BAC test in Texas

2023App. 2010) (listing evidence that would “logically raise an inference that the defendant was intoxicated at the time of driving as well as at the time of the BAC test”); see also id. at 744, 745 (addressing issue of propriety of trial court’s per se intoxication charge but explaining “that BAC-test results, even absent expert retrograde extrapolation testimony, are often highly probative to prove both per se and impairment intoxication”).

2023App. 2010) (listing evidence that would “logically raise an inference that the defendant was intoxicated at the time of driving as well as at the time of the BAC test”); see also id. at 744, 745 (addressing issue of propriety of trial court’s per se intoxication charge but explaining “that BAC-test results, even absent expert retrograde extrapolation testimony, are often highly probative to prove both per se and impairment intoxication”).

2020See Mata, 46 S.W.3d at 916-17; see also Bhakta v. State, 124 S.W.3d 738, 742 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (“The longer the period between the stop and the BAC test tends to diminish the reliability of the test[].”).

2016Price v. State, 59 S.W.3d 297 , 300 n.1 (Tex.App. – Fort Worth 2001, pet. ref’d) (citing Mata v. State, 46 S.W.3d 902 , 908–09 (Tex.Crim.App. 2001)). 5 Appellant does not make a similar argument regarding the admissibility of the BAC test results.

2005See, e.g., Commonwealth v. Wirth, 936 S.W.2d 78, 83-84 (Ky.1996) (rejecting defendant’s claim that extrapolation testimony necessary and holding that legislature intended that prima facie proof of "per se ” DWI arose from properly administered BAC test result of 0.10% or more); Commonwealth v. Yarger, 538 Pa. 329, 334-35 , 648 A.2d 529, 531 (1994) (construing DWI statute and concluding that "once the Commonwealth has established that the driver’s blood alcohol content reflects an amount above 0.10%, the Commonwealth has made a prima facie case....

2005See, e.g., Commonwealth v. Wirth, 936 S.W.2d 78, 83-84 (Ky.1996) (rejecting defendant’s claim that extrapolation testimony necessary and holding that legislature intended that prima facie proof of "per se ” DWI arose from properly administered BAC test result of 0.10% or more); Commonwealth v. Yarger, 538 Pa. 329, 334-35 , 648 A.2d 529, 531 (1994) (construing DWI statute and concluding that "once the Commonwealth has established that the driver’s blood alcohol content reflects an amount above 0.10%, the Commonwealth has made a prima facie case....

2016See Verbois v. State, 909 S.W.2d 140, 142-43 (Tex.App. – Houston [14th Dist.] 1995, no pet.) (unextrapolated breath test results based on test conducted two and one-half hours after an accident were relevant to whether appellant consumed alcohol prior to accident and not unduly prejudicial); see also Kirsch, 306 S.W.3d at 745 (unextrapolated BAC test results based on a blood draw taken 80 minutes after the defendant’s arrest were highly probative on the question of the defendant’s intoxication); Mechler, 153 S.W.3d at 440 (unextrapolated intoxilyzer results based on test conducted 90 minutes a

2016See, e.g., Stewart, 129 S.W.3d at 97 ; Kirsch, 306 S.W.3d at 743-45 ; see also Torres v. State, 109 S.W.3d 602, 606 (Tex.App. – Fort Worth 2003, no pet.) (noting that the Court of Criminal Appeals has never required retrograde extrapolation evidence as a condition of the admissibility of BAC test results).

2016See Verbois v. State, 12 909 S.W.2d 140, 142-43 (Tex.App. – Houston [14th Dist.] 1995, no pet.) (unextrapolated breath test results based on test conducted two and one-half hours after an accident were relevant to whether appellant consumed alcohol prior to accident and not unduly prejudicial); see also Kirsch, 306 S.W.3d at 745 (unextrapolated BAC test results based on a blood draw taken 80 minutes after the defendant’s arrest were highly probative on the question of the defendant’s intoxication); Mechler, 153 S.W.3d at 440 (unextrapolated intoxilyzer results based on test conducted 90 minute

2016See Verbois v. State, 909 S.W.2d 140, 142-43 (Tex.App. – Houston [14th Dist.] 1995, no pet.) (unextrapolated breath test results based on test conducted two and one-half hours after an accident were relevant to whether appellant consumed alcohol prior to accident and not unduly prejudicial); see also Kirsch, 306 S.W.3d at 745 (unextrapolated BAC test results based on a blood draw taken 80 minutes after the defendant’s arrest were highly probative on the question of the defendant’s intoxication); Mechler, 153 S.W.3d at 440 (unextrapolated intoxilyzer results based on test conducted 90 minutes a

2016However, he does raise that issue tangentially in his argument that the evidence of his intoxication is insufficient—an issue we address next. 8 evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) 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 (6) the likelihood that presentation of the evidence will consume an inord

2010Gigliobianco v. State, 210 S.W.3d 637, 642-43 (Tex.Crim.App.2006) (holding that BAC test results obtained 75 minutes after driving had considerable probative value in proving both per se and impairment intoxication at the time of driving).

2016See Verbois v. State, 12 909 S.W.2d 140, 142-43 (Tex.App. – Houston [14th Dist.] 1995, no pet.) (unextrapolated breath test results based on test conducted two and one-half hours after an accident were relevant to whether appellant consumed alcohol prior to accident and not unduly prejudicial); see also Kirsch, 306 S.W.3d at 745 (unextrapolated BAC test results based on a blood draw taken 80 minutes after the defendant’s arrest were highly probative on the question of the defendant’s intoxication); Mechler, 153 S.W.3d at 440 (unextrapolated intoxilyzer results based on test conducted 90 minute

2016See Verbois v. State, 909 S.W.2d 140, 142-43 (Tex.App. – Houston [14th Dist.] 1995, no pet.) (unextrapolated breath test results based on test conducted two and one-half hours after an accident were relevant to whether appellant consumed alcohol prior to accident and not unduly prejudicial); see also Kirsch, 306 S.W.3d at 745 (unextrapolated BAC test results based on a blood draw taken 80 minutes after the defendant’s arrest were highly probative on the question of the defendant’s intoxication); Mechler, 153 S.W.3d at 440 (unextrapolated intoxilyzer results based on test conducted 90 minutes a

2016See, e.g., Stewart, 129 S.W.3d at 97 ; Kirsch, 306 S.W.3d at 743-45 ; see also Torres v. State, 109 S.W.3d 602, 606 (Tex.App. – Fort Worth 2003, no pet.) (noting that the Court of Criminal Appeals has never required retrograde extrapolation evidence as a condition of the admissibility of BAC test results).

2016See, e.g., Stewart, 129 S.W.3d at 97 ; Kirsch, 306 S.W.3d at 743-45 ; see also Torres v. State, 109 S.W.3d 602, 606 (Tex.App. – Fort Worth 2003, no pet.) (noting that the Court of Criminal Appeals has never required retrograde extrapolation evidence as a condition of the admissibility of BAC test results).

2015Standard of Review Applicable to Ineffective Assistance Claims First Raised on Direct Appeal When a claim of ineffective assistance of counsel is raised for the first time on direct appeal, the record “is in almost all cases inadequate to show that counsel’s conduct fell below an objectively reasonable standard of performance.” Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim.App.2005).

2015Standard of Review Applicable to Ineffective Assistance Claims First Raised on Direct Appeal When a claim of ineffective assistance of counsel is raised for the first time on direct appeal, the record "is in almost all cases inadequate to show that counsel's conduct fell below an objectively reasonable standard of performance." Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim.

2005Haas, 597 So.2d at 774-75 ; Wirth, 936 S.W.2d at 83-84 ; Terry v. City of Montgomery, 549 So.2d 566, 567 (Ala.Crim.App.1989) (evidence sufficient to support DWI conviction when driver’s BAC was 0.15% fifty minutes after auto accident; no extrapolation testimony necessary under statute to prove intoxication at time of driving); State v. Wetzel, 7 Haw.App. 532, 538-39 , 782 P.2d 891, 895 (1989) (rejecting defendant's claim that intox-ilyzer tests results were inadmissible and insufficient to support conviction without "relation back” testimony; holding that DWI per se statute showed legislative

2005Haas, 597 So.2d at 774-75 ; Wirth, 936 S.W.2d at 83-84 ; Terry v. City of Montgomery, 549 So.2d 566, 567 (Ala.Crim.App.1989) (evidence sufficient to support DWI conviction when driver’s BAC was 0.15% fifty minutes after auto accident; no extrapolation testimony necessary under statute to prove intoxication at time of driving); State v. Wetzel, 7 Haw.App. 532, 538-39 , 782 P.2d 891, 895 (1989) (rejecting defendant's claim that intox-ilyzer tests results were inadmissible and insufficient to support conviction without "relation back” testimony; holding that DWI per se statute showed legislative

2005Id. at 774-75 . [26] Haas, 597 So.2d at 774-75 ; Wirth, 936 S.W.2d at 83-84 ; Terry v. City of Montgomery, 549 So.2d 566, 567 (Ala.Crim.App.1989) (evidence sufficient to support DWI conviction when driver's BAC was 0.15% fifty minutes after auto accident; no extrapolation testimony necessary under statute to prove intoxication at time of driving); State v. Wetzel, 7 Haw.App. 532, 538-39 , 782 P.2d 891, 895 (1989) (rejecting defendant's claim that intoxilyzer tests results were inadmissible and insufficient to support conviction without "relation back" testimony; holding that DWI per se statute

2005Id. at 774-75 . [26] Haas, 597 So.2d at 774-75 ; Wirth, 936 S.W.2d at 83-84 ; Terry v. City of Montgomery, 549 So.2d 566, 567 (Ala.Crim.App.1989) (evidence sufficient to support DWI conviction when driver's BAC was 0.15% fifty minutes after auto accident; no extrapolation testimony necessary under statute to prove intoxication at time of driving); State v. Wetzel, 7 Haw.App. 532, 538-39 , 782 P.2d 891, 895 (1989) (rejecting defendant's claim that intoxilyzer tests results were inadmissible and insufficient to support conviction without "relation back" testimony; holding that DWI per se statute

2005Commonwealth v. Kasunic, 423 Pa.Super. 112, 118-19 , 620 A.2d 525, 528-29 (1993) (when defendant’s BAC level was twice legal limit fifty minutes after he was found lying on the roadway smelling of alcohol and appearing to officer to be intoxicated, evidence of intoxication sufficient without any extrapolation testimony; although "evidence does not indicate the exact time when appellant operated his vehicle[,] .... in light of the frigid temperature of four degrees below zero Fahrenheit that night, appellant could not have been at the scene laying on the road for a substantial period of time”);

2005Id. at 774-75 . [26] Haas, 597 So.2d at 774-75 ; Wirth, 936 S.W.2d at 83-84 ; Terry v. City of Montgomery, 549 So.2d 566, 567 (Ala.Crim.App.1989) (evidence sufficient to support DWI conviction when driver's BAC was 0.15% fifty minutes after auto accident; no extrapolation testimony necessary under statute to prove intoxication at time of driving); State v. Wetzel, 7 Haw.App. 532, 538-39 , 782 P.2d 891, 895 (1989) (rejecting defendant's claim that intoxilyzer tests results were inadmissible and insufficient to support conviction without "relation back" testimony; holding that DWI per se statute

2005Haas, 597 So.2d at 774-75 ; Wirth, 936 S.W.2d at 83-84 ; Terry v. City of Montgomery, 549 So.2d 566, 567 (Ala.Crim.App.1989) (evidence sufficient to support DWI conviction when driver’s BAC was 0.15% fifty minutes after auto accident; no extrapolation testimony necessary under statute to prove intoxication at time of driving); State v. Wetzel, 7 Haw.App. 532, 538-39 , 782 P.2d 891, 895 (1989) (rejecting defendant's claim that intox-ilyzer tests results were inadmissible and insufficient to support conviction without "relation back” testimony; holding that DWI per se statute showed legislative

2005See, e.g., Commonwealth v. Wirth, 936 S.W.2d 78, 83-84 (Ky.1996) (rejecting defendant’s claim that extrapolation testimony necessary and holding that legislature intended that prima facie proof of "per se ” DWI arose from properly administered BAC test result of 0.10% or more); Commonwealth v. Yarger, 538 Pa. 329, 334-35 , 648 A.2d 529, 531 (1994) (construing DWI statute and concluding that "once the Commonwealth has established that the driver’s blood alcohol content reflects an amount above 0.10%, the Commonwealth has made a prima facie case....

2003See also Garcia v. State, 112 S.W.3d 839, 848 (Tex.App.-Houston [14th Dist.] 2003, no pet. h.) (finding trial court did not err in refusing to suppress BAC test results in the absence of retrograde extrapolation). 9 .

2003App. 1974); Mireles v. Tex. Dept. of Public Safety , 993 S.W.2d 426 (Tex. App.—San Antonio 1999), aff’d , 9 S.W.3d 128 (Tex. 1999); Verbois v. State , 909 S.W.2d 140 (Tex. App.—Houston [14th Dist.] 1995, no pet.). [8] See also Garcia v. State , 2003 WL 21803309, at *6 (Tex. App.—Houston [14th Dist.] 2003, no pet. h.) (finding trial court did not err in refusing to suppress BAC test results in the absence of retrograde extrapolation). [9] Montgomery dealt specifically with the admissibility of extraneous offenses under Tex. R.

2005Id. at 774-75 . [26] Haas, 597 So.2d at 774-75 ; Wirth, 936 S.W.2d at 83-84 ; Terry v. City of Montgomery, 549 So.2d 566, 567 (Ala.Crim.App.1989) (evidence sufficient to support DWI conviction when driver's BAC was 0.15% fifty minutes after auto accident; no extrapolation testimony necessary under statute to prove intoxication at time of driving); State v. Wetzel, 7 Haw.App. 532, 538-39 , 782 P.2d 891, 895 (1989) (rejecting defendant's claim that intoxilyzer tests results were inadmissible and insufficient to support conviction without "relation back" testimony; holding that DWI per se statute

2005Id. at 774-75 . [26] Haas, 597 So.2d at 774-75 ; Wirth, 936 S.W.2d at 83-84 ; Terry v. City of Montgomery, 549 So.2d 566, 567 (Ala.Crim.App.1989) (evidence sufficient to support DWI conviction when driver's BAC was 0.15% fifty minutes after auto accident; no extrapolation testimony necessary under statute to prove intoxication at time of driving); State v. Wetzel, 7 Haw.App. 532, 538-39 , 782 P.2d 891, 895 (1989) (rejecting defendant's claim that intoxilyzer tests results were inadmissible and insufficient to support conviction without "relation back" testimony; holding that DWI per se statute

2023See Dobbs, 434 S.W.3d at 170 (“Circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone may be sufficient to establish guilt.”).

2023See Dobbs, 434 S.W.3d at 170 (“Circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone may be sufficient to establish guilt.”).

2021See State v. Jones, 608 S.W.3d 262 , 264-65 (Tex. App.—Dallas 2020, pet. ref’d).

2021See State v. Jones, 608 S.W.3d 262 , 264-65 (Tex. App.—Dallas 2020, pet. ref’d).

2021See id.

2020See Mata, 46 S.W.3d at 916-17; see also Bhakta v. State, 124 S.W.3d 738, 742 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (“The longer the period between the stop and the BAC test tends to diminish the reliability of the test[].”).

2016See NHTSA Review 173–175; see also South Dakota v. Neville, 459 U.S. 553, 554 , 563–564, 103 S. Ct. 916 , 74 L.

2016See NHTSA Review 173–175; see also South Dakota v. Neville, 459 U.S. 553, 554 , 563–564, 103 S. Ct. 916 , 74 L.

2015See Kirsch, 306 S.W.3d at 745 (evidence logically raising inference that defendant was intoxicated at the time of driving as well as at the time of the BAC test includes erratic driving, post-driving behavior such as stumbling, swaying, slurring or mumbling words, inability to perform field sobriety tests or follow directions, bloodshot eyes, admissions by defendant concerning what, when, and how much he had been drinking, “in short, any and all of the usual indicia of intoxication”); 8 see also Plouff, 192 S.W.3d at 224 ; Smith v. State, 65 S.W.3d 332, 347 (Tex. App.—Waco 2001, no pet.) (walk

2015See Kirsch, 306 S.W.3d at 745 (evidence logically raising inference that defendant was intoxicated at the time of driving as well as at the time of the BAC test includes erratic driving, post-driving behavior such as stumbling, swaying, slurring or mumbling words, inability to perform field sobriety tests or follow directions, bloodshot eyes, admissions by defendant concerning what, when, and how much he had been drinking, “in short, any and all of the usual indicia of intoxication”); 8 see also Plouff, 192 S.W.3d at 224 ; Smith v. State, 65 S.W.3d 332, 347 (Tex. App.—Waco 2001, no pet.) (walk