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Click here for the full text of this decision FACTS:David Woodall entered into a trial before a jury for driving while intoxicated. After several witnesses had testified he changed his plea to no contest. Before the trial began, the state asked the trial court to take judicial notice of the underlying science that supports the Intoxilyzer breath-testing machine but to leave open for cross-examination the testing done in relation to the offense. Defense counsel objected at length, but the court ultimately ruled in favor of the state. As the trial progressed, the state did not introduce the Intoxilyzer results into evidence or otherwise present them to the jury. After the arresting officer, Trooper Dennis Redden, testified, the state and Woodall entered into a plea agreement in which Woodall entered a no-contest plea and was found guilty. Woodall appealed. Woodall contended that the trial court improperly denied his motion to cross-examine any expert called on behalf of the state concerning the working or the reliability of the Intoxilyzer 5000. HOLDING:Reversed and remanded. Woodall, the court stated, argued that the way in which the state obtains breath tests and calculates the machine’s results are open to attack by cross-examination. But Woodall, the court noted, acknowledged that the underlying theory of breath-testing analysis to determine blood-alcohol levels is sound and stipulated that, upon proof that the machine operated properly, the results are admissible. Woodall argued, however, that the trial court could not properly foreclose all cross-examination of the state’s expert on the question of whether the machine worked correctly. The court first chided Woodall for failing to cite to the Sixth Amendment, its Texas constitutional counterpart or relevant case law. Where a petitioner fails to adequate brief an issue, the court stated that it would overrule that issue. But Woodall’s argument, the court stated, is not based directly upon the Sixth Amendment. Rather, Woodall claimed that entirely denying him the Sixth Amendment right to cross-examination deprived him of the right to present a defense. The court then found that Woodall adequately preserved his claim for review. The court reviewed the trial court’s ruling admitting the Intoxilyzer results under an abuse of discretion standard. The state argued at trial that the trial court was within its discretion to disallow any questioning about the machine’s operation and its ability to provide accurate results. The court acknowledged that its previous opinions stating that the Legislature has “already spoken as to the reliability of Intoxilyzer test results.” But the court stated that such language is not precisely accurate. In fact, the court stated, the Legislature determined that breath-test results are admissible when performed as required by Texas Transportation Code �724.064. The statute provides that breath tests, when performed with proper procedures on an approved machine, are sufficiently reliable to be admissible as evidence. The statute, however, does not provide that the tests are conclusive or that the efficacy of a particular machine to properly analyze the breath for blood-alcohol content is unassailable. The right to present a defense by confronting the state’s witnesses for the purpose of challenging their testimony is a fundamental element of due process of law, the court stated. Texas Rule of Evidence 611(b) provides that a witness may be cross-examined on any matter relevant to any issue in the case, including credibility. The accuracy and reliability of the machine is clearly a matter relevant to an issue in the case. Because the right to present a defense is a fundamental element of due process of law, and because a violation of that right constitutes constitutional error, the court stated that it must reverse a trial court’s judgment when such an error is present unless it can determine beyond a reasonable doubt that the error did not contribute to the conviction. Woodall withdrew his not guilty plea following the trial court’s pretrial ruling on his motion and obtained permission to appeal that ruling. Thus, the court stated, it could not determine beyond a reasonable doubt that the trial court’s erroneous ruling on Woodall’s pretrial motion to exclude did not contribute to his conviction. OPINION:Moseley, J.; Morriss, C.J., and Carter and Moseley, J.J.

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