Opinion
No. 04-03-00069-CR.
Delivered and Filed: March 3, 2004. DO NOT PUBLISH.
Appeal from the County Court at Law No. 12, Bexar County, Texas, Trial Court No. 802731, Honorable Michael Mery, Judge Presiding. Reversed and Remanded.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Wendell Glenn was charged with the offense of driving while intoxicated. Glenn filed a motion to suppress the results of the breathalyzer test he took on the night of his arrest, asserting the State's expert "has no underlying data upon which to base an opinion concerning retrograde extrapolation." Glenn's motion claimed that his breath test results were irrelevant without retrograde extrapolation testimony. The motion further claimed that the probative value of the breath test evidence in this case was substantially outweighed by the danger of unfair prejudice, citing Texas Rule of Evidence 403. At the hearing on Glenn's motion, the trial court focused exclusively on Glenn's relevancy complaint. The trial court ultimately suppressed the results of Glenn's breathalyzer test, citing this court's holding in Stewart v. State, 103 S.W.3d 483 (Tex. App.-San Antonio 2003), rev'd, 2004 WL 299199 (Tex.Crim. App. 2004), as support for its ruling. The court of criminal appeals, however, recently overruled Stewart because the court determined that breath test evidence may be relevant without retrograde extrapolation evidence. See Stewart v. State, No. 324-03, 2004 WL 299199, at *2 (Tex.Crim.App. Feb. 18, 2004). Consequently, we must sustain the State's third issue because the trial court erred by relying on Stewart to suppress Glenn's breathalyzer test results. In light of the court of criminal appeals's decision in Stewart, we reverse the trial court's suppression order and, in the interest of justice, we remand the cause to the trial court so that it may consider Glenn's Rule 403 complaint.