Gilder v. State

474 S.W.2d 723, 1972 Tex. Crim. App. LEXIS 2259

• Court: Court of Criminal Appeals of Texas
• Decided: January 11, 1972
• Docket: 44342
• Status: Published

Opinions

OPINION

ODOM, Judge.

The 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.

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

During 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.”

An 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.

In 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.

This 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.”

We conclude the evidence was insufficient to support the verdict.

Also, 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%.”

The 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.”

Since 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

For the reasons stated, the judgment is reversed and the cause remanded.

1 . Chapter 709, Acts of the 62nd Legislature, R.S.1971, amending Sections 2 and 3, Chapter 434, Acts of the 61st Legislature, R.S., 1969 (Art. 802f, Vernon’s Ann.P.C.) providing that “ . evidence of the amount of alcohol in the person’s blood at the time of the act alleged as shown by chemical analysis of his blood, breath, urine, or any other bodily substance, shall be admissible and if there was at that time 0.10 percent or more by weight of alcohol in a person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor.” became effective June 7, 1971, and is not applicable to this case which was tried on September 16, 1970.