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Click here for the full text of this decision FACTS:At 4 a.m. on Oct. 27, 2004, Houston Police Officer C. Allen stopped Daniel Layton’s car for a traffic violation. Allen testified that he noticed the smell of alcohol on Layton’s breath. Allen’s video camera recorded the traffic stop and subsequent events leading up to Layton’s arrest. The trial court admitted the videotape into evidence. Allen asked Layton if he had been drinking alcohol. Layton responded that during the course of the night he had had about five or six drinks. Layton also stated that he had a “buzz” but was not intoxicated. Allen asked Layton if he was on any medications. Layton told Allen that he was taking Valium and Xanax. Layton said that he had not taken Xanax on the previous day but had taken Valium at 2 p.m. on the previous day. Allen responded that it was probably not a good idea to be mixing alcohol with those medications. Allen then conducted a series of field sobriety tests, including the horizontal-gaze-nystagmus (HGN) test, the one-leg-stand test and the walk-and-turn test. Based on his conversation with Layton and Layton’s performance on the tests, Allen concluded that Layton was intoxicated and arrested him for DWI. At the police station, when asked to give a breath sample, Layton said that he wanted to talk to his lawyer first. Layton did not give a breath sample. Layton filed a motion to suppress portions of the videotape of the traffic stop and arrest on the ground that the portion of the videotape in which Layton stated that he took Valium and Xanax was irrelevant. The trial court denied the motion. Before the trial court admitted the videotape into evidence and played it for the jury, Layton again objected that the portions of the videotape mentioning Valium and Xanax were irrelevant. The trial court overruled the objection, reasoning that an inquiry about medications is a predicate to administering the HGN test. Layton argued that the inquiry might be relevant “but the answer was not.” The trial court again overruled the objection. HOLDING:Affirmed. On appeal, Layton argued that his statements regarding his Valium and Xanax use did not make any fact of consequence more or less probable and were therefore irrelevant as to the issue of intoxication; and in the alternative, even if the statements were relevant, the unfair prejudicial effect substantially outweighed the probative value of the statements. It is clear, the court stated, that the state did not introduce Layton’s statements regarding his use of Xanax and Valium to establish that Layton was under the influence of those drugs while driving, because the state did not make any reference to Layton’s use of these medications during the trial testimony or the state’s closing argument. The court noted that the trial court admitted the Xanax and Valium testimony as relevant to the predicate inquiry relating to the administration of the HGN test. The court also noted Layton’s argument that the court’s decision to admit the evidence failed the balancing test of Texas Rule of Evidence 403, which weighs the probative nature of the evidence against its prejudicial qualities. But the court stated that such an analysis did not apply in the case, because the state did not argue that this evidence was probative of the fact of Layton’s intoxication at the time of the stop. The court then concluded that the trial court did not abuse its discretion in admitting the portion of the videotape that contained Layton’s statements regarding Xanax and Valium. OPINION:Nuchia, J.; Nuchia and Higley, J.J. DISSENT: Jennings, J. “Here, it is readily apparent that appellant’s primary point to the trial court and to this Court is that the evidence of his use of the medications was inadmissible because the State failed to demonstrate its reliability in regard to proving that appellant was intoxicated. Nevertheless, the majority avoids the issue altogether in concluding that appellant did not object to the officer’s comments about appellant’s use of the medications and the evidence was relevant to the officer”before administering the H.G.N. test.’ . . . “This Court . . . has an obligation to hand down a written opinion that”addresses every issue raised and necessary to final disposition of the appeal.’ . . . Because the majority affirms the trial court’s judgment without doing so, I respectfully dissent.”

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