Appellant challenges the sufficiency of the evidence. The conviction should be reversed if the reviewing court finds that no rational trier of fact could have found the appellant guilty beyond a reasonable doubt based on the evidence admitted. The State charged that appellant was intoxicated by reason of a "combination of marijuana and alcohol" and was therefore bound to prove intoxication by such combination. Wray v.State, No. 982-82 (Tex.Crim.App., Mar. 5, 1986) (not yet reported). In my opinion, the evidence is insufficient.
All of the objective evidence establishes that appellant was not intoxicated. The intoxilyzer results, which were in evidence, see Bahlo v. State, 707 S.W.2d 249 (Tex.App. — Houston [1st Dist.] 1986, no pet.) (not yet reported), establish that appellant's blood alcohol level was .00%. The video tape established that appellant capably performed every dexterity test requested. While it is correct that these tests were conducted almost an hour after the time the officer testified that he first observed appellant, Tex.Rev.Civ.Stat.Ann. art. 6701l -5, sec. 3(d) (Vernon Supp. 1986) indicates that the legislature has determined that tests conducted within two hours of an arrest are reliable.
Recognizing that exculpatory evidence does not conclusively establish innocence where some evidence of guilt has been introduced, I have reviewed the evidence on which the majority relies.
Officer J.L. Kay, about whom we know nothing other than that he was employed by the City of Houston for five years, was working overtime in the "DWI Step Program" the night he arrested the appellant. At about 11:00 p.m., Officer Kay observed appellant driving a pickup truck on Irvington Boulevard for about 10 blocks. Appellant was driving 15 to 20 miles per hour, *Page 563 was weaving, and struck the right hand curb twice during that period. It was Officer Kay's opinion that appellant was intoxicated. He testified that:
As he stepped from the vehicle, I noticed he was supporting himself with one hand. He seemed to be very unsteady on his feet. His balance was weaving. I approached and asked him for his driver's license, and when I was talking to him, I noticed a faint odor of alcohol on his breath. . ..
With the faint odor of alcohol, I was a little confused as to his intoxicated state, so I asked him if he could explain it to me. If he only had two or three beers, why was he so obviously intoxicated?. . . .
Officer Kay asked appellant to do two field sobriety tests: a head tilt and a nose touch. On the head tilt, appellant was "swaying back and forth" and appellant missed his nose two out of three times. The officer testified that he found beer in the car but didn't recall how much or its temperature. (Appellant later testified that it was a twelve-pack with two beers missing and was warm.)
Officer Kay also testified as follows:
Q: Officer, based on your opinion and your experience as a police officer, your years of experience, have you noticed few or many intoxicated persons?
A: Many.
Q: Based on that experience, in your opinion was Mr. Lewis intoxicated —
A: Yes, sir.
Q: — that night?
A: Yes, sir, he was.
While a non-expert witness may express his opinion that a person was intoxicated based on his observations of the accused, the rule as to whether a non-expert may testify whether a person is under the influence of drugs is different. Such testimony must be based on expertise or experience.Smithhart v. State, 503 S.W.2d 283 (Tex.Crim.App. 1973). Officer Kay was not shown to have had even slight experience, much less expertise, with people who were under the influence of marijuana or any other narcotic. Officer Kay was accordingly not competent to testify that appellant was driving while intoxicated by a combination of marijuana and alcohol.Smithhart, 503 S.W.2d at 285.
Because there is an absence of qualified testimony as to whether appellant was under the influence of a combination of marijuana and alcohol, only circumstantial evidence could support this conviction. Appellant testified that he had had only one puff of a marijuana cigarette 4 1/2 or 5 hours before his arrest. Such evidence was not contested or rebutted. There was no expert or scientific evidence to establish that the small amount of marijuana he had consumed such a long time before driving the automobile could combine with two or three beers, consumed 2 1/2 to 3 hours before his arrest, so as to deprive appellant of the normal use of his mental and physical faculties. Nor was there any expert or scientific evidence to establish that appellant could be intoxicated by a combination of alcohol and marijuana at 11:00 p.m. and yet have no detectable alcohol in his body, and the normal use of his mental and physical faculties, at 11:52 p.m., as appellant had on the video tape. Without such expert testimony, the conviction had to be based on surmise and conjecture.Smithhart, 503 S.W.2d 283.
Based on this record, no rational trier of fact could find appellant guilty beyond a reasonable doubt. The evidence is insufficient, and the judgment of conviction should be reversed. For these reasons, I respectfully dissent. *Page 564