*1 Nevertheless, of Hobson plain reading supreme court has
instructs us privilege in
recognized a law-enforcement Hobson, litigation.
civil 734 S.W.2d duty are bound to follow
340-341. “We pronounce- Supreme
the Texas Court’s ” Rangel Lapin, ments .... v. (Tex.App.-Houston Dist.] [1st denied); v. County see also Lubbock Bonds, Lubbock Bail
Trammel’s (“It (Tex.2002) is not appeals abrogate a court of
function of modify precedent. That established solely
function lies with Texas Su- [the Court.”).
preme]
Conclusion conclude that the trial
Accordingly, we denying motion
court’s order Westwood’s compel production issuing protec- law, and comports
tive order with Texas
we hold the court did abuse
discretion. deny petition
We Westwood’s writ
mandamus. deny emergency motion Westwood’s stay proceedings pending trial court mandamus,
disposition of the which was January
filed on 2007. LAYTON, Appellant,
Daniel Texas, Appellee.
The STATE
No. 01-05-00950-CR. Texas, Appeals
Court (1st Dist.).
Houston
Feb. 2007.
Discretionary Review Granted
Sept. *2 trial, videotape
eo camera. At was admitted into evidence as State’s Exhibit
Allen if appellant asked he had been drinking Appellant responded alcohol. during night the course of the he had had about five or six drinks —his first p.m. drink at 6:00 and his last drink at midnight. Appellant 12:00 also stated that “buzz,” he had a but not intoxicated. was appellant Allen asked if he was on medications, and appellant told Allen that he Appel- Valium and Xanax. lant said he had not taken Xanax on the previous day, but had taken Valium at 2:00 Troy McKinney, W. Schneider & McKin- p.m. Appellant explained that his doctor P.C., Houston, ney, TX, Appellant. for high prescribed had the medications for Rosenthal, Jr., A. At- Charles District pressure. responded blood Allen Cameron, torney-Harris County, M. Carol probably good not a idea to be drink- Houston, TX, Attorney, Assistant District ing He stated that top “on of those.” also Appellee. for high the medications were not for blood and pressure, anxiety but were for asked NUCHIA, Panel consists of Justices if he had read the inserts includ- appellant JENNINGS, and HIGLEY. ed with medication. Allen then conducted a series of field
OPINION sobriety horizontal-gaze-nystag- tests: NUCHIA, SAM Justice. (H.G.N.) test, test, one-leg-stand mus appellant, Lay- test, A Daniel convicted a modified the walk-and-turn and ton, driving of the misdemeanor offense of with ABC test. Based on his conversation (DWI), the trial while intoxicated on appellant’s performance days tests, court punishment assessed that appellant Alen concluded County jail, probated the Harris one him for was intoxicated and arrested DWI. year, station, and a fine. We determine police give At the when asked to $300 trial discre- whether the court abused its that he sample, appellant said breath videotaped into admitting lawyer Appel- tion first. wanted to talk to his by appellant at the scene. give statements sample. did breath affirm. suppress por- filed a motion to videotape stop
tions of the of the traffic BACKGROUND ground portion and arrest on the 27, 2004, videotape Hous- in which stated At 4:00 a.m. on October appel- that he took and Xanax was irrele- stopped ton Police Officer C. Allen Valium trial the motion. car for a traffic violation. Allen vant. The court denied lant’s was admitted into testified that he noticed the smell of alco- Before the jury, appellant stop played breath. The traffic evidence and for the hol on again objected portions subsequent leading up appel- events and Xanax videotape mentioning arrest recorded on Allen’s vid- lant’s were arbi when its decision was its discretion irrelevant. The trial court overruled unreasonable, of the zone trary, or outside objection, inquiry that an reasoning Id. disagreement. predicate is a to admin- reasonable about medications ar- *3 istering Appellant the H.G.N. test. Admissibility of the Statements relevant, inquiry might that the be gued objection was not. The but the answer that the state argues Appellant again overruled. was medication regarding the ments they had no ten irrelevant because
DISCUSSION of intoxication dency make the fact probable. or less more Tex.R. Evid. review, appellant In sole issue for his that, argues further Appellant 402. in that the trial court erred ad- contends relevance, required was show State mitting into evidence statements made scientific by competent reliable and show of Xa- regarding appellant’s the scene use extrapolation ap involving evidence requiring the nax and Valium without the influence of the pellant was under through relevance reliable State to show driving. medications while competent Appel- scientific evidence. (1) did not argues statements intro- clear that the State did not It is make fact of more or less his regarding statements duce probable and were therefore irrelevant as Xanax and to establish use of (2) of intoxication and in the the issue those under the influence of appellant was alternative, relevant, probative if even the State did drugs driving while because substantially value of the statements was not make reference by the unfair effect. outweighed prejudicial during the trial testi- of these medications of Review Standard closing argument. mony or the State’s those statement that he took Appellant’s Generally, all evidence relevant question in a response was is admissible. Tex.R. 402. Relevant Evid. motion by denying appellant’s Allen. In tendency evidence is that which has a explained the trial court objection, make the existence of a fact of conse relevant as question that Allen’s quence more or less probable. Tex.R. to the administration predicate inquiry ruling Evid. 401. We review a trial court’s the H.G.N. test. on suppress a motion to evidence abuse that, State, if appeal on Appellant argues also of discretion. Villarreal v. 935 relevant, por- prejudice the unfair (Tex.Crim.App.1996); 138 (Tex. State, outweighed their videotape Taylor v. 945 S.W.2d tions refd). Tex.R. Evid. 403.1 probative value. See App.-Houston Dist.] [1st that under a Reese Appellant An court will reverse a trial contends appellate rule fails the only analysis, State evidence court’s decision to admit evidence S.W.3d 238 balancing Mont test. See 33 upon a clear abuse of discretion. State, The court Reese (Tex.Crim.App.2000). 378-79 gomery v. to be consid- following A set out the factors (Tex.Crim.App.1990). trial court abuses view, trial, appellant’s passing reference to rule analy- "a 1. At referred to objected making objection does sis” and then a rule 402 403 while object relevant. did not not objection, we never- preserve a rule 403 probative evidence was sub- value of the appellant's because it is issue theless address stantially outweighed by prejudice. unfair argument. closely extrapolation tied to his Although, in our See Tex.R. Evid. JENNINGS, Justice, in determining prejudicial ered whether TERRY effect of outweighs dissenting. (1) degree
value: to which the evidence majority Because the does not address (2) probative, potential is evi- point arguments of error and the impress jury dence to in an irrational but appellant, Layton, respect- Daniel Todd I (3) way, indelible the proponent time fully dissent. (4) evidence, develop needs to guilty A found the of- proponent’s need for the evidence. The driving fense of while intoxicated analysis apply Reese does not this case of alcohol into reason of the introduction argue because the State did not that this *4 his his body.1 Appellant point articulates probative evidence was of the fact of appel- of error as follows: lant’s intoxication at the time of the stop. at 240-41.
Id. trial it permitted The court erred when regarding Appellant’s evidence use of addition, In because this evidence was requiring Xanax and Valium without intoxication, proof not used as of but was compe- it State to show was reliable and merely predicate questions a result of be tent scientific evidence. test, administering “ga fore the H.G.N. See, tekeeper” hearing required. was not Appellant specifically argues to this Court State, 102 e.g., DeLarue in admitting that the trial court erred (Tex.App.-Houston [14th Dist.] evidence because “the State failed show 'd) in (determining
ref
that trial court erred
by
competent scientific evi-
reliable and
admitting,
Daubert-Kelly hearing,
without
evidence)
(or any
dence
that he was under
in
marijuana
evidence of
bloodstream to
asserts,
driving.”
the influence while
He
intoxication).
show effect on
thus,
“failed to make
that the evidence
probable
fact of
more or less
conclude that the trial court did not
We
and therefore was
In the alter-
irrelevant.
admitting
por-
abuse its discretion in
native,
its
value was substantial-
appel-
tion of the
that contained
ly outweighed
prejudicial
the unfair
regarding
lant’s statements
Xanax and Va-
sum, appellant
In
concludes that
effect.”
lium.
the admittance of the evidence “without
that it was
also contends
that
requiring extrapolation evidence
portions
to hear
error
“the
part
in intoxi-
played
could have
some
that included ... Allen’s un
scene video
cation,
prejudiced
was harmful error that
medi
opinions
substantiated
about
Layton’s
rights.”
substantial
trial, appellant
cations.” At
did not make
appellant
support
argument,
In
of his
objection
to Allen’s statements
specific
State,
DeLarue v.
relies on
Xanax and
regarding the use and effect of
(Tex.App.-Houston [14th Dist.]
Therefore,
nothing to
we have
Valium.
'd),
the relia
pet. ref which discusses
Tex.R.App.
33.1(a).
P.
review. See
testimony
bility
admissibility
expert
and
”
light
“Daubert-Kelly.
See Daubert
CONCLUSION
Inc.,
Pharm.,
v. Merrell Dow
509 U.S.
and
appellant’s
overrule
sole issue
(1993);
In the trial objected reference to fact appel- Here, readily apparent that it is medications, taking had been trial court point primary lant’s Having specifically he cited DeLarm. of his use is that the evidence to this Court to the court cited DeLarue trial previously be- was inadmissible of the medications statements, following prior opening failed demonstrate cause the State appel- exchange presence proving outside the regard occurred reliability Nevertheless, intoxicated. jury: in con- altogether the issue majority avoids Officer Allen [Appellant’s Counsel]: to the object did not cluding Layton of Mr. as to inquiry about comments officer’s whether not he had been was rele- admit- medications. The medications administering vant the officer “before ted Xanax and Valium.... test.” H.G.N. is to extrapolate There no one here objection fact First, to the which tak- the life of the Valium necessarily used the medications he knows, en, and already as the Court *5 to medications any covers reference the extrapolation an of there has to be Second, arresting officer. drugs says the DeLarue case evi- majority asserts although analysis, certainly under neither medications dence of the of of those come in before drugs should admin- to officer “before relevant jury. not a This is situation test,” ex- it does not istering the H.G.N. they any- where be relevant to would tendency “any plain the evidence had how thing because the relevance hasn’t of that is of the existence fact make been on the demonstrated Valium to the determination there is as to Xanax. no relevance i.e., intoxication, action,” probable “more I don’t know that ... do [Trial Court]: Evid. probable.” See Tex.R. less you anything have scientific demon- Moreover, concludes although majority impact strate to me that these have no tak- had been the fact body expec- on the and what their life proof “was used as ing not tancy drugs of of these are and each brief, itself, intoxication,” in its the State body? when taken one’s of Xanax actually argues that “the [Appellant’s Actually, Judge, Counsel]: are burden, my that’s not that’s intoxication.” They State’s. have burden Here, complaint preserved his showing Kelly. you under Tex.R.App. P. review. for appellate Well, relevancy is that [Trial Court]: Court, therefore, an obli- has 33.1. This predi- H.G.N. is one the —the gation opinion hand down written requirements they is that have to cate neces- every issue raised and “addresses you’re taking inquire whether or sary disposition appeal.” final to the Tex.R.App. medication as relates majority 47.1. Because P. accuracy they’re looking or the—what without judgment trial court’s affirms the your objection so, as doing respectfully the H.G.N. So I dissent. relevancy is denied. [Appellant’s might It be rele- Counsel]: It is inquiry.
vant not relevant give
then the answer.