Opinion by: SARAH B. DUNCAN, Justice.
Hossein Bagheri was convicted of driving while intoxicated. On appeal he contends
In keeping with our prior opinions in Hartman v. State, 2 S.W.3d 490, 494 (Tex. App.-San Antonio 1999, pet. ref'd), and Mata v. State, 75 S.W.3d 499, 500-01 (Tex. App.-San Antonio 2002, pet. filed) (not yet published), in which this court held that the error was harmless because the evidence was sufficient to support conviction under the alternate impairment theory, the State urges that the error was harmless. On our own initiative, we have reconsidered the harm issue en banc and now hold that the sufficiency of the evidence under the alternate impairment theory is irrelevant; it does not establish that the error in admitting the flawed retrograde extrapolation analysis was harmless. We therefore overrule Mata and Hartman to the extent of the conflict and reverse the trial court's judgment and remand the cause for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
Bagheri was arrested at approximately 2:30 a.m. by Officer Randall McCumbers after McCumbers observed Bagheri's vehicle traveling at approximately 70 m.p.h., veer onto the inside shoulder of the road on two occasions, and, increasing his speed to approximately 85 m.p.h., move across three lanes of traffic without signaling. After Bagheri was stopped, McCumbers noticed that his speech was slurred, his breath smelled of alcohol, and his eyes were red and glassy. Bagheri seemed confused and stumbled when he exited his car; and he appeared unsteady as he walked to the rear of his car. Field sobriety tests indicated to McCumbers that Bagheri was driving while intoxicated. Intoxilyzer tests revealed Bagheri's blood alcohol level to be 0.113 at 3:34 a.m. and 0.107 at 3:37 a.m. At trial George Allen McDougall, Jr., Bexar County's breath test technical supervisor, testified that these intoxilyzer test results established that Bagheri's blood alcohol level was 0.10 or more at the time of the stop using a retrograde extrapolation.
The court's charge asked the jury to find whether Bagheri was guilty of the offense of driving while intoxicated and instructed the jury that a person is deemed to be intoxicated while driving within the meaning of the law if: (1) he does not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into the body; or (2) he has an alcohol concentration of 0.10 percent or more. The jury found Bagheri guilty; and he was sentenced to eight months in jail, probated for 120 days, and fined $1500.
Because the error of which Bagheri complains is nonconstitutional, we must disregard it unless it affected his "substantial rights." Tex.R.App. P. 44.2(b). "[S]ubstantial rights are not affected by the erroneous admission of evidence `if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.'" Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001). Stated another way, "[t]he accused's substantial rights are not affected unless there is a reasonable possibility that the errors are prejudicial; i.e., that they `might have contributed' to the defendant's conviction." Hinds v. State, 970 S.W.2d 33,
The State argues the error in admitting the retrograde extrapolation was harmless because the court's charge submitted both the "per se" and "impairment" theories of intoxication; and the jury may have convicted Bagheri based on the impairment theory, which is supported by McCumber's testimony and the intoxilyzer test results. The State's argument is supported by our previous opinions in Mata v. State, 75 S.W.3d 499, 500-01 (Tex.App.-San Antonio 2002, pet. filed), and Hartman v. State, 2 S.W.3d 490, 494 (Tex.App.-San Antonio 1999, pet. ref'd).
Even if we assume the intoxilyzer test results would be admissible in the absence of a retrograde extrapolation tying the results to the time of the stop,
After reviewing the record, we cannot conclude that the retrograde extrapolation evidence "did not influence the jury, or had but a slight effect." The retrograde extrapolation evidence was placed before the jury by an expert witness, whom the State touted in closing arguments as having "studied with the leading experts in the field in the United States"; and it was not cumulative of other evidence. We therefore hold the error was not harmless, reverse the trial court's judgment, and remand the cause for a new trial consistent with this opinion.
PHIL HARDBERGER, C.J., concurs.
Concurring opinion by: PHIL HARDBERGER, Chief Justice, joined by ALMA L. LÓPEZ, Justice.
I agree with the majority's conclusion that the admission of McDougall's testimony was harmful for the reasons stated in my earlier dissenting opinion in Mata v. State, 75 S.W.3d 499 (Tex.App.-San Antonio 2002, pet. filed) (Hardberger, C.J., dissenting). In Mata, the Court of Criminal Appeals held that the trial court erred in admitting McDougall's testimony and remanded the case to our court for a harm analysis. See Mata v. State, 46 S.W.3d 902 (Tex.Crim.App.2001). In conducting the harm analysis, my dissent asserts that we should use an analysis similar to that used by the Texas Supreme Court in Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex.2000). The reason is simple enough. If a jury is given both admissible and inadmissible testimony, which did they rely upon in reaching their verdict? "Because we cannot determine from our record which theory was the basis for the jury's verdict, the error is harmful and reversal is required." Mata, 75 S.W.3d 499, 503 (Hardberger, C.J., dissenting).
In this case, the majority undertakes the harm analysis because the State confessed error and stated that the facts in this case are no better than the facts in Mata v. State, 46 S.W.3d 902 (Tex.Crim.App.2001). The State did confess error during oral argument, but that cannot be the end of this court's analysis.
In Mata, the Texas Court of Criminal Appeals instructed us on how to evaluate the reliability of retrograde extrapolation testimony. See Mata v. State, 46 S.W.3d 902 (Tex.Crim.App.2001). After reviewing the scientific literature and the position taken by courts in other jurisdictions, the court concluded as follows:
46 S.W.3d at 916-17.
In this case, McDougall's testimony contained some inconsistencies which appear to be misstatements; however, McDougall was able to explain the science of extrapolation to the jury with some clarity. McDougall's testimony was unlike his testimony in Mata in which the court cited numerous glaring inconsistencies, including numerous contradictions, math errors, and inconsistent statements. See Mata, 46 S.W.3d at 906 & n. 9-14, 914-15 & n. 81-86. In short, this is a much clearer case than Mata.
With regard to the three factors the Court of Criminal Appeals has instructed us to consider, one hour had elapsed between the offense and the test, as opposed to the two hour delay in Mata. Only one test was given, which is standard. Although McDougall did not know Bagheri's individual characteristics, the assumptions used as the basis for his hypothetical were later proven to be true through Bagheri's testimony, including (1) the time of Bagheri's last meal; (2) the type of alcohol Bagheri consumed; (3) the duration of Bagheri's drinking spree; and (4) the time of Bagheri's last drink.
Given that the assumptions underlying McDougall's extrapolation testimony were proven by Bagheri's subsequent testimony, albeit with a few inconsistencies, this case falls "somewhere in the middle" because "there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert." Mata, 46 S.W.3d at 916-17. Since this case falls "somewhere in the middle," I believe it is proper to address the harm analysis given the "great weight" that we give to the State's confession of error. Saldano, 70 S.W.3d at 884.
In support of its argument that the test result would be admissible and relevant absent a retrograde extrapolation to establish intoxication under an impairment theory, the State cites Mireles v. Texas Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex.1999), and Price v. State, 59 S.W.3d 297 (Tex.App.-Fort Worth, 2001, pet. ref'd.). However, neither case analyzes relevance in the context of the established science; both opinions simply rely upon Forte v. State, 707 S.W.2d 89, 95 (Tex. Crim.App.1986). But Forte predates the entire Daubert "revolution" and its application to DWI cases such as Mata.
In short, the admissibility and relevance of the intoxilyzer test result in the absence of a retrograde extrapolation has not been authoritatively decided by the Texas Court of Criminal Appeals. We have therefore adopted a harm analysis that renders the issue moot.