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Seifert v. State8/5/1999
ng the jury to hear the officer give appellant the warnings and nothing further. We overrule appellant's first point of error.
CULPABLE MENTAL STATE
In his second point of error, appellant contends that the evidence is insufficient to support his conviction because the information did not allege and the State did not prove a culpable mental state. Specifically, he argues the applicable statute did not plainly dispense with the culpable mental state and section 6.02(b) of the penal code required the State to allege and prove a culpable mental state. Tex. Penal Code Ann. § 6.02 (Vernon 1994).
Appellant relies on sections 6.02, 49.04, and 49.11 in support of his argument. See Tex. Penal Code Ann. § 6.02 (Vernon 1994), § 49.04 (Vernon 1994 & Supp. 1999), § 49.11 (Vernon Supp. 1999). Appellant misplaces his reliance.
We agree that section 6.02 of the penal code requires a culpable mental state for every criminal offense unless the definition of the offense plainly dispenses with any mental element. We also agree that section 49.11 does not apply to appellant because appellant was charged with committing the offense in August 1995.
In 1975, our court of criminal appeals held that the State was not required to allege or prove a culpable mental state to obtain a DWI conviction. Ex parte Ross, 522 S.W.2d 214 (Tex. Crim. App.), cert. denied, 423 U.S. 1018 (1975). Appellant was convicted under an earlier DWI statute located in the revised civil statutes. Ross argued, relying on sections 1.03(d) and 6.02(b) of the penal code, that the State was required to prove a culpable mental state. The court of criminal appeals concluded that the offense of DWI has never required a culpable mental state and that the legislature never intended to require proof of a culpable mental state notwithstanding the penal code provisions. Id. at 218.
Like our sister courts, we agree that Ross controls. We conclude the State was not required to allege and prove a culpable mental state. We overrule appellant's second point of error.
THE EXCLUDED EVIDENCE
In points of error three through eight, appellant contends the trial court erred in excluding certain testimony. Because he included these points in a single argument, we address all points together.
1. Applicable Law
The trial court possesses broad discretion in determining the relevance and admissibility of testimony. See Goff v. State, 931 S.W.2d 537, 553 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1171 (1997); Fletcher v. State, 852 S.W.2d 271, 276 (Tex. App.--Dallas 1993, pet. ref'd). We reverse a trial court for excluding testimony only if the trial court abuses its discretion. See Goff, 931 S.W.2d at 553; Fletcher, 852 S.W.2d at 276. A trial court does not abuse its discretion if its decision lies within a zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
Any error in excluding evidence is rendered harmless where the same evidence is later admitted without objection. See Preston v. State, 481 S.W.2d 408, 409 (Tex. Crim. App. 1972). Additionally, if a witness's answer could have no impact on the jury, appellant suffers no harm by the trial court's excluding his testimony. See Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App.1989).
2. Application of Law to Facts
In his third point of error, appellant complains of the trial court's refusal to allow Hiney to answer a question on whether the strength of the odor emanating from a person is affected by the type of alcohol ingested.
On cross-examination, appellant proposed a hypotheti
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