Trillo, David Javier

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. 633-03 DAVID JAVIER TRILLO

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

BEXAR COUNTY

Per Curiam

O P I N I O N

Appellant was convicted of driving while intoxicated, and his punishment was assessed at two years community supervision and a $900 fine. The Court of Appeals reversed. Trillo v. State, No. 04-02-358-CR (Tex. App.- San Antonio 2003). The Court of Appeals relied on its previous opinion in Stewart v. State, 103 S.W.3d 483 (Tex. App.-San Antonio 2003), and held that the trial court erred by admitting intoxilyzer results in the absence of retrograde extrapolation evidence. The State filed a petition for discretionary review.

This Court recently reversed Stewart and held that intoxilyzer results are relevant without retrograde extrapolation evidence, and the "no evidence" standard of review is not the proper test for analyzing admissibility of evidence. Stewart v. State, __ S.W. 3d __ (No. 0324-03, Tex. Crim. App., delivered March 3, 2004). At the time the Court of Appeals handed down its opinion, it did not have the benefit of our opinion in Stewart. Accordingly, we grant the State's petition for discretionary review, vacate the judgment of the Court of Appeals, and remand to that court for reconsideration in light of our opinion in Stewart.

Delivered: April 21, 2004

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