Gilder v. State

¶1OPINION

¶2The appellant was convicted for the misdemeanor offense of driving a motor vehicle on a public highway while under the influence of intoxicating liquor; the punishment, 3 days in jail and a fine of $150.00.

¶3*724The sufficiency of the evidence is challenged. This ground of error is “. that there is no testimony from any witness that the defendant was intoxicated . . . ”

¶4During the direct examination of the arresting officer, after he had testified to the stopping of the car, he was asked: “From your memory, how would you describe the driver of the automobile?” He answered: “In my opinion, the driver (appellant) was very intoxicated.”

¶5An objection that the answer was not responsive was sustained. A request to strike that testimony was granted. Thereafter, no witness was interrogated concerning his opinion of the appellant’s condition as to intoxication or sobriety.

¶6In the absence of direct (opinion) testimony intoxication may be shown by circumstantial evidence. However, compare Thompson v. State, Tex.Cr.App., 365 S.W.2d 792; and Warren v. State, 131 Tex.Cr.R. 303, 98 S.W.2d 197.

¶7This court in Padillo v. State, 420 S.W.2d 712, reversed an order revoking probation where there was no opinion testimony that the defendant was drunk. In Padillo v. State, supra, at page 713, the court, speaking through the then Presiding Judge Woodley, stated:

“Neither of the patrolmen testified or expressed the opinion that appellant was drunk; intoxicated or under the influence of intoxicating liquor at the time they ‘handled’ him, and no evidence is found in the record (unless it be the length of their service as patrolmen, one 18 months and the other 20 months) as to their qualifications to form or express an opinion as to a person’s condition of sobriety.”

¶8We conclude the evidence was insufficient to support the verdict.

¶9Also, it is urged that the trial court erred in not striking the testimony offered by the state of the result of the “breathalyzer test” administered to appellant. The only testimony concerning the result of the test was as follows:

“Q. You recall the result of the test?

“A. Yes, sir, I do.

“Q. What was the result?

“A. .22 of 1%, 2¾00 of 1%.”

¶10The record reflects the following when the evidence was concluded at the guilt-innocence stage of the trial:

“MR. BASS: At this point, Your Honor, the defendant moves the Court to instruct the Jury not to consider for any purpose the breath test or any evidence pertaining thereto, for the reason that there is no testimony to show that the test indicates intoxication from any witness lipón the stand, and that as result thereof this evidence concerning the breath test and the results thereof should not be considered to determine the guilt or innocence of this defendant. •

“THE COURT: The motion is overruled.

“MR. BASS: Note the exception.”

¶11Since there was no expert testimony offered that the result of the test showed intoxication, the motion should have been granted and the evidence should have been excluded.1

¶12*725For the reasons stated, the judgment is reversed and the cause remanded.

¶14(concurring).

¶15I concur in the result of Judge Odom’s opinion reversing this conviction.

¶16This misdemeanor appeal has badly divided the court as to the sufficiency of the evidence to sustain the conviction. Much of the difficulty arises out of the manner in which the case was tried. Sgt. Cleckler, Texas Highway Patrol, was asked on direct examination: “From your memory how would you describe the driver of the automobile?” He answered: “In my opinion, the driver was very intoxicated.” The objection that such answer was not responsive was sustained and the testimony stricken by the court. The jury was instructed to disregard the answer. While the question could have been more artfully framed, the answer appears responsive. Such opinion testimony would have been tantamount to direct evidence of intoxication. Thompson v. State, Tex.Cr.App., 365 S.W.2d 792.1 Nevertheless, it was removed from the jury’s consideration and for reasons not apparent from this record the prosecutor never reframed his question or attempted to elicit opinion evidence from either Sgt. Cleckler or Officer Wyatt.

¶17Over objection that Sgt. Cleckler’s qualifications to administer the breathalyzer test were not properly established, Cleckler was permitted to testify he administered the test and the result showed “.22 of 1%, 2¾00 of 1%.” Neither he nor any other witness testified that the result of the test was such as to indicate or show intoxication according to any standard. On this basis the appellant moved the court to- strike such testimony as to the test. The court erroneously overruled the motion, leaving the evidence for the jury’s consideration. Although the evidence was entirely circumstantial, the court did not so charge the jury nor was such a charge requested.

¶18Judge Odom, relying upon Padillo v. State, Tex.Cr.App., 420 S.W.2d 712, found the evidence insufficient to sustain the conviction. His sincere concern about lowering previous standards for the trial of such cases is evident.

¶19The dissents characterize his opinion as holding that the offense of driving a motor vehicle upon a public highway while intoxicated cannot be proved by circumstantial evidence.

¶20Judge Dally, who prepared the original opinion in this case, found that the evidence was “certainly not overwhelming” but concluded that there was sufficient circumstantial evidence to support a jury finding of guilty, citing Minor v. State, 167 Tex.Cr.R. 344, 320 S.W.2d 347 (Tex.Cr.App.1959), in which there was direct evidence in the form of opinion testimony. See Thompson v. State, supra.

¶21Judge Douglas in his dissent adopts the Dally opinion but then states, “It is hard to conceive a fact situation where circumstantial evidence of intoxication is stronger.” However, in addition to the facts and circumstances surrounding appellant’s arrest, etc., Judge Douglas, citing federal cases, finds it necessary to rely upon the fact that the appellant, who pleaded not guilty and who took the stand and testified he was not the driver of the car, did not switch places and had only “two or three beers,” did not expressly while testifying deny every bit of incriminating evidence previously offered against him, i. e., erratic driving, etc. This circumstance, if permissible for consideration by Texas jurors, would not be available where an accused does not take the witness stand.

¶22While it is difficult to find a case where a conviction for driving while intoxicated *726has been upheld in absence of opinion testimony or the results of properly proven chemical tests for intoxication, I do not doubt that the elements of the offense may be proved by circumstantial evidence.

¶23In Warren v. State, 131 Tex.Cr.R. 303, 98 S.W.2d 197 (1936), where the defendant (a passenger in the car) was convicted as principal to murder (Article 802c, V.A.P.C.), this court, in reversing, said “No witness testified that Moore (the driver) was drunk at the time of the collision. That he was in an intoxicated condition was proved as a matter of inference from other facts in evidence. Upon another trial, if the testimony is the same, the court should submit an instruction embracing the law of circumstantial evidence.”

¶24Warren was cited with approval in Thompson v. State, 365 S.W.2d 792 (Tex.Cr.App.1962).

¶25In another Warren v. State, 367 S.W.2d 685 (Tex.Cr.App.1963), it was held that in absence of direct evidence that the defendant was the driver of the car in question he was entitled to an instruction on circumstantial evidence.

¶26For driving while intoxicated cases where it was held that under facts and circumstances presented no charge on circumstantial evidence was required, see Inness v. State, 106 Tex.Cr.R. 524, 293 S.W. 821; Garrison v. State, 134 Tex.Cr.R. 159, 114 S.W.2d 557; Kimbro v. State, 157 Tex.Cr.R. 438, 249 S.W.2d 919; Humphrey v. State, 159 Tex.Cr.R. 396, 264 S.W.2d 432; Smith v. State, 162 Tex.Cr.R. 237, 283 S.W.2d 936; Hayes v. State, 162 Tex.Cr.R. 660, 288 S.W.2d 771; Reneau v. State, 167 Tex.Cr.R. 531, 321 S.W.2d 886; Flack v. State, 169 Tex.Cr.R. 201, 332 S.W.2d 704; Clark v. State, 170 Tex.Cr.R. 456, 342 S.W.2d 332; Ratliff v. State, 171 Tex.Cr.R. 13, 343 S.W.2d 465; Bailey v. State, 171 Tex.Cr.R. 290, 349 S.W.2d 602; Johnson v. State, 172 Tex.Cr.R. 201, 355 S.W.2d 191; Maghe v. State, Tex.Cr.App., 377 S.W.2d 644.

¶27The alleged offense in the instant case occurred on March 29, 1969, and the trial commenced on September 9, 1970. Sgt. Cleckler was unable to identify the appellant. His description of acts indicating intoxication were attributed only to “the man” or “the driver.” When asked if the appellant was present in the courtroom Officer Wyatt stated “I assume he is” and “I believe this is Mr. Gilder here.” To whom he pointed is not reflected by the record. Only after being pressed by the prosecutor did he. indicate he was certain as to identification. Subsequently he acknowledged he had not talked to the appellant at the time of arrest but had talked to the passengers in the car but he could not remember who they were. He testified he observed a movement in the front seat and appellant was found in the front passenger’s seat when the officers approached the car in question. As earlier noted, there was no opinion testimony as to intoxication by either officer. Officer Cooley, who was also present at the time of arrest and who swore to the complaint upon which the instant information is based, was not called as a witness nor was an account made of his absence.

¶28While I share Judge Odom’s concern about the sufficiency of the circumstantial evidence, I do not necessarily rest my concurrence upon this basis nor upon the rule-discussed in 24 Tex.Jur.2d, Sec. 745, p. 427. There it is written:

“Where the circumstantial evidence relied upon by the prosecution is obviously weak, and where the record on appeal affirmatively shows not only that other testimony which would have cast additional light on the facts was available to the prosecution, but also that the prosecution did not introduce such other evidence or satisfactorily account for its failure to do so, the appellate court will treat the case as one showing reasonable doubt of the sufficiency of the evidence to support the conviction.” See also Ysasaga v. State, 444 S.W.2d 305 (Tex.Cr.App.1969); Hollingsworth v. State, 419 S.W.2d 854 (Tex.Cr.App.1967); King v. State, 396 S.W.2d 409 (Tex.Cr.*727App.1965); Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251 (1956).

¶29I do base my concurrence upon the trial court’s failure to strike the testimony concerning the breathalyzer test.

¶30At the time this State had no statutory standards providing the minimal percentage of blood alcohol necessary to establish a prima facie presumption of intoxication. See “Construction and Application of Statutes Creating Presumption or Other Inference of Intoxication from Specified Percentages of Alcohol Present in System,” 16 A.L.R.3d 748 (1967). It is to be weighed by the trier of fact and assigned the degree of credibility that the trier of fact desires. Halloway v. State, 146 Tex.Cr.R. 353, 175 S.W.2d 258 (1943); Miller v. State, 170 Tex.Cr.R. 406, 341 S.W.2d 440 (1960).

¶31“In absence of such a statute the prosecutor must insure that his expert testimony makes clear to the trier of the fact the psychophysical effects of alcohol on humans, the specific effects on the central nervous system of a given percentage of alcohol in the blood, and the precise effect that the accused’s blood alcohol level has upon the average person’s conduct.” Moses, Scientific Proof in Criminal Cases-A Texas Lawyer’s Guide (1969).

¶32In Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93 (1953) this court discussed the necessary predicate for the admissibility of an interpretation of the results of a breath test. It was held the State must show (1) the use of properly compounded chemicals; (2) the existence of periodic supervision over the machine and operation by one who understands the scientific theory of the machine; (3) proof of the result of the test by a witness or witnesses qualified to translate and interpret such result so as to eliminate hearsay.

¶33An officer may administer a breath test even though he is not otherwise qualified to interpret the results, Jackson v. State, 159 Tex.Cr.R. 228, 262 S.W.2d 499 (Tex.Cr.App.1953); Shawhan v. State, 393 S.W.2d 921 (Tex.Cr.App.1965), and the standards required to qualify one to administer the test are far less than those qualifying to interpret the results. Fluitt v. State, 169 Tex.Cr.R. 259, 333 S.W.2d 144 (1960). See now Article 802f, V.A.P.C., effective June 7, 1971.

¶34Sgt. Cleckler testified he “attended a week school on the breathalyzer operation” and was a qualified operator apparently with the Department of Public Safety, but whether the qualification was prior to the administering of the test in question is not revealed by this record. Over objection he was permitted to testify. When asked if the correct chemicals were used he stated, “To the best of my knowledge, this is the proper chemicals for the test”; that the chemicals came from a storage locker in Houston under the control of “the Lieutenant.” He testified the test was administered almost an hour after the arrest and then gave the results. As noted, no witness, qualified or otherwise, gave an interpretation of the results.

¶35The court denied the motion to strike such testimony and allowed the jury to consider the same in their assessment of the evidence in an otherwise highly circumstantial evidence case. In so doing, the court erred. For this reason I concur in the opinion reversing this cause.