Kelley v. State

¶1(dissenting).

¶2I dissent to the majority’s disposition of this appeal and would affirm the order of the trial court.

¶3Section 42.08, V.T.C.A., Penal Code, provides in part:

“An individual commits an offense if he appears in a public place under the influence of alcohol or any other substance, to the degree that he may endanger himself or another.”

¶4The majority hold that circumstantial evidence is insufficient to support a finding that one is “under the influence of alcohol,” and reverse because the officer did not use the magic words, that in his opinion appellant was under the influence of alcohol. I am convinced that the condition of being “under the influence of alcohol” may be established by circumstantial evidence1 and that it was so established in this case. The State’s witness testified that he and another officer found appellant and another person asleep in an automobile parked in the center of a roadway in Brownwood at one o’clock in the morning. The witness described the following course of events:

“Q. Describe the manner in which you got him out of this automobile.

“A. Oh, when we first arrived at the scene we parked behind the Defendant’s car, and got out and walked up to the car, and tapped on the window, banged on the roof, got no response from either subject. So my partner, Shields, opened the driver’s door, and when he did, well, Kelley started falling out, Shields had to catch him to keep him from hitting the ground. We finally got him out of the car and put him up beside the car.

*556“Q. Did you see any alcoholic beverage containers?

“A. Yes, sir.

“Q. Where were they?

“A. There was one between Kelley’s legs, and then the other passenger had a mug, a glass between his legs.

“Q. Were those the only alcoholic beverage containers that you saw?

“A. There was several more laying in the car.

“Q. Full or empty?

“A. Empty. I believe there was a couple of them that were full, also.

“Q. All right. Were there any other beer containers—

“A. That’s all I recall seeing is beer containers.

“Q. Okay. Would you describe the condition of this Defendant after, immediately after he was caught by Officer Shields?

“A. Well, he was groggy. Sid got him out of the car and stood him up by the side of the car there a few minutes. I began talking to him after he woke up completely, and noticed a strong smell of alcohol on his breath, his eyes were bloodshot, speech was slurred.

“Q. All right. Was he placed in custody?

“A. At that time he was placed in custody.

“Q. Did he walk from that point to the patrol automobile?

“A. Yes, sir.

“Q. Would you describe the manner in which he walked?

“A. Well, he was stumbling, staggering.”

¶5If it is ever possible to show by circumstantial evidence that an individual is under the influence of alcohol, such a showing was made in this case.

¶6I dissent to the reversal.

¶7DOUGLAS, J., not participating.