Trammell v. State

287 S.W.2d 487, 162 Tex. Crim. 543, 1956 Tex. Crim. App. LEXIS 1285

• Court: Court of Criminal Appeals of Texas
• Decided: February 1, 1956
• Docket: 27864
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is driving while intoxicated; the punishment, ten days in jail and a fine of $200.00.

Officer Curtis testified that he investigated a collision and sent the appellant to the hospital in an ambulance, that he proceeded to the hospital and there saw a doctor take a sample of blood from the appellant’s arm. When the state called Dr. Mason, the toxicologist, the appellant objected to his testimony as to the results of the blood test on the ground that the state had failed to prove that the sample of blood was taken with the appellant’s consent. The objection was overruled, and we have concluded that the trial court erred in so ruling. The appellant testified that he was unconscious when he arrived at the hospital, and there is nothing in the record to refute such testimony.

In Brown v. State, 156 Tex. Cr. Rep. 144, 240 S. W. 2d 310, we said:

“When so taken by competent and trained nurses, doctors or laboratory technicians with the consent of one whose state of sobriety is questioned, the results of the test thereof may be shown by the state or by the accused. Consent being shown, the provisions of the 5th Amendment to the Constitution of the United States and Art. I, Sec. 10 of the Constitution of Texas, Vernon’s Ann. St. Const., providing that no person shall be compelled to give evidence against himself, are not violated in the taking of blood for analysis, and the proof of the result of the test.”

The state having failed to show that the specimen was taken with "the consent of the appellant, the testimony of Dr. Mason was not admissible.

The judgment is reversed and the cause remanded.