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Click here for the full text of this decision FACTS:The defendant, Anthony Gigliobianco, challenges his conviction of driving while intoxicated, asserting that the trial court abused its discretion in admitting Intoxilyzer test results in violation of Rule 403 and Rule 702 of the Texas Rules of Evidence. Defendant also contends that the trial court violated his statutory and constitutional rights by refusing to include a presumption-of-innocence instruction in the jury charge and erred in overruling his objections to certain testimony. Defendant’s appeal was before the court on remand from the Texas Court of Criminal Appeals. On original submission, the court held that the trial court committed reversible error in admitting the results of the breath test in the absence of retrograde extrapolation citing this court’s opinion in Stewart v. State, 103 S.W.3d 483 (Tex. App. -San Antonio 2003), rev’d, 129 S.W.3d 93 (Tex. Crim. App. 2004). After reversing the court’s opinion in Stewart, the Texas Court of Criminal Appeals vacated the court’s judgment in the instant appeal and remanded the cause for reconsideration. The court subsequently abated the appeal on remand pending the Court of Criminal Appeals’ decision in State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005). The appeal was reinstated after the opinion was issued in Mechler, and both parties were permitted to rebrief the issues on remand. HOLDING:Affirmed. In his first issue, defendant asserts his breath-test results should have been excluded because this evidence was unfairly prejudicial, misleading and confusing. In Mechler, the Texas Court of Criminal Appeals analyzed the admissibility of Intoxilyzer test results in the absence of retrograde extrapolation in response to a Rule 403 challenge. Under Rule 403, all relevant evidence is admissible unless “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Defendant was stopped at 9:46 p.m. and submitted two breath-test samples approximately 80 minutes after he stopped driving. Those samples showed a blood-alcohol content level of .09 and .092. The court held that the results were probative of whether defendant consumed alcohol before operating a motor vehicle and whether he was impaired as a result of his alcohol consumption. Although the test results were prejudicial to defendant, the court holds that they are not unfairly prejudicial because they relate directly to the charged offense. Defendant asserts that the breath-test results should have been excluded under Rule 702 because, in the absence of retrograde extrapolation proving his alcohol content at the time he drove, the test results did not help the jury to understand the evidence or determine a fact in issue. The court disagrees and holds that the breath-test results were helpful to the jury even without retrograde extrapolation because the results provide evidence that the defendant had consumed alcohol. Thus, the Intoxilyzer test results and the expert testimony were properly admitted because the court finds that “they are pieces in the evidentiary puzzle for the jury to consider in determining whether [defendant] was intoxicated at the time he drove.” Defendant then asserts the trial court violated his federal constitutional and statutory rights by denying his request to include an instruction on the presumption of innocence in the jury charge. But the court finds that the totality of the circumstances indicate that the trial court did not err by denying defendant’s requested instruction. Although the jury charge did not include a specific instruction on the presumption of innocence, the court notes that the charge instructed the jury that it could find defendant guilty only if it believed the evidence beyond a reasonable doubt. Finally, defendant contends that the trial court erred in overruling his objection that an officer was not qualified to testify that the Intoxilyzer test results indicated to him that defendant was intoxicated. The court disagrees and concludes that the trial court’s error, if any, did not influence the jury’s verdict because another state expert also testified about the test results in a manner that was substantially similar to that of the officer. Accordingly, the court holds the trial court did not abuse its discretion in admitting the intoxilyzer test results. OPINION:Marion, J.; Sandee Bryan Marion and Phylis J. Speedlin, JJ. DISSENT:L�pez, C.J., dissenting. “Because I believe the trial court committed reversible error in overruling Gigliobianco’s Rule 403 objection to the admissibility of the breath test results, I would reverse the trial court’s judgment and remand the cause to the trial court for a new trial.”

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