*1 405 plus possession Free unlawful. The information in of Officer appellant him unusual act was sufficient to lead presence felony being and believe that a in his committed State, to authorize warrant. v. No. the arrest without a Sanders 29,715, 640, State, v. 162 312 2d and French Texas Cr. S.W. 48, State, Rep. 284 2d 359. also Tillman v. 162 Texas S.W. See State, Rep. 618, 521, 288 v. Texas Cr. 2d 163 S.W. Garcia Rep. 146, Cr. 2d 766. S.W. judgment is affirmed. Trujillo v.
Jose State. 29,457. May 21, No. 1958.
Appellant’s Rehearing Motion for Overruled (Without Opinion) 18, Written June 1958. Moseley, P. Dallas,
J. appellant. Henry Wade, Attorney, Ellis, Ray Criminal District Ben Col- lier, Bowie, A. Attorney, D. Jim Dallas, Assistants District Douglas, Attorney, Austin, Leon State’s for the state. Judge.
WOODLEY, driving intoxicated; punishment, The offense while forty-five days jail and a fine $50. undisputed It is driving that the an automobile public highway place alleged. at the time and of the Dallas Department, Officer Huber Police ap- who saw pellant collision, at the scene of and Officer Heath who saw collision, testified that city jail shortly after the smelled actions appellant’s they observed conduct *2 opinion expressed breath, and on his of alcohol odor intoxicated. he was testified, objection, Heath, without A. D. Jr. Officer gave appellant test No. city jail he
arrival at the test, part: such testified as to He 5475. necessary you “Q. to do in briefly for what Describe according to the in- it the test. A. I take administer
order to paper carton draw from Crime a we It comes from structions. him it is administered is assembled me test Lab. Once the blowing full I the balloon is in this balloon. When his breath reading air over passes chemical. as the take color “Q. to? A. About he this balloon what size did blow About * * * volleyball it is sort of a small basketball the size hard to describe. you
“Q. in that did his breath allow After he blew through pass chemical? A. Yes. breath ** “Q. up I the test *. A. sealed And after Laboratory. in to the Crime turned it Yes, “Q. you you it? finished the test sealed And after Av sir.
“Q. I to the you do it? A. took it Crime And what did with Laboratory.” tests, Day, in control of intoximeter testi- Lieutenant
J. C. objection: fied without
“Q. Officer, calling your day attention the 28th Janu- you ary, 1957, you had ask whether occasion handle I will Yes, A. 5475? sir. Test Number Intoximeter “Q. you it on did first see that date? A. It was Where laboratory purpose provided for at the box returned Laboratory. Department Police
“Q. you A. I do with that? delivered it to Park- custody Hospital of Dr. Mason.” land Day particular Lt. that he further testified delivered signed it, picked up and that Heath who it Officer day; was the it that he did last time saw until the next placed January 27, de- know who it in the on and that he box Hospital January livered to Parkland on 28. Dallas, Mason, toxicologist city county
Dr. for the training, experience qualifications testified as to his tests, chemist and with intoximeter and testified: employed “A. This area for instrument has been in this past years, good many six or seven and a thousand instru- analyzed, ments have been of which has been under my supervision during that time.
“Q. laymen’s Describe terms what test employed is. A. is The intoximeter an instrument which is subject’s determine the concentration of alcohol in blood analyzing of virtue for breath alcohol.
“The reason this can be it done is that is known that subject’s alcoholic of proportional content breath is to that circulating lungs of the breath at the time. itself,
“The ballon, instrument consists of a rubber into specimen breath is blown. The balloon is connected with a chemical train connected with two tubes connected with each magnesium percholate, other. The first contains and the breath tube, through passing the balloon to this all of moisture in is breath removed the chemical. passing “The dried de-alcoholized breath into the second * * * tube, which contains a chemical called ascarite this meas- present specimen. ures the carbon dioxide in the breath This weighed second test, tube before the instrument is used in the afterwards, again weight and quantity represents and the difference in passes through dioxide in carbon breath * * *. * * * “Q. you Are familiar with the intoximeter defendant, Yes, A. Number 5475? sir. “Q. you analysis? was the test delivered to When A. On day January, the 28th 1957.
“Q. you From whom did receive it? Day. A. J. C. ' to me was delivered “Q. you it? A-. It receive Where Hospital. Parkland Memorial my office * * sealed, *. case A. The
“Q. container the outer Was sealed. case A. Yes. any on the label?
“Q. information there Was was? jury information “Q. you tell the what Would ** my *. May *4 “Q. calculations? A. I did.” the final You made having by Dr. Mason without been This your show this objection, was asked do official records he “What Objection that a made “because he testified man test to be?” weigh- by and another man did the actual name of Williams analysis reported ing test and of this and all of mechanical hearsay” him, it would and added therefore be the results objection: right by a has confronted the witnesses
“The defendant to be weighed against man that these two men him. This has testified testing, things, all of the actual mechanical these two reported he then the calcula- the results to him and that made testifying opinion object this of tion. witness We weighing analysis and the it because these witnesses about hearsay, and we have be confronted these would be witnesses.” these question to answered the witness Before over ob- answered overruled, was asked
objections were under made jection a conclusion: “Was that was Yes.” supervision? A. your direct control objection: further Mason then testified without Dr. show
“Q. records official (By Ellis) Mr. do the What alcoholic show blood A. The results the test to result of be? per cent. to be 0.173 of the individual concentration “Q. under the person be proportion adult would of concen- intoxicating liquors alcoholic if the blood influence of my InA. as much as 0.100? tration the individual was opinion, any of 0.110 the blood individual with concentration under influence of alcohol. would be individuals; varies, course, some
“The effect of alcohol figure any indi- at a lower but would come under the influence per vidual would be one-tenth cent.
“Q. Yes, greater A. Is concentration than 0.100? 0.173 times as 1.73 much. “Q. Therefore, person would the with the concentra- blood * ** person
tion al- .173 is that under the influence of Yes, A. cohol? sir.” On cross-examination Dr. the ascarite Mason testified - weighed prepared originally
tube was when the instrument was Williams; laboratory, use Herbert that he was in the but seeing weigh did not recall “I him the tube. cannot see Williams weigh all of the individual tubes.” “weighed
He testified further Lewis the ascarite James the instrument was tube used and a distillation conducted premises after ingredients;” that he was on “I cannot particular readily analy- recall this test.” He that “the admitted correctly has sis conducted of course.” *5 At testimony appellant the conclusion Dr. Mason’s moved conclusions, to strike it “as based on he testified that because he did not see these two witnesses make the tests and therefore hearsay. opinion is based on we have Under Constitution * * * to be confronted their we have had witnesses opportunity no to cross-examine them.”
410 legal presented: question
There is one Dr. Mason’s Was testimony concerning Hospital the official records Parkland showing analysis the results of the of the test admissible as against objection hearsay? that it was
It
is true that
denied that he consented to the
taking
of the test but this
after the witness
was
objection
taken,
Huber had testified without
that it
and after
Dr.
hospital
Mason had testified from the
records as to the
analysis
objection
result of the
of the test with no
save that
stated;
question
is,
which raised the
testimony
Dr.
whether
Mason’s
hearsay.
question
of whether
consented became imma
terial
objection
after it was shown without
test was
Dominguez
made and showed
State,
intoxication.
v.
161 Texas
Rep. 124,
677;
State,
Cr.
275
2d
S.W.
Atkinson v.
157 Texas
Rep. 556,
the necessary conducting of Article 3737e V.C.S. was to make it un- every person the analysis part state call who had a making the record at the time the analysis State, Rep. 470, was made. Leonard v. 161 Texas Cr. 313; State, Rep. 228, 278 S.W. 2d Jackson v. 159 Texas Cr. 499; Bryan State, 2d Rep. 592, S.W. v. 157 Texas Cr. S.W. 2d 184. reject proof by
To the records evidence would defeat laboratory analysis, testimony, for as indicated in Dr. Mason’s expected part it could not be that each chemist who had a every weighed identify could remember tube he by number. testify weight
Had Wililams been called as to the prepared 5475, ascarite tube for test and had Lewis called been testify weight passed through as to its after had breath been ,as it, they only Mason; no doubt could testified Dr. have V.C.S., by what the records made at the Art. time showed. 3737e terms, proof entrant, its authorizes cus- qualified witness, though may todian or other “even not have personal knowledge as to the various items of such or contents records,” personal memorandum or “such lack of knowledge may credibility be shown affect of the memo- record, admissibility.” randum or but shall not affect its *6 from the aside ample evidence There was intoxication. prove appellant’s to beers, denied having three consumed
He admitted he was intoxicated. illegally possessing guilty to plead he had He admitted year probated sentence a five under was
marihuana offense. against the issue jury resolved facts stated Under the
him; question, the occasion on was intoxicated found that he conviction, and to sustain sufficient and we find the evidence error. no reversible judgment is affirmed. dissenting
DAVIDSON, Judge, 26, 1957, ap- January night of 10:15 o’clock on the thirty-one-year-old About speak or who could pellant, a Mexican English, collision in a motor vehicle understand was involved a street intersection. after concluded policeman
Dallas Huber another officer opinion appel- arriving in their at the scene of the collision that intoxicating liquor, arrested lant under the influence of was they driving. “saw he testified that as him for drunken Huber him,” trying put they over to could not understand what were to girl by the they city hall, Mexican where a took employed to act and who was contacted name of Gloria during interpreter questioning of the officers’ act Judging thereafter, appellant. happened reasonable from what they interpretation given meant when to be to what officers they trying understand “what were said that could not get agree put trying him to him” is that were over to presence verify and ascertain to take an intoximeter test to words, percentage the officers in his In other of alcohol blood. trying get appellant his constitutional were to waive against give waive himself and to confrontation not to evidence mind, Gloria, inter- against him. this in of witnesses preter, With ap- brought presence and the of the officers into explained effect, appel- testified, pellant. that Gloria Huber in- against the officers had an him and that lant the accusation toximeter, content of his blood alcoholic machine
might ascertained; explanation appellant and that her after the test. *7 hearsay, objected appellant
Because it all the fore- was to going Huber, urged interpreter’s testimony by tes- that the timony only best and of her statements would be the evidence (appellant) replies to him and of his thereto. objection
The was overruled. Although em- at the time of was still in the the trial Gloria ploy city Dallas, testify as a she did not witness.
Appellant’s objection
to Huber’s
was well taken
Spanish
and should
speak
have been sustained.
does not
One wh(>
testify
can
Spanish
not
ato
conversation
inter-
in
between an
preter
person.
and another
How was Huber to know what Gloria
Span-
said to or
(Huber)
told
if he
did not understand
then,
only
ish? So
Huber’s
information
the matters
about
which he testified was obtained
what
him—
from
Gloria told
which, upon
face,
hearsay.
following
its
are di-
The
cases
rectly
point:
State,
82,
in
Rep.
v.
Cervantes
Texas
105
52
Cr.
499;
State,
28,
230;
Boyd
Rep.
S.W.
v.
78 Texas
180
Cr.
S.W.
State,
615,
Turner
Rep.
v.
Texas
89
Cr.
Officer Heath testified that in his was at intoxicating that time under the influence liquor. State, a valid breath test? In Hill v. 158 Texas Cr. 313,
Rep. 93, 2d S.W. this court laid down three essentials the admission in evidence of an the result of test: proof first essential is that made that the chemicals compounded proper were percentage in use the ma- showing chine. There is line of evidence case compliance with this first essential. appellant. He gave that he the test Heath testified
Officer administering as follows: thereof described according It from a to the instructions. comes “I take it test is as- paper Once the carton we draw from the Crime Lab. blowing by him his breath me it is administered sembled reading a color is full I take this balloon. When balloon passes air over chemical.” up The witness further testified that he sealed the test and laboratory turned into the crime and that the number thereon was 5475. when, where,
The evidence does not show whom the test was so numbered. *8 proof compounded is Where the chemicals were the proper holding? percentage, required by
the the There above none. is
The operator second essential to is be shown that the of the machine, itself, machine and periodic super- the were under the understanding vision of theory one who had an of the scientific of the machine. Here is all the relative to that essential: Officer
Heath, gave test, who the experience testified that he “had administering training this test” and that he had “had in it.” testimony upon subject This wholly sole comply the fails to with the second essential.
The third proof by essential is that there must be a witness qualified reading to calculate and translate the of the machine percentage into the of alcohol in the blood eliminate who could hearsay evidence, before the result of the intoximeter test re- ceived in evidence.
This wholly essential element is support without in the testi- mony. requirements
The met, of the Hill case have not been apparent there was no effort to do so. law,
If the Hill my case is the the least could do brethren would thereby be to follow it and hold inadmissible the evidence by obtained the so-called test. holding directly contrary in this case is to the Hill case. permitted
Both should not be to stand. Remember, now, dealing we are with test #5475 Heath, gave the test, witness the who said he delivered laboratory. crime Day,
Officer laboratory having lieutenant control of the tory tests, found the instant test in the crime labora- day following taking
the night, previous thereof the he did brought not know who Day there. test then delivered Heath, who, signed the test to said, day, being for it. The next day taking test, again second Day after the found laboratory. Day He did not know returned it. then delivered the Hospital custody test to Parkland and into the of Dr. Mason.
Note is taken point complete fact that to this there is a break in continuity possession test, as is shown Day the fact that delivered the test to first Heath and then it person following returned day some unknown on laboratory supervised by Day. testify Heath did not what he did with the test Day after it to In far as delivered him. so concerned, having record is person possession the last its Heath, before explana- and he made no tion as to what he did with it.
The next that is seen of what so-called will now be called the wholly showing test —for it is by testimony unidentified con- *9 tinuity possession by appellant as the taken test —is officeof the Hospital. by witness Mason at Parkland It is this wit- ness proved that the state an result of intoximeter.
Notwithstanding admittedly the fact that the witness Mason personal knowledge having had no test breath so-called by appellant, hesitancy been taken in the witness had no testifying that he was “familiar with the intoximeter defendant, 5475,” to him Number which was delivered Hospital office in After Parkland Memorial sealed case. referring to what he Parkland called “the official records of Hospital,” the witness testified that: slip following
“The that information sealed the case had the it, Trujillo, Heath, on Cole, seconds; D. ‘Jose 3314 E. D. R. Huber, 12-6-57, Harwood, in- p.m., Springs and 11:00 Cedar ” vestigation DWI.’ appellant’s name has this the first time noted that It will be nothing any test and that there is appeared upon so-called breath was numbered 5475. the test referred to to show that above testify permitted from his Mason then The witness analysis records that what he called “the mechanical by and Herbert test” was made “James Lewis Williams” weighing persons “performed actual of the ascarite that those he, magnesium percholate and the used” tube tube Mason, “made the final calculations.” Herbert
Attention is called to the fact that James Lewis and Williams, though witnesses, shown to as did not be available testify. sought predicate
It was state to have testify witness Mason as to what the test showed.
Appellant’s objection hearsay would be and a violation of his to be confronted the witnesses and that it opinion called for an and conclusion of the Mason witness was overruled. only subject
Such objection was not hearsay but it was in direct violation of the third essential as pointed case, supra. out in the Hill
The witness testified:
“The results show the blood alcoholic concentration of the individual per to be 0.173 cent.” Following above, the witness Mason then testified that an “
individual with such blood concentration was ‘under the influ- ence expression of alcohol’ he meant: ”— present “That alcohol body the fluids of the has affected the function of the way brain in such a the facilities such judgment, perception, coordination, time, reaction have be- impaired, compared come to what were in the individual’s normal state body.” when there was no in his alcohol *10 replied affirmatively witness question: “With this .173 in his blood would hé have lost the normal use of physical and mental faculties?” Mason, by
At the of the witness conclusion objection appellant again to such motion strike renewed his to being merely This own conclusions. witness’s motion was refused.
Testifying witness, as a His denied his intoxication. version of the intoximeter test as follows: * * *
(“Q. girl say you did the to before named Gloria What you girl why they test?) took had A. I to find out asked the brought there; go Then me in I was wanted home. scared and give girl they going upstairs that to take told me were me they a test me because I drunk. believed was girl you says, “Then the look like are drunk.” ‘You don’t “After did upstairs I me how I came down from she asked * * * come out . test?) (“Q. you agree you Did ask to a Gloria would if No, A. sir. (“Q. might you any you take Did ever that test Gloria tell against No, sir, could be she told me you?) used for or A. all going give test. they upstairs me a were to take me (“Q. interpret policemen?) Did A. Gloria ever for Yes. (“Q. interpreter questions you as be- ask an she you test?) any questions.
fore took A. did not ask She me just brought why they She asked me me in there. had
(“Q. you question, interpreting Did she ever ask policeman, you test?) if would All she told consent to the A. give they upstairs going me was that were me a to take me test; go. going passed they me if I the test were to let
(“Q. collision, you Were intoxicated at the time No, A. Jose? sir. ;!? ifc
i'.i (“Q. you your said that told Earlier examination Gloria go.) you they you you passed let if would go. me A. me if I was not drunk would let She told *11 suggestions?) was (“Q. agreeable A. I heWas with her agreeable. They test?) A.
(“Q. the consented at that time to take You they were my they just said permission; did ask me going give to me a test.
(“Q. Yes, they you balloon?) sir. A. Did hand (“Q. purpose girl explained balloon Had the the Yes, test?) intoximeter A. sir. (“Q. balloon?) Yes, You did A. sir. blow (Q. police you They Did the it? A. made force to blow in thing me blow in the three times.
(“Q. get you you any to physical Did use on to force up No, balloon?) blow A. sir. testimony part
The un- above on the stands disputed Moreover, in this record. Huber testified the witness when, get you same fact question: answer “Did to Trujillo (say) something agree to would this test?” he to replied, he “No.”
If it be conceded that the breath test which the witness Mason testimony testified and he based his was appellant, undisputed then the evidence shows that psychological intoximeter test was as a result obtained coer- given cion and mental force that it was con- without free appellant. sent of the Indeed, strongly facts was show the intoximeter test obtained representations as a result promises of false as to the effect of the test and as to what would done and ad- vantages appellant would receive if the test was taken.
When testified that did not consent take test —and undisputed is not denied and stands this record —the thereby intoximeter rendered inadmis- sible, say nothing of the further fact that there is no refuting appellant’s testimony as what said or done in order to obtain the intoximeter test. hearsay testimony of the officers as to what said not and could test was
done the time the proves Hearsay testimony any probative not have value. no fact. *12 appellant did is not —that conceded—which it
But if it were agree agreement not con- test, did such to take the intoximeter analysis object proof the of of stitute waiver his agreed the that one that thereof. No contends him, against is might as analysis used in evidence of test required in the of confessions. case and under arrest
It that must be remembered arresting test was custody the intoximeter in officers when of given. testimony necessity, therefore, any thus comes Of long of authorities which within of that line the condemnation arrest inadmis that oral made while under are holds statements Jur., 72, 142, collated p. 18 Texas and authorities sible. Sec. Law, Digest. Indeed, 519(3), in Black Sec. Criminal 11 Texas 105, 111, State, Rep. speci 2d shear v. 123 Texas Cr. 58 S.W. handwriting custody without men of the of the accused while State, Also, statutory warning held in Brent v. inadmissible. 845, proof Rep. 544, that of 89 232 it was held Texas Cr. S.W. accused while not under arrest was the acts and conduct of Why, then, not impeachment purposes. would even for admissible come within specimen of under such circumstances the breath asking question the rule? The of answers it. of the intoximeter test and the thereof was
Proof under the authorities the reason inadmissible cited and stated. just pointed
But not do the error out is the sole error. How testimony, know, any we or this is where in record there analyzed appellant? the test was that taken There is any a line of witness such fact. from that evidences although testified, personal Mason he admitted he had no knowl- edge thereof, that had some- James Lewis and Herbert Williams thing upon report to with the their do test and based face, was, upon its course Mason’s calculations. Of hearsay testimony. this rankest sort of But insofar as case Though appears to make difference. avail- concerned no testify witnesses, as were not called to able Lewis and Williams got they they as it or to the test examined or as to where name, describe, identify they it to them. delivered Nor the test examined.
419 placed appellant’s name What became Who #5475? on the test that left was claimed to been examined? have Who report upon in Mason’s officethe his calculations? which he made secret, questions deep The insofar answer to those remains a dark as the evidence in this case is concerned.
My say hearsay testimony brethren all as test, its examination, analysis, opinon and of the witness provisions Mason based thereon are admissible under the 3737e, supporting Arts. 3731a that con- Vernon’s R.C.S. As 228, clusion State, Rep. cases Jackson v. 159 Texas Cr. 499, 470, State, Rep. S.W. 2d and Leonard 161 Texas Cr. v. 313, majority 2d S.W. are relied in the cited opinion. holding cases, as Jackson and Leonard well application 3737e, (3731a supra), of the two statutes *13 repudiated was Rep. 122, by State, this court in Estes v. 162 Texas Cr. 52, copies
283 S.W. 2d wherein we held certified that report of Department specimen of examination made blood Safety, department,
of Public a record of that not It was admissible. therein said: parties signed “None of the whose names in- were to these appeared
struments as witnesses.” The objection exhibits were they admitted over the were hearsay self-serving, they appellant’s denied constitu- right being tional of confronted with the witnesses who were going testify against him, to they deprived and that him of the opportunity signed to cross-examine the witnesses who the in- struments. copies,
If the there, certified admissible, were not much how more so would an report instrument or that is not shown to have ever upon given been based a test to not the accused be admis- sible !
It must be report remembered that the witness Mason upon had before him and that which his he based never appel- shown to have been made from a test to showing lant. There is an utter lack of identification or evidence that test #5475, which the state’s witnesses said was made by appellant, by anyone. was ever examined change, upon alter,
The two statutes relied do amend 420 State, 163 admitting v. against hearsay Rice evidence.
the rule State, Texas 114; 367, Fite Rep. 2d v. Texas Cr. S.W. Riviere, al, 198; 248 S.W. 611, Smith, et v. Rep. 2d Cr. 259 S.W. 2d 526. R.C.S., 3737e, conviction authorize one’s
If Arts. 3731a exem hearsay testimony as shown and imprisonment upon and plified case, statutes are void then those the record in this right of they the constitutional violate unenforceable because — against him by the witnesses an accused to be confronted right cross-examination it the further carries with 10, Texas). 1, (Art. Const. Sec. appellant and to happening hapened to has is, affirming this conviction this state in
the established law of mind, my appalling. to can not Here, thirty-one-year-old Mexican laborer is a being speak English language intoxicated. intoxicated, is arrested n arresting opinion that he is officers are unwilling appear rest unexplained to reason be for some upon they con- opinion. question So intoxication getting appellant an test. take intoximeter the idea of
ceive A Why to take an test? want they had applied is that some doubt reasonable construction ques- opinion or some their entertained as to the correctness of unsupported might jury their convict tion as whether opinion. is carried to the circumstances these Under charge having of the intoximeter. officer *14 desig- appellant’s filled breath was
The rubber balloon with person last to of that test? The as became nated #5475. any Day, was left it connection therewith Policeman have Hospital. Mason at Parkland in the office of Morton F. wholly presumption, says, by The state surmise and test, bearing was the the name of test and same became #5475 analyzed appellant, and and from the which Lewis Williams analysis time the the Mason testified that the which witness state, taking it, by person as the the contended was made physical normal use of his was so drunk that he had “lost the and mental facilities.” right if the Mason was his Now witness —and appellant did have contends that he was—then not state doing mentality he was when he took to know what
sufficient right guaranteed by test, let to a alone waive valuable — consenting by thereto. Constitution — place By set Where does that the state? one of witnesses doing he appellant state he was when shows knew what rights he took the intoximeter test and was aware of the waiving renouncing .consenting and to take By says appel- test. another that at that time witness state possessed mentality. lant had lost was not normal is position It difficult more in- to see how the state’s could be mentality agree appellant consistent. If to had sufficient take test, the intoximeter he was not as drunk the witness Mason as appellant said he was. If as witness he drunk said was, agree mentality then he did not have sufficient to take rights. the test or to waive his should constitutional The state cold; ought required not both blow hot and to be to stand upon one or the other of the situations. test,
This entire record evidences that the intoximeter-breath undisputed obtained as case, shown facts in this is not determining reliable ascertaining medium percentage person’s system. in a of alcohol
Here is what the test does and what use is made thereof in this case:
Appellant blows his breath into rubber balloon and some days two or three thereafter two men make upon an person third makes some calculations and those calculations testifies that at the time his blew breath into point the balloon he was intoxicated to the that he have the use of testimony physical his normal and mental faculties. That
comes from a witness who never saw the nothing physical knew make-up tesimony or condition. The testifying through him, is witness but the intoximeter the constitutional of confrontation denied. living state had the witnesses who were position testify, testify, appellant’s and did as intoxi-
cation. The rely upon state did not have to the intoximeter test. *15 Notwithstanding flagrant open this violation of the rights appellant, of the process, which was a denial to him of due majority opinion the justify to seeks it not because it is lawful constantly upon his keep appellant’s did not counsel
but because testimony. disregard moving the objecting to feet that was did all out, appellant’s pointed counsel As I have register did move objection and he required him. He disregarded. damaging testimony the to have objec- single appellant’s made But whether or not counsel stand, ought to not throughout case, this this conviction tion face, that funda- record, upon reflects a denial of the its because concept very justice. necessary to mental fairness the majority opinion permit I can not statements certain go to unnoticed: opinion says: majority
The appellant consented that he “It is true that denied given taking testimony after the witness was taken, and objection that it was testified Huber had without hospital to as records the after Dr. Mason had testified from objection save the result the of the test with no is, stated; Mason’s Dr. question whether which raised testimony hearsay.” was given meaning interpretation is the register an ob-
language? that, appellant It did not because intoxi- testimony that jection either to the witness Huber’s showing testimony Mason taken of Dr. meter test was or to the (appel- test, hearsay, his except that the result of the lant’s) taking of the testimony did not consent to that he admissibility unavailing did not affect test was therefore testimony by the test. obtained test, of Dr. as as that relative well All the thereof, in evidence as was introduced Mason result presentation by of its chief. the state case testify, opportunity to as As soon the test. that he consented to take he did so and denied now, Remember, appellant’s to that fact undisputed in this record. stands interpre- speak Spanish. policemen could
The two position to know whether ter knew and was in *16 test, though available, not called as consented to take the was a witness the state. fact,
Notwithstanding majority my say in such brethren opinion that: question
“The im- whether consented became objection material after it was shown that the test without made and showed intoxication.” testified, appellant
Until Dr. Mason was not harmed in- jured by showing analysis the evidence test and the thereof. testimony It was the and his judicial Dr. Mason as to what the test showed opinion pre- based thereon that were both harmful and appellant. to the appellant objected testimony, challenged
When to that he validity the requisites of the test both as to consent it to take and the taking analysis valid test and its and to Dr. Mason’s based thereon. my say
Yet question taking brethren of consent to the objection test became immaterial because no was raised prior showing of Dr. Mason intoxication. opinion upon
But the subject admissibility of Dr. hearsay opinion Mason’s stop declaration and does not there. holding Here is my the additional brethren: appears hospital “It admissible, records were very purpose of Article 3737e was to make it V.C.S. unnecessary that the every person call part State who had a conducting analysis making record the time the analysis made. reject “To proof by records as evidence would defeat laboratory analysis, for as indicated in Dr. Mason’s testimony, expected it could not part that each chemist had a every weighed could identify remember tube by number.”
I guar- have heard it advocated that the Constitution its yield expediency antees should to the doctrine of and that when expediency there is a recognized, conflict the rule of should be but this is the first I judicial time have seen that doctrine that, exactly my brethren my opinion, what sanction —for doing. are here *17 that greater than guarantee in our Constitution
There is con- person “shall be says every that accused of crime which right against of confronta- by That fronted the witnesses him.” con- right and also tion carries with it the of cross-examination any unworthy fact. hearsay to establish evidence as demns longer it is guarantee control if no can that exist and How part every person had necessary “that the state call conducting making the time the record at majority opinion holds. exactly Yet is what made?” that say reject the my go further, they that “to But brethren when laboratory analysis.” by proof records evidence would defeat yield in order They say guarantee must of confrontation right might to take his preserved to the state the that liberty there analysis,” in “proof by laboratory by from an accused guarantee of the Constitution. violation “proof by laboratory nothing wrong the idea of There is with proof only conducted in analysis,” is authorized when such paramount rules, one which prescribed of with accordance guess speculation and that there work is that must be no the ac- carefully guarded as that of and identified test must be cused. by preserving “proof labo- If there is to be a choice between guar-
ratory analysis” constitutional and the destruction of the confrontation, guarantee so and its antee of the Constitution —in preserved. inviolate and be far as I am remain concerned —must opinion says: Finally, majority weight testify as to the called to “Had been Williams 5475, called had Lewis prepared for test been ascarite tube through weight passed had testify after been to it, they as to its breath Mason; only as Dr. have testified no could doubt at the time showed.” records made what the thing my astounding breth- about that statement on the failure of the absence ren now hold justified testify certain facts is to call witnesses to the state only testified “no doubt could have witnesses absent because Mason; made at the time showed.” the records Dr. what as did knowledge taking my judicial the witnesses Are brethren ap- testify only Mason? It could as did Dr. Lewis Williams only say and hitherto-unheard- pears so. I that such is new can proposition, me. right, thirty-one-year-old Mexican had the This unfortunate state, guarantees protection all the as a this citizen of provided by be tried and He had the our Constitution. only guarantees and with the convicted in accordance with those of this laws state. compel people system government, police can our
Under through furnish the are sent to to prison. evidence record, has Under been convicted viola- that rule. tion of *18 respectfully
I dissent. Bryant Bowles,
Ex Parte W. Jr. 30,022. 25,
No. June 1958. attorney No for relator appeal. of record on Douglas, Attorney, Austin, Leon State’s for the state. Judge.
DAVIDSON, appeal refusing is an appellant bail, This from an order after indictment for murder. applicant developed Both the state and the the facts more cases,
fully usually application-for-bail than is done in notes I refer A. Yes. “MR. ELLIS: your kept under care “Q. Ellis) (By Those were Mr. Yes, records of Parkland the official supervision? A. are following informa- case had the Hospital. slip that sealed the Heath, seconds; Cole, D. it, E. Trujillo, 3314 tion on ‘Jose Harwood, Springs and Huber, 12-6-57, 11:00 P.M. Cedar D.R. investigation DWI.’ mechanical an- “Q. your made the reflect who Does record Louis and Herbert alysis test? A. James Williams. They per- they perform? “Q. A. part the test did mag- weighing tube and of the ascarite actual formed the * ** myself pre- I percholate used the calculation tube nesium pared.