Driving While Intoxicated Case Law Update - Texas District ...

XIX. EXPERT TESTIMONY
A. STATE EXPERT OPINION TESTIMONY .08 = LOSS OF NORMAL = PROPER
Lonq v. State, 649 S.W.2d 363 (Tex.App.-Fort Worth 1983, pet. ref'd).
Adams v. State,808 S.W.2d 250 (Tex.App.-Houston [1st Dist] 1991, no pet.).
Expert testimony that .08 = "loss of normal use of mental and physical faculties" is admissible, even
though intoxication is defined as .10 or greater.
B. TMPEACHMENT - PRTOR TESTIMONY (JOHN CASTLE)
Sparks v. State, 943 S.W.2d 513 (Tex.App.-Fort Worth 1997, pet. ref'd).
It was proper for State to impeach defense expert John Castle with circumsfances of his prior
testimony in a Collin County trial, State v. Lucido. Namely, the prosecutors pointed out that an incourt
experiment with the Intoxilyzer 5000 demonstrated that contrary to his expert opinion, certain
foods, chewing gum, and medications did not affect the test resu/fs.
C. EXPERT TESTIMONY ABOUT DWI VIDEO PROPERLY EXCLUDED
Platten v. State,2004 WL 100399 (Tex.App.-Tyler 2004, pdr refd) (Not designated for
publication).
Defense attempted to call Dr. Gary Wimbish, a toxicologist, as an expert wifness to testify that he
believed defendantwas not intoxicated based upon the defendant's performance on the DWI video.
There were no FSIs on the tape. Though Dr. Wimbish testified in a Daubert hearing that his
opinions drawn from viewing the tapeswere based on independently recognized principlesthat had
been studied, applied and peer reviewed, he admitted that none of those applied to situations
where there were no FSIs. He further could not cite any scientific theory supporting the conclusion
that intoxication can be determined solely from the viewing of a videotape and he could not refer
the Court to any literature on that proposition. The Appellate Court found the exclusion of this
testimony was proper and further found that Wimbish's testimony was excludable as it would not
be outside the knowledge and experience of the average juror.
D. DEFENSE EXPERT OPENED DOOR TO DEFENDANT'S ALCOHOLISM
Manor V. State, 2006 WL2692873 (Tex.App.-Eastland, 2006).
ln response to the defendant's putting forth the defense that what appeared to be srQns of
intoxication was actually a symptom of her suffering from depression and having a panic attack,
the State was allowed to rebut this theory by putting on evidence that she a/so suffered from
alcoholism. ln response fo fhe attackthatthere was no 404(b) notice, the Court held that because
the evidence of alcoholism of which Manor complains was introduced in cross-examination and not
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