Bagheri v. State

Concurring opinion by: Phil Hardberger, Chief Justice, joined by Alma L. LÓpez, Justice Sitting: Phil Hardberger, Chief Justice, Alma L. LÓpez, Justice, Catherine Stone, Justice, Paul W. Green, Justice, Sarah B. Duncan, Justice, Karen Angelini, Justice, Sandee Bryan Marion, Justice, REVERSED AND REMANDED Hossein Bagheri was convicted of driving while intoxicated. On appeal he contends the trial court erred in admitting testimony regarding a retrograde extrapolation of the intoxilyzer test result. The State has confessed error, admitting that the facts here are no better than they were in Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001), in which the Texas Court of Criminal Appeals concluded the trial court abused its discretion in admitting a retrograde extrapolation by the same witness who testified in this case. Id. at 917. In keeping with our prior opinions in Hartman v. State, 2 S.W.3d 490, 494 (Tex. App.-San Antonio 1999, pet. ref'd), and Mata v. State, No. 04-94-00099-CR, 2002 WL 113951, at *1 (Tex. App.-San Antonio Jan. 30, 2002, pet. filed) (not yet published), in which this court held that the error was harmless because the evidence was sufficient to support conviction under the alternate impairment theory, the State urges that the error was harmless. On our own initiative, we have reconsidered the harm issue en banc and now hold that the sufficiency of the evidence under the alternate impairment theory is irrelevant; it does not establish that the error in admitting the flawed retrograde extrapolation analysis was harmless. We therefore overrule Mata and Hartman to the extent of the conflict and reverse the trial court's judgment and remand the cause for a new trial.