*1 Bryson v. State. Jones Walter 26,072. 1952. December January 28, Rehearing 1953. Denied Rehearing Denied Motion for Second Opinion) (Without March Written Supreme Court Denied of Certiorari Writ 12, 1953. October of United States appellant. Kirk, Dallas, Travis Henry Attorney, S. Wade, Charles and Criminal District George Dallas,
Potts, Attorney, and Assistant Criminal District Attorney, Austin, Blackburn, P. state. State’s BEAUCHAMP, Judge. given day year
Appellant a a a sentence of charge driving intoxi- county jail, by jury, while cated. proof charge of such followed former conviction dispute.
former conviction is without appellant, counter-contentions of The contention's of. lengthy prosecution, present record. A quite involved’ .the followed appellant.was and this was brief in behalf filed argument. prepared oral The brief for state was representative attorney, office of the district from that *2 argued orally. impressed office the are with the ele- so We mentary to character of that a these contentions as feel dis- prac- many unnecessary. cussion of true of them is is of This tically all, complain exception of the such the of bills as ruling admitting of the court the as to the scientific conclusion of the of amount alcohol in blood. Garrison, Dallas, B. department city police C. of the of the of testified that he trained in of an instrument known was the use “Intoximeter,” sample as the breath with which he took a the of appellant of soon after his arrest. to Dr. This was delivered Pathological Morton F. Chemistry at the a Professor of School, University Southwestern Medical of a branch the of Texas; toxicologist city he is also Dallas of for Dallas County. Dr. Mason testified that alcoholic determined the he police content of the breath in the unit delivered him the to department, analysis and that content showed the alcoholic weight. of the blood was .275 testi- He then fied that appellant in his this result showed that was testified, intoxicated. aAs basis his conclusion he under cross-examination, Medical American Association the he, adopted National sobriety which Council standards scientist, as accepts being says He if con- correct. centration of party alcohol in is the fluid of from whom it greater taken is than .15 cent he is considered under be the influence of alcohol. Contrasted with the case before him, cent, in which it means showed .275 “That said: unequivocally individual who took under this test was given.” the influence of alcohol at the time that test was questions All strenuously objected by appel- asked him were lant presents complaint one which we feel that we might helpfully opinion. discuss in this
Appellant, arrest, either before or while under it is imma- signed which, agreement might terial an that this test be taken. agreement making authority The state relies ground appellant test and the attacks breath it on the time, appellant competent,- not to enter into such was at agreement. capable, presents question under some This which is being absurdity. appellant circumstances, so intoxi- If doing, did not what he was"’ cated that he know :his contention guilt regard court. be an admissioh tif b'efdre the in that would prove. á accused would have fact would be Such might the state hand, cases some theOn according agreement party, with the relying on an is making. solution capable contention, not be would state’s person under that a fact perplexity rests in the to this Code, Penal intoxicating liquor, defined influence entering into incapable be as to so intoxicated need not be sufficiently come yet intoxicated to valid agreement, highway while defining driving public on a the statute within cannot can or the state has not held that intoxicated. This urine sample force the accused to case. against us in this his will. before failures both helpful some It is deemed overlook ques- raising supporting the state and the defendant *3 fre- raised, of the and we do because tions which have this been misunderstanding the case quent court said in about what State, Rep. 593, Apodaca 146 2d 381. of v. 140 Tex. S.W. Cr. Apodaca subsequent of The has been criticized case because apparently State, conflict, particularly 139 Tex. cases in Ash v. State, 341; Halloway Cr. R. 141 146 Tex. Cr. 2d v. S.W. Rep. 258; McKay State, Cr. 175 2d and v. 155 Tex. S.W. Rep. 2d 173. S.W. appellant attorney representing
If either the state McKay in the trial of this had been familiar with the case case it would questions that that have troubled them so much in the instant to court en- case would come this with an tirely McKay case, different record. A reference to the re- by time, affirmed us at suffice to eliminate much will rulings would otherwise to need be written. trial court’s holding in the instant case were in with accordance McKay court in the case. Apodaca offi- quite was a different one in that the things, physically, forced the created
cers accused to do which against forcing to evidence him and was tantamount him testify. In cases the other and the instant case the existing evi- facts which constitute secured from the accused against opinion Apodaca him. The enumerates dence tests walking through go, which accused forced such as was fast, making returns, stretching put- sudden arms out his his., ting finger together nose, answering questions, his on analysis. holding having him to void the urine for this to In making logical error, very- reversible overlooked be any requirement those distinction between the last named support perform which caused him to acts which used be opinions of his condition. held to The entire evidence difference, improper. discussing point Had there been in distinguished Judge Christian, probability all wrote who opinion, reasoning would have followed which the reasoning case, followed in Ash and the others cited. This enlarged upon by discussing could be fingerprint cases, those compared in which the made accused’s shoes are track party committing crime, many instances other merely purpose which the mechanics used were ob- for the taining proof existing always permitted wit- facts. haveWe testify they nesses to it had odor smelled the breath and alcohol; they talk, when saw him walk and heard him so, he did and such is considered The accur- valuable. acy evidence, opinions necessity of such involves the witnesses, given comparable is not scientist case, provided accepted in this that scientific conclusion is present holdings received, true. In the state of our it is evidence, jury upon by they passed before the to be them as subject, see particularly fit. Scientific treatises on the a recent publication by University, activities Northwestern reveal investigation made, as enumerated Dr. reaching also several others conclusion. Based same investigation, many that scientific enacted the states have legislation accepting facts, result, such scientific with the McKay case, enumerated who that one .05 *4 weight or less of alcohol in influ- the blood is not under the intoxicating ence liquor; if he has in excess of that amount presumption but than less .15 cent one no rests way other; that where the test shows .15 cent or more, by weight blood, alcohol it prima in his shall be facie proof intoxicating the accused was under the influence of liquor. passed recog-
Texas has not a such law and has not legislatures nized such facts, an established scientific as the other states reliably have done. If science has these established advantage standards it would be to the of both determining and defense to have means of absolutely debatable Ad- correct conclusion. mittedly, judge smelling the extent of intoxication right. always way one talks or walks is admissible err in but the witness will some cases. The amount proof positive one taken alcohol cannot because knowledge that accepted of common generally matter as is becoming intoxicated great deal more without can drink some one that the answer to this is could. The scientific another than greater per intoxicated absorbs become drinks less to who one digestive system through than his cent specific- of science in the books It is stated can drink more. who actually which McKay amount one ally cited in swallowed, deter- quantity is the not the in the absorbs mining factor. Garrison, should Mr. Dr.
The contention that jury may court, examine bring used into the instrument accuracy, to be seems is untenable. Such it and determine its captured and delivered the chief contention. The breath determine qualified He a witness to to Dr. Mason. himself as goes objection content, its alcoholic jury weight admissibility. heard its rather than its they it, proper them objection passed upon it was to do. judgment present matters considered error and the
Other no trial affirmed. court is ON FOR REHEARING. MOTION Judge. MORRISON, portion rehearing complains motion for of that original opinion
of our we Dr. Mason’s testi- which discuss mony as follows: testified,
“As a basis his conclusion he under cross-exami- tion,. that the American Medical Association the National adopted he, sobriety á Council standards of scientist, being accepts says correct. He concentration if the party of alcohol the fluid of the from is it is taken whom greater than in- .15 is considered he to be under the fluence alcohol.”
This, says, comparable use medical textbooks to the *5 evidence, quotes many authorities, including and our own condemning Supreme Court, Texas the Bowles et al same. al, v. 2d Bourbon et S. W. 797, testimony. Juris.,
We do not so view In 20 Am. the Sec. p. 669, following: find the we giving
“Experts, opinion testimony in may, however, refer to scientific authorities and state the result thereof. refer- Such ence is not deemed an introduction of the books in opinions.” but as a corroboration of their own This, think, disposes we contentin. authority holding, Not as for this but for the information of legislature, quote we from American the Journal of the Association, following: 631, Medical page Vol. on by “Since 1937 (House committee created House Delegates Association) study prob- of the American Medical lems of carefully motor vehicle relation accident studied of the action of study alcohol to traffic In it has accidents. closely collaborated Intoxi- with the Committee on Tests for cation of Safety the National Council. has on occa- It several sions in- recommended definite limits for borderline alcoholic suspected fluence in terms of amount of alcohol in the drunken driver, approved by and these limits been House. In have promote field, order to uniformity legislation in state in this Council, through National Tests Committee on its Bureau, for Intoxication and with collaboration active has formulated a draft of a uniform bill which embodies approved form, borderline draft, limits . House. .. The V, amendment section Vehicle act the Uniform Code, (in part) and reads as follows: “Sec. 54.....
“(b) In criminal violation of subdivi- (a) relating driving sion under section vehicle while intoxicating liquor, influence of amount of alcohol alleged the defendant’s chemical blood at the time as shown analysis bodily blood, urine, of the defendant’s or give following presumptions: substance shall rise to the If “1. less there was at that time five-hundredths cent or by weight blood, pre- of alcohol in the defendant’s it shall be sumed that the defendant was not under influence of intoxi- cating liquor; If
“2. there was at in excess of five-hundredths time weight cent but less than fifteen-hundredths the defendant’s such fact shall not rise any presumption was not under defendant intoxicating liquor, influence of but such fact be considered *6 determining guilt inno- competent or evidence with other defendant; cence of the or time fifteen-hundredths If there was at that “3. shall be by weight defendant’s alcohol in the
more of intoxi- the influence was under presumed defendant that the cating liquor; shall foregoing provisions of this subdivision “4. competent limiting the introduction
construed bearing not the defendant whether intoxicating liquor.” was under influence legislatures New York Wisconsin of the states of presumptions years adopting the enacted statutes have in recent out above. set
Remaining disposed properly that we convinced herein, original re- motion for in our hearing is overruled.
Lois Youngblood, Maxwell Fred Ellis Jr. Sinclair
v. State. 25,836. 1952. 8, October Rehearing December Motion for 1952. Appellant’s Denied Rehearing (Without Second Motion for Denied Written Opinion) May 1952. Writ of Certiorari Denied Court of Supreme United States October