The court of appeals discarded the issue of the reliability of retrograde extrapolation, finding that the alleged error had not been sufficiently preserved for appeal:
"Garner has failed to preserve error for his complaint on appeal as to the reliability of retrograde extrapolation and application of the science by the State's expert. See Stewart v. State, 995 S.W.2d 251, 258 (Tex.App.—Houston [14th Dist.] 1999, no pet.) (concluding appellant had not preserved reliability when only objected on grounds of expert's qualifications). His first statement was “if they're going to qualify him as an expert in blood alcohol, I'd like to take him on voir dire.” The next reference was to “repeat” his request to take the chemist on voir dire. He then requested “a running objection to taking [the expert] on voir dire,” which the trial court denied. At that point, Garner asked for “a 702 hearing then.” To the extent Garner was lodging an objection, his complaint was that the trial court was not permitting him to take the chemist on voir dire, not to the substance of what the voir dire would have revealed."
The court of appeals also found that the defendant failed to adequately preserve the issue of whether the expert was sufficiently qualified to apply retrograde extrapolation:
"When Garner's requests for “voir dire” were not granted, he asked for “a 702 hearing then.” Garner's requests merely referring to “rule 702” are insufficient to give the trial court notice of his objection. See, e.g., Gregory v. State, 56 S.W.3d 164, 182 (Tex.App.—Houston [14th Dist.] 2001, pet. dism'd) (objections based simply on “Rule 702 and Daubert alone” not adequate to inform trial court of specific complaint); Scherl v. State, 7 S.W.3d 650, 651–52 (Tex.App.—Texarkana 1999, pet. ref'd) (objection “under Rule 702, Daubert, Kelly, and Hartman ” insufficient to inform trial court of complaint). The context of Garner's requests does not reveal any additional specificity, nor does Garner's brief on appeal clarify his objection; although his point of error is phrased in terms of qualifications of the chemist, Garner's argument addresses the distinct requirement of reliability of the science of retrograde extrapolation as applied to Garner. To the extent Garner requested “a 702 hearing,” he did not preserve anything for appellate review."
Regarding the use of a hypothetical question, the defense had claimed that the hypothetical was improper because the evidence was never specifically tied to the defendant himself. In overruling this claim of error, the court wrote:
The question drawing Garner's objection occurred during the State's direct examination of the chemist. Specifically, the State asked a hypothetical question: “Let's say we have a male, 5 11, 200 pounds, they're drinking beer or shots, last drink 45 minutes prior, the time of the stop is 2:29, a test was done at 4:36 that showed they had a test result of .12, okay? Now, do you have an opinion to approximately how many drinks would have been in their system at 2:29?” The chemist answered the hypothetical individual would have had between five and eight drinks in his system; five if the man was still absorbing alcohol, and eight if he were already in the elimination phase at 2:29 a.m.
Hypothetical questions are sometimes employed to assist the trier of fact to understand the evidence or to determine a fact in issue. See Taylor v. State, 106 S.W.3d 827, 832–33 (Tex.App.—Dallas 2003, no pet.); see also TEX.R. EVID. 702. Additionally, assumptions on which a hypothetical is based need not be limited to those supported by the evidence; counsel may propound questions that assume facts in accordance with the theory of the case. Held v. State, 948 S.W.2d 45, 53 (Tex.App.—Houston [14th Dist.] 1997, pet. ref'd).
All facts in the chemist's hypothetical here were tied to characteristics of Garner that were introduced into evidence during trial or known to the chemist: Garner's height, weight, the timing of his stop, the timing and results of his blood test, the timing of his last drink, and the type of alcohol consumed. Further, any assumptions in the hypothetical regarding whether all alcohol had been absorbed were appropriate, as the State's theory was that Garner was in the elimination phase. Accordingly, the trial court did not abuse its discretion in permitting the expert to testify regarding this hypothetical situation based on the evidence already before the jury. See Morales v. State, 32 S.W.3d 862, 866 (Tex.Crim.App.2000) (“The reviewing court should, under Rule 702, examine the expert's testimony to assess whether the expert made an adequate effort to tie the relevant facts of the case to the scientific principles about which he testified.”); see also Jordan v. State, 928 S.W.2d 550, 556 (Tex.Crim.App.1996) (standard in applying rule 702 is not whether expert addressed every pertinent issue that could be raised by facts but “whether the expert's testimony took into account enough of the pertinent facts to be of assistance to the trier of fact on a fact in issue”) (emphasis removed).
The conviction was thereafter affirmed.
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