Gigliobianco, Anthony ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. 1851-03

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ANTHONY GIGLIOBIANCO

v.

THE STATE OF TEXAS

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ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS BEXAR COUNTY

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   Per Curiam

O P I N I O N

Appellant was convicted of driving while intoxicated, and his punishment was assessed at six months community supervision and an $800 fine. The Court of Appeals reversed. Gigliobianco v. State, No. 04-02-895-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 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 ground one of 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.

The State's second ground for review is refused.

DELIVERED MAY19, 2004

DO NOT PUBLISH