision until an appeal to the Court of Criminal Appeals in State v. Muller has been heard. See State v. Muller, 798 S.W.2d 315 (Tex. App.--[1st Dist.] 1990, pet. granted). Discretionary review has been granted in Muller to determine if the state properly perfected its appeal to the Court of Appeals. Appellant reasons that if the appeal was not perfected, the Muller opinion may be vacated and this court should then address the merits of his arguments that Sections 3(a) and 3(b) of Article 6701l-5 and the implementing regulations are unconstitutional. See id.; Tex. Rev. Civ. Stat. Ann. art. 6701l-5, 3(a), (b) (Vernon Supp. 1991).

The opinion in Muller reveals that Muller's attack on the constitutionality of the statutes and regulations included the same grounds as Appellant urges in this Court:

1. The statutes and regulations are unconstitutional because they breach the doctrine of separation of powers;

2. The statutes and regulations are void for vagueness because they constitute a standardless delegation of authority to the scientific director of the Texas Department of Public Safety; and

3. The statutes and regulations fail to ensure the accuracy of breath testing and therefore produce evidence which is insufficient as a matter of law to constitute proof of intoxication at the time of driving, beyond a reasonable doubt.

See Muller, 798 S.W.2d at 318. Because the Muller opinion addresses each of Appellant's allegations and because we agreed with the reasoning of the First Court of Appeals in holding that the statutes and regulations are not unconstitutional on the grounds asserted by Appellant, we adopted it. See id. at 318-321.

We deny Appellant's motion for rehearing.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings

and Justice Vance

Rehearing denied

Opinion delivered and filed May 30, 1991

Do not publish