I write about this issue because on 10 Feb 2010, the Court reported a case that piqued my interest. In Kirsch v. State, the Court reaffirmed the above holding. Read majority opinion HERE. The case was particularly interesting, because when the trial court admitted the BAC test results it gave the following limiting instruction:
Members of the jury, I'm going to tell you now that the result is off...will be received by the Court for the limited purpose of showing that the individual who was tested had ingested alcohol only at some point before the time of the test. That is the only purpose that will be offered and the only purpose for which you should receive it at this time in this trial.On appeal, Appellant argued that the limiting instruction precluded the Court from then submitting jury instructions on the per se definition of intoxication. The First District Court of Appeals (Houston) held that the jury charge was proper, but the limiting instruction was not and reversed. See Kirsch v. State, 276 S.W.3d 579, 589 (Tex. App.-Houston [1st Dist.] 2008). The CCA agreed that the limiting instruction was improper, but nevertheless affirmed the conviction, holding that "the totality of the evidence sufficed to permit the jury to conclude that appellant had an alcohol concentration of 0.08 or more at the time he was driving. Judge Price dissented. Read dissent HERE.