A.  STATE EXPERT OPINION TESTIMONY .08 = LOSS OF NORMAL = PROPER

Long 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.  IMPEACHMENT - PRIOR 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 circumstances of his prior testimony in a Collin County trial, State v. Lucido.  Namely, the prosecutors pointed out that an in-court experiment with the Intoxilyzer 5000 demonstrated that contrary to his expert opinion, certain foods, chewing gum, and medications did not affect the test results.

C.  EXPERT TESTIMONY ABOUT DWI VIDEO PROPERLY EXCLUDED

Platten v. State, No. 12-03-00038-CR, 2004 WL 100399 (Tex.App.—Tyler 2004) (not designated for publication, pdr ref’d).

Defense attempted to call Dr. Gary Wimbish, a toxicologist, as an expert witness to testify that he believed defendant was not intoxicated based upon the defendant’s performance on the DWI video.  There were not FSTs on the tape.  Though Dr. Wimbish testified in a Daubert hearing that his opinions drawn from viewing the tapes were based on independently recognized principles that had been studied, applied and peer reviewed, he admitted that none of those applied to situations where there were no FSTs.  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 WL 2692873 (Tex.App.—Eastland, 2006).

In response to the defendant’s putting forth the defense that what appeared to be signs 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 also suffered from alcoholism.  In response to the attack that there 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  in the State’s case-in-chief, the State was not required to give advance notice to Manor of its intent to introduce such evidence.

E.  RESULTS OF DEFENSE EXPERT’S EXPERIMENT PROPERLY EXCLUDED

Noyes v. State, 2007 WL 470452 (Tex.App.—Houston [14^th Dist.] 2007)(not designated for publication).

Defense expert was precluded from testifying about an out of court drinking experiment conducted on defendant.  Defendant failed to affirmatively show the proposed experiment was substantially similar to the incident and, thus, the trial court did not abuse its discretion in excluding the results.