Opinion
No. 10-02-186-CR
August 27, 2003 DO NOT PUBLISH
From the County Court at Law No. 2, Montgomery County, Texas, Trial Court # 01-169650.
Before Justice Vance, Justice Gray, and Senior Justice Hill (Sitting by Assignment)
MEMORANDUM OPINION
Mary E. Young appeals her conviction by a jury of the offense of driving while intoxicated, a Class A misdemeanor. The trial court assessed her punishment at one year in the Montgomery County jail and a $3000 fine. Young contends in three issues that: (1) the trial court erred in admitting the retrograde extrapolation testimony of Julie Evans and her opinion that Young was intoxicated at the time of driving; (2) the trial court erred in refusing to include in the jury charge her special requested instruction on the law applicable to breath test results, which required special jury consideration; and (3) the trial court erred in allowing the jury to be informed of details of her prior D.W.I. conviction, which were not elements of the offense, in both the reading of the indictment and in the jury charge, where she had stipulated to the prior conviction in order to satisfy the jurisdictional element of the State's case. We affirm. Young contends in issue one that the trial court erred in admitting the retrograde extrapolation testimony of Julie Evans and her opinion that Young was intoxicated at the time of driving. Julie Evans testified that she is a technical supervisor in the breath alcohol testing program of the Texas Department of Public Safety. She testified without objection that, considering absorption was complete or almost complete at 6:00 p.m., thirty minutes after Young had said she had her last drink, and considering the elimination rate, a rough estimate of her blood alcohol concentration at the time she was driving was .12. After another question was asked, appellant objected to the entire line of questioning because it had not been established that Evans is an expert on retrograde extrapolation. The trial court overruled the objection. Evans then testified without objection that if a person had not had a drink since 5:30 p.m., the breath alcohol concentration would be higher at the time of the traffic stop than at the time of a subsequent breath test. When the State subsequently asked Evans if she had an opinion as to whether Young was intoxicated at the time she was driving, counsel for Young objected, urging that it had not been shown that she had the expertise to extrapolate to the driving time or that she had sufficient information regarding the temperature of Young's breath, her blood breath ratio, and other factors. After the trial court overruled the objection, Evans testified that the hypothetical she had been given would indicate that "that individual" was intoxicated at the time of driving. We first note that Evans had testified that she had learned about the physical effects of alcohol upon the human body. She said that about a fourth of her past and continuing training was on this topic. She also related that she had participated in two studies and conducted two more studies on drinking subjects. She had been allowed, without objection, to extrapolate the blood alcohol percentage in Young's body as .12 at the time she was driving. We therefore hold that Young's later objections concerning Evans's ability to extrapolate Young's condition were untimely. Tex.R.App.P. 33.1(a). Additionally, because of the prior extrapolation, any error in the admission of the subsequent extrapolation did not affect Young's substantial rights. Tex.R.App.P. 44.2(b). Young relies on the case of Mata v. State, 46 S.W.3d 902 (Tex.Crim.App. 2001). We find that case to be distinguishable. In Mata, the court held that the trial court abused its discretion in admitting testimony concerning extrapolation of the defendant's blood alcohol concentration, from a test taken after the defendant drove, back to the time of driving. Id. at 917. In so holding, the court noted that inconsistencies in the witness's testimony prevented him from explaining the science to the court with any clarity. Id. It also noted that the only test of the defendant's breath was taken over two hours after the alleged offense and that the witness did not know a single personal characteristic of defendant, including whether the defendant had eaten anything and, if so, how much; how much the defendant had to drink; what the defendant had been drinking; when the last drink was; the length of the drinking spree; or the defendant's weight. Id. In the case at bar, the witness was not inconsistent, the breath test was given less than two hours after the alleged offense, and the expert knew how much the defendant had to drink, what the defendant was drinking, and when the last drink was. Also, the witness had previously testified without objection concerning extrapolation of Young's blood alcohol concentration to the time of driving. We overrule issue one. Young asserts in issue two that the trial court erred in refusing to include in the jury charge her special requested instruction on the law applicable to breath test results, which required special consideration. Young requested the following instruction:
Ladies and gentlemen, you are instructed that the breath test results concerning the alleged offense must be shown by the state to relate to the defendant's alcohol concentration at the time of her driving, if she was, beyond a reasonable doubt. Having an alcohol concentration of 0.080 or greater while driving is an additional definition of intoxication other than loss of use of mental or physical faculties by reason of the introduction of alcohol into the body as alleged in this case concerning the defendant, and the breath test was admitted, not to prove the truth that she had an alcohol concentration of 0.080 or greater while driving, but to help you determine, if it does, whether there is proof beyond a reasonable doubt that the defendant was driving while intoxicated.This instruction tells the jury that it cannot consider the result of Young's breath test in determining what her blood alcohol concentration was at the time she was driving. Young argues that this instruction is based on Mata. We have already recounted the holding in Mata. There is nothing in Mata indicating that a jury may not consider a subsequent breath test, in addition to other testimony in the case, to determine the defendant's blood alcohol concentration at the time of driving, and we are not aware of any. That being the case, Young's proposed instruction did not properly present the applicable law to the jury. Consequently, the trial court did not err in failing to give the instruction. We overrule issue two. Young insists in issue three that the trial court erred in allowing the jury to be informed of details of her prior D.W.I. conviction that were not elements of the offense, in both the reading of the indictment and in the jury charge, where she had stipulated to the prior conviction in order to satisfy the jurisdictional element of the State's case. The stipulation was that "I, Mary Young, stipulate and agree I have previously been convicted of Driving While Intoxicated, as alleged in the State's Information (Amended)." The stipulation, signed by Young, her attorney, and the assistant district attorney, was admitted into evidence without objection. The information contained the following allegation concerning Young's prior conviction, alleged in order to make the case a Class A misdemeanor:
It is further presented that said defendant did so operate a motor vehicle, as aforesaid, after she had theretofore been duly and finally convicted of the offense of being intoxicated while she was operating a motor vehicle in a public place in Cause No. 63541, styled the State of Texas v. Mary Elizabeth Young, in Liberty County, Texas on October 28, 1999.While there was a discussion between the trial court and Young's counsel prior to the reading of the information concerning the necessity or propriety of including in the reading the cause number, style, county, and date of the prior conviction, Young's counsel made no objection to the trial court's determination that the information would be read, including the facts concerning the prior conviction that are included in the information. We also note that it is proper, when reading the charging instrument, to mention the jurisdictional prior conviction. Tamez v. State, 11 S.W.3d 198, 202 (Tex.Crim.App. 2000). Young did object to those facts being included in the court's charge on the basis that it called undue attention to her prior conviction. The prior conviction is a jurisdictional element of the State's case. Robles v. State, 85 S.W.3d 211, 213 (Tex.Crim.App. 2002). Consequently, the jury was required to find that Young had been previously convicted as alleged in the information. The facts contained in the court's charge merely identified what conviction was alleged in the information so that the jury could make the necessary determination. We do not agree with Young's argument that the trial court erred by including in its charge the facts concerning the prior conviction that were alleged in the information. In urging that these facts should not have been included in the court's charge, Young relies on Judge Womack's concurring opinion in Robles. In Robles, the court held that the trial court erred in allowing the state to enter into evidence judgments of prior convictions alleged for jurisdictional purposes, where the defendant had stipulated to those convictions. Id. at 214. The court held that the danger of unfair prejudice from introduction of the evidence substantially outweighed its probative value. Id. It said that evidence of the prior conviction's existence is not necessary where the defendant has stipulated to its existence. Id. at 213-14. In reaching that conclusion, the court noted that the judgments would have reflected that the defendant was being charged with his fifth alcohol-related offense. Id. at 213. In a concurring opinion, Judge Womack stated that information alleged in the charging instrument, such as the date of prior conviction, court in which the conviction was entered and the docket number of the case are not elements of the offense but are alleged only to give notice to the defendant. Id. at 214. We find Robles to be distinguishable. In Robles, the State introduced not only the identifying facts alleged in the indictment, but introduced the judgments of convictions that showed the defendant had been convicted four previous times of alcohol-related offenses. In the case at bar, the State only introduced the identifying facts alleged in the information, which showed no additional conviction other than that to which Young had stipulated before the jury. Even if the trial court erred by allowing the full reading of the information or by including in its charge the facts concerning the prior conviction that are included in the information, in view of the fact that the jury was informed by the stipulation that Young had previously been convicted of driving while intoxicated, we hold that allowing the innocuous details included in the information to be read to the jury and included in the court's charge did not affect Young's substantial rights. Tex.R.App.P. 44.2(b). We overrule issue three. The judgment is affirmed. Affirmed Opinion delivered and filed August 27, 2003