
 




 






IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

 




NO. 1851-03



ANTHONY GIGLIOBIANCO

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 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DO NOT PUBLISH
