Full opinion text
PER CURIAM. A jury found appellant, Raul Mata, guilty of driving while intoxicated. In six points of error, Mata challenges: (1) the trial court’s failure to suppress the testimony of George McDougall regarding the range of Mata’s intoxication because the testimony was not scientifically reliable; (2) the trial court’s denial of Mata’s challenges for cause during voir dire; and (3) the trial court’s denial of Mata’s requested jury instruction and the overruling of Mata’s objection to the charge. We affirm the trial court’s judgment. McDougall’s Testimony Mata’s first two points of error challenge the denial of his motion to suppress the testimony of George McDougall regarding the range of Mata’s blood alcohol concentration (BAC) at the time he was driving. Specifically, Mata challenges the reliability of McDougall’s testimony that related the result of Mata’s breath test back to the time when he was driving. In Hartman v. State, this court, sitting en banc, rejected a similar challenge to the testimony of the same expert witness in another DWI case. 2 S.W.3d 490 (Tex.App.—San Antonio, 1999, pet. filed). We noted: Given McDougall’s impeccable qualifications, including extensive personal observations of the alcohol absorption and elimination process, and the limits which McDougall placed on his opinion, we find the trial court did not abuse its discretion in admitting his testimony. Once the trial court so found, any further doubts as to the veracity of McDougall’s opinions were for the trier of fact to weigh in its deliberations. Id. We adopt the reasoning in Hartman and overrule Mata’s first two points of error. Challenges to VeniRe MembeRS By points 3 and 4, Mata argues that the trial court committed reversible error by overruling his challenges for cause to members of the venire, Hope Vega and Charles Kimbrough. We overrule both points. Mata asserts, and the State does not deny, that he used all of his peremptory challenges and, because the court denied his request for two additional strikes, he was forced to accept as members of the jury Hope Vega and Charles Kimbrough. Mata contends Vega was objectionable because she had relatives who were police officers and she indicated that she would give the benefit of the doubt to the State. Mata says Kimbrough was objectionable because he indicated that if a person “blew” a BAC of .10 or higher one hour after being arrested, he would automatically find that person guilty of DWI without requiring that the breath test result be related back to the time of the offense or the time of the arrest. It is, therefore, necessary that we determine whether the trial court erroneously overruled Mata’s challenges for cause to Vega and Kim-brough. A. Hope Vega Mata argues that Vega’s answers to questions indicated that if she had doubts concerning Mata’s guilt or innocence she would resolve such doubt in favor of the State and find him guilty because several of her relatives were police officers. Vega’s refusal to give Mata the benefit of any reasonable doubt would clearly be a refusal to follow the law and would be a ground for a challenge for cause. Tex.Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon 1989). Based on Vega’s testimony, however, we cannot hold that the trial judge abused his discretion in overruling the challenge for cause. We believe that, considering her entire testimony on voir dire, the trial judge was justified in finding that such testimony did not reflect a set bias such as would disqualify her. When questioned by Mata, Vega said she realized that the law presumes that a defendant is presumed to be innocent and that this means that he “gets the benefit of the doubt because the burden of proof is on the State.” When asked if she still felt that she would give the State the benefit of the doubt, she answered, “Well, no ... It depends on if he was innocent or not.” She was then asked, “And if you had a doubt, ... would you say ... maybe I will side with the State or would you find him not guilty?” She answered, “No, I would still side with the State.” The prosecutor then asked if she would “keep” [the prosecutor] to proving that burden [sic] beyond a reasonable doubt and not making it any less for [the prosecutor] just because [the prosecutor] called a police officer to the stand?” Her answer was ‘Yes.” She also answered “yes” when asked if she could “follow the law the judge gives” her. The judge pointed out that when she was first asked about the State’s burden of proof and being able to follow the law she said would be able “to follow the law,” but had first said, “I think so.” He then asked, “What do [sic] you mean when you said, T think so?’ Her answer was, “Well, yes.” When directly asked if she would require the State to meet its burden of proof and follow the law, Vega answered, “yes.” The trial judge heard the answers and was able to observe the manner in which Vega answered and to note her demeanor and body actions, and he obviously concluded that some of her answers were due to a lack of a clear understanding of the questions. We cannot say that in so finding he abused his discretion. B. Charles Kimbrough The challenge to Kimbrough is based on Mata’s contention that Kim-brough would not require the State to prove that Mata was intoxicated while driving, but felt that proof of intoxication an hour or more after the defendant was arrested was sufficient to prove that defendant was intoxicated when driving. Mata is not completely unjustified in asserting that Kimbrough’s answers to questions by Mata’s counsel indicate an unwillingness to follow the requirement of the statute that the State must prove that the defendant was operating a motor vehicle on a public highway at a time when he was intoxicated. But questioning of Kim-brough by the trial judge produced sufficient evidence to support a contrary conclusion. The judge first told Kimbrough that it was important that he understand that the State had the burden of proving its case, and that ... [S]imply the fact that they get a particular [breath test] result doesn’t indicate, necessarily, that the defendant was guilty of driving while intoxicated at the time and place in question unless the State has been able to prove that to you. Do you understand that? Kimbrough answered, ‘Yes, sir. I do.” He then said he “would be able to follow the court’s instructions, the legal instructions of the court in determining the guilt or innocence of the defendant.” We believe that Kimbrough’s answer to the court’s questions concerning the court’s instructions are sufficient to justify the judge’s conclusion concerning the absence of bias, or prejudice, and Kim-brough’s willingness to follow the trial court’s instructions. We cannot hold that the judge abused his discretion in so holding. Objections to the Charge In his last two points, Mata complains of the trial court’s refusal to give his requested jury instruction and overruling his objection that the charge, as given, erroneously reduced the State’s burden of proof. Paragraph III of the charge instructed the jury that if they found from the evidence beyond a reasonable doubt, that on or about the date in question in Bexar County, the defendant, Raul Mata, was intoxicated, and while so intoxicated, did drive or operate a motor vehicle, in a public place, then you will find the defendant guilty as charged. In Paragraph IV of the charge, the jury was instructed that defendant would not be guilty if he was not intoxicated, even if they believed beyond a reasonable doubt that he operated a motor vehicle at the' time and place in question. The charge added: Therefore, if you find that the defendant was not intoxicated at the time and place in question, or if you have a reasonable doubt thereof, you will find the defendant not guilty. Mata complains that the charge does not “pin down” the “relevant point in time which the statute requires of the State’s proof, that is, while defendant was in actual, physical control of a motor vehicle.” Mata says the charge is defective because it does not require that the State relate back the breath test scores with metabolism facts proving beyond a reasonable doubt that defendant was intoxicated as alleged in the complaint. Therefore, Mata says, the charge erroneously reduces the State’s burden of proof. . Mata’s requested special instruction would instruct the jury that they must be convinced, beyond a reasonable doubt “that an inference ... can be made from the results of the chemical test that the defendant had a 0.10% or higher alcohol concentration in his body [sic] at the time he was in actual physical control of a motor vehicle.” The requested charge would instruct the jury that if they did not find “such an inference beyond a reasonable doubt, or if they did not find that the State had shown the alcohol concentration in defendant’s body at the time he was driving, ‘beyond a reasonable doubt,”’ they must find the defendant not guilty of driving while intoxicated while having an alcohol concentration of 0.10 or higher in his body. The court’s charge defined “intoxication,” as does the statute, in terms of (1) a person not having the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body, or (2) having an alcohol concentration of 0.10 or more. The charge’s instruction that the jury was required to find beyond a reasonable doubt that Mata was “intoxicated” when driving in no way reduced the State’s burden of proof. The jury was plainly told that, in order to convict Mata, they must find beyond a reasonable doubt that he was operating a motor vehicle on a public highway while the normal use of his mental or physical faculties was alcohol-impaired, or while having an alcohol concentration of 0.10 or more. Neither the statute nor case law requires that the court instruct the jury concerning the type of evidence which the State must produce. The only requirement is that the State produce evidence which convinces the jury of defendant’s guilt beyond a reasonable doubt. Mata presents no point arguing that the evidence does not support the verdict. Conclusion The judgment of the trial court is affirmed. Dissenting Opinion by: CARLOS C. CADENA, Chief Justice (Retired). . The dissenting opinion extensively details this testimony, so we do not repeat it here. We agree with the dissent's analysis that this issue was properly preserved for appellate review. . Although the dissenting opinion is well-researched and reasoned, we do not find it necessary to revisit the Hartman debate.
CARLOS C. CADENA, Chief Justice (Retired), dissenting. I agree that the trial court did not err in denying appellant’s challenges for cause during voir dire, refusing appellant’s requested jury instruction, and overruling appellant’s objections to the jury charge. However, I am convinced that the trial court committed error in failing to suppress the challenged testimony of George McDougall concerning the range of appellant’s blood alcohol concentration (BAC) at the time he was operating the motor vehi-ele. (Much of the testimony in the record refers to appellant’s BAC at the time he was arrested. I will use the time of arrest in this dissent, since all discussion regarding appellant’s BAC prior to the breath test refers to the time which elapsed between the time of arrest and the time of the subsequent breath test. There is no testimony concerning the time appellant was stopped, and he does not here assert that the time intervening between the time he was stopped and the time of his arrest is significant, although the testimony shows that the arresting officer had appellant perform four roadside sobriety tests between the time he stopped appellant and the time of the arrest. I will assume that all references to appellant’s BAC at the time he was arrested can justifiably be interpreted as referring to appellant’s BAC when he was operating the motor vehicle. If this assumption is unwarranted, then there is no evidence concerning appellant’s condition when he was driving, which simply means that there is no evidence showing that appellant was operating the motor vehicle at a time when his BAC was at least 0.10%. Further, throughout this opinion I will omit the zero preceding the decimal point and will omit the percentage symbol following the last numeral used in identifying the BAC. Therefore, the description of BAC in terms such as, for example, .12, should be interpreted as a BAC of 0.12%.) Before stating the i’easons for my dissent, I think it necessary to show that appellant’s complaint concerning McDou-gall’s testimony is properly before us. The State contends that we may not consider appellant’s complaint concerning the trial court’s failure to suppress the testimony of McDougall because this complaint was not presented to the trial court. The State correctly points out that appellant’s motion to suppress only sought suppression of testimony concerning the result of the breath test, while his points of error here complain of the admission of McDougall’s testimony concerning appellant’s BAC at the time of the offense. But the State is mistaken when it asserts that appellant did not make known to the trial judge his complaint concerning the admission of the McDougall testimony which he challenges in this court. Appellant made it clear to the trial court that he sought suppression of McDougall’s testimony relating to appellant’s BAC more than two hours before the breath test. At the conclusion of the testimony at the hearing on the motion to suppress, appellant moved that the trial court suppress McDougall’s testimony that appellant’s BAC at the time of the offense was more than .10. Appellant’s counsel told the court that McDougall’s testimony should be suppressed because it was completely unreliable in the absence of evidence of the rate at which appellant absorbed and eliminated alcohol. Counsel told the court that McDougall’s testimony was inadmissible in the absence of evidence of appellant’s drinking behavior, weight, and physiology. When appellant’s counsel concluded his argument in support of the motion, the trial court, having previously announced that he did not wish to hear argument by the State, said that, relying on the testimony presented by the State, he was denying appellant’s motion “on all points.” At the trial on the merits, when the State attempted to have McDougall testify to appellant’s BAC at the time of the offense, appellant was permitted to conduct a voir dire examination of the witness outside the presence of the jury. The jury was removed from the courtroom while appellant questioned McDougall concerning his opinion. At the conclusion of the voir dire examination, appellant argued that the witness did not have a sufficient basis for his opinion concerning appellant’s BAC at the time of the offense because there are so many “variables,” including whether appellant’s peak BAC (the time when the alcohol concentration in appellant’s blood reached its highest point) occurred before or after the test; and the “range [of appellant’s BAC]” more than two hours before the test “is so broad that it doesn’t tell the jury anything about” appellant. Counsel insisted that “under the rules” McDougall had no sufficient basis for any testimony about appellant’s range. Appellant was willing to concede that McDougall is qualified to “service those machines” and to “talk about the average person and the many people he has observed drinking and taking this test,” but insisted that the witness lacks sufficient information to talk of a range specifically applicable to appellant. The trial court said he was going to allow McDougall’s testimony, and when appellant asked him if he had “ruled,” the court answered, “I overrule the objection.” According to Tex.R.App. P. 33.1(a), a complaint is preserved for appellate review if a party presents to the trial court “a timely ... motion, stating the specific grounds for the ruling” he desires the court to make and obtains a ruling on the motion. All that is required is denial of a motion presented to the trial court so that the court is given an opportunity to prevent error. The record shows that appellant objected to and sought suppression of McDou-gall’s opinion testimony concerning appellant’s BAC more than two hours before the test, and told the trial court why he was entitled to that ruling. This was done early enough to enable the court to understand what appellant wanted at a time when the judge was in a position to do something about McDougall’s testimony. Appellant did all that Rule 33.1(a) required him to do to preserve his complaint for consideration by this Court. Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992). This conclusion finds additional support in Mason v. State, 740 S.W.2d 517, 518 (TexApp.—Houston [1st Dist.] 1987, pet. ref'd), where the court, after rejecting the State’s argument that a plea of mis-joinder of offenses can be raised only by a motion to quash the indictment, held that appellant had preserved his plea of mis-joinder for appellate review by a timely oral objection to such misjoinder. Appellant’s points complaining of the admission of McDougall’s testimony are properly before us. Since appellant does not complain of the admission in evidence of the result of the breath test, we need not consider any evidence concerning the function of the Intox-ilyzer, the qualifications of the officer administering the test, or the manner in which the test was performed. According to Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992), we need consider only evidence presented outside the presence of the jury concerning the admissibility of McDougall’s testimony relating to his opinion of appellant’s BAC at the time of the offense. The only relevant testimony is the testimony of McDougall at the hearing on the motion to suppress and during the his voir dire examination by appellant at the trial on the merits. HEARING ON MOTION TO SUPPRESS McDougall is the breath test technical supervisor for Bexar County. In order to be qualified as a breath test technical supervisor, a person must have a bachelor’s degree in chemistry or its equivalent and must have completed the breath test technical supervisor course specified by the Texas Department of Public Safety (TDPS). McDougall does not know appellant and does not know: (1) how much appellant weighed at the time of the test; (2) what, if anything, appellant had been drinking, (3) when appellant had started drinking; (4) when appellant stopped drinking; or (5) whether appellant had eaten anything before or while drinking. Appellant’s BAC as revealed by the breath test gives no clue concerning his BAC two hours earlier when he was driving. McDougall cannot say that appellant was intoxicated at the time of the offense, because, “right now,” he doesn’t know when appellant was arrested. [It is clear that McDougall’s subsequent testimony concerning appellant’s prior BAC is sometimes based on the fact that the police report showed that appellant was arrested two hours and ten minutes before the breath test.] McDougall can extrapolate from the time of the breath test to the time of arrest so that he can confidently testify that appellant’s BAC at the time of arrest was more than .10. McDougall explained his extrapolation process. “I assume certain variables. And I cannot give you a specific number for a previous period in time because there are several probabilities. So, using the possibility that he was a higher [BAC] at the time of arrest, and what the highest would have been, and if we knew what it was at the time of test, and what it could have dropped to or could it have been higher. The other possibility is how low it could have been and still have time to arrive at the concentration of what we see on the test record, if he were rising at the time of the test. And between these two somewhere is where the actual value will be.” . McDougall was handed Defendant’s Exhibit 4, which he identified as being in “the manual.” [The reference is to the 1990 revision of the TDPS publication, TEXAS BREATH ALCOHOL TESTING PROGRAM OPERATOR MANUAL which, in the Preface, lists McDougall as one of six Technical Supervisors who acted as coauthors. This publication, which will be referred to in the remainder of this opinion as “Manual,” was revised in 1996]. The exhibit depicts the alcohol concentration curve of a person “starting when he didn’t have anything to drink until long after the peak had been reached.” In order to determine whether a person is in the absorption stage [the period of time which begins immediately after the consumption of alcohol and continues until all of the alcohol has been absorbed into the bloodstream from the stomach and the small intestine] or the elimination phase, during which alcohol is being eliminated from the blood faster than it is being absorbed. “You must have a lot of [test results] in order to draw a full curve.” Appellant’s Exhibit 3 is another chart taken from the Manual. It shows another alcohol concentration curve.' In order to draw an alcohol concentration curve to determine whether a person is in the absorption phase or the elimination phase it is necessary to have “many readings,” that is, blood, urine or breath tests repeated periodically. The result of a single intoxi-lyzer test does not indicate whether the person tested is in the absorption phase or elimination phase.' The intoxilyzer is not designed to do that. A breath test gives no information other than the BAC of the person tested at the time of the test. Ingested alcohol passes from the mouth into the stomach, where some of the alcohol is absorbed into the blood stream, even if the stomach is. empty. From the stomach the alcohol passes into the small intestine and is rapidly absorbed into the bloodstream. If there is food in the stomach the passage of the alcohol into the small intestine does not occur until the food in the stomach is digested. This delays the absorption of alcohol, particularly if the food in the stomach consists of fatty food like meat and potatoes. After it is absorbed into the blood, the alcohol is carried by the bloodstream through the various organs of the body, passing first to the liver, where the process of elimination begins. Appellant’s Exhibit 1, showing the distributive pathways, is a reproduction of Figure 3 in the Manual. If a person’s breath test shows a BAC of .16 or more, he is as intoxicated as if he were under a general anesthetic. If a breath test given two hours and nine minutes after a person’s arrest shows a .196 BAC, this would indicate he had a higher BAC at the time of the test than when arrested. If a person blows a .19 two hours after being arrested, in all probability that person would have blown at least a .10 when arrested, assuming he had nothing to drink after he was arrested. A person who blows a .19 would not be “completely oblivious” to pain, although he would be “more oblivious than if he had no alcohol.” A person who blew a .19 would be unable to drive safely and would have some loss of physical or mental use of his “abilities.” Appellant’s Exhibit 2, also taken from the Manual, shows that if a person drinks on a stomach full of fatty foods, the digestive process in the stomach is slowed down and this will cause a much slower rate of absorption of alcohol into the bloodstream. It will take a while for that person to reach a peak, regardless of how much he had to drink. But it would take no more than 90 minutes for a complete absorption of all the drinks. “It doesn’t take two hours to digest a stomach full of food.” All of the alcohol would be absorbed in 90 minutes. McDougall does not know whether appellant had anything to eat. It is true that, based on the parameters set out in a chart which he has seen and which was prepared by NHTSA, if a person drinks on an empty stomach, his BAC can rise to .10 or more in as little as one hour, but if he drank on a full stomach it will rise to “less than half of that” in two hours. McDou-gall has “no real reason” to disagree. McDougall is saying that at the time appellant was driving he was “impaired and had lost the normal control of his mental or physical faculties.” He is not saying that appellant had a BAC of .10 or higher. He is saying that appellant had a BAC of “at least .08 or higher.” In his opinion, if a person has a BAC of .08 he has lost the normal use of his mental or physical faculties as the result of ingesting alcohol. He agrees that “the statute speaks only of a .10 or more.” McDougall cannot give “an individual number” concerning appellant’s BAC two hours before the test, but he can give “a range.” He “thinks” it is possible for the person to be “as much as a .06 less than a .19”, two hours and ten minutes before the test. “It could have been as low as a .12 or a .13 ... at the low end, and somewhere about a .25 at the high end, somewhere in between there.” He is not saying that there is no possibility that appellant’s BAC two hours before the test could have been lower than a .10. There is an extreme situation where it could have been less than .10, but he has no knowledge of that. The figures he has given are just estimates. McDougall’s statement on cross that if appellant blew a .196 two hours after he was arrested, the “low end” of the range of appellant’s BAC at the time of arrest would be .102 was based on the assumption that appellant had drunk on an empty stomach. [This testimony is somewhat puzzling, since the record contains no statement by McDougall concerning a BAC of .102. The mention of a .102 BAC is found only in the question by the prosecutor.] If appellant had a full stomach when stopped, “he would have been higher than that,” but McDougall cannot tell what it would have been. When pressed to give a “guesstimation,” he said appellant “could have been as low as, say, maybe a .16 on a full stomach and not quite as high as a .25, maybe a .21 or .22.” VOIR DIRE McDougall does not know when appellant began drinking or when he stopped drinking, and he assumes appellant did not drink after his arrest. [This assumption is correct]. He does not know when appellant reached the peak BAC. His only reference point is the result of appellant’s breath test, but McDougall is prepared to testify about the level of alcohol in appellant’s blood stream two hours before the test. He is familiar with a chart which plots the BAC “in the nature of absorption and elimination phase” of a person who has consumed alcohol. The chart shows the person had a breath test at 2:45 which showed a BAC of .08. The person eliminated alcohol “at about a .02 per hour, something like that.” If the person peaked at .10 one hour before the test, this would be consistent with a test showing a .08 BAC one hour later. This would be one possibility if he peaked at .10 one hour before the test. Based on these assumptions, McDougall can testify that if the person was arrested at 1:15 his BAC at that time would have been between .045 and .089. If it is assumed that the time of the peak is unknown and that all that is known is that he scored .08 on the test given two hours after the arrest, McDougall can give a range even if he doesn’t know when the person began drinking, what he had to drink, or how much he weighed. McDougall can do this by “looking at all of the possible peak points.” If the peak occurred at or before the time of arrest, the BAC was decreasing until the time of the test. This would give him his “maximum range.” Applying the elimination rate of .02 [per hour], the person’s “peak” two hours before the test would be .12. The peak could have been before the arrest, but even in that case he would have been eliminating at the .02 rate during the two hours intervening between the time of the arrest and the time of the test, and he would have been at .12 and “coming down to where he was at .08 at the time of the test.” McDougall doesn’t know “exactly where the peak is,” but if it was anywhere before the time of arrest he would have reached .08 at the time of the test. The peak would have to be before or at the time of arrest at .12. The hypothetical person they are talking about could have started drinking the day before and had been at .4Q “and maybe coming down to a .08 24 hours later, or something of that nature, because he is eliminating at a constant rate.” Following a recess, the chart to which the witness and appellant’s counsel had been referring was identified as DX 1. McDougall would not commit to the numbers reflected on the chart, although he would commit to the principles.' McDougall will not state that a person can increase as rapidly as shown on the chart. He is also familiar with a chart prepared by NHTSA concerning a study done on a chug-a-lug situation, where the BAC of a person who drank on an empty stomach rose to .10 in an hour. He would not agree with such a rapid rise because the study does not concern what he would call a normal drinking situation. McDougall can testify about “this range right here” because he has two knowns. He knows the result of the breath test, and he knows “the standard elimination rate which is pretty standard among all persons,” so that he can calculate the range, “in theory.” The situation changes if the peak occurs after the test, because, “we have a different rate of absorption depending upon the circumstances of the individual and the amount of alcohol and what that person has had to drink and perhaps their weight and when they began drinking and when they stopped drinking. All of these variables create a different rate of absorption.” But McDougall doesn’t know of any situation where a person would be in the absorption stage after an hour. If the person drank just before he was arrested, his BAC would be rising for an hour and then he would peak. McDougall doesn’t know of any situation where the person would peak two hours later. If a person drank on an empty stomach he would peak in about 30 to 45 minutes. If the person drinks after having a meal of meat and potatoes, he would peak “somewhere around an hour to an hour and a half, at the very most.” It would not be possible to peak two hours later. He has to peak in about an hour.” The NHTSA chart does show that a person who drank after a meal of potatoes peaked “right at about two hours.” The problem with that chart is that it concerns a situation where the peak was at .04, and that is a very limited alcohol concentration. It is a very small amount of alcohol “in the amount of potatoes.” It varies greatly with more alcohol. It would not be delayed as much for a greater amount of alcohol. “Potatoes can’t dilute the alcohol any more than potatoes [sic] can dilute the alcohol.” While food slows down the system and slows down the alcohol getting into the “gut,” that is also dependent upon the concentration of the alcohol and the amount of the alcohol. The amount of alcohol consumed in the study reflected by the NHTSA chart is a limited amount. It is just two ounces. It is true that the chart shows that the person consumed two ounces of pure alcohol in eight ounces of water, which is equivalent to 5 drinks of 80 proof vodka. If we include a chug-a-lug situation, there is a lot of variety. In the situation depicted in DX 1, McDougall will agree that the peak might be after the test, if you don’t know the variables affecting the absorption rate, “our range is so broad here in terms of the [BAC] that it really doesn’t tell us anything about what that individual’s breath test result was at the time of the arrest because it could have been anywhere from zero to .20.” But his agreement is limited to the example shown in the exhibit. At levels above a .10, he would not agree. In appellant’s case, the test revealed a BAC of .19. [Although the revealed BAC was .196, the third numeral is of little importance and the breath test results are usually expressed only to two decimal places.] All the information McDougall has is the result of that test. But he thinks he can assume a normal drinking pattern. He can’t assume a chug-a-lug situation as normal. “In my drinking experience that is very unusual.” He will not give an example based on a very unusual situation. There are persons who drink that much “but not chug-a-lug.” McDougall knows nothing about appellant or his drinking habits or what he had to drink on the night in question, so he “can’t factor in” any of these variables. But he can state the “parameters” under which he is making his hypothetical answer, and counsel for appellant “can live with that” or can illustrate the limitations of “my parameters.” But McDougall thinks his parameters are very well within the bounds of what “we are going to find.” McDougall is saying that he is basing his parameters on some hypothetical individual, on a normal drinking individual. He is not adverse to explaining what his parameters are, and the jury can assume those parameters and they can understand the parameters he is using. McDougall is not using any magic. A chug-a-lug is one possibility that would not be considered normal. He is not saying that he would limit his testimony not to appellant but to a hypothetical individual who is not appellant. He would explain what is normal and if counsel were to bring up other parameters he would tell him what those other parameters would do to an individual. He will explain it and lay it all out, but he doesn’t think that counsel’s premise that a person can reach a .10 after drinking all the alcohol before he was arrested, and that he was arrested at a .0 is reasonable at all. Counsel, after agreeing that “it” is an “extreme at one end,” asked if McDougall would agree that there is also an extreme at the other end, that some individual could have been drinking for a long period of time and achieved a high level of alcohol concentration in his system, perhaps several hours before, and then continued to rise for period of time. McDougall said he agreed that the BAC could continue to rise for up to an hour and a half. For more than that he cannot agree. It has not been his experience, and he has tested thousands of individuals and it has not been his experience that their BAC rises more than an hour and a half after their last drink. The chart they discussed is not a survey. It is an experiment done with a gulp of five ounces of liquor followed by a measure of the BAC. When asked if he agreed that “one was done on a full stomach and one on an empty stomach,” instead of answering the question he said he “was not going to accept the two hours as an absolute, adding that in his experience, with all of the studies [he has] read it is between half an hour to an hour and a half to reach a peak, after drinking on a full or empty stomach.” Within the limitations of “that graph” they “could” have been talking about an hour and a half and it looks like two hours. It is not very significant. He agrees that there is a broad range and he doesn’t know how broad that range is, but he thinks he can make an estimate, based upon some hypothetical average, based on what he would consider normal drinking behavior. McDougall repeated he did not know what appellant had to drink or what he had to eat. He does not know when appellant began drinking or stopped drinking. When asked if his hypothetical dealt with an average person or reasonable person, and not specifically with appellant, he answered, ‘With a reasonable possibility of drinking, yes.” McDougall added his hypothetical was based on what he considered to be “the reasonable possibilities of drinking.” At this point DX 1 was admitted. After appellant’s objection to McDou-gall’s testimony was overruled, the jury was returned to the courtroom, and no other evidence concerning the admissibility of the evidence was heard outside the presence of the jury. ADMISSIBILITY OF THE EVIDENCE The parties agree that the admissibility of McDougall’s evidence concerning what he described as the “range” of appellant’s BAC at the time of the alleged offense is governed by Rule 702 of the Texas Rules of Criminal Evidence (hereinafter the “rule”), which insofar as applicable here, provides that if “scientific knowledge” will help a jury to determine a fact in issue, evidence of such scientific knowledge may be given by a witness qualified as an expert by “knowledge, skill, experience, training, or education.” Before the question of admissibility can be determined, the criteria for admission of such evidence and the burden of proof which must be met by the proponent of the proffered evidence must be considered. A. Criteria for admissibility. According to Hartman v. State, 946 S.W.2d 60, 63 (Tex.Crim.App.1997), hereinafter referred to as “Hartman l,”the admissibility of the challenged testimony must be determined by applying the rules announced in Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992), concerning the admissibility of scientific evidence under the rule. Kelly held that scientific evidence is admissible only if it is “sufficiently relevant and reliable to help the jury in reaching accurate results.” 824 S.W.2d at 572. Such evidence is reliable only if both the scientific theory and the technique for applying it are valid and the technique has been properly applied in the case before the court. Id. at 573. B. The State’s burden of proof. The State concedes that it had the burden of proving the admissibility of the testimony by establishing its reliability. The problem to be considered concerns the quantum of evidence which the State was required to produce to discharge its burden. As will be seen later, the question of allocating the burden of persuasion and the question of determining the required quantum of evidence are made more difficult by the opinion of the Court of Criminal Appeals in Emerson v. State, 880 S.W.2d 759, 761 (Tex.Crim.App.1994). I will first discuss the questions concerning burden of persuasion announced in Kelly and then consider the problem raised by the holding in Emerson that a court may take judicial notice of the scientific literature not mentioned in the evidence in order to determine the reliability of the prof-erred evidence. Kelly involved the admissibility of evidence concerning the horizontal gaze nys-tagmus (HGN) ‘fingerprint’ test. 824 S.W.2d at 569. The Court considered the challenged testimony as “novel scientific evidence;” apparently meaning to characterize the evidence as evidence concerning a novel scientific theory. The Court said, “The proponent of novel scientific evidence must prove to the trial court, by clear and convincing evidence and outside the presence of the jury, that the proffered evidence is reliable.” Id. at 578. The Court pointed out that it was not necessary, in that case, to decide “what burden of persuasion is applicable under [Rule] 702 when the scientific evidence offered is not truly novel.” Id. at n. 13. The holding in Hartman 1, supra, precludes the conclusion that the statement in footnote 13 in Kelly is a holding that the “clear and convincing evidence” burden of proof applies only where the scientific evidence is novel. Hartman held that the relevance and reliability could not be limited to cases involving novel scientific evidence. 946 S.W.2d at 62. In reaching this conclusion, the Court, after saying that it found no value in having a different standard of admissibility depending on whether or not evidence is novel, added, “[T]he problems presented in determining whether or not a particular type of evidence is novel are daunting enough to reject application of a dual standard.” Id. at 63. There is no basis for believing that the problems which the Court found so daunting in Hartman will disappear when the attempt to make the distinction is for the purpose of applying a dual standard of burden of proof rather than for the purpose of applying a dual standard of admissibility. In Emerson, the Court said that it would consider the scientific evidence regarding the HGN test to be novel because no case had held that such evidence was reliable. 880 S.W.2d at 763. Even if the “clear and convincing evidence” standard is applicable only in cases involving novel scientific testimony, there is no problem in this case. Under the test applied in Hartman, the evidence in this case is novel scientific evidence, since I have found no final holding that the theory or technique employed in retrograde extrapolation as applied by McDougall is rehable. Therefore, the State’s burden in this case was to prove the admissibility of the McDougall evidence by clear and convincing evidence presented outside the presence of the jury. When the State’s burden of proof is considered in this case, the holding in Emerson concerning judicial notice of scientific facts cannot be overlooked. In Emerson, Sharon Lee Emerson sought reversal of her DWI conviction because the trial court allowed the arresting officer to testify concerning her reaction to the horizontal gaze nystagmus (HGN) test which he had administered to her on the highway at the scene of the arrest as one of the “roadside sobriety tests.” (Although horizontal gaze nystagmus is sometimes called “alcohol gaze nystagmus,” or “AGN,” in this opinion I will use the term HGN). The problem in Emerson was that, unlike the situation in Kelly, the State presented no evidence showing the validity of the scientific theory and the technique for its application. Under the Kelly rules concerning the admissibility of scientific evidence, the trial court erred in admitting the HGN evidence. The Emerson opinion avoided reversing the conviction by inquiring, on its own motion, into the reliability of the scientific theory and technique “pursuant to the doctrine of judicial notice.” 880 S.W.2d at 764. An appellate court may take judicial notice of facts outside the record although not requested to do so by any party and without notifying the parties of its intention to do so because judicial notice is part of the inherent power of trial and appellate courts. Specifically, the Court said it was authorized to take judicial notice of any scientific fact which “is capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” Id. After noting that the effect of alcohol on nystagmus, specifically HGN, is “well documented,” the Court recognized that nys-tagmus may be caused by factors other than alcohol, “such as other drugs, neurological disorders, or brain damage.” 880 S.W.2d at 766. The Court then noted that NHTSA in its publication, Improved Sobriety Testing, 1 (1984), concluded that the HGN test is the “single, most effective field sobriety test in determining whether an individual is alcohol-impaired.” Id. After consulting “literature concerning alcohol and its effects on human eye movement, and considering case law from other jurisdictions addressing the reliability of the HGN test,” the Court found that the theory underlying the test is sufficiently reliable “pursuant to ... Rule ... 702.” Id. at 768. The Court added that the scientific materials addressing the issue have reached the uniform conclusion that the consumption of alcohol has a “cognizable effect on human eye movement,” and expressed its belief that the accuracy of the sources “cannot be reasonably questioned.” Id. The Court then found that the technique employed in the HGN test “as designed by NHTSA is reliable,” citing the NHTSA publication, Improved Sobriety Testing (the source of its previous statement about the efficiency of the HGN test). 880 S.W.2d at 768. In Texas, officers administering the test receive “standardized training in its administration and must follow the standardized procedures” outlined in NHTSA’s DWI Detection Manual. Id. These standardized procedures require that the officer “screen for factors other than alcohol that may contribute to cause nystagmus, such as drugs, neurological disorders, and brain damage, prior to administering the test.” Id. Because of these required procedures, the Court held that the technique employed in the HGN test “is a reliable indicator of intoxication.” Id. (Emphasis by the Court.) The finding that both the theory and technique of the HGN test were valid led to the conclusion that the testimony concerning the reaction of the defendant to the test was properly admitted. Although the Court recognized that the HGN test is a reliable indicator of intoxication, it refused to extend such finding of reliability to NHTSA’s contention that the test is reliable as an indicator of a precise BAC (specifically, a BAC of at least .10). This refusal to recognize the test as a reliable indicator of a BAC of at least .10 was based on the fact that NHTSA’s “lab experiment [showed] a margin of error of .032%, and [on] the dearth of other published writings on the accuracy of NHTSA’s formula and technique.” (The Court did not mention published writings, which will be discussed later, criticizing NHTSA’s methodology and conclusions.). These factors prevented the Court from taking judicial notice of the reliability of the HGN test “within the context of determining precise BAC based on the angle of onset of nystagmus.” 880 S.W.2d at 769. As far as the HGN test is concerned, Emerson holds only that an officer who “has received a practitioner certificate by the State of Texas to administer the HGN test” qualifies as an expert on the administration and technique of the test and may testify concerning a defendant’s performance on the test, “but may not correlate the defendant’s performance on the HGN test to a precise BAC.” Id. at 768-69. Comment on Emerson and its effect on the decision in this case will be reserved until a subsequent portion of this opinion. Emerson impliedly suggests there is no scientific literature questioning the reliability of the HGN test or of the technique applied by a police officer administering the test on the highway in the early morning hours by passing an object across the subject’s field of vision and estimating the angle of eyeball deviation at which the unusual eyeball behavior begins. In fact, the methodology of the study on which the Emerson majority heavily depends for its finding that the HGN test is “a rehable indicator of intoxication” has been seriously questioned. See 3 Nichols, DRINKING/DRIVTNG LITIGATION, CIVIL AND CRIMINAL, Sec. 25.01 (1995) and the scientific literature there cited. The Court’s statement that the sources on which it relied “cannot be reasonably questioned” is subject to being reasonably questioned. The Emerson opinion recognized that nystagmus may be caused by factors other than alcohol consumption, such as other drugs, neurological disorders or brain damage, and stressed the fact that in Texas officers who administer the test are required to screen for possible other causes such as the three previously mentioned in the opinion. 880 S.W.2d at 766. Possible causes of HGN, other than ingestion of alcohol, include problems in a person’s inner ear and physiological problems such as influenza, streptococcus infections, vertigo, measles, syphilis, arteriosclerosis, muscular dystrophy, multiple sclerosis, Karsakoffs Syndrome, brain hemorrhage, epilepsy and hypertension. There is evidence that eye strain, motion sickness, sunstroke, eye muscle fatigue, and glaucoma may bring about HGN, and that the time of the day may affect the angle at which nystagmus is first observed. Id. Consumption of such common substances as caffeine, nicotine, and aspirin have been found to result in nystagmus almost identical to that resulting from drinking alcohol. Id. In view of the numerous causes of HGN other than alcohol, the conclusion that the presence of HGN is a reliable indication of intoxication is not entirely convincing. It is not easy to believe that a police officer is competent to determine that the HGN which he detects is attributable to ingestion of alcohol. Emerson failed to take notice of studies which reveal that 50 to 60 percent of the population, will show a gaze nystagmus indistinguishable from HGN if they deviate them eyes more than 40 degrees to the side. Toglia, ELECTRONYSTANOGRA-PHY: TECHNICAL ASPECTS AND ATLAS (1976). The NHTSA test which police are instructed to use is in terms of deviation at an angle of 45 degrees from the subject’s nose. The result of NHTSA tests would necessarily result in a number of “false positives,” since persons with a BAC below .10 would nevertheless be classified as having a BAC of at least .10 or, at the very least, that their eye movement problem was the result of intoxication. NHTSA was aware of this problem and avoided it by administering a placebo, a drink with no alcohol, to all persons scheduled for testing who showed signs of moderate to strong HGN at zero BAC. This precaution effectively screened out persons at high risk of being incorrectly identified as positives. The procedure is explained in NHTSA=DOT — HS-805-864 Develop ment and Field Test of Psychophysical Field Tests for DWI Arrest, 16-17 (1981), which is reprinted in Nichols, or cit., beginning at p. 3 of Appendix C to Chapter 26. It is interesting that the explanation seems to assume that the presence of HGN in alcohol-free persons is due solely ,to the influence of drugs. If more than half of the population will exhibit HGN at zero BAC, this assumption may be subject to reasonable questioning. The opinion asserts that the Court is taking judicial notice of scientific facts which are capable of accurate and ready determination by resorting to sources whose accuracy cannot be reasonably questioned. 880 S.W.2d at 764. This statement may be true if it is limited to the conclusion that ingestion of alcohol has a cognizable effect on the human eye. But the conclusion that an officer in the field can, by administering the HGN test on the highway under non-laboratory conditions, determine whether a person is intoxicated has been seriously questioned. The NHTSA’s findings, in fact, are not in agreement with those o'f other researchers, e.g., Ashean, Different Types of Alcohol Nystagmus, 140 ACTA LARYNOLOGI-CA, 69 (1957). Although the Court found that the HGN test is a reliable indicator of intoxication, it rejected NHTSA’s contention that the test was a reliable indicator of a precise BAC (specifically, a BAC of at least .10). 880 S.W.2d at 769. The Court refused to recognize the test as a reliable indicator of a BAC of at least .10 because NHTSA’s “lab experiment [showed] a margin of error of .03% and [because of] the dearth of published writing on NHTSA’s formula and technique.” (No mention was made of published criticisms, already noted in this opinion, of NHTSA’s methodology and conclusions.) These factors prevented the Court from taking judicial notice of the reliability of the HGN test “within the context of determining precise BAC based on the angle of onset of nystagmus.” 880 S.W.2d at 769. The inclusion of the HGN test in the battery of roadside sobriety tests is interesting. Unlike other standard subjective field sobriety tests, such as the one-leg stand test and walk-and-turn test, it is not designed to reveal the loss of normal voluntary control of a person’s mental or physical faculties by observation only. It appears to be in the same category as bloodshot eyes, although it comes clothed in more scientific garb. Emerson is an authoritative recognition by our highest criminal appellate court of a court’s right to consult scientific literature in considering the admissibility of scientific evidence. Although the opinion involved the consideration of scientific literature for the purpose of determining that evidence was properly admitted, there is nothing in the opinion which suggests that the judicial research is limited to consideration of literature which results in the affirmance of a conviction. In evaluating the testimony, I will attempt to follow the Kelly guidelines by considering whether the evidence discloses the existence of valid scientific theory which forms the basis for the testimony; whether the record reveals the existence of a valid technique for the application of such valid theory; and whether McDougall properly admitted such valid technique in this case. I will, as did the Emerson court, refer to relevant scientific literature. C. Evidence of valid scientific theory. McDougall said that, given the result of appellant’s breath test, he could, by extrapolation, testify concerning appellant’s BAC at the time he was arrested two hours and nine minutes prior to the test. His first explanation was neither lengthy nor clear. He said: I assume certain variables. And I cannot give you a specific number for a previous period in time because there are several probabilities. So, using the possibility that he was a higher [BAC] at the time of arrest, and what the highest would have been, and if we know what it was at the time of test, what it could have dropped to or could it have been higher and still have enough time to arrive at the concentration of what we see on the test record, if he was rising at the time of the test. And between these two, somewhere, is where the actual value will lie. This explanation is repeated here because, in addition to revealing that in his extrapolation it was necessary that he “assume certain variables,” it shows that, as far as the possible BAC was concerned, McDougall considered only two possibilities. The first possibility he considered is that the BAC at the time of arrest was higher than the BAC revealed by the subsequent test. (His consideration of this possibility is not easily understood in the face of his testimony that if a person “blows” a .19 two hours after his arrest this would tell him that the person’s BAC at the time of the test was higher than it was at the time of the arrest.) The second possibility, though less clearly enunciated, is the situation where the BAC revealed by the test was higher than the BAC at the time of arrest. He did not explain why he dismissed the possibility that the BAC at the time of arrest was the same as the BAC revealed by the breath test. Recognition of this third possibility does not rest on the assumption that a person’s BAC does not change with the passage of time. The record and literature establish that the BAC of a person who has consumed alcohol will rise until it reaches a peak and then will decline until all alcohol has been eliminated from the blood. This means that a BAC of, say, .14, which is reached prior to peak, will necessarily be repeated as the BAC declines after peak. This will be revealed by the study of any graph showing absorption and elimination of alcohol. The nature of the process followed by McDougall is better explained by his subsequent testimony when he used numbers to illustrate the “range” within which he insisted appellant’s BAC at the time of arrest would be found. This explanation which has been previously quoted in this opinion, was given when he was asked if he could give a “range” for the BAC at the time of arrest for a person whose BAC two hours after his arrest was revealed by a breath test to be .19. He answered that he thought it was “possible” for that person to be as much as .06 less than a .19 at the time of his arrest, so that his BAC at time of arrest would be “as low as a .12 or .13 ... A .12 or .13 at the low end and somewhere about a .25 at the high end, somewhere in between there.” (There can be no doubt that this testimony concerned appellant’s BAC at the time he was arrested.) What McDougall was doing is clear. He was attempting to use appellant’s BAC of .19 revealed by the breath test as the basis for inferring appellant’s BAC at the time of his arrest more than two hours earlier. Since he did not consider the possibility that the BAC at the time of the test was the same as at the time of the test, he realized that, in order to infer the BAC at the time of the arrest from the BAC revealed by the subsequent breath test, it was necessary to make some adjustment to the breath test BAC to account for whatever changes occurred in appellant’s BAC because of the passage of time. I will assume that retrograde extrapolation is based on a valid scientific theory and pass to the question concerning the facts which must be known and used in making the necessary adjustment to the subsequent test BAC. This, I think, leads to consideration of the existence of a valid technique which must be used in applying the presumably valid scientific theory and, finally, requires that a determination be made as to whether that valid technique was correctly applied by McDougall in this case. D. Valid technique. In any DWI prosecution, the critical question is the condition of the accused at the time he was operating a motor vehicle on a public highway. Where the charge is that the defendant was operating a motor vehicle on a public highway at a time when his BAC was .10 or more, the State must prove that the BAC of the accused at the time of the alleged offense was at least .10. McDougall’s testimony and relevant literature show that when alcohol is consumed it is absorbed into the bloodstream, and the drinker’s BAC will rise steadily until a peak BAC is reached, after which the BAC will decline until all alcohol is eliminated from the blood. This means that the passage of time will result in a constant change in the drinker’s BAC. ■ If the driver’s BAC peaked at or before the time of his arrest, his BAC was declining during the entire time intervening between his arrest and the test. Therefore, the BAC at the time of the arrest can be inferred only by adding to the BAC revealed by the test the amount the BAC decreased. If the driver peaked at or after the time of the test, the BAC at the time of arrest can be determined only by subtracting from the test BAC the amount the driver’s BAC increased between the time of his arrest and the time of the subsequent test. If the peak occurred after the time of arrest but before the time of the test, the test BAC must be adjusted to account for the increase in BAC between the time of arrest and the time of peak and the decrease occurring between the time of peak and the time of the test. No reliable method of retrograde extrapolation has been referenced which does not require that the adjustments outlined in the preceding paragraph be made to the BAC revealed by the breath test. My attention has not been called to any study showing, or even suggesting, that a reliable technique for inferring a person’s pre-test BAC exists which does not require making such adjustments. I have found none. E. Technique Used by McDougall After saying that he could not give appellant’s time-of-arrest BAC in terms of a specific number, McDougall asserted that he could give a “range” consisting of a low end and a high end, and that appellant’s BAC when arrested would lie within that range. He declared that it was “possible” that appellant’s BAC when arrested two hours and ten minutes before the test could be “as much as .06 lower than the .19 revealed by the breath test.” He said that at the time of arrest appellant’s BAC was within a range having .12 or .13 as its low end and a high end of “about .25.” In arriving at his low end, or possible low ends, McDougall assumed that appellant peaked at or after the time of the test, and the amount which he subtracted from .19 clearly represents the amount of alcohol appellant’s blood had absorbed during the entire period of two hours and ten minutes which intervened between arrest and test. When he subtracted .06 from .19 to get the low end of .13, he must have been assuming that appellant was absorbing alcohol at the rate of less than .03 an hour. As far as his other low end of .12 is concerned, it can be explained only as the result of subtracting .