Roe v. State ( 1985 )

BURGESS, Justice,

dissenting.

I respectfully dissent. While not exactly authoritative on a jury’s discussion of “breathalyzer” tests, I find the reasoning expressed by the Court of Criminal Appeals in Sneed v. State, 670 S.W.2d 262 (Tex.Crim.App.1984) to be persuasive. I believe the five-prong Sneed test is applicable to this case. To show that a jury’s discussion of the breathalyzer law constitutes reversible error, it must be shown that there was

(1) a misstatement of the law

(2) asserted as a fact

(3) by one professing to know the law

(4) which is relied upon by other jurors

(5) who for that reason changed their vote to guilty.

Even if the testimony at the evidentiary hearing, the affidavit and the testimony at the motion for new trial meet the first three prongs, there is no evidence from any juror that would meet the remaining two prongs. I would affirm the conviction.