Charles W. Bishop, II v. Dorsey Ray Trapp, District Clerk--Appeal from 30th District Court of Wichita County

State: Texas

Court: Texas Northern District Court

Docket No: 02-03-00098-CV

Case Date: 12/23/2003

Plaintiff: DAVID ALVAREZ

Defendant: THE STATE OF TEXAS--Appeal from 370th District Court of Hidalgo County

Preview:The Texas Department of Public Safety v. Kent
Washburn--Appeal from County Court at Law No 7 of
Bexar County
CONCURRING OPINION
No. 04-97-00490-CV
The TEXAS DEPARTMENT OF PUBLIC SAFETY,
Appellant
v.
Kent WASHBURN,
Appellee
From the County Court at Law No. 7, Bexar County, Texas
Trial Court No. 236625
Honorable H. Paul Canales, Judge Presiding
Opinion by: Tom Rickhoff, Justice
Concurring opinion by: Sarah B. Duncan, Justice
Sitting: Phil Hardberger, Chief Justice
Tom Rickhoff, Justice
Sarah B. Duncan, Justice
Delivered and Filed: December 9, 1998
I concur in the majority's judgment. But I cannot join the majority opinion because it mischaracterizes the plurality and
concurring opinions in Mireles v. Texas Dep't of Pub. Safety, No. 04-97-01007-CV, 1998 WL 758032 (Tex. App.--
San Antonio Oct. 30, 1998).
In Mireles, a majority of this court concluded a factfinder could not reasonably infer an alcohol concentration of 0.10
or more at the time of a stop from "evidence establishing (1) at that time, the person was exceeding the speed limit and
exhibiting slurred speech, glassy eyes, a strong odor of alcohol on his breath, and poor balance and (2) approximately
one hour later, the person's breath specimens indicated alcohol concentrations of 0.161 and 0.162." Id. at *1 (plurality
opinion); see id. at *12 (concurring opinion). Neither the plurality opinion nor the concurring opinion concluded "that
an intoxilyzer reading is less than a scintilla of evidence of intoxication, within the meaning of the statute, absent
testimony extrapolating this result back to the time when a defendant was operating or in actual control of the
vehicle," as the majority opinion states. Nor does "Mireles control[] the resolution of this case." Neither the plurality
opinion nor the concurring opinion constitutes an opinion of this court. However, the record in this case is similar to
that in Mireles, and I concur in the judgment in this case for the reasons set forth in Mireles.
Sarah B. Duncan, Justice
Do Not Publish
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