Court of Appeals of Texas, Fourteenth District, HoustonFeb 15, 2007
No. 14-05-01169-CR (Tex. App. Feb. 15, 2007)

No. 14-05-01169-CR

Memorandum Opinion filed February 15, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).

On Appeal from the County Criminal Court at Law No. 1 Harris County, Texas. Trial Court Cause No. 1281110.

Panel consists of Justices ANDERSON, HUDSON, and GUZMAN.



Peter John Noyes appeals his conviction for the misdemeanor offense of driving while intoxicated ("DWI"). In his sole point of error, appellant contends the trial court abused its discretion in refusing to admit the results of an out-of-court experiment as proof the instrument used to test his breath was inaccurate as applied to his particular physiology. We affirm. Officer Aguilar stopped appellant at approximately 1:15 a.m., for driving 61 m.p.h. in a 35 m.p.h. zone of Westheimer Road. When he approached the vehicle, Aguilar observed appellant's eyes were bloodshot and there was a strong odor of alcohol. When asked, appellant admitted he had been drinking. Aguilar then asked appellant to exit the car. Aguilar proceeded to administer several field sobriety tests. After appellant failed four of the five tests, Aguilar arrested him. Aguilar drove appellant to his substation where Officer Gonzales, a certified breath test operator, administered a breath test. Appellant registered a 0.141 blood alcohol content ("BAC") at 2:26 a.m., and a 0.143 BAC at 2:28 a.m., approximately two and one half hours after appellant claims to have stopped drinking. Both scores exceeded the legal limit to drive a car. Appellant was charged with misdemeanor DWI, to which he pled not guilty. During the trial, appellant testified that on the night in question, he consumed three "lite" beers at a bar in the Galleria area. He claimed he drank the first beer at 9 p.m., the second at 10 p.m., and the third at approximately 11 to 11:15 p.m. The timing of his consumption was, according to appellant, planned so he would not become intoxicated. He stated he had had nothing to eat since a barbeque lunch at noon that day. He also stated he felt fine to drive when he left the bar. He further testified he thought he left around midnight. Appellant next called Dr. Lykissa as an expert witness to testify about an out-of-court experiment conducted on appellant. After an extensive voir dire examination of Lykissa concerning the equipment and techniques used, the trial court sustained the State's objection to admitting the results of the experiment as evidence. The jury convicted appellant and assessed a punishment of three days in jail and an $800 fine. Appellant brings this appeal. We review the exclusion of evidence under an abuse of discretion standard. Salazar v. State, 127 S.W.3d 355, 359 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). We will not reverse the trial court's ruling so long as it is within the zone of reasonable disagreement. Id. To be admissible, an experiment need not be made under identical conditions of the event. Ginther v. State, 672 S.W.2d 475, 476 (Tex.Crim.App. 1984). Any dissimilarities go to the weight and not to the admissibility of the experiment. Id. However, the proponent must affirmatively show the proposed experiment was conducted under substantially similar circumstances and conditions. Id. The State conducted a Rule 705(b) voir dire examination of Lykissa to determine, among other things, how the experiment was conducted. TEX. R. EVID. 705(b). Lykissa supervised and observed the breath tests, but did not administer them. The lab tested appellant first, to register a negative test indicating no alcohol in his breath. Then, appellant was given two "lite" beers to consume in thirty minutes. Thirty minutes after the last drink, appellant registered a .186 BAC. At that point, Lykissa felt a blood and urine sample should be drawn "immediately." He did those himself. The blood sample tested at .06 BAC and the urine sample at .048 BAC. Lykissa testified he expected a closer alignment between the tests. Lykissa believed the difference between the breath, blood, and urine tests to be "idiosyncratic." The lab continued to take breath tests every thirty minutes, but never repeated the blood or urine tests. When asked to expand on his concerns as to the accuracy of the breath test on appellant's physiology, he stated he had a "hypothesis" but for him to talk about it would be "hearsay." The record contains no basis or explanation of his hypothesis pertaining to appellant's physiology that would cause what he considered to be an abnormal reading on the breath test. The State objected to the experiment not being substantially similar to the police tests, based on several dissimilarities. However, we focus on the consumption schedule used by the experiment. As alcohol is consumed, it passes from the stomach and intestines into the blood, a process referred to as absorption. Mata v. State, 46 S.W.3d 902, 909 (Tex.Crim.App. 2001) (citing NAT'L INST. ON ALCOHOL ABUSE ALCOHOLISM, ALCOHOL ALERT, "Alcohol Metabolism," No. 35 (Jan.1997)). The absorption of alcohol into the body may be variable and may continue over a long period of time. Id. at 912 (citing Y. Al-Lanqawi et al., Ethanol Kinetics: Extent of Error in Back Extrapolation Procedures, 34 Brit. J. of Clinical Pharmacology 316, 320 (1992)). The length of time necessary for alcohol to be absorbed depends on a variety of factors including the presence and type of food in the stomach, the drinking pattern, and the amount consumed. Id. at 911 (citing Alan Jones, et al., Peak Blood Ethanol Concentration and the Time of Its Occurrence After Rapid Drinking on an Empty Stomach, 36 J. of Forensic Sci. 376, 381 (1991)). The time period of alcohol consumption is also an important factor. Id. at 909 (citing Rodney Gullberg, Variation in Blood Alcohol Concentration Following the Last Drink, 10 J. of Police Sci. Admin. 289, 289 (1982)). Here, the experiment did not attempt to replicate the drinking pattern appellant testified he followed the night in question. Appellant claimed he drank three beers that night. Appellant drank two beers during the experiment. On the night in question, appellant claimed he stretched the beers out over a long time period. The experiment required him to drink two beers in thirty minutes. The police gave appellant the breath tests approximately two and one-half hours after he claimed to have stopped drinking. In the experiment, the first test was given thirty minutes after he stopped drinking. Appellant last ate barbeque at noon the day in question. The record is silent as to what and when appellant ate prior to the experiment. Differing absorption rates based on differing factors logically could cause differing results. Lykissa testified he was unaware appellant claimed to have stopped drinking two and one-half hours before the breath tests given by the police. Although Lykissa did not articulate his theory, he admitted that even if his theory was correct, appellant would not have tested over the legal limit as he did the night in question, two and one-half hours after he allegedly stopped drinking. Appellant failed to affirmatively show the proposed experiment was substantially similar to the incident and, thus, the trial court did not abuse its discretion in excluding the results. We overrule appellant's sole point of error and affirm the trial court's ruling.

Appellant told Officer Aguilar he had been drinking at the office, and had his last beer at 10 p.m. Under oath, appellant testified the discrepancies were due to nervousness.

Appellant testified he said goodbye in the parking lot to the people he was with, and drove down West Alabama to Westheimer and out to the cross street close to Beltway 8 where he was pulled over. He stated Westheimer went straight to his house, which is about ten miles from the Galleria. Appellant was stopped around 1:15 a.m., and using his estimates, less than ten miles from the bar.

The State first objected to Lykissa's testimony, arguing he was not qualified as an expert. The State objected to the experiment not being substantially similar because the experiment used a different model of the breath test machine, a different brand of beer, a different amount of beer, a different time frame for consumption, and no evidence as to the amount of food in appellant's stomach. The State also objected to a lack of evidence showing the machine used was calibrated properly. Finally, the State objected to the fact that the person who conducted the experiment was not in court to testify.