No. 04-03-00782-CR
Delivered and Filed: May 4, 2005. DO NOT PUBLISH.
Appeal from the County Court at Law, Kendall County, Texas, Trial Court No. 02-001-CR, Honorable Bill R. Palmer, Judge Presiding. Affirmed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
Opinion by: KAREN ANGELINI, Justice.
J. Scott Beckendorf appeals his conviction of driving while intoxicated. Beckendorf raises two issues for review: (1) the trial court erred in admitting testimony by the State's expert on retrograde extrapolation because there existed insufficient information on which to base a retrograde extrapolation; and (2) the trial court erred in allowing the State's witness to quantify his performance on the Standardized Field Sobriety Tests. We overrule both issues and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
On December 10, 2001, J. Scott Beckendorf was stopped for speeding in Kendall County, Texas. The police officer conducting the traffic stop detected the odor of an alcoholic beverage coming from Beckendorf's vehicle and asked Beckendorf to exit the vehicle to perform field sobriety tests. Upon completing the field sobriety tests, the officer placed Beckendorf under arrest. Although Beckendorf initially denied having had anything to drink, he later admitted to consuming "three to four beers." Beckendorf was taken to the Kendall County Sheriff's office, where he agreed to submit to an intoxilyzer test. Two breath samples were taken at 12:20 a.m. and 12:22 a.m. The results of both tests were 0.086. Beckendorf was charged by information with driving while intoxicated under both definitions of the term; that is, he did not have normal use of his mental and physical faculties due to the consumption of alcohol ("impairment theory" of intoxication), and his alcohol concentration was 0.08 or more ("per se" theory of intoxication). The information was amended to drop the 0.08 alcohol concentration allegation, and the cause proceeded to trial. The trial court, on motion of the Defendant, declared a mistrial after the jury could not reach a verdict. Thereafter, the information was amended to reinstate the alcohol concentration allegation. A second jury trial was held, and Beckendorf was found guilty of driving while intoxicated. RETROGRADE EXTRAPOLATION TESTIMONY
In his first issue, Beckendorf contends that the trial court erred in admitting testimony by the State's expert on retrograde extrapolation because there existed insufficient information on which to base retrograde extrapolation as required by Mata v. State, 46 S.W.3d 902 (Tex.Crim.App. 2001). A. Standard of Review
We review a trial court's decision to admit or to exclude evidence for an 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. Analysis
Retrograde extrapolation is the technique by which a person's alcohol concentration at some earlier time is estimated based upon the results of testing conducted at a later time. See Mata, 46 S.W.3d at 908-09. Retrograde extrapolation is scientific expert testimony, the admission of which is governed by Texas Rule of Evidence 702. See TEX. R. EVID. 702; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Mata, the Court of Criminal Appeals concluded 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." Mata, 46 S.W.3d at 916. In so doing, the expert must demonstrate some understanding of the difficulties associated with retrograde extrapolation, as well as an awareness of the subtleties of the science and the risks inherent in any extrapolation. Id. Finally, he must be able to clearly and consistently apply the science. Id. In our review of the record, we find that the State's expert, Antonio Ortiz, explained the use of retrograde extrapolation in a clear and understandable manner. Ortiz, a technical supervisor with the Texas Department of Public Safety, testified that he had practical experience in calculating alcohol concentration using retrograde extrapolation. Ortiz explained the scientific theories underlying retrograde extrapolation and demonstrated an understanding of the methodologies of its application. He explained how certain factors, such as when Beckendorf had his last drink or whether he had food in his stomach, would affect how alcohol was absorbed and, thus, his blood alcohol level. Ortiz also explained how he employed an average rate of metabolism in his calculations to determine the rate at which the body breaks down the alcohol. In so doing, Ortiz demonstrated an appreciation of the risks inherent in using retrograde extrapolation. Specifically, Ortiz noted that retrograde extrapolation is not an exact science and that "it would still be an estimate," but that the more information that is available, the more accurate the estimation. In evaluating the reliability of an expert's application of retrograde extrapolation in a given case, however, the trial court should also consider the following: (1) the length of time between the offense and the administration of the test(s); (2) the number of tests given and the interval between each; and (3) to what extent, if any, the individual characteristics of the defendant were known to the expert in providing his extrapolation. See Mata, 46 S.W.3d at 916-17. These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much alcohol the person consumed on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last alcoholic drink, and how much and what the person had to eat, either before, during, or after the consumption of alcohol. Id. Here, a single intoxilyzer test was administered to Beckendorf approximately one hour and fifteen minutes after the offense. Nevertheless, Ortiz was provided with a significant number of Beckendorf's personal characteristics and behaviors in order to make his calculation. See Mata, 46 S.W.3d at 916-17 (holding that a single test conducted some time after the offense will result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant). Specifically, Ortiz knew Beckendorf's age; weight and height; the results of his breath tests; what and when he ate that evening; what he allegedly drank that evening; the duration of the drinking spree; as well as the approximate time of his last drink. In fact, the only Mata characteristic not known to Ortiz at trial was Beckendorf's typical drinking pattern or tolerance for alcohol. However, Ortiz need not know every personal fact about the defendant to produce an extrapolation with the appropriate level of reliability. Id. at 916. ("if this were the case, no valid extrapolation could ever occur without the defendant's cooperation, since a number of facts known only to the defendant are essential to the process"). We conclude that Ortiz had sufficient information available upon which to reliably extrapolate Beckendorf's alcohol concentration at the time of the offense. Accordingly, we hold that the trial court's decision to admit Ortiz's testimony was at least "within the zone of reasonable disagreement," and we overrule Beckendorf's first issue on appeal. SFST EXPERT TESTIMONY
In his second issue, Beckendorf contends that the trial court erred in allowing the State's witness to quantify his performance on the Standardized Field Sobriety Tests (SFSTs). Because this issue is also evidentiary, we review the trial court's decision for an abuse of discretion and will not reverse the ruling unless it falls outside the "zone of reasonable disagreement." Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002). Here, Sergeant Busbee testified as to his knowledge of three of the SFSTs: the horizontal gaze nystagmus (HGN), the walk and turn, and the one-leg stand. Specifically, Busbee testified as to how many clues officers are trained to look for in determining whether the suspect's level of alcohol is over the legal limit. Without concluding that Busbee's testimony acted to correlate Beckendorf's performance on the SFSTs to a specific BAC, we hold that the error, if any, was harmless. Non-constitutional error must be disregarded unless it affected substantial rights. TEX. R. APP. P. 44.2(b). In ascertaining whether "substantial rights" were affected, we must determine whether the court's error, in light of the entire record, "had more than a slight influence on the verdict." Smith v. State, 65 S.W.3d 332, 345 (Tex.App.-Waco 2001, no pet.). "If we have grave doubts about its effect on the outcome, we should find that the error was such as to require a new trial." Id. Here, the jury was charged with determining whether Beckendorf was intoxicated either by the impairment of the normal use of his physical and mental faculties due to alcohol, or by having an alcohol concentration in excess of the legal limit of 0.08. At trial, various sources of evidence were brought by the State tending to establish Beckendorf's guilt. In determining whether Beckendorf was intoxicated at the time he was stopped, Busbee's testimony was but one "piece in the evidentiary puzzle for the jury to consider." See Lopez v. State, No. 04-03-00178-CR, 2004 WL 1251657, at *2 (Tex.App.-San Antonio June 9, 2004). The trial court also admitted evidence of Beckendorf's intoxilyzer test results, which showed that his alcohol level exceeded 0.08. In addition, the jury watched a police video in which Beckendorf lost his balance, swayed, and failed to adhere to the officer's instructions during his field sobriety tests. Because this evidence was presented to the jury, we conclude that any error in admitting Busbee's testimony did not have more than a "slight" influence, if any, on the jury's verdict. See Smith, 65 S.W.3d at 345 (holding error harmless where trial court also admitted evidence of intoxilyzer tests and officer testimony that Defendant smelled of alcohol, had blood-shot eyes, and failed SFSTs). Finding harmless error, we overrule Beckendorf's second issue on appeal. CONCLUSION
Having overruled both issues, we affirm the judgment of the trial court.