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Click here for the full text of this decision FACTS:On Oct. 17, 2000, an assistant criminal district attorney of Bexar County filed an information in the trial court charging Anthony Gigliobianco with driving while intoxicated. The information charged Gigliobianco under both statutory definitions of “intoxicated,” i.e., 1. not having the normal use of one’s mental or physical faculties by reason of the introduction of alcohol into one’s body; and 2. having an alcohol concentration of 0.08 or more in one’s body. On Sept. 16, 2002, the state brought Gigliobianco to trial before a petit jury on his plea of not guilty. At the guilt stage of that trial, the state presented two witnesses and a videotape. The state’s first witness, Officer Michael Heim of the San Antonio Police Department, testified as follows: Around 9:45 p.m., on Sept. 29, 2000, while he was patrolling on Loop 410 in San Antonio, he observed Gigliobianco driving a motorcycle erratically and in excess of the posted speed limit. Heim stopped Gigliobianco on an access road adjacent to the highway and observed that appellant had bloodshot eyes, was unsteady on his feet and had a strong odor of alcohol on his breath. He also observed appellant perform poorly on three out of four field sobriety tests administered at the scene. Heim transported Gigliobianco to a nearby police station, where, at around 11 p.m., he took a breath test. The breath test indicated that Gigliobianco was intoxicated. In the course of Heim’s testimony, the trial court admitted in evidence and allowed the jury to view a videotape of Heim’s stop of appellant. The videotape showed that 1. Appellant’s driving at the time and place in question had been exactly as Officer Heim had described it; 2. Appellant, after he had been stopped, had appeared quite lucid but had admitted that he had been drinking beer; and 3. Appellant had had some difficulty performing some of the field sobriety tests. The state’s second witness George McDougall testified that: 1. He was the breath test technical supervisor for Bexar County and was responsible for maintaining the state’s automated breath test equipment in that county; 2. The automated breath test equipment used to measure appellant’s breath alcohol concentration had been working properly on the occasion in question; 3. The term “breath alcohol concentration” refers to the number of grams of alcohol per 210 liters of breath; 4. A breath test taken some time after a person has been driving can not, by itself, be used to determine that person’s breath alcohol concentration at the time he was driving; 5. Appellant’s breath test had consisted of two samples of his breath, taken two minutes apart; and 6. The automated breath test equipment had measured the breath alcohol concentration in the first sample of appellant’s breath at 0.09, and it had measured the breath alcohol concentration in the second sample of appellant’s breath at 0.092. After hearing all the evidence, the jury found appellant guilty as charged in the information. The trial court later assessed appellant’s punishment at incarceration for 90 days, probated for six months, and a fine of $800. On direct appeal, appellant, citing Rule 403 of the Texas Rules of Evidence, argued that the trial court had abused its discretion in admitting the results of his breath test. According to appellant, the breath test results had been unfairly prejudicial, had confused the issues and had misled the jury. The court of appeals held that the trial court had not abused its discretion in admitting appellant’s breath test results, and affirmed the trial court’s judgment of conviction. HOLDING:Affirmed. The Court of Criminal Appeals (CCA) stated that a trial court, when undertaking a Rule 403 analysis, must balance the inherent probative force of the proffered item of evidence along with the proponent’s need for that evidence against any tendency of the evidence to suggest decision on an improper basis, any tendency of the evidence to confuse or distract the jury from the main issues, any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. For example: Probative Value: The trial court, the CCA stated, could have reasonably concluded that the inherent probative force of appellant’s breath test results was considerable, since those test results showed that appellant had consumed, in the hours preceding the breath test, a substantial amount of alcohol enough alcohol to raise his breath alcohol concentration to 0.09. This evidence, the court stated, tended to make more probable appellant’s intoxication at the time he was driving, under either statutory definition of intoxication. Unfair Prejudice: The trial court, the CCA stated, could have reasonably concluded that the breath test results did not have a tendency to suggest decision on an improper basis. The test results were not inflammatory in any sense, and they related directly to the charged offense, the CCA stated. Confusion of the Issues: The trial court, the CCA stated, could have reasonably concluded that the breath test results did not have a tendency to confuse or distract the jury from the main issues in the case. It is true, the court admitted, that presentation of the breath test results consumed a fair amount of time at trial. However, the court stated, because the breath test results related directly to the charged offense, the jury could not have been distracted away from the charged offense regardless of the time required to present the results. Misleading the Jury: The trial court, the CCA stated, could have reasonably concluded that the breath test results did not have any tendency to be given undue weight by the jury. Since McDougall testified that the breath test results could not be used to determine what appellant’s breath alcohol concentration was at the time he was stopped, the trial court could have reasonably concluded that the jury was equipped to evaluate the probative force of the breath test results. Undue Delay and Needless Presentation of Cumulative Evidence: Finally, the CCA stated that the trial court could have reasonably concluded that it was unlikely that presentation of the breath test results would consume an inordinate amount of time or merely repeat evidence already admitted. In conclusion, the court held that the trial court, after balancing the various Rule 403 factors, could have reasonably concluded that the probative value of appellant’s breath test results was not substantially outweighed by the countervailing factors specified in the rule. Therefore, we discern no abuse of discretion on the part of the trial court and no error on the part of the court of appeals. The CCA also stated that its opinion did not constitute a per se rule that breath test results will always be admissible in the face of a Rule 403 challenge. The CCA stated that its decision was limited to the facts of the case at issue. OPINION:Holcomb, J., delivered the opinion of the unanimous court.

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