The STATE of Texas v. Matthew Reid MECHLER, Appellee, 153 S.W.3d 435

OPINION KEASLER, J., delivered the opinion of the Court in which KELLER, P.J., and WOMACK, JOHNSON, HERVEY, and HOLCOMB, JJ., joined. After hearing testimony on Matthew Mechler’s pretrial motion, the judge suppressed his intoxilyzer results, relying on Mata v. State and Texas Rule of Evidence 403. Reviewing the case de novo, the Court of Appeals reversed the trial court by holding that Mata was inapplicable and Rule 403 was misapplied. We agree with the Court of Appeals’s result but find error in its failure to review for an abuse of discretion. Nevertheless, we affirm its judgment. I.

Factual and Procedural History Deputy Clarence Golden pulled Mechler over upon observing him commit various traffic violations, including running off the road in executing a sweeping turn, rolling through a stop sign, and other erratic movements. Upon approaching Mechler’s vehicle, Deputy Golden detected an odor of alcohol and noticed Mechler’s movements were slow and sluggish in complying with his request for Mechler’s driver’s license and insurance.

When asked if he had been drinking, Mechler stated, “A little.” After administering field-sobriety tests, Golden concluded Mechler was intoxicated and placed him under arrest. Nearly an hour and a half later, Mechler gave a breath sample indicating a blood alcohol concentration (BAC) of .165. The State’s information charged Mechler with driving while intoxicated, alleging intoxication under both an impairment definition, which is the loss of his mental and physical faculties, and a per se definition, or having a blood alcohol concentration of at least .08.

Mechler filed a motion to suppress the intoxilyzer results on two grounds. First, Mechler argued the State was unable to offer retrograde extrapolation testimony because.its expert could not testify on the requisite factors outlined by our decision in Mata v. State. Second, he claimed the intoxilyzer results were irrelevant under Rule 401, or alternatively, inadmissible under Rule 403 because their probative value was substantially outweighed by the danger of unfair prejudice.

At the suppression hearing, the trial court heard testimony from Deputy Golden, an officer who administered the breath test, and a technical supervisor employed by the Texas Department of Public Safety. Deputy Golden testified to his observations and conclusions concerning Mechler’s intoxication. His testimony included the reason for the initial stop, the smell of alcohol when he approached Mechler, and Mechler’s inability to perform various field-sobriety tests. Deputy Ressler testified to the administration of the breath test and was examined on his understanding of the intoxilyzer’s mechanics and tolerances.

The trial court also heard testimony from Technical Supervisor Barbosa. After admitting she was unable to testify on the necessary Mata factors, the State conceded its inability to present extrapolation testimony. The trial court ordered the intoxilyzer results suppressed. The trial court’s order stated, Pursuant to the application of Texas Rule of Evidence 403 and State v. Mata, [Mata v.

State][citation omitted] to the facts of this case, the probative value of the breath test results in this case was substantially outweighed by the danger of unfair prejudice due to the State’s inability to present breath test extrapolation evidence. The court further stated, “All of the witnesses who testified were credible and this Court did not base its decision upon the credibility of the witnesses.” The State appealed. II. Court of Appeals The Court of Appeals reviewed the suppression order de novo. In applying Guzman v.

State, , the court reasoned that a de novo standard of review was proper because the trial court’s decision did not involve an evaluation of credibility and the facts concerning the suppression issues were undisputed. The Court of Appeals found error in suppressing the intoxilyzer results based on Mata because the Mata decision was inapplicable to this case. After applying the Montgomery factors for analyzing a trial court’s Rule 403 ruling, the court further held the trial court erred in suppressing the test results under Rule 403.

We granted Mechler’s petition for discretionary review to address whether the Court of Appeals erred in reversing the trial court’s suppression of Mechler’s breath-test results which was based on

(1) Texas Rule of Evidence 403 and

(2) Mata v. State. III. Analysis A. Mata We begin with Mata. The Court of Appeals held that Mata was inapplicable to this case because Mata addressed only “the admissibility of expert testimony rather than test results.” We agree. Mata addressed the necessary factors needed to establish the reliability of expert testimony on retrograde extrapolation. In Mata, we stated that we are not addressing whether retrograde extrapolation is necessary in order for the State to prove a defendant guilty in a DWI case.

Nor do we address whether test results showing a defendant’s BAC at some time after the alleged offense are admissible at trial in the absence of retrograde extrapolation. The trial court erred in suppressing the intoxilyzer results based on Mata. B. Rule 403 1. Standard of Review Mechler alleges that the Court of Appeals erred in evaluating the trial court’s suppression order de novo.

While acknowledging that an order on a motion to suppress is normally reviewed for an abuse of discretion, the Court of Appeals concluded that a de novo standard is appropriate because there were no disputed issues and no need to observe the credibility and demeanor of witness testimony. We disagree. We have long held that a trial court is entitled to broad discretion in ruling on a Rule 403 objection. In Montgomery v. State, we noted two significant rationales for this broad discretion. First, Rule 403’s language implies that a determination under this rule is inherently discretionary with the trial court.

Rule 403 provides, in pertinent part, that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” The inclusion of the word “may” displays the drafter’s intent to vest the trial courts with substantial discretion. Second, the trial court is in a superior position to evaluate the impact of the evidence.

Unlike the trial court, an appellate court “ ‘cannot weigh on appeal ... the intonation and demeanor of the witnesses preceding the testimony in issue ... nor can we determine the emotional reaction of the jury to other pieces of evidence....’” In Guzman, we held that an appellate court may review de novo mixed questions of law and fact not involving an evaluation of credibility and demeanor. But we acknowledged that an abuse-of-discretion review is still the proper standard on a trial court’s evidentiary ruling.

We explained that an appellate court’s review of a trial court’s evidentiary rulings generally does not involve mixed questions of law and fact. It is true that the trial court stated, “All witnesses who testified were credible and this Court did not base its decision upon the credibility of the witnesses.” But a statement in a trial judge’s findings of fact and conclusions of law regarding the role witness credibility played in its decision cannot determine an appellate court’s standard of review.

The court’s inclusion of this sentence in its findings does not grant it the ability to control how its rulings will be reviewed. Finally, the fact that this Rule 403 contention was before the court in the form of a pretrial motion to suppress does not change the standard of review on appeal. When an objection on 403 grounds is raised at trial, we review the judge’s ruling for an abuse of discretion. In this case, the temporal or procedural posture of Mechler’s attempts to suppress the test results does not warrant different treatment or a deviation from the established abuse-of-discretion review.

We find the principles set out in Montgomery and its progeny are advanced in this situation by applying an abuse-of-discretion standard. The test for whether the trial court abused its discretion is whether the action was arbitrary or unreasonable. An appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement. We turn now to the trial court’s remaining ground for suppressing the test results to determine if the court abused its discretion. 2.

Application A proper Rule 403 analysis includes, but is not limited to, four factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence. The fact that this Rule 403 determination occurred pretrial in the form of a motion to suppress does not alter either an appellate or trial court’s use of the factors outlined in Montgomery.

But in such instances a trial court often will not have enough information before it to adequately apply these factors and assess whether the contested evidence’s probative value is substantially outweighed by its prejudicial effects. In this case, the trial court heard sufficient testimony at the suppression hearing necessary to properly evaluate the motion on Rule 403 grounds. Probative Value The first factor looks to the evidence’s probativeness or how compellingly the evidence serves to make a fact of consequence more or less probable.

The Court of Appeals held that the intoxilyzer results were probative of intoxication under both the per se and impairment

definitions of intoxication. We agree. We recently held that intoxilyzer results are probative without retrograde extrapolation testimony. Mechler’s intoxilyzer results indicate that Mechler had consumed alcohol. As a result, they tend to make it more probable that he was intoxicated at the time of driving under both the per se and impairment

definitions of intoxication. Mechler concedes that this factor weighs in favor of admissibility. Irrational Impression The second factor asks whether the evidence has the potential to impress the jury in some irrational but indelible way. The Court of Appeals found the admission of Mechler’s intoxilyzer results would not tend to impress the jury in an irrational way if the trial court instructed the jury to find guilt only if it found that Mechler was intoxicated at the time of driving. We agree with the Court of Appeals’s ultimate decision on this factor, but we reach our conclusion on different grounds.

Rule 403 does not exclude all prejudicial evidence.. It focuses only on the danger of “unfair” prejudice. “Unfair prejudice” refers.only to relevant evidence’s tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged. Here, the intoxilyzer results are undoubtedly prejudicial to Mechler, but they are not unfairly prejudicial because this evidence relates directly to the charged offense. This contested evidence does not have a great potential to impress the jury in an irrational way.

Time to Develop The third factor looks to the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense. The Court of Appeals found that developing the evidence would not require an undue amount of time. The court reasoned that the intoxilyzer results are evidence of intoxication under both intoxication

definitions and the proof under each definition is not mutually exclusive. The court stated [cjlearly, a test showing that blood had a .10 alcohol concentration is probative evidence of a loss of faculties. Conversely, evidence of his failure to pass field sobriety tests immediately after driving his vehicle tends to make it more probable that the failed blood test or breath test taken an hour later accurately reflect the driver’s condition at the time of the offense.

The Court of Appeals also supported its holding by stating the State will not need an undue amount of time devoted to presenting the evidence because the State will not need to explain the reliability of retrograde extrapolation. The injection of retrograde extrapolation and the State’s need to present the extrapolation into this factor analysis is irrelevant to the disposition of this issue. The disputed evidence, and the subject of the motion to suppress, is the intoxilyzer results and not the retrograde extrapolation.

The more significant issue here is whether the jury would be distracted from consideration of the charged offense during the time needed to present the intoxi-lyzer results. Like the second factor’s analysis, the charged offense charges Me-chler with driving while intoxicated. Because the intoxilyzer results relate directly to the charged offense, a jury could not be distracted away from the charged offense regardless of the required time to present the results. Need for the Evidence The fourth factor focuses on the proponent’s need for the evidence.

This last factor encompasses the issues of whether the proponent has other evidence establishing this fact and whether this fact is related to a disputed issue. Based on the suppression hearing testimony, the Court of Appeals found this factor weighed in favor of exclusion because the State had other probative evidence to establish Me-chler’s intoxication. We agree. The trial court heard testimony from the arresting officer sufficient to dispel the argument for any “great need” of the test results. Officer Golden testified that Me-chler rolled through a stop sign and was driving erratically.

He further testified that he smelled alcohol on Mechler’s breath and when he approached Mechler’s car. Mechler admitted to drinking “[a] little” alcohol and failed field-sobriety tests. In light of this other evidence probative of Mechler’s intoxication, the State does not have a great need for the test results. In evaluating all of the Montgomery factors, we hold the sum of the factors weigh in favor of admissibility. The trial court abused its discretion in suppressing Me-chler’s test results on Rule 403 grounds. IV.

Conclusion The Court of Appeals erred in applying a de novo standard of review instead of reviewing for an abuse of discretion. We find that the trial court erred in suppressing the test results under Mata because it is inapplicable to the facts here. After applying the Montgomery factors, we find the factors weigh in favor of admissibility and the trial court erred in suppressing the intoxilyzer results. Therefore, we affirm the judgment of the Court of Appeals. MEYERS, J., filed a concurring opinion.

COCHRAN, J., filed a concurring opinion in which MEYERS, PRICE, and JOHNSON, JJ. joined. . 46 S.W.3d 902 (Tex.Crim.App.2001). . Id. at 902. . State v. Mechler, 123 S.W.3d 449, 451 (Tex. App.-Houston [14th Dist.] 2003). . Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). . Mechler, 123 S.W.3d at 451. . Id. at 451-53. .Id. at 454-58. . Id. at 453. . Mata, 46 S.W.3d at 910. . Id. . Mechler, 123 S.W.3d at 451. . See Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App.2003). . Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex.Crim.App.1990). . Id. . Tex.R. Evid 403. . Manning, 114 S.W.3d at 926. .

Montgomery, 810 S.W.2d at 378-79. . Id. at 379 (citing United States v. Robinson, 560 F.2d 507, 512-16 (2d Cir.1977)). . Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). . Id. . Id. . See, e.g., Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App.2004); Manning, 114 S.W.3d at 926; Wheeler v. State, 67 S.W.3d 879, 888 (Tex.Crim.App.2002). . Manning, 114 S.W.3d at 926. . Id.; Montgomery, 810 S.W.2d at 380. . Erazo, 144 S.W.3d at 489; Montgomery, 810 S.W.2d at 389-90 (op. on reh’g). . Manning, 114 S.W.3d at 928. . Mechler, 123 S.W.3d at 455. . Stewart v. State, 129 S.W.3d 93, 97 (Tex.Crim.App.2004). .

Mechler, 123 S.W.3d at 456. . Manning, 114 S.W.3d at 927; see Tex.R.Evid. 403. . Manning, 114 S.W.3d at 928. . See id. . Id. . Mechler, 123 S.W.3d at 456. . Id. (citations omitted). . Id. . See Manning, 114 S.W.3d at 928. . Id. . Mechler, 123 S.W.3d at 456-57.