Thomas Lee Peden, Jr. v. State

Opinion issued November 10, 2004 In The Court of Appeals For The First District of Texas NO. 01-03-00522-CR THOMAS LEE PEDEN, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from County Criminal Court at Law No. 6 Harris County, Texas Trial Court Cause No. 1123518 MEMORANDUM OPINION Appellant, Thomas Lee Peden, Jr., was charged by information with driving while intoxicated (DWI). Following a hearing, the trial court denied his motion to suppress evidence concerning retrograde extrapolation of his breath test results. A jury found him guilty, and the trial court assessed punishment at 180 days’ confinement, probated for one year, and an $800 fine. In two issues, appellant contends that the trial court erred (1) in admitting testimony by the State’s expert on retrograde extrapolation and (2) in admitting the breath test results without reliable retrograde extrapolation. We affirm. Background At 11:05 p.m., on July 1, 2002, Deputy Gary Wilson of the Harris County Sheriff’s Department stopped appellant on the Sam Houston Toll Road for speeding. Wilson noticed an odor of alcohol emanating from appellant and asked him to get out of his car. Wilson also noted that appellant had bloodshot eyes and was swaying a bit. Appellant admitted drinking two glasses of port wine with dinner but declined field sobriety tests. Wilson arrested appellant and transported him to the Cypresswood Drive substation. They arrived at 12:10 a.m. and found that the video camera was inoperative. Wilson then transported appellant to the Tomball Police Department. There, appellant consented to breath testing. Tests were conducted at 12:49 and 12:51 a.m., and yielded a final blood alcohol concentration (BAC) result of 0.126. Appellant then took and passed Romberg and standard field sobriety testing, except that no horizontal gaze nystagmus test was administered. At the suppression hearing, the State used retrograde extrapolation to establish that the appellant’s BAC was in excess of the legal limit of 0.08 at the time he drove his car.Admissibility of Expert TestimonyIn his first issue, appellant contends that the trial court erred in admitting testimony by the State’s expert on retrograde extrapolation because (1) the expert was not qualified, (2) the validity of the underlying science and technique was not proven, and (3) the application of the technique in this case was improper. A. Standard of Review The standard of review for the admissibility of evidence is abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). An abuse of discretion occurs where a trial court’s decision lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). In determining whether a trial court has abused its discretion, we consider whether the court acted arbitrarily or unreasonably and without reference to guiding rules or principles. Id. at 380. B. Expert Testimony “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702. Rule 702 requires the proponent to prove to the trial court, by clear and convincing evidence, that the proffered evidence is relevant and reliable. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). C. Analysis The Court of Criminal Appeals addressed the admissibility of expert testimony on retrograde extrapolation in Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001). In Mata, the court found that “the science of retrograde extrapolation can be reliable in a given case,” but the expert must be able to “apply the science and explain it with clarity.” Id. at 916. The expert must demonstrate understanding of the complexities and awareness of the risks inherent in its application. Id. Finally, the expert must be able to clearly and consistently apply the science. Id. In evaluating the reliability of an expert’s application of retrograde extrapolation in a given case, the court should consider: (1) the length of time between the offense and the administration of the tests; (2) the number of tests given and the time intervals between them; and (3) the extent to which any individual characteristics of the defendant were known to the expert, such as, (a) the person’s weight and gender; (b) the person’s typical drinking pattern and tolerance for alcohol; (c) how much the person had to drink on day in question; (d) what the person drank; (e) the duration of the drinking spree; (f) the time of the last drink; and, (g) how much and what was eaten either before, during, or after drinking. Id. “[A] single test conducted some time after an offense could result in reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant.” Id. Further, the court explained that in a case where a single test is given within a reasonable amount of time after an offense, but where only two or three characteristics are known, the accuracy of the extrapolation would fall in the middle–there is no exact blueprint for reliability and the factors must be balanced. Id. at 916-17. Here, the State’s expert witness, Becky Cuculic, possessed a master of science degree in chemistry, has been certified as an intoxilyzer operater for the State, has undergone continuing education, and has participated in research programs that focus on the physiological effects of alcohol with the Texas Department of Public Safety and Texas A&M University. She has been a technical supervisor for Chemco Analysis for ten years. Further, she has testified as an expert approximately once monthly for the past ten years. Whether a witness is qualified to testify is largely within the trial court’s discretion and will not be disturbed absent a clear abuse of that discretion. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). Cuculic’s background strongly suggests that she was qualified to perform retrograde extrapolation in this case. See Bhakta v. State, 124 S.W.3d 738, 741 (Tex. App.—Houston [1st Dist.] 2003, no. pet.). In testifying at the suppression hearing and later at trial, Cuculic explained the use of retrograde extrapolation in a clear and understandable manner. See Mata, 46 S.W.3d at 916; Bhakta, 124 S.W.3d at 741. She explained the underlying scientific theories and methodologies of its application. See Mata, 46 S.W.3d at 916; Bhakta, 124 S.W.3d at 741. In addition, she demonstrated an appreciation of the risks inherent in using retrograde extrapolation by explaining that it is not an exact science. See Mata, 46 S.W.3d at 916; Bhakta, 124 S.W.3d at 741. Further, Cuculic applied retrograde extrapolation to a hypothetical situation and explained how the factors outlined above influence the calculation of a person’s BAC through the absorption and elimination phases. See Bhakta, 124 S.W.3d at 741. In applying the technique to this case, Cuculic recognized the difficulty in calculating appellant’s BAC because there was a single test performed an hour and forty-four minutes after the stop. See Mata, 46 S.W.3d at 917. However, she knew that appellant was a 165-pound male who had eaten a meal consisting of steak, potatoes, and salad between 6:30 p.m. and 10:30 p.m. Appellant admitted drinking two glasses of port wine and did not have any alcohol after 10:30 p.m. He was stopped at 11:05 p.m., his breath was tested at 12:49 a.m., and the final BAC was 0.126. Cuculic applied these factors to conclude that, even if appellant’s BAC had peaked at the time of testing, his alcohol concentration would have been over 0.08 at the time he drove his car. Cuculic was unable to recite specific aspects of various research, and she acknowledged that she had “not read every single article out there on breath testing.” However, this did not undermine the value her testimony. As the State asserts, the standard in applying Rule 702 is not whether the expert addressed every pertinent issue that could be raised by the facts, but “whether the expert took into account enough of the pertinent facts to be of assistance to the trier of fact on a fact in issue.” Jordan v. State, 928 S.W.2d 550, 556 (Tex. Crim. App. 1996). Cuculic is qualified as an expert by knowledge, skill, experience, training, and education, and her testimony was helpful to the trier of fact in understanding the evidence and in determining whether appellant was intoxicated when he drove his car. Therefore, the trial court did not abuse its discretion by allowing Cuculic to apply retrograde extrapolation in this case and to testify to her conclusions. We overrule appellant’s first issue. Admission of Test Results In his second issue, appellant contends that the trial court erred in admitting the breath test results because they were taken a considerable amount of time after the traffic stop. Hence, asserts appellant, without proper retrograde extrapolation evidence to relate the test results to the time of driving, the results were (1) irrelevant, and (2), even if relevant, were inadmissible under Rule 403 as minimally probative and likely to impress the jury in an irrational way. Tex. R. Evid. 403. Having found retrograde extrapolation reliable in this case, we need not reach these issues. Moreover, appellant has heavily relied upon a decision that has been reversed on the point at issue in this case. Stewart v. State, 103 S.W.2d 483 (Tex. App.—San Antonio 2003), rev’d, 129 S.W.3d 93 (Tex. Crim. App. 2004) (reversing the lower court’s holding that breath tests are inadmissible without reliable retrograde extrapolation evidence). The Court of Criminal Appeals held that breath tests are relevant evidence, and the relevancy of breath tests under Rule 401 is not dependent upon a showing of retrograde extrapolation evidence. Tex. R. Evid. 401; Stewart, 129 S.W.3d at 96. Further, even in the absence of retrograde extrapolation, breath test results are probative. Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). This Court has found ample authority to support sustaining a conviction based upon after-the-fact testing in the absence of expert extrapolation evidence. Gowans v. State, 995 S.W.2d 787, 790-91 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (listing such authority); see also Garcia v. State, 112 S.W.3d 839, 849-50 & nn.5-7 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (noting that the necessity of extrapolation testimony has been rejected by courts in this state as well as in other jurisdictions and providing such listing). We overrule appellant’s second issue. Conclusion We affirm the judgment of the trial court. Laura C. Higley Justice Panel consists of Justices Nuchia, Hanks, and Higley. Do not publish. Tex. R. App. P. 47.2(b).