Olson v. State

OLSON, Appellant, Clifford Texas, Appellee.

The STATE of

No. 42416. Appeals

Court Criminal of Texas.

Nov.

Rehearing Sept. 25, Denied

punishment Ar- at life under assessed was ticle Ann.P.C. alleged

The check indictment special was on the account drawn Abegg Company in Reinhold the amount & Larry $121.74, payable the order of signed for the purportedly Seibert and company by Young. Howard chal- sufficiency The the evidence is lenged. Larry testified that he met Seibert Olson, appellant, two Clifford some Ol- months before the date of offense. some son him if he wanted to make asked easy money by paper (forged passing some sign he checks). Later Olson saw Young name of Howard $121.74 checks, he, check four similar Sei- bert, Weingarten’s, and passed the check at he passed he the other four checks also had for a total sum received Olson approximately turned all of He $600.00. paid money over who then Olson approximately Seibert $37.00. employees Abegg & Reinhold Two person by the Company testified that authorized Young was name of Howard shown sign company checks. sixty-five checks hundred and one into evidence the one admitted similar to company. Linda from the were stolen she worked at Wein- Green testified Larry check for garten’s cashed the Seibert. Darrell (Court-appointed), C. Morrow given by appellant Handwriting samples

Travis C. Broesche (Court-appointed), Queen testified R. O. introduced. were Houston, appellant. experience years forty-one had that he had analysis and handwriting the field of Vance, Bell, Carol Atty., Phyllis Dist. signed person who comparison and that the Frank Price Burge, and Bill Dist. Asst. exemplar on the Clifford Olson the name Attys., Houston, Vollers, D. State’s Jim signed name person who was the same Atty., Huttash, and Robert A. Asst. State’s Young on check. Howard Atty., Austin, State. support is sufficient The evidence ground of er- fourth The the conviction. OPINION ror is overruled. DOUGLAS, Judge. con- it ground of error first In the when committed error tended that forgery. Two is for The conviction hand- into evidence admitted cap- trial court than for felonies less prior convictions they the time samples, because writing alleged for enhancement. ital were were taken Burns, Olson was under arrest supra, and did Gilbert there is no re- present. not have counsel ground versible error. first of error is overruled. The record shows that Parker C. who J. employed by had error, the Houston Police ground In the second con- Department in forgery detail took the tended that reversible error was committed handwriting samples from Olson 1963.1 when exemplar handwriting samples exemplars The were admitted into introduced, evidence were because it alluded to an objection over the that Parker was not extraneous offense. From the discussion qualified handwriting expert. a in Ground Error be No. can seen jury was retired and retained trial proof Olson’s that the before the jury was that Of- proved appellant counsel that under was ficer Parker forgery was detail of samples arrest handwriting when the were Department Houston Police made, and that Officer Parker warned him handwriting samples took from Ol- they that would not used on be him son. The record further he knew shows written, already the check he had that signature but that the on the card that of they any would or could be used future Clifford Olson. write; might checks he did Olson The above did not evidence show

have counsel and was not that he advised appellant had committed an extra present could have counsel at that time. neous ground offense.2 The second er counsel State’s elicited from Officer Par- ror is overruled. ker that Olson was not coerced or forced any way voluntarily gave and he ground In the third of error contention

handwriting sample. is made that reversible error was commit- substantially question based on same during argument prosecutor. ted of the presented objection the same to this timely objection any There Court in the recent case of Burns v. prosecuting attorney. the remarks of the Tex.Cr.App., an- and was S.W.2d adversely appellant. swered Handwrit- argument note that most of the We ing samples from were taken Burns was based on a reasonable deduction deputy during sheriff at his trial. recess proper plea the evidence or was a for law they objection When were introduced an enforcement. Villarreal v. Tex.Cr. attorney was made that he did not have his 74; Perbetsky App., present samples when the were taken. Tex.Cr.App., and Hender State, supra, This in Burns Court held son v. 295 S.W. holding Supreme that the of the Court prob argument 2d some of While California, United States Gilbert made, ably should not have been there is 18 L.Ed.2d review, presented nothing because ‘exemplar’ handwriting “made such timely pointing out objection there was no admissible.” part argument consid present Considering light nothing presented case objectionable ered is objection holdings made and the 163 Tex.Cr. review. Wilson v. present Generally, 1. The offense in the ease was al- extraneous offenses evidence of leged admitted, the fifth to have been committed on the issue cannot be but where day identity September, has been raised such Cedargreen v. be admitted. 2. An of identification was raised issue State, Tex.Cr.App., McClure, ap- when a witness called 188, p. 200, Ann.P.C.2d, Sec. 1 Branch’s pellant, Merle Bell testified he saw and the authorities cited. sign Young the name of Howard along twenty similar cheek with some checks. fifth 694. The Tex.Cr.App., an objec S.W.2d R. 597. When ground the first of error is overruled. argument tion made for trial, new time in an amended motion for error, There no reversible Blassingale v. it cannot be considered. judgment is affirmed. 115; State, Tex.Cr.App., Sin gleton S. MO- OPINION ON APPELLANT’S W.2d FOR REHEARING TION found: Sec. 5 Tex.Jur.2d ONION, Presiding Judge. argument of coun- objection that “An vigorously as rehearing, appellant On legitimate bounds should sel transcended first his court failed answer serts this him to enable judge, addressed to the original error on submission.1 ground of and to ac- injustice, to counteract argu by briefs and oral He contends that opportuni- offending cord the counsel sought make clear ments he re- ty objectionable his to withdraw his at proposition that the introduction timely that, unless It follows marks. exemplars handwriting 1968 trial of his below, objection made in in the self- violation of taken permitted com- ordinarily will not be Con incrimination Texas ”* * * plain appeal on conduct. such stitution, vi- not that it was Article Amendment, the Fifth United olative of Generally, reversible to constitute recognizes He States Constitution. argument prosecu of the error because of California, holding in 388 U.S. Gilbert of some tion there must a violation (1967),2 L.Ed.2d 1178 87 S.Ct. mandatory or new fact statute some Burns court in applied which was this argument injected been into the case manifestly improper and have must being cited in the decisions both Tex.Cr. harmful. McMahon submission, argues opinion original but on R. 182 S.W.2d 712. See Durst scope of dealt with the these cases State, 159 Tex.Cr.R. not the state constitu Fifth Amendment State, Tex.Cr.App., 248 S. Allison v. provision. urges that the He tional W.2d 147. provision broader constitutional of the sweeping scope in than that more Complaint in the fifth is made Fifth Amend analogous provision in the ground of court erred error that the trial ment. permit stage in penalty the trial in argument that ting Appellant introduce four misde advances State to opinions, “imposing courts of record series” meanor convictions from court, con- interpretation of the Texas in addi prior felony and five convictions provision, tion has established alleged for enhancement. stitutional those (not merely Ann.C.C.P., specifi any evidence 37.07, principle that Article statements, oral cally provides self-incriminating introduction of the requiring prior written) an accused elicited from convictions. Pendleton States, Appellant’s v. United Schoenbrun trial court brief filed ; (5th 1968) ground Cir. United first of error be: 403 F.2d shows (5th McGann, admitting 431 F.2d into States v. “The trial court erred States, ; 1970) handwriting samples v. United Granza taken from Cir. evidence 1967) ; (5th United Cir. of his 381 F.2d the Defendant violation Nix, (5th rights States v. 465 F.2d 90 Cir. 10 of the under Section 1972). Texas Constitution.” Wade, States 1926, Accord: United 18 L.Ed.2d participation volitional accused because the constricted scope which be deemed self-incriminatory is of the Texas provision constitutional al- subject Appellant exclusion. contends though “. . . nowhere their [its] handwriting exemplars require a “volition content interpretation Court’s al act” part accused, analo provision Texas constitutional has been gous to “. . . other forced demon changed.” action, strative or to a coerced oral state Is provision Texas constitutional ment or written confession . . broader in than the scope Amend- Fifth evidence, distinguishable appellant’s ment? Turning argument, footprints, such as which can be obtained we observe that the Fifth Amendment from the “mere action of others.” He reads: concludes exemplars are “evidence” . person “No shall be com- elicited from an require accused which pelled in any criminal case to be a wit- “volitional act” and are within the ambit against ness himself. .” of the state constitutional self-incrimina provision tion established the deci- provision The Texas constitutional sional authority of this court. He cites reads: and relies Allison v. 423 S.W. prosecutions “In all criminal the ac 2d 326 (Tex.Cr.App.1968) (driver’s li compelled shall . not be cused cense) Trammell v. himself. . . .." 543, 287 (Tex.Cr.App.1956) (blood sample); Marshall v. Appellant urges the difference (Tex.Cr. Tex.Cr.R. language holdings accounts our (blood App.1953) sample); Beachem v. those federal court and broader than of the a more such difference warrants (Tex.Cr.App.1942) (speaking certain words sweeping scope being given to the for identification under Apo compulsion); find privilege. have been unable to We daca v. 146 S.W by cases where the differ- .2d 381 (Tex.Cr.App.1941) (urine sample, language of the two constitu- ence ; acts) demonstrative Meredith v. provisions for the formed the basis tional (Tex.Cr. S.W. decision. (written App.1914) instrument).3 By using language, did the different Although none of these cases dealt with a intend broader § framers of such, handwriting exemplars as appears scope privilege? the Texas It strongly original contends the great phraseology exists in variety submission forty privileges. the various state Of “. that have a eight . . states in the union4 overruled sub silentio a sub- respec- stantial body provision of self-incrimination in their interpreting constitutions, employ the majority way Texas Constitution while in no indi- tive cating “. . .to language same as does Texas principle these cases and the ”5 against . . . give evidence himself. longer enunciated therein no stand as good . . It has been concluded that law. .” provision. Appellant’s upon Twen- of each constitutional ty-one reliance clearly misplaced Allison and phrase give employ they “to Meredith states is against easily evidence”; distinguishable fifteen use “witness on the facts. (language the Fifth Amend- himself” These eases are therefore not hereafter “testify against ment) ; eight him- use discussed. the last four have miscellaneous self Jersey exceptions. 4. New and Iowa are the provisions. have self- Two states provisions in their state incrimination Wigmore, 5. See 8 Evidence § n. (McNaughton rev. for the citation constitutions. of our intent of the framers then, nei- variety As “[tjhis phrasing, constitution, that no we observe scope present enlarges ther nor narrows the incorporat language present article already accepted, under- privilege as self-incrimination, stood, ing privilege judicially developed in sup- adopted in 1876 and amended is (Emphasis . . common law. 2252, p. language contained in the Wigmore, the same plied) Evidence as of Texas of Republic Constitution through unchanged which remained “. [Njothing turns 1845, 1861, and constitutions of state wording variations of in the constitution evidence, admittedly 1869. The available al It therefore im clauses. scant, self-incrimination indicates that the by protected material that the witness during the was never debated ‘testifying,’ one or constitution from convention 1875.9 constitutional ‘furnishing evidence,’ byor another from appear the framers of the would evidence,’ ‘giving another from present merely lifted the exact constitution ‘being still a witness.’ another language from earlier constitutions without phrasings These various have a common any import consideration of the of the lan conception, respect form guage. diligent effort We have made a protected Wig- .” 8 disclosure. something find in our state constitutional more, p. (Mc Evidence history light on the meaning shed Naughton 1961).6 rev. provision.10 the self-incrimination ef Our nothing forts have uncovered to indicate Court,7 Supreme The United States phrase give we should “to accord the evi con- (controlled with well as state courts any particular significance, dence” and cer own) our provisions similar to stitutional tainly support for the we have found no problem, seriously that have considered adopted position this view.8 phrase that the “to evidence” Identification, Weintraub, supra, Voice n. shows this view to be Exemplars Privilege Writing and the erroneous. against Self-Incrimination, 10 Vander- report the the debates of No official of 485-490, n. 22 bilt L.Rev. of Constitutional Convention 1875 757, California, kept. 7. Schmerber v. 384 U.S. debates source as to the 6, 1826, 761, newspaper contemporary n. L.Ed.2d 908 accounts. is compiled in Debates These accounts are Convention the Texas Constitutional following decisions, 8. In re the court (McKay Ed.1930). of 1875 jected argument give that “to evi respective present convention, dence” their state con under 10. In the 1875 scope reported language than stitutions indicated a broader committee provision. White, Rights the federal State v. one month Bill less than on the of indicating (1967) ; 162, 796, convened, 102 Ariz. 426 P.2d convention after the Smith, Terry 334, A.2d of State little or no discussion there was (Del.Super.1952) ; Opinion provision. Journal of the self-incrimination Justices, (Me.1969) 255 A.2d of Convention of the Constitutional City Roanoke, (1875) Texas, September Walton v. 204 Va. of of State 133 Moore, S.E.2d State at 271-73. pres- constitution, 79 Wash.2d 483 P.2d 630 first state In the reported language was likewise ent shortly dissenting opinion after the convention Contra: committees days. Robinson, : began & Debates Journals State v. 23 Utah 2d —seven (1969), 32-34. 1845 at the term P.2d 970-971 said Texas Constitution privi- of the find no discussion “evidence” seemed to be “broader.” The alsoWe proceedings lege sur- constitutional statement made indicated no awareness Republic contrary. rounding overwhelming Journal of Texas. of the view to the Proceedings Council Ala.App. 240, the General of Wells v. 101 So. Felipe Republic de (1924), of Texas—San also view indicated a (Ed.1039). Austin, contrary majority. Weintraub, November was meant to be more encompassing Baernstein, than sions.” Criminal Law and himself,” “witness as in Procedure, contained 241 (1967). S.W.L.J. the federal constitution. Nevertheless, we have found no histori- cal appellant’s position evidence for would, thus, I, appear that Article the framers of our state constitution law, declaratory is of the common § meant, by language, choice of for Article comparable in scope to the Amend Fifth I, than, encompassing to be more ment, provisions having both a common himself,” “witness against as used in the ancestry. “Interpretive Commentary” federal constitution or other formulations Constitution, of the privilege then in existence in other Vernon’s Ann.Tex. Const. states. course, history Of of the privilege finally does not settle scope policies its or We, thus, appellant’s reject argu- initial strength underlying poli- these ment. cies largely will determine whether future expan- construction will be restrictive or court, however, given Has broader sive.11 interpretation to our state constitutional provision accorded cor- than has been federal While constitutional safe responding proviso? constitutional federal guards applicable to the states establish do upon light courts, of the cases relied state minimum standard for such appellant, ap we conclude we must review courts not limited to those standards detail, pellant’s ground error some federal or rights. construction of state particularly of the decisions re They provide since most may go greater further and lied the state constitution safeguards. dealt with As to the outer reaches prior provision handed down “self-incrimination,” al and were process” “due we Hogan, Malloy to the decision in 378 U. great weight reasoning (1964).12 12 L.Ed.2d holdings Supreme S. S.Ct. United States apply did not Nevertheless, The Fifth Amendment scope Court. as the true Thus, pre- Constitution, Malloy.13 prior states ulti the Texas we must scope questions ap to the “self- mately lights. Malloy follow our own “This wholly mat proach provisions were incrimination” simply more desirable than sec this di Malloy ended ters of state law.14 ond-guessing supreme future court deci- ” 11. Only recently, at Id. of that the late Mr. Har mandate. Justice point S.Ct. at “The I lan stated: draw from approach Schmerber Murphy 12. Waterfront Comm. v. ‘[t]he Constitution contains 52, Harbor, U.S. of New 378 84 York we formulae with which can the calculate (1964); 1594, .2d Cali S.Ct. 12 L.Ed 678 scope” within “full areas this to which Byers, supra; v. fornia Schmerber v. extend, privilege the should the Court and Arizona, California, supra; Miranda v. obliged to has therefore been for fashion 436, 1602, 16 L.Ed. 384 U.S. 86 S.Ct. application the itself standards for of (1966). ’ ” 2d 694 privilege. . . . v. California 424, 449, 1585, Byers, 91 402 U.S. S.Ct. Jersey, Twining 211 13. In v. New U.S. 1548, (1971). 9 29 L.Ed.2d (1908), 78, 14, 97 L.Ed. 29 53 S.Ct. apparent As to the conflict in the Su- Supreme proclaimed bad Court preme decisions, Mr. Court Justice Har- privilege self- Fifth Amendment “ perceive [d] lan these cases applied to the federal incrimination government. springs tension that the essential from the v. also Adamson Cali- See provision mandate which uncertain 1672, fornia, 46, 91 S.Ct. 332 U.S. 67 gives of the Constitution to this Court. (1947). L.Ed. 1903 450, 91 at 402 Id. S.Ct. at 1548. “ And, opinions attempting course, limitation 14. Of the outer process” capture ‘purposes’ ‘policies’ “due Fourteenth Amendment Breithaupt uncertainty See, g., v. demonstrate e. clause did exist.

763 overwhelming be to note that useful versity viewpoints superimposing scope dealing number of decisions constitu Fifth standards as Amendment I, 10, types regarding the of Article applicable tional minimal to each state. compelled physical be however, unquestioned, both before overly have not the accused after had and have Malloy, and states list, although following plenary troublesome. power enlarge constitutional exhaustive, types evi- refers guarantees on the basis of state law. compellable from have been dence which then, appeal, presents the rather This self- with the Texas an consistent accused rare situation in which the decisions fin- footprints,15 provision: incrimination construing this court the self-incrimination ve- gerprints,16 physical examination 10, provision of Article of the Texas disease,17 fluoroscopic examination nereal supposedly Constitution have accorded enema,18 examination followed an proceeding in a criminal accused substan- scrapings from tongue,19 removal of protection possesses tially greater than he test,21 requiring paraffin the fingernails,20 princi- under Fifth Amendment controlling ples. try both at surprisingly, it is on Texas law an accused to on clothes Not case, appellant has which rested jury,23 requiring scene22 before precedents al- were the he relies requiring line-up,24 accused stand at a authoritative, fully lowed to remain his ar- hand to raise his deformed defendant gument might persuasive. jury25 purposes before identification on clothes requiring put an accused put question To presented in- speak jury.26 before the appeal proper perspective, may stant in a 138, State, Abram, 432, 408, 17. v. 96 Tex.Cr.R. Martinez 352 U.S. 1 289, (Tex.Cr.App.1923). (1957); 291 256 S.W. L.Ed.2d 448 Rochin v. Cali fornia, 165, 342 U.S. S.Ct. 96 72 State, 420, 141 18. v. Tex.Cr.R. Ash 139 L.Ed. 183 (Tex.Cr.App.1940). State, Tex.App. 245, 15. v. Walker 7 264- State, 19. v. 159 Tex.Cr.R. Richardson (Tex.Ct.App.1879) (by implication) ; 267 (Tex.Cr.App.1954). 129 State, Pitts v. 60 132 S.W. Tex.Cr.R. (Tex.Cr.App.1910); State, 801 Hahn v. State, 151 Tex.Cr.R. 20. Coleman v. Tex.Cr.R. 165 S.W. 220 (Tex.Cr.App.1948). (Tex.Cr.App.1914). State, 21. v. Henson 159 Tex.Cr.R. State, McGarry 16. Texas Constitution: v. (Tex.Cr.App.1953). S.W.2d 82 Tex.Cr.R. S.W. State, (1918) ; State, v. Issac v. Conners Tex.Cr.R. (Tex.Cr.App.1967). (1938) ; Mendez 115 S.W.2d 681 State, Tex.Cr.App., 362 S.W.2d 841 135 Tex.Cr.R. Rutherford (1962) ; Tex.Cr.App., Bonner v. (Tex.Cr.App.1938) ; 121 Long S.W.2d Harrington (1964) ; 373, 48 S.W. State, Tex.Cr.App., overruling (Tex.Cr. App.1932), 2d 632 De La Rosa v. Tex.Cr. Turman S.W. (1967) App., 414 S.W.2d 668 Travis Note, Tex.Cr.App., 416 S.W.2d 417 Tex.L.Rev. 127 (1967) State, Tex.Cr.App., ; Gordon v. Bruce Tex.Cr.App., State, Tea v. 453 (Tex.Cr.App.1893) (alternative S.W. 681 ; (1970) State, v. S.W.2d Martin 179 holding). (1971) ; Tex.Cr.App., 463 449 S.W.2d State, Tex.Cr.App., Rinehart v. 463 S.W. State, 25. Whitlock v. Tex.Cr.R. 170 (1971) ; State, 2d Tex.Cr.App., 219 Williams v. (Tex.Cr.App.1960). 338 S.W.2d 721 461 S.W.2d 618 (1970) ; State, Tex.Cr.App., State, (Tex.Cr.App.1902). v. Simmons 26. Benson v. 69 S.W. 165 ; (1970) Taylor v. State, 457 S.W.2d 284 McKenzie Tex.Cr. Cf State, Tex.Cr.App., App., (1971) (requiring 67 State, Tex.Cr.App., speak taking 449 Price v. defendant after grounds of on no error stand: Beaohem intrusions, voluntarily personal privilege. Long In contrast There to these ination privileged, appellant which are took in her own behalf. not claims the witness stand handwriting exemplars protected by required then to write her name She was purpose comparison. of our for the of It was construction decisional law. by testifying, there that the defendant held Although cited, no cases have been we privilege had waived the self-incrimination diligently determine if have searched to give required and could manual dem- be previously this court that the tak- held thus, question, raised onstrations. The exemplars ing handwriting of violated the case, privilege of self- is whether the the state self-incrimination of incrimination, waiver, exist absent a would deci- constitution. We have found such handwriting exemplars. taking as sions. there, did but the court inference is Comment, 11 not Tex.L. discuss it. See State, In Bell v. 99 Tex.Cr.R. 268 S. State, Hamilton v. Rev. 127 Cf. defendant (Tex.Cr.App.1925), W. 168 Key (Tex.Cr.App.1966); signed grand jury had a document before a State, Tex.Civ.App. subsequently introduced at (Tex.Cr.App.1946). It obvious handwriting. trial for The deci proof theory the court utilized the waiver unequivocably repudiated “untena sion as ques- addressing to the basic without itself requiring the ble” the contention that tion. handwriting exemplars might be considered question presented, it dealing In compelling give evi as the accused “to constant source of is discovered that one in dence himself” violation cases confusion in Texas self-incrimination state constitution. inter the number of which have State, Long prohibition 120 Tex.Cr.R. 48 woven both the constitutional concerning reversed (Tex.Cr.App.1932), statutory inhibition and grounds, unintelligible on other this court did discuss almost confessions into an handwriting exemplars seen, and the self-incrim- Beachem maze.27 As shall Key Tex.Civ.App. signed appear waiver) ; Ferguson liad nesses. signatures were used ance bond. These 1946). comparison in with bills of sale these (Williams Ferguson) and theft cases Hunt, question incriminating Appellant raise the murder does not letters exemplar Relying Hunt, Williams in the instant case con on case. Ferguson, court, within the mean in Jones v. a “confession” stitutes (Tex.Cr. ing 38.22, Vernon’s 165 S.W. 144 of Article C.C.P. Tex.Cr.R. (a bigamy ease), question App.1914) whether found no er is observed copies testimony concerning a letter hand in the an accused’s ror admission custody writing while con had the defendant make executed while the sheriff custody proof handwriting. has arisen stituted a “confession” early stage was, thus, Wil set for Kennison cases. several occasions Tex.App. 466, S.W. S.W. liams v. (Tex.Cr.App.1889) (Tex.Cr.App.1924), Tex.L. noted in 3 Hunt jail, (Tex.Cr. Kennison While Rev. 485 S.W. attorney’s county Ferguson App.1894), office was taken handwriting speci- (Tex.Cr. and directed to S.W. 465 objection samples handwriting App.1911), he at the mens. Over held the warned, such arrest confes time under were not construed as introduced although specimens for hand- were used at his trial in violation of the statute sions comparison. custody writing a claimed There was were the defendants statute, now violation of confession Moore v. 85 Tex.Cr. time. See also Ann.C.C.P.1965, 38.22, Vernon’s Article R. 214 S.W. 347 formerly signed for con as amended Williams had a motion Ann.C.C.P.1925, ap and, signed tinuance, Hunt, and then Ar- like had plications Vernon’s Ann.C.C.P.1911. of wit ticle attachment

765 significant physical case is an in the three areas where relied protected phenomenon, this has been held teresting variation of 10, exclusionary constitution— concerning The rule coerced Article state § State, separate 140 involuntary specimens (Apodaca v. confessions has urine 593, (Tex.Cr. history period 381 covering a different Tex.Cr.R. exemplars v. privilege. App.1941)); (Beachem time voice than self-incrimination 706 relationship While there is underlying an 144 Tex.Cr.R. two, (Tram tests original designs between the were and blood 1942)), Unfortunately, 287 S.W. different. courts have mell applied (Tex. Cr.App. 1956) the two of which sometimes rules without 2d 487 —none Fifth Amendm making are of the distinction between them. See within ambit Comment, 21 (1942).28 Tex.L.Rev. 817 ent.29 prosecution

Although Apodaca supra,30 expressly there are no involved a contention, 802c, appellant’s Ann.P.C. supporting he claims under driving handwriting exemplars analogous (murder malice while without reversing, waiver, In Hamilton the court cited see Branch’s As (Tex.Cr. App.1966). and Ann.P.C. other authorities for the 225 proposition Ferguson that was cited acts as as verbal further well Note approval 156 statements came within the confession in Jones v. (Tex. statute. The court said : “In the instant 243 S.W.2d 848 Tex.Cr.R. writing Cr.App.1951). case the an is secured not from impulse moving accused, in mind that but from be borne It should representatives state; they either the of the Kennison case did mention inaugurated proceedings or the Texas constitu- Amendment and directed Fifth ” privilege provision him to write. at as 260 S.W. tional self-incrimination, its results 175. but reached questioned strictly pur- Kennison a violation on basis of portedly case, supra, Tex.L.Rev. See 3 overruled the Jones confession statute. harmony” as “out of with the con- 483 given struction Noting the confession statute. and the 28. The connection proof compelled footprints been termed a “shot rule has confession gun long ago accepted appar- had an Supreme wedding,” Herman, exception statute, ent to the confession on Inter Restrictions Police Court and sought distinguish Williams, the court rogations, 25 465 Ohio St.L.J. Ferguson Hunt, ground on the justifica (1964) ; historical as without signatures papers those cases involved (3d tion, Wigmore, ed. Evidence 823 § 3 preparation trial and there was no policy p. 249; at and bad apparent signing between connection White, dissenting boot, in Mi Justice papers prosecution. of such and the 526-531, randa, at 384 U.S. The distinction has been characterized generally, 3 694. See 16 L.Ed.2d “clearly unsound,” although as recognized it was p. Wigmore, n. 5 339 § Evidence 823 case, in a later Rose (Chadbourne 1970). rev. (Tex. Cr.App.1933), Ray, 1 Evi McCormick & specimens: Davis District of Urine 50, p. And, n. Kenni dence 431 (D.C.App.1968) ; Columbia, 417 247 A.2d expressly son was followed in Click F.Supp. Nesmith, 121 United States v. 992 Tex.Cr.R. D.C.1954) (Dist.Ct., ; Voice ex (Tex.Cr.App.1931) Blackshear Wade, emplars States v. : United State, 123 Tex.Cr.R. 218, 223, S.Ct. U.S. In Bell v. (1967) ; Blood tests: L.Ed.2d (Tex. 268 S.W. California, Schmerber Cr.App.1925), find court failed to L.Ed.2d 908 S.Ct. requirement “apparent Kennison con (1941) ; nection” between the obtained in 19 standard Noted Tex.L.Rev. charge against 15 U. of Wash.L.Q. defendant. referring also Crit the Kennison line Cinn.L.Rev. 344 Ray, cases, Wigmore Apodaca in 1 & said that Texas McCormick icism “heresy” (2nd 1956). alone in ed. stands writing hand- Evidence exemplars constitute confessions. in our already given effect stitution being After taken intoxicated). while wreck, long-established precedents. following accused jail fatal the the perform an required “intoxication” was enlarge upon are not inclined to We involving simple motor functions —to test accepted exemptions application from the hands, turns, walk, the make extend sudden provision of of said the Constitution.” Further, finger nose. place a on his added.) at 383.31 (Emphasis 146 S.W.2d specimen over officer a urine obtained Apodaca’s rul- Apodaca’s objection. The trial court’s restric Dissatisfaction for apparent. to have correct In Coleman ings appear would been tions soon become court, impliedly, prior to 1940 this least held, it as ear

espoused theory (Tex.Cr.App.1948), that the in prohibit only police com- action “testimonial lier noted in intended n. Comment, Admissibility and accused’s pulsion.” taking scrapings from under the analysis did not violate the Constitutionality fingernails Intoxication of Chemical Tests, And, pictures privilege. motion taken Tex.L.Rev. po prior approximately the accused without his consent at six months decision, court, charged in Ash lice station he was Apodaca while per driving 341 with while intoxicated were Tex.Cr.R. upheld Housewright of mitted into the conduct evidence. (Tex.Cr.App.1940), (Tex.Cr. an police had 225 S.W.2d 417 officers who administered defendant, App.1950).32 enema to a who had swallowed arrest, pro- despite his rings two Subsequently, in Jones The found no “unreasonable tests. court (Tex.Cr.App.1952), contrary search and then Arti- seizure” 830, 74 denied 346 S. t. cer 727a, cle Vernon’s Ann.C.C.P.1925. dicta, in Court, Ct. L.Ed. opinion’s clearly court tenor “walking dicated that ur test” and the penetration would allow accused’s an specimen dif ine have treated should

body quest incriminating evidence. ferently. The court wrote: however, appeal Apodaca, On very opinion “. logical [T]he held tests de- court that all evidence of any dis (Apodaca) overlooked making Citing scribed should have been excluded. require tinction between the last named only authority, two general treatises which ment and those specimen] [urine provi- court stated the self-incrimination perform caused him to acts which protected testimony, sion oral “ opinions to support be used of his condi . but embraces as fur- well the tion. ...” 261 S.W.2d at 163. nishing by other than means short, mouth, divulging, word of any that if had been noted there right accused fact difference, point in dis discussing the (Emphasis added.) to hold secret.” tinguished judge who wrote the S.W.2d at 382. have, probability, followed the would all reasoning (139 in the Ash used case Tex. rehearing, On the court concluded: Cr.R. “in which the pur merely policy “We think safer ad- mechanics used were for the to be pose proof existing facts.” applica- obtaining herence construction tion of our S.W.2d at Section 1 of Con- Carpenter that no Tex. is observed case was cited Accord: court, appear (Tex.Cr. and would Cr.R. “long-established precedents” App.1960). all had opposite reached result. Jones, effect, And, App.1954), year, in the said that n. 19. same

It has been permitted resulting fact situation the court evidence from Apodaca limited to its own a test the accused had paraffin a chemical test to which permits making the subjected without his consent. Hen subject’s consent least as (at without the privilege against son as constitutional far the (Tex.Cr.App. concerned). n. 21.33

self-incrimination Comment, Cf., Tex.L.Rev. 824 Next, we turn to Beachem v. Ann.P.C., 802f, however, Article supra,34 upon by relied the appellant. also as amended. Beachem, robbery In a had occurred And in Thomas v. 154 Tex.Cr.R. which the assailant had uttered certain 1950), it (Tex.Cr.App. identification words to the victim. When that error was was held reflected by vic- line-up at a could not be made the testify permitting an officer to the voice, an hearing suspect’s tim without the charged driv conduct of an accused with speak the officer instructed Beachem ing though the offi while intoxicated even used. specific words the assailant had “ related, . him to cer . .1 had [sic] specific formed for These words basis the outright appeared be an walk.” what and, line-up, positive at a identification the repudiation Apodaca, the court said: subsequently, court. “ . . . If an officer should arrest origi The cornerstone of the any place man at other than cell it in his holding nal that the sam submission voice presumed would he have him would ples were in violation of Article taken why to walk and we see no reason he premise provi that was the said permitted would not be observe guarantees right sion to an accused testify walk and as to results. The testimony to “. giving . refrain from . many prints, finger prints, foot cases of con which will tend to reveal his criminal etc., point.” are in at 810— S.W.2d nection with an offense. . . .” 162 S. for only authority cited W.2d at 708. The Skaggs Tex. sweeping generalization was 44 S.W.2d Jur. 1958); Clifford v. Then, Cf., g., court, attempt Millican v. e. in an to recon- State, 143 Tex.Cr.R. “apparent conflicts” cile the footprints, distinguish Ward fin- (Tex.Cr.App.1942); rationally (Tex.Cr. physical Tex.Cr.R. examinations and other gerprints, App.1954). samples, from wrote: voice later, there involved Still a doctor was allowed to testi “. . [T]he is, fy accused, examining tongue, produced by after accused’s was will, tongue by independent act or volition to determine if the by, and was produced had rape accused, been bitten. The victim of had but of, officers or police the acts of informed the had the result she bitten her as factor tongue. determining sailant’s Richardson others. . The the evidence is whether (Tex.Cr. in this case testimony.” by dealing dis- there a valid Is 33. The wrote that oral court “ regard to the self-incrim- of evidence tinction with character testing distinguished ni- between referred to as real as ination testing finding alcohol the skin oral. The trates on of nitrates applying hand of as a result the blood? paraffin revealing was but that which altered, changed, in 21 Tex.L.Rev. could not be 34. Noted or colored pro- incriminates the accused was presence prosecutrix dress in the at a duced him or line-up officers.” privi- violation of the Texas at (Emphasis added.) lege. Emphasizing that Beachem identify suspect only witness could aft- was, concluded, There no “le voice, pointed er she heard his the court gal Apoda distinction” which would make out showing there was no in-court ca, inapplicable because the evidence ob recognition. identification turned on voice tained specimen] there urine “re [the There, court, speaking through Judge quired the exercise of his volition.” Id. Morrison, said: 709.35 “. . . We not think the do Beachem in holding Beachem was almost im- controlling, many case is rea- here mediately by opinion diluted on rehear- which it is to unnecessary sons we feel court, ing speaking where through Pre- discuss, if but it were it would still be siding Hawkins, Judge reached the same upon incumbent the accused to show that result, totally separate ground but on a —a his vocal utterances in fact were used statute, violation of confession then against by making him the in her witness 1925,36 Vernon’s Ann.C.C.P. not identification. the fact that although principle repudiating required give accused is to evidence upon law relied in opinion.37 the earlier against himself violates constitu- inhibition; opinion tional it is the such The authoritativeness of on use of original evidence a re- submission to convict him that causes seriously has been by versal. . . .” at 823. eroded S.W.2d later decisions.38 (Emphasis added.) State, In Lucas v. 160 Tex.Cr.R. Later, Gage State, in Beach- S.W.2d (Tex.Cr.App.1954), S.W.2d narrowly explicitly ques- (Tex.Cr.App.1964), court em was read where the suspect recognized its “reluctance to extend” Beach requiring tion was whether a stand, around, Apodaca. em give and was forced to speak Gage turn his name and ad- “ principles applica law as to make both 35. . . If distinction between . preferred present passive ble. The writer has active conduct the accused complained applied to discuss the incident of from were to chemical intoxication viewpoint tests, logical Art. of a violation of said be that conclusion would at be com- 727.” 162 S.W.2d 711. submission to pelled, blood test could test. but not urine or breath State, 38. in Note that Coleman meaningful justification for the ac- But a tive-passive (Tex. 582, 209 S.W.2d distinction, in a followed distinguished Cr.App.1948), Beachem was minority jurisdictions, is difficult paraffin inapplicable test and held Comment, ascertain.” 35 Tex.LRev. State, 159 Tex.Cr.R. Henson 823-24 State, supra; course, Skaggs v. Thom 36. Of the use of the self-incrimina supra; statute as v. Clifford v. tion and the confession unprecedented. supra. was not close relation Stanton 39. See Ramon v. 923) (Tex.Cr.App.1 ; n. 252 S.W. 519 (no (Tex.Cr.App.1955) S.W.2d 27. privilege where defend violation of the “ rehearing was not . wrote: “Pos ant’s identification The court on upon any sibly predicated particular words or manner because of the hearing original question presented him con sub statements but versing original- person.”) with another S.W. mission the writer of the 226; largely proposition Tex. at it on the 2d Johnson based appellant forced to Cr.R. 1958) (defendant required repeat question, under the himself. That objection closely any specific present, related words but waived facts here is so by raising taking the the matter after with a violation of our interwoven 727, C.C.P.) stand). (Art. on confessions statute appellant objection during “. . It is not shown that fingerprints over . counsel’s say anything par- day required no violation of Finding trial. during Morrison, ticular he said privilege, writ words which had Judge majority, as was dis- ing for the commission crime said: cussed this Court in Beachem past “This in the has demon- .” 455 at strated its reluctance to extend rules (Emphasis added.)41 announced in Beachem . Thus, appear it would Beachem Apodaca ... would important expressly limited two have us do the case at bar. .” specif ways: applies only where (1) (Emphasis added.)40 during spoken ic words the commission recognize The court seemed to Beach- compelled a crime for identification Apodaca em and were aberrations in Texas purposes; (2) where the utterance law. part specific plays a critical such words process. the identification And, finally in Lee appears 316 (Tex.Cr.App.1970), that State, supra, other the v. is Trammell was Beachem all but limited to its exact relies. significant authority on which Lee, facts. In the defendant was identi- ato traced genesis Tra can be mmell's prosecutrix fied after speak overheard him accused holding an series that of error, jail. in the finding In the rights the Texas could under waive Beachem, distinguished cited Gilbert urine consenting giving privilege by test,44 specimen,43 blood test.45 saying, breath or falsify. deliberately Judge See 40. the can McDonald dissented com- accused Fisher, 242 in “I State v. mented : do think that this also the dissent not Court (1966). extending in P.2d 217 would be the rule Or. 410 Beachem viability by However, Apodaca of the “continued in ... following precedents doubt and Gilbert is these in the rationale after Wade case at Term, Supreme Court, ful.” 1966 bar. . The apparent apx>el- “It is me that the 81 Harv.L.Rev. lant, Apodaca argument criticized is also and Beachem all three were of Weintraub perform Ellis, required People in 55 Cal. which 65 Cal.2d acts incrimi- v. Rptr. 385, at n. them. It that 421 P.2d nated seems to me the case squarely at bar falls within rule Biggers State, in Tenn. announced two cases. does these by equally- (1967), aff’d me not seem to that this should en- S.W.2d 696 Court court, S.Ct. these tertain a reluctance to extend rules divided announced, (1968), points re- Judge held 19 L.Ed.2d 1267 quiring Morrison out. test, identical even a voice “This Court should either follow these cases, alleged in the to have used words two it should overrule them.” requiring an ac- crime not at does constitute Cf. 387 S.W.2d 682. n. 16. “give evidence himself.” cused to Taylor 41. Annot., also, Requiring Submission See (Tex.Cr.App.1972), which it Physical Viola or Test as Examination stated that Beachem had been was “se- Rights, 25 A.L.R. tion of Constitutional verely criticized.” subject (1952) ; federal 2d same (1967), supple rights, L.Ed.2d 908 nearly 42. To show that Beachem is alone L.Ed.2d 909 mented holding, Annot., Requiring in its see Suspect or Defendant in Criminal Cases Halloway 43. Purposes to Demonstrate Voice for of (Tex.Cr.App.1943). Identification, 24 A.L.R.3d 1261 McKay 155 Tex.Cr.R. 44. Ray, p. Evidence § 1 McCormick & (Tex.Cr.App.1950) 159 Tex.Cr.R. Jones v. complete argument The most (Tex.Cr.App.1952). S.W.2d 161 IVeintraub, Beachem rule is found argues supra Bryant n. where author (Tex.Cr.App.1953). covers opinion began by But of the court quot- Trammell’s immediate antecedént ing supra, Brown Brown 240 S. to the effect proper in taken under W.2d 310 Brown where conditions prosecution driving while in volved a “. . . with the consent of one whose ar toxicated which the defendant was sobriety questioned state of . . . rested, hospital, taken and a blood to a shown, provi- being [and] [c]onsent specimen consent. was extracted with his I, . . . Art. sions of Sec. 10 ground The conviction reversed on the not of . . are Constitution chain of that there had been a break violated .” 287 custody specimen. blood Then, authority without citation of dicta, clearly Judge Wood- what Brown, other than concluded: following ley and announced the continued principles : having “The failed to show State specimen was taken with the consent competent and so taken “When appellant, testimony Dr. nurses, laboratory doctors or trained Mason was not Id. at 488.48 admissible.” one the consent technicians language While the of Brown was most sobriety questioned, whose state persuasive, actually in the case was not test thereof be shown results of the point since Brown consented to the test by the accused. Consent the state or and his conviction was reversed because shown, the 5th provisions of prosecution failed to establish a suffi-

Amendment Constitution custody cient chain of as to the blood test. Art. Sec. 10 States and United Comment, 35 Tex.L.Rev. . are of Texas Constitution analy- blood for taking of violated sis, proof the result and the of of self-incrimination was (Emphasis at 311 test.” not discussed in the and neither added.)46 Apodaca Beachem nor was mentioned though it has been that Trammell claimed Trammell, taken driver had been Apodaca. heralded a return to See Com- hospital being seri- to a after involved a ment, 35 Tex.L.Rev. accident, taken sample was ous and a blood Objection Further, repeatedly noted it has been while he was unconscious.47 driving intoxi- not involve “volitional made the trial for while that blood do tests participation.” Ray, shown be- Evi- had been & cated that no consent McCormick Weintraub, dence, 25; been re- specimen p. of blood had fore the Voice § Identification, Writing Exemplars, moved. Tex. Marshall Watts v. Accord: ; Shilling (Tex.Cr.App.1958) Cr.R. (Tex. 1953) (no violation self-incrimination test). Schmerber); (post Cr.App.1968) : Card is shown blood where consent well Abram, Breithaupt 352 U.S.

47. Cf. (1957), the state means that 1 L.Ed.2d 448 Trammell While showing it was burden of circumstances had the affirmative where under similar introducing predicate the re- for conviction based on consent as a held test, held the ac- a test made while results of the blood sults of blood deprive where admissible did not test is was unconscious the blood cused liberty process. objection. Barker without due is no him of his there (Tex. Cr.App.1960) ; holding 471 S.W. Tram Trotter with the of 48. Consistent (evidence (Tex.Cr.App.1971) of testimony 2d 822 mell is the rule that cannot not error where blood test to the made on an ac refusal introduced or comment objection). take blood test. cused’s refusal a completely eroded Self-Incrimination, been almost holding has Against Privilege of court. This by subsequent decisions 5; Com- n. Vanderbilt L.Rev. have not jurisdictions most other court and ment, Tex.L.Rev. expressly Apodaca,50 we followed questioned whether may well be overrule it. holding correctly decided Trammell giving of that consent essential severely has been Although Beachem appear that not valid blood test. It would decisions, princi- by subsequent limited I, re of the state constitution Article the Texas ples extended announced therein consent, Fifth Amend quires and the such ob- privilege to incriminative of taking not where ment does required which an- accused tained from process. comports sample due detailed participation. After “volitional” California, supra. Neverthe Schmerber 10, in par- relating research less, widely accepted deci Trammell ticular, have conclud- privilege, and the we has adhered to Tram sion and the court participation” ed “volitional the Beachem placed after blood Schmerber mell even overly expansive without standard was beyond pale of tests without consent precedent adequate support history, Amendment.49 In such Fifth logic. expressly We overrule it. to the factor that given more attention safeguards process law as it ex- require stricter Under common this court principles do protection rights today, than Su ists even constitutional truths, preme the fed emerge construction of full-blown eternal Court its in-depth re-consider thus immune remaining eral No immutable and constitution. Frequently process undertaken. change. ation Trammell was from the generalization courts a broad announce course, has, Legislature now And is, time, qualified period over a provided for consent of a motorist implied and narrowed until its authoritativeness taking of a breath for intoxi- test Having has been failed the test vitiated. cation, provided taking but has that in fully experience, finally rule is of all determine the other chemical tests to expressly abandoned overruled.51 is no alcoholic content of the blood there implied “may though consent the motorist Likewise, the reasons stated 802f, See Article Vernon’s consent.” er above, we conclude that Trammell was Ann.P.C. decided, that roneously and conclude com appellant’s Apodaca, As cited to case of test, under condi a blood if taken pelling observed, noted, it is that its as earlier process, comport tions which with does due gee, g., State, (blood test) Spencer State, e. v. 1964) Hearn v. 543, (Tex.Cr.App.1967) (dicta) ; (Okl.Cr.1965), Apodaca 545 46 404 P.2d Shilling supra. State, v. Attor However, approval. in Smith cited with ney Opinion 328, (Okl.Cr. General’s No. State, C-766 v. 462 P.2d 330 State, (Tex. samples v. writing Ballard 1969), 83 Cf. Cr.App.1970). the court held as Constitu not violative of Oklahoma Spencer. no mention of Cox or tion with following 50. The to declined follow Apodaca: Faidley, examples State v. 202 Kan. other which Texas 51. For 517, 20, (1969) ; abruptly 450 P.2d 24 State v. has been more or less law Smith, Terry 334, (Del. changed, State, 8 91 A.2d 188 v. see Martin S.W.2d 475 Super.1952). ; Haynes (Tex.Cr.App.1972) State, v. 265 perplexing. (Tex.Cr.App.1972) ; The Oklahoma cases are 739 475 First, State, (Tex.Cr. King Alexander v. P.2d 305 v. 473 572, (Okl.Cr.1956), ; 583 App.1971) the court criti Middleton v. 476 S.W. Apodaca ; (Tex.Cr.App.1972) cized and said that the cases in 14 Jones 2d digests gave cited “scant to comfort” 481 900 Apodaca. But, result 1972). reached in then (Okl.Cr. in Cox v. 395 P.2d 954 772 research, study accused 52 After much requiring an

not constitute 10, I, we conclude that Article is declara “give himself.” evidence § law, tory of the common that noted, re- Legislature has As earlier of our constitu intent of the framers 802f, Article cently area. acted this privilege provide tional the citizens of 1971, Ann.P.C., (Acts amended as safeguard with a similar to state 2340, 709, p. Leg.R.S., effective 62nd ch. contained Fifth Amendment. We overruling though 1971). Even adopt view that the Texas constitution June may a constitu- of Trammell have removed al self-incrimination its extends impediment as the tak- of consent tional protection compulsion.54 to testimonial tests, ing a test other chemical blood or overwhelming precedential view This necessity of com- this does not obviate support, similar consti- even in states with pliance provisions, even statutory provisions.55 tutional not statutory may though requirements constitutionally required.53 now be compel hold Accordingly, wé sample exemplar does ling handwriting Beach overruling Apodaca, Even the compelling an accused to not constitute em, elim entirely and Trammel will not “give against himself” in violation uncertainty that clouds inate maze Constitu scope privilege. Many cases tion. attempt recon in conflict and to Appellant’s merit. contention without more confus of them lead to cile all sion, do attempt not less. shall We stated, appellant’s For motion reasons rehearing so. is overruled. p. Dugas, Wigmore, La. 211 252 So.2d 386 State 54. In Evidence (alternative holding), (1968) (McNaughton it is rev. stated “ attempt S.Ct. denied 393 some is made cert. [u]nless ; (1969) written, Davis oral L.Ed.2d secure communication — (Md.App. upon Md. A.2d is to which reliance 189 1948) ; or otherwise — Commonwealth, involving placed Gardner v. his consciousness (1954) ; operations mind S.E.2d 617-618 and the Va. facts Sturtevant, expressing it, A.2d 96 N.H. the demand made State ” not a one. him is testimonial only clearly present, the At state Durrant, A.2d State phrase contrary scope of the “to as to the (Del.1963) ; Thompson, State 256 La. respect to blood tests evidence” with 934, 240 So.2d Smith P. Lorenz is Oklahoma. (Okl.Cr. 462 P.2d v. 1969). (Okl.Cr.1965). 2d 278 states, other there two States, See also Lewis United indicating dicta, holdings, but weakest U.S.App.D.C. F.2d 818-819 provision “to state constitutional (1 967) States, Granza v. United give might be more narrow evidence” (5th 1967), 381 F.2d Cir. cert. de Stevens, 252 Schmerber. State v. than 939, 291, 19 nied L.Ed. (Me.1969) 58, ; v. Washburn A.2d 60-61 Sneed, 2d N.M. State Commonwealth, (1967). 435 P.2d 768 (Ky.1968). appear In Alabama the cases to con Slough generally Wilson, Al- and phrase “to evidence” strue the Motorist: Practical cohol and Legal broadly. See, g., e. Smith Testing, Problems Chemical (Ala. 247 Ala. 24 So.2d (1960) ; Minn.L.Rev. 685-89 1946), and Hunt v. 248 Ala. (1965). Law 364 Am..Tur.2d Criminal (Ala.1946). How 193-194 27 So.2d Supreme See, g., Scott, ever, e. the Alabama Commonwealth Court ; impliedly (Mass.1971) recently v. Mc these N.E.2d 454 State indicated longer Carthy, precedents- will be fol Minn. N.W.2d older Severson, (1960) 283 Ala. lowed. Hubbard 677-678 State (N.D.1956) ; N.W.2d linger, State v. Wer So.2d 170 N.W.2d 470 84 S.D. part

MORRISON, (concurring Judge dissenting part). my in all

I concur with brother Onion

aspects save one. the intent

While of the framers of I, Constitution regarding Art. Sec. unknown, interpretation of that Elder, Houston, Stephen appel- T. and, provision judicial my is a function lant. acknowledges, brother Onion a State Vance, surpass req- Atty., minimum federal constitutional Carol S. Dist. C. James Houston, Brough, Atty., opin- uisites. At the time I Asst. Dist. prepared the Vollers, Atty., ion for this in Trammell v. D. State’s Robert Court A. Jim Huttash, Austin, supra, fully Atty., cognizant I was of the far- Asst. State’s reaching implications there- State. to be drawn taking

from. I remain convinced blood from an his con- individual without OPINION right sent constitutes a violation of his privacy infringement an involves DOUGLAS, Judge. right accused’s to be free from self-incrim- appeal corpus ination under This is an in a pro Art. Sec. Texas Con- habeas 11.07, ceeding stitution. under Article Ann.C.C.P., parte and Ex Young, Tex.Cr. Further, Trammell, overruling supra, is App., 418 S.W.2d 824. entirely unnecessary in order reach The applicant contention of the is that Judge result which con- Onion’s jail he was tried clothes and this in disposition cludes is a proper of this case. fringed right presumed on his to be inno This case taking deals with a of a hand- cent. He was convicted 1969for the of writing exemplar di- while Trammell dealt robbery. punishment fense of His was as rectly privacy with an invasion of the thirty-five years. sessed the court at person. the accused appeal, On this Court affirmed the convic I overruling dissent Trammell v. Kelly tion in Tex.Cr.App., 471 S. State, supra. sufficiency W.2d 65 The challenged. not The

complaint then was that the trial court overruling erred in his motion for continu ance. This was held to be without merit. parte Ex KELLY. Emmett Julian applicant now relies Hernan-

No. 45860. Beto, dez (April F.2d Appeals where the Court for the Appeals of Criminal of Texas. Court granted Fifth Circuit relief because Her- July nandez had been tried in jail clothes. attorney in that case testified he did Rehearing Denied Oct. jail object to Hernandez tried in

clothing because he did not think it would any good obj do ect. case, present convicting

In the hearing application on the for ha- held a corpus. Trial counsel testified that beas thought he object he did not because such objection Neither would be overruled.

Case Details

Case Name: Olson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 26, 1969

Citation: 484 S.W.2d 756

Docket Number: 42416

Court Abbreviation: Tex. Crim. App.