### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00537- CR

The State of Texas, App ellant

v. Richard Brian S m ith, App ellee

F ROM CO UNTY COURT AT LAW NO . 5 O F TRAVIS CO UNTY NO. C-1 -CR- 08- 4022 75, H ONO RAB LE NANCY HO HENGARTEN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

The State appea ls from an order g ranting Richard Smit h’s motion to exclude expert testimony

. See Tex. Crim. Proc. Code Ann. art. 44.01(a) (5) (West Supp. 2010). The State char g ed Smit h with boating while intox icated. Tex. Penal Code Ann. § 49.06 (West 2003). Be fore trial, the State informed Smit h that it planned to offe r expert testimony involving “re trog rade extrapolation,”

a technique by which blood-alcohol content (“B AC”) at some ear lier time is estimated u s i n g t he results of testing done at a later time. Douthitt v. State , 127 S.W .3d 327, 333 (Tex. App.—Austin 2004, no pet.). Smit h filed a motion to exclude the State’s expert testimony , arg uing that the rec ord contained insufficient data for an expert to form a reliable opinion. The trial court g rante d Smit h’s motion, and the State appea ls. W e af firm.F ACTUAL AND P ROCEDURAL BACK GR OUND T h e fa ct s rele vant to this appea l are undisputed. At approximately 6:29 p.m. on J une 9, 2007, Smit h was involved in a boating acc ident. He was transporte d to an emer g ency room, wher e, at 8:00 p.m., medical personne l took a blood sample that reve aled a 0.081 serum -a l co h o l

conce ntration. For purposes of this app ea l , t h e parties ag ree that this value translates to a BA C of 0.068. 1

Emerg ency -room re cords indica te that Smith weighe d 200 pounds upon admission and had consumed his “last meal/fluids” at 5:00 p.m. The rec ords do not indicate, howeve r, exactly what Smit h ate o r d ra nk at 5:00 p.m. Smit h g ave a written statement the next day in whi ch h e claimed that befor e the acc ident he drank “about three Natura l L ight beer s” at approximately

1:00 p.m. The State char g ed Smit h with boating while intox icated. See Tex. Penal Code § 4 9

. 0 6

. The State informed Smit h that it planned to call an expert witness who would, usin g Smit h’s emer g ency -room serum-a lcohol test results, perf orm a retrog rade extrapolation to estimate Smit h’s BA C at the time of his acc ident. Smi t h fi led a motion to exclude such expert testimony , arg uing that there was not enoug h information in the rec ord for the State’s expert to form a reliable opinion. The State filed a response to the motion that included the documents its expert would rely

I n the motion that led to this appea l, Smit h also moved to suppress the results of the serum- 1 al co h o l test “bec ause an attempt to conver t the results of a serum-a lcohol test to [BAC] is n o t scientifica lly reliable .” Such a conver sion is nece ssary beca use the penal code define s “alcohol conce ntration” in terms of whole-blood (i.e., BA C) levels, not se rum levels. See Tex. P enal Code An n . § 49.01(1)( B) (West 2003). For purposes of this appea l, howeve r, Smit h stipulates that his serum-a lcohol conce ntration of 0.081 tra nslates to a B AC of 0.068. 2on (name ly , Smit h’s em er gen cy -room rec ords and written statement) as well as a char t that summarized the most salient information from those docume nts.

The trial court held a hear ing o n S m i th’s motion. The State chose not to call any witnesses, but Smith c alled Shery l Pey ton, a retrog rade -extrapolation expert who had testified for 2 the State in o t h er case s. Pey ton opined that there was not enoug h information in the rec ord to support a reliable retrog rade extrapolation. The court ultimately g rante d Sm i t h ’s m o t ion, and the State appea led.

STANDARD OF REVIEW

We reviewthe trial cour

t’s ruling on a motion to exclude scientific e vidence for a n abuse of discretion. See Mata v. State , 46 S.W .3d 902, 908 (Tex. Crim. App. 2001). A trial cour t abuses its discretion when its ruling is arbitra ry or unrea sonable. State v. Mec hler , 153 S.W .3d 435, 439 (Tex. Crim. App. 2005).

DISCUSSIO N

T h e State raises a single issue: “Was it an abuse of the trial court’s di s cr et i o n t o exclude any testimony extrapolating an alcohol conce ntration level from the Def endant’ s blood test

re s u l t ? ” The parties ag ree that Mata outlines the fac tors courts should consider when decid i n g whether to admit retrog rade -extrapolation testimony

. See 46 S.W .3d at 908-17. We ag ree that Mata g uides such decisions when retrog rade -extrapolation testimony is proper ly prese nted, but here

This decision appears to have been tactical, but we note that we have no t fo u n d an o t h er 2 case in which a pa

rty chose not to ca ll its expert witness in analog ous circumstanc es. 3a Mat a an al y s i s i s unnece ssary beca use the State failed to car ry its evidentiar

y burden for more basic re asons. The propone nt of scientific e vidence must show the court, by clea r and c onvincing evidenc e, that the evidenc e is reliable

. Bigon v. State , 252 S.W .3d 360, 367 (Tex. Crim. App. 2008). To show reliability , the proponent of the scientific evidenc e must demonstrate that (1) the underly ing theory is valid; (2) the technique apply ing the theo ry is valid; and (3) the technique was proper ly applied on the occa sion in question. Id

. Her e, the State did not call its expert witness to testify

. As

a result, it prese nted no evidenc e on issues (2) and (3). That is to say , rathe r than offe ring evidenc e 3

on how its expert would proper ly perf orm retrog rade extrapolation, the State simply submitt ed data and lef t the court to re ach its own c onclusions about what the State’ s expert would do with them. The only contested issue at the p re -t rial hear ing was whether the rec ord contained sufficie nt f

acts to suppor

t r eliable expert testimony

. What the State failed to appre ciate is that this issue cannot be resolved simply by summarizing the fac ts in the rec ord; logic ally , the “suff iciency ” of the fac ts depends on what an expert proposes to do with them. Thus, to establish that the rec ord contained sufficie nt fac ts to support reliable expert testimony , the State neede d not only to offe r fac ts but also to explain how its expert would employ the fac ts in a retrog rade -extrapolation analy sis. The State prese nted no evidenc e on the latter issue, leaving the trial cour t to fill i n the blanks.

This lack of evidenc e is not what the parties foc us on in their appellate briefing , but it is 3 a sufficie nt basis for us to aff irm the trial court’s order

. See Romero v. State , 800 S.W .2d 539, 543- 44 (Tex. Crim. App. 1990) (we aff irm trial court’s evidentiar y ruling if it is corr ect on any applicable leg al theory

). 4The State’s failure to prese nt expert testimony is compounded by the fac t that Smit h

did prese nt e x pert testimony

. Smit h called Shery l Pey ton, w ho discussed re trog rade extrapolation and testi fied tha t i t co u l d n o t be performe d reliably on this rec ord. The S tate presented no expert testimony to contra dict Pey ton. I n other words, all expert testimony rec eived by the court favor ed 4 Smit h. I n such circ umstances, we cannot conclude that the court’s decision was outside the “zone of rea sonable disag ree ment.” Bigon , 252 S.W .3d at 367; see also Davila v. State , 173 S.W .3d 195, 197 (Tex. App.—Corpus Christi 2005, no pet.) (“When the standard of revie w is abuse of discretion, the re cord must simply

contain some e vidence to support the decision made by the trial cour

t.”). Be fore closing , we note that it is appar ent from statements made in its brief that the State considers Mata to be an unsatisfac tory g uide for deter mining the admissibili ty of retrog rade

extrapolation testimony

. I n particula r, the State dislikes Mata ’s consideration of the defe ndant’s persona l char acte ristics and behavior

. The State arg ues that the Mata g uidelines should be repla ced by what the State calls a “brig ht-line admissibili ty rule.” Under this proposed rule, only four fac tors would be considere d in conducting a retrog rade extrapolation: the time of the incident in question, t h e t i m e o f the alcohol-c oncentr ation test, the test result, and the aver ag e rate of elimination o f alcohol from the body

. The State would plug these four fac tors into a proposed mathematica l formula to produce a “maximum alcohol conce ntration” fig ure. I f that conce ntration exceede d .08, retrog rade -extrapolation testimony would be pre sumptively

admissible. We express no opinion as to the wisdom of the State’s proposed rule. I nstead, we note that the State did not prese nt its arg ument to the trial court or make any attempt to demonstrate

Nor does the State arg ue that the trial court should not have considere d Pey ton’s testimony

. 4 5t hat its proposed formula is sufficie nt to establish the reliability and rele vance of re t ro gra d eextrapolation t es t i m o n y i n this or any other case . Thus, even if this Court wer e in a position to disreg ard Mata and adopt the State’s proposal, which we ar e not, the prese nt rec ord would not support our doing so.

For the re asons detailed a

bove, we aff

irm the trial cour

t’s order

.

__________________________________________ David Pury ear , J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: De cembe r 23, 2010 Do Not Publish

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