concurring.
I concur in the affirmance. I differ with the majority on the admissibility of the results of the urinalysis test. I believe the cases of Dorman v. Langlinais, 592 S.W.2d 650 (Tex.Civ.App.—Beaumont 1979, no writ), Trans-State Pavers, Inc., v. Haynes, 808 S.W.2d 727 (Tex.App.—Beaumont 1991, writ denied) and Ford Motor Co. v. Whitt, 81 S.W.2d 1032 (Tex.Civ.App.—Amarillo 1935, writ ref'd) all stand for the proposition that while evidence of the use of intoxicants is admissible if there is other evidence of negligent conduct, it is implied that the use of the intoxicants must be at least circumstantially connected with the negligent conduct. I base this on the fact that each of the cited cases involved the smell of alcohol on the breath, indicative of recent consumption of an intoxicant, thus probative and relevant to the issue of impairment at the time of the occurrence. This case is different. The pathologist testified the test performed was not a quantitative one. The test merely showed “that the patient had smoked a marijuana cigarette at some time — one or more — in the past. Whether it was done that evening or that day or several days before, I could not say. His urine showed up positive for can-nabinoids.” The toxicologist, in response to the question: “... [C]an you tell from those results whether marihuana [sic] was used the evening in question, or some time previously?”, testified: “No, you can’t tell. Marihuana [sic] will stay in the urine for a good while after you use it.” The toxicologist further testified that if marijuana had been present and active in the system it would also have been a reason for the vehicle crossing the road, (emphasis added) On cross-examination, the toxicologist admitted: “... it is still pure speculation as to whether this man had active marihuana [sic] in his system at the time of his death, is it not?” Because of the speculative nature of the testimony, it was not relevant.1
Our society is becoming more educated about the detrimental effects of substance abuse. It is not necessarily a bad thing that society is becoming less tolerant of the use of illegal substances and the immoderate use of legal ones. However, the courts must acknowledge this growing awareness in determining the prejudicial effect of admitting evidence. Tex.R.Civ.Evid. 403 requires a “balancing test” of the probative value versus the danger of unfair prejudice. In making this judgment, trial courts should look at the other evidence. Here there was direct evidence of the deceased being in the wrong lane. There was accident reconstruction testimony that placed the deceased in the wrong lane. There was evidence of lack of sleep and alcohol ingestion and that either or both could have been contributing factors. This lessened the probative value, or said another way, the marijuana ingestion was somewhat cumulative. On the other hand, use of an illegal substance carries great prejudicial effect.2 Even if relevant, the prejudicial effect outweighed the probative value and the evidence should have been excluded.
I concur, rather than dissent, because I am not convinced that the erroneous admission was calculated to and probably did cause the rendition of an improper judgment. Because of the other evidence, the whole case did not turn on the particular *160evidence admitted.3 Consequently, I concur in the affirmance.
. Appellant’s counsel made very general objections without specific reference to the Texas Rules of Civil Evidence. His objection to the pathologist’s deposition testimony was: "The test results of the urine sample do not show any evidence of intoxication or influence of anything. It’s merely asserted by the defendant to prejudice the jury. There’s no evidence which preponderates to this point. It’s merely prejudicial.” The objection to the toxicologist’s testimony was: ”... it is prejudicial and merely entered to inflame the minds of the jury. It is not probative on any point in the case.” However, appellees do not argue the points were not properly preserved.
. We were only furnished a partial statement of facts, but apparently there was some agreement not to mention the drug test during the voir dire of the jury. Consequently, whether the use of illegal substances was particularly offensive to the jury was unknown to the parties or the court. This was certainly a matter that should have been fully explored prior to jury selection.
. This is another case where an able litigator, in zealously (and properly) representing a client, feels that every arrow in the quiver must be used, even if the prey has been mortally wounded.