Aliff v. State

627 S.W.2d 166, 1982 Tex. Crim. App. LEXIS 824

• Court: Court of Criminal Appeals of Texas
• Decided: February 3, 1982
• Docket: 60578
• Status: Published

Opinions

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of involuntary manslaughter. The punishment is imprisonment for five years.

The appellant presents seven grounds of error; he contends: results of a blood sample were improperly admitted because the sample was obtained in an unlawful search and seizure; appellant’s cross-examination of a state witness was unduly limited; results of an out-of-court experiment were improperly admitted; there was a fatal variance between the allegations in the indictment and the proof presented at trial; appellant’s requested jury charge on a lesser included offense was erroneously denied; the prosecution incorrectly implied that the appellant had been in prior trouble with the law; the prosecutor engaged in improper jury argument during the punishment stage of the trial.

The appellant contends that the taking of a sample of blood from his body was an unlawful search and seizure under the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution. Additionally the appellant asserts that the sample was obtained in violation of Article 67011-5, V.A.C.S.

The evidence reveals that the appellant was traveling along a highway driving in an erratic manner at high speeds. Officer Sellers of the Department of Public Safety observed the appellant’s erratic driving and saw him drive on the shoulder of the road and pass another car on the righthand side; the officer pursued the appellant at speeds in excess of 100 miles per hour. The appellant failed to stop for a red light and collided with another vehicle. The driver of the other vehicle died a few hours later. The appellant was also severely injured and was transported to a nearby hospital. The supervising officer, after being informed of the circumstances surrounding the collision, requested that a blood sample be taken from the appellant. The appellant was semi-conscious at the time and did not give his consent to the taking. Testing revealed that the appellant’s blood contained 0.14 per cent alcohol by weight. This evidence was admitted at trial.

The appellant first argues that the taking of his blood sample was in violation of Article 6701/-5, supra, formerly Article 802f, V.A.P.C. The article states in part:

“Section 1. . . . Any person arrested may consent to the taking of any other type of chemical test, or tests, to determine alcoholic content of his blood, but he shall not be deemed, solely on the basis of his operation of a motor vehicle upon the public highways of this state, to have given consent to any type of chemical test other than a chemical test, or tests of his breath.”

While consent to obtain a blood sample is not constitutionally required when an accused is under arrest, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) the statute has enlarged upon what is constitutionally required. The statute requires that consent be obtained from those individuals under arrest. However the statute has been construed to apply only to those persons under arrest, it does not apply to persons not under arrest. Darland v. State, 582 S.W.2d 452 (Tex.Cr.App.1979); Bennett v. State, 522 S.W.2d 507 (Tex.Cr.App.1975). In the case at bar the appellant was not under arrest when the blood sample was taken. Therefore, Article 67017 — 5 has no application to the present case and appellant’s contention is without merit. Darland v. State, supra; Bennett v. State, supra.

The appellant contends that the taking of the blood was an unlawful search and seizure under both the Texas and United States Constitutions. The withdrawal of blood from a person is a search. The Supreme Court in Schmerber v. California, supra, stated:

“But if the compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment ... It could not reasonably be argued . . . that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of ‘persons,’ and depend anteced-ently upon seizures of ‘persons,’ within the meaning of that Amendment.”

Additionally, the taking of a blood sample is a search and seizure under the Texas Constitution. Ferguson v. State, 573 S.W.2d 516 (Tex.Cr.App.1978), cert. denied 442 U.S. 934, 99 S.Ct. 2870, 61 L.Ed.2d 304 (1979); Smith v. State, 557 S.W.2d 299 (Tex.Cr.App.1977); Escamilla v. State, 556 S.W.2d 796 (Tex.Cr.App.1977).

While the taking of a blood sample is a search and seizure, as was noted above, not every warrantless search is constitutionally impermissible. In Schmerber the defendant was convicted of the offense of driving an automobile under the influence of an intoxicating liquor. At the direction of a police officer a blood sample was obtained over the defendant’s objections. The Supreme Court concluded the search was not unlawful. The Court noted that the percentage of alcohol in the blood diminishes as soon as a person stops drinking and the evidence could not be secured if an officer had to wait until a search warrant was obtained. Thus the Court stated that since the defendant was under arrest when the sample was taken and because of the already ongoing destruction of evidence, the warrantless search was “an appropriate incident to petitioner’s arrest.”

However in the present case the facts do not squarely fall within the holding of Schmerber. Here the appellant was unconscious and not under arrest when the blood sample was taken. The Court in Schmerber reached its conclusion only on the facts of that record and the Court added:

“That we today hold that the Constitution does not forbid the State’s minor intrusions in an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.”

However, we find it unnecessary to determine whether the holding of Schmerber extends to the facts of the present case.

In the case at bar we find that the reasoning and holding of Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) control. In that case the defendant was not under arrest when police officers obtained a scraping from his fingernails. The police at the time had probable cause to arrest the defendant but had not done so. The police believed that the defendant was involved in the strangulation murder of his wife. The officers observed a dark spot on one of the defendant’s fingers and were aware that in strangulation offenses residue is often left on the offender’s fingernails. The police asked if they could get a scraping and the defendant refused and started rubbing his hands together. The police nonetheless obtained the scraping and it was used in evidence against the defendant at his trial.

The Supreme Court determined that the obtaining of the fingernail scraping was a search but that it was lawful. The Court concluded that because of the existence of probable cause to arrest, the very limited nature of the intrusion upon the defendant, and the readily destructibility of the evidence there was no violation of the Fourth Amendment.

Similarly the warrantless taking of a blood sample despite the lack of an arrest does not violate the Fourth Amendment. First, as with the scraping of a fingernail, the taking of a blood sample is very unintrusive. Indeed the taking of blood is “routine in our everyday life.” Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957). Second, alcohol in blood is quickly consumed and the evidence would be lost forever. Finally, even though the appellant was not under arrest and the officers were still investigating there was probable cause to arrest the appellant for involuntary manslaughter. Therefore we conclude that the exigencies of the situation in Cupp v, Murphy, supra, which justified the warrantless search also existed in the present case. Several other jurisdictions have reached similar results. Minnesota v. Oevering, 268 N.W.2d 68 (1978); DeVaney v. Indiana, 259 Ind. 483, 288 N.E.2d 732 (1972); Van Order v. Wyoming, 600 P.2d 1056 (Wyo.1979); Oregon v. Heintz, 286 Or. 239, 594 P.2d 385 (1979); Montana v. Campbell, 615 P.2d 190 (Mont.1980). See Annot. 72 A.L.R.3rd 325 (1976). Therefore we conclude that the taking of the blood sample was not an unreasonable search and seizure.

The appellant in his brief relies upon our holdings in Ferguson v. State, supra; Smith v. State, supra; Escamilla v. State, supra. In each of those cases we noted that under the Texas Constitution that the taking of blood was a search and seizure. However those decisions should not be construed as enlarging the scope of the Article I, Section 9 of the Texas Constitution beyond the scope of the Fourth Amendment. In each of those cases the obtaining of a blood sample without consent or warrant were held to be error. No exigencies existed as in Schmerber or Cupp v. Murphy, which justified the warrantless searches. The samples were taken to determine blood type, which would remain constant. Thus under either the Texas Constitution or the United States Constitution the searches would have been unlawful. In the present case the exigency of rapidly dissipating alcohol justified the search. The appellant’s ground of error is overruled.

The appellant next argues that his cross-examination of a state witness was improperly limited. Joe Hogan, a chemist, testified as the State’s expert on testing for and the effects of alcohol at various levels of the blood. The appellant sought to cross-examine a witness using a 1938 report by the Committee on Tests for Intoxication of the National Safety Council. The appellant’s counsel asked the chemist to base his answer on the report and to state what amount of alcohol in a person’s blood would make him intoxicated. The State’s objection was sustained.

Generally, a book, report, or other publication can be used during cross-examination of an expert witness to impeach or discredit him. The material would not be admissible as direct evidence since its admission would violate the hearsay rule; but it is admissible to show any deficiency in the knowledge of the expert and help the jury ascertain the weight to be given his testimony. See, Annot., 60 A.L. R.2d 77 (1958); VI Wigmore, Evidence, Sec. 1700 (Chadbourn rev. 1976). However, before the publication can be used in cross-examination the publication must be recognized as “authority” or “standard authority” in the particular field of expertise. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949); Webb v. Jorns, 530 S.W.2d 847 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n. r. e.) In the case at bar the appellant totally failed to establish that at the time of trial the 1938 report by the Committee on Tests for Intoxication of the National Safety Council was recognized as authority on the amount of alcohol in the blood necessary to intoxicate a person. Therefore, the trial court did not err in not allowing the appellant to use the report in cross-examining the witness.

The appellant asserts that the trial court erred in admitting evidence derived from experiments offered without showing that the experiments were conducted under conditions similar to the original act or event. A police officer testified that a week after the offense was committed he conducted an experiment with his automobile. The officer testified that he drove his automobile at 55 miles per hour and saw the signal turn green when it first came in sight after he drove out of a dip in the highway. He drove through the green and yellow cycle of the light and on seeing the red signal was able to make a gradual controlled stop approximately 450 feet before entering the intersection where the fatal collision occurred. The city traffic engineer later testified without objection that the timing sequence of the traffic signal had remained the same since the day of the collision.

The testimony concerning the cycling of the light was admissible; the evidence established that the sequence was the same at the time of the collision. As for the experiment, we stated in Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980) cert. denied 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980) the following:

“Generally, the results of out-of-court experiments are admissible in the discretion of the trial court if the experiment was made under similar conditions to the event to which the results of the experiment relate. The fact that the experiment was not made under exactly the same conditions goes to the weight and not admissibility of the evidence.”

The appellant’s trial objections were that a proper predicate had not been laid and that it was not shown that the traffic light was functioning in the same way it was on the date of the accident. The trial judge did not abuse his discretion in admitting this evidence in the circumstance presented.

The appellant contends that there was a fatal variance between the name of the deceased as alleged in the indictment and the name of the deceased proved by the evidence. The appellant argues that the middle name of the deceased was shown to be different than that alleged in the indictment. However, a middle name or initial may be disregarded; a variance between the allegation and the proof of the middle name or initial is neither material nor fatal. Martin v. State, 541 S.W.2d 605 (Tex.Cr.App.1976). The ground of error is overruled.

The appellant contends that it was error not to include in the charge to the jury instructions on the law of the lesser included offense of criminally negligent homicide. The appellant was convicted of the offense of involuntary manslaughter for which the required culpable mental state is recklessness. V.T.C.A. Penal Code, Section 19.05. There was an objection to the charge given because it did not include a charge on the offense of criminally negligent homicide for which the culpable mental state is criminal negligence. V.T.C.A. Penal Code, Section 19.07. Criminally negligent homicide is a lesser included offense of involuntary manslaughter since criminal negligence is a lesser culpable mental state than recklessness. Article 37.09(3), V.A.C. C.P.; V.T.C.A. Penal Code, Sections 6.02(d) and 6.03(c)(d); Moore v. State, 574 S.W.2d 122 (Tex.Cr.App.1978).

The difference between the two culpable mental states required to establish these offenses lies in whether the actor himself perceives the risk of harm his conduct creates.. Moore v. State, supra. This was explained in Lewis v. State, 529 S.W.2d 550 (Tex.Cr.App.1975):

“ ‘Reckless conduct as defined by V.T. C.A. Penal Code, Section 6.03(c) involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards that risk. Criminal negligence as defined by V.T.C.A. Penal Code, Section 6.03(d) involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conductor the result thereof. At the heart of reckless conduct is conscious disregard of the risk created by the actor’s conduct; the key to criminal negligence is found in the failure of the actor to perceive the risk.’ ”

The appellant offered no evidence; nevertheless, we must consider all of the evidence viewing it in the light most favorable to the appellant’s contention, Gavia v. State, 488 S.W.2d 420 (Tex.Cr.App.1972), that he was entitled to the charge on lesser included offense.

The evidence shows that the appellant was operating a motor vehicle on Highway 31 in an erratic manner at high rates of speed, at times estimated in excess of 100 miles per hour. It was also shown he passed a vehicle driven by Billy Ray House on the right shoulder of the highway. Subsequently, Highway Patrolman Sellers, who was then traveling in the opposite direction, noticed appellant’s vehicle because of the high rate of speed appellant’s vehicle was traveling. Sellers turned his vehicle around and proceeded to chase appellant’s vehicle, using a flashing red light, but no siren in an attempt to stop appellant. Sellers admitted that appellant might not have been aware that he was traveling behind him. Sellers kept appellant’s vehicle in his sight continuously for several miles except when appellant entered a dip in the highway, which was located approximately four-tenths of a mile from the fatal intersection. At that time, he lost sight of appellant’s vehicle for a few seconds. When he saw appellant’s vehicle, it was then colliding with another vehicle. It was also shown that appellant locked the brakes of his automobile causing a skid which started within the intersection and extended 38 feet to the estimated point of collision. The skid indicates that the automobile turned to the left. There is nothing in the evidence presented which indicates that the appellant was unaware of the risk his conduct created. On the other-hand, the evidence which has been summarized shows acts which reveal conscious risk creation — a conscious disregard for the risk involved in driving in the manner in which the appellant was driving. That the appellant’s senses may have been dulled by the use of alcohol would not reduce the culpability from recklessness to criminal negligence. Therefore there was no need to submit the charge on criminally negligent homicide; the trial court did not err in refusing to submit such a charge.

The appellant argues that the State made reference to a prior void conviction and implied that the appellant had been in trouble with the law. The appellant refers to one instance during the innocence-guilt phase, one instance during the punishment phase, and two instances during the closing argument in the punishment phase. The ground of error is multifarious and nothing is presented for review. Nonetheless we have reviewed the record and will discuss the appellant’s contentions.

During the guilt-innocence phase of the trial the State asked one of the investigating police officers of the collision who he had talked to. He responded, “I talked with Houston County Probation Officer.” The unresponsive remark was objected to and the jury was instructed to disregard the statement. The appellant’s rights were adequately protected by the instruction to disregard.

During the punishment phase the State presented the testimony of the County Clerk of Houston County. However, before he could testify about any particular records the appellant objected and no other testimony was presented. The appellant has failed to show any harm.

The appellant also complains that the State’s jury argument during the punishment phase made reference to the void prior conviction. However, the appellant only made general objections to the jury arguments; nothing is presented for review. The ground of error is overruled.

The appellant in his remaining ground of error contends that the State was permitted to improperly argue before the jury during the punishment phase of the trial. Appellant asserts that it was error for the State in its argument to attack the appellant’s failure to ask his witness about the appellant’s character and reputation. The appellant called several witnesses and asked if they thought the appellant could abide by the terms and conditions of probation. No questions concerning character or reputation were asked. The appellant’s reputation and character were both relevant to punishment and the failure to elicit such evidence was fair comment for the State. Article 37.07(3)(a), V.A.C.C.P.; O’Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979) cert. denied 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 846 (1980). The ground of error is overruled.

The judgment is affirmed.