Layton v. State

TERRY JENNINGS, Justice,

dissenting.

Because the majority does not address the point of error and the arguments of appellant, Daniel Todd Layton, I respectfully dissent.

A jury found appellant guilty of the offense of driving while intoxicated by the reason of the introduction of alcohol into his body.1 Appellant articulates his point of error as follows:

The trial court erred when it permitted evidence regarding Appellant’s use of Xanax and Valium without requiring the State to show it was reliable and competent scientific evidence.

Appellant specifically argues to this Court that the trial court erred in admitting the evidence because “the State failed to show by reliable and competent scientific evidence (or any evidence) that he was under the influence while driving.” He asserts, thus, that the evidence “failed to make any fact of consequence more or less probable and therefore was irrelevant. In the alternative, its probative value was substantially outweighed by the unfair prejudicial effect.” In sum, appellant concludes that the admittance of the evidence “without requiring extrapolation evidence that it could have played some part in intoxication, was harmful error that prejudiced Layton’s substantial rights.”

In support of his argument, appellant relies on DeLarue v. State, 102 S.W.3d 388, 395 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd), which discusses the reliability and admissibility of expert testimony in light of “Daubert-Kelly. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992).

*183In the trial court, appellant specifically objected to any reference to the fact that appellant had been taking the medications, and he specifically cited DeLarm. Having previously cited DeLarue to the trial court prior to opening statements, the following exchange occurred outside the presence of the jury:

[Appellant’s Counsel]: Officer Allen made inquiry of Mr. Layton as to whether or not he had been taking medications. The medications admitted were Xanax and Valium.... There is no one here to extrapolate the life of the Valium which was taken, and as the Court already knows, there has to be an extrapolation of drugs and the DeLarue case says that under a 403 analysis, certainly neither of those drugs should come in before the jury. This is not a situation where they would be relevant to anything because the relevance hasn’t been demonstrated on the Valium and there is no relevance as to the Xanax.
[Trial Court]: I don’t know that ... do you have anything scientific to demonstrate to me that these have no impact on the body and what their life expectancy of each of these drugs are and when taken in one’s body?
[Appellant’s Counsel]: Actually, Judge, that’s not my burden, that’s the State’s. They have the burden of showing you under Kelly.
[Trial Court]: Well, the relevancy is that the H.G.N. is one of the — the predicate requirements is that they have to inquire whether or not you’re taking any medication as it relates to the accuracy or the — what they’re looking for in the H.G.N. So your objection as to relevancy is denied.
[Appellant’s Counsel]: It might be relevant to the inquiry. It is not relevant then to give the answer.
[Trial Court]: Overruled.

Here, it is readily apparent that appellant’s primary point to the trial court and to this Court is that the evidence of his use of the medications was inadmissible because the State failed to demonstrate its reliability in regard to proving that appellant was intoxicated. Nevertheless, the majority avoids the issue altogether in concluding that appellant did not object to the officer’s comments about appellant’s use of the medications and the evidence was relevant to the officer “before administering the H.G.N. test.”

First, appellant’s objection to the fact that he used the medications necessarily covers any reference to the medications made by the arresting officer. Second, although the majority asserts that the evidence of appellant’s use of the medications was relevant to the officer “before administering the H.G.N. test,” it does not explain how the evidence had “any tendency to make the existence of any fact that is of consequence to the determination of the action,” i.e., intoxication, “more probable or less probable.” See Tex.R. Evid. 401. Moreover, although the majority concludes that the fact that appellant had been taking the medications “was not used as proof of intoxication,” the State itself, in its brief, actually argues that “the taking of Xanax and Valium are probative of appellant’s intoxication.”

Here, appellant preserved his complaint for appellate review. See Tex.R.App. P. 33.1. This Court, therefore, has an obligation to hand down a written opinion that “addresses every issue raised and necessary to final disposition of the appeal.” Tex.R.App. P. 47.1. Because the majority affirms the trial court’s judgment without doing so, I respectfully dissent.

. See Tex. Pen.Code Ann. §§ 49.04(a), 49.01(2)(A) (Vernon 2003).