Appellant was convicted by a jury of misdemeanor driving while intoxicated. The court assessed punishment at 30 days in jail, probated, and a fine of $800. On appeal the San Antonio Court of Appeals affirmed the judgment of the trial court.Jackson v. State, 756 S.W.2d 82 (Tex.App. — San Antonio 1988).
Appellant raises fifteen grounds for review, two of which challenge the holding of the Court of Appeals that "Appellant does not dispute the intoxilyzer results," and that "it was uncontroverted that he had an alcohol concentration of more than 0.10." We will reverse the judgment of the Court of Appeals and remand the case for reconsideration of appellant's grounds for review numbers two and three.
The Court of Appeals found that the trial court erred in excluding evidence proffered by appellant, but held that this error was harmless beyond a reasonable doubt based on their conclusion that he did not dispute the intoxilyzer results or controvert that he had a blood alcohol concentration of more than 0.10.
Appellant points to his testimony that he used an alcohol-based breath spray seconds before submitting to the intoxilyzer test, and to testimony from the State's expert that such a use would greatly affect the accuracy of an intoxilyzer as to the alcohol content of a subject's blood. The Court of Appeals opinion does not reflect that this evidence was considered in reaching the previously noted conclusions challenged here.
We find the noted testimony renders the Court of Appeals conclusion untenable as to appellant's alcohol content being uncontroverted. Consequently, appellant's second and third grounds for review are summarily granted, and the cause remanded to the Court of Appeals for action consistent with this opinion. However, we express no opinion as to the correctness of the opinion below as to any other matter.
McCORMICK, P.J., dissents.
DUNCAN, J., not participating.