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Click here for the full text of this decision FACTS:In this driving while intoxicated case, the state appeals the suppression of the defendant’s intoxilizer results. The trial court suppressed intoxilizer results, taken one and one-half hours after the defendant’s arrest, concluding that the test results were unduly prejudicial without retrograde extrapolation evidence. HOLDING:Reversed. The issue in Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001), was whether retrograde extrapolation testimony by the state’s expert was reliable under Texas Rule of Evidence 702. In that case, the Court of Criminal Appeals concluded that the trial court abused its discretion by admitting the testimony extrapolating Mata’s intoxilizer results back to the time he was driving because it was unreliable. The court found the testimony unreliable because the expert 1. contradicted himself; 2. failed to acknowledge contrary scientific evidence; 3. was inconsistent in his testimony; 4. erred in his mathematical calculations; and 5. acknowledged that all of his calculations were speculative. However, the results of the intoxilizer were admissible. The Court of Criminal Appeals specifically declined to address the issue of whether extrapolation testimony is necessary to admit intoxilizer results. The San Antonio Court of Appeals requires retrograde extrapolation testimony for the admission of intoxilizer results. In Stewart v. State, 103 S.W.3d 483 (Tex. App. � San Antonio 2003, pet. granted), the court reasoned that unextrapolated intoxilizer results were irrelevant, provided no evidence of whether the defendant drove while intoxicated and required the jury to assume facts not in evidence. In an unpublished opinion, the Austin Court of Appeals stated that Mata does not hold that admissible retrograde extrapolation evidence is a predicate to admit intoxilizer results. Ball v. State, 2002 WL 1988250 (Tex. App. � Austin 2002, pet. ref’d) (not designated for publication). The Fort Worth Court of Appeals stated retrograde extrapolation is not required to admit intoxilizer test results if other evidence proves beyond a reasonable doubt that a person was intoxicated when the offense occurred. Price v. State, 59 S.W.3d 297 (Tex. App. � Fort Worth 2001, pet. ref’d). In a subsequent unpublished opinion, the court found that a trial court did not err in allowing the admission of intoxilizer results without retrograde extrapolation when other evidence existed to indicate the appellant was intoxicated at the time he was driving his car. Torres v. State, 2003 WL 21283663 (Tex. App. � Fort Worth 2003, no pet.) (not designated for publication). The El Paso Court of Appeals stated that the argument regarding the necessity of retrograde extrapolation testimony has been rejected by the courts of this state. Carillo v. State, 2003 WL 1889943 (Tex. App. � El Paso 2003, no pet.) (not designated for publication). This court is persuaded by the preponderance of intermediate appellate courts that have addressed this issue subsequent to Mata. Because the Court of Criminal Appeals specifically left open the question of whether retrograde extrapolation must accompany intoxilizer results and Mata concerned the admissibility of expert testimony rather than test results, the court finds that Mata is inapplicable to the issues raised in the instant case. The court holds that the trial judge erred in suppressing the defendant’s intoxilizer results based on Mata. The court has previously held that unextrapolated intoxilizer results were relevant, not unduly prejudicial, and admissible. Verbois v. State, 909 S.W.2d 140 (Tex. App. � Houston [14th Dist.] 1995, no pet.). In that case, the court found intoxilizer results, taken two and one-half hours after a traffic accident, were 1. relevant to show the defendant had consumed alcohol prior to the accident; and 2. not unduly persuasive because the state’s expert witness testified that the test could not reliably determine defendant’s BAC at the time of the accident and the defendant’s expert testified that the test can have erroneous results. In the instant case, the defendant performed the intoxilizer one and one-half hours after his arrest. The state has conceded that it does not possess the required information to perform a proper retrograde extrapolation. The defendant is not precluded from offering expert testimony regarding erroneous test results or on the theory that his BAC was actually lower while he was driving. For reasons of efficiency, fairness and legitimacy, a court must adhere to its precedents. Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995). Verbois is a precedent that the court is bound to follow. The trial judge’s suppression order contravenes the holding in that opinion. The state, in this case, has conceded that it does not have the ability to meet those Mata factors and thus will not be presenting retrograde extrapolation evidence. Therefore, the scientific reliability of extrapolation theory is not an issue. The court concludes the intoxilizer results are probative as to the per se and the impairment definition of intoxication. The court finds that admission of the defendant’s intoxilizer results will not tend to impress the jury in an irrational way if the trial court correctly instructs the jury that, in order to convict him, it must find that the defendant was intoxicated and drove while intoxicated. Because the defendant’s intoxilizer results are evidence of his intoxication under the impairment and the per se definitions of intoxication and because the state will not devote any time to explaining the theory of retrograde extrapolation, the court finds an undue amount of time will not be required to develop the intoxilizer evidence. The state may attempt to prove the defendant was intoxicated by introducing his intoxilizer results or eyewitness testimony regarding his loss of faculties. The arresting officer testified that he witnessed the defendant roll through a stop sign and drive erratically and that he smelled alcohol emanating from the defendant’s vehicle and breath. The officer also testified that the defendant had trouble with divided attention tasks, failed field sobriety tests and admitted to drinking “a little.” Nevertheless, the state maintains its need for the intoxilizer results to prove the defendant had introduced alcohol into his system and to preclude the jury from entertaining the notion he had only “a little” to drink. The defendant contends the arresting officer’s testimony that he 1. failed field sobriety and horizontal gaze nystagmus tests; and 2. smelled of alcohol is adequate evidence to prove this fact of consequence. The court agrees with the defendant that the state’s need for this probative evidence is “not great” because it has other probative evidence to establish the fact of his intoxication. After balancing the above factors, and following Verbois and the majority of intermediate appellate courts that have addressed this issue in DWI cases, the court concludes that there is not a clear disparity between the degree of prejudice of unextrapolated intoxilizer results taken one and one-half hours after arrest and their probative value. The state’s second point of error is sustained. The court holds that the trial court erred in suppressing the results of the intoxilizer test based on Texas Rule of Evidence 403. OPINION:Seymore, J.; Edelman, Seymore and Guzman, JJ.

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