Apodaca v. State, 21105.
| Decision Date | 30 October 1940 |
| Docket Number | No. 21105.,21105. |
| Citation | 146 S.W.2d 381 |
| Parties | APODACA v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, El Paso County; W. D. Howe, Judge.
Daniel O. Apodaca was convicted of murder without malice, and he appeals.
Reversed and remanded.
W. Joe Bryan, of El Paso, for appellant.
Roy D. Jackson, Dist. Atty., and Harold S. Long, Asst. Dist. Atty., both of El Paso, and Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is murder without malice; the punishment, confinement in the penitentiary for three years.
It was charged in the indictment, in substance, that appellant, while intoxicated, and while operating his automobile on a public highway, through accident and mistake, killed Hector Sandoval, by driving his said automobile against the body of the said Hector Sandoval, etc.
The testimony of the state was to the effect that appellant was intoxicated when he struck deceased with his automobile. The accident occurred late in the evening. Appellant testified that he had not been drinking since early morning, at which time he drank a small quantity of beer. He denied that he was intoxicated, and introduced witnesses who testified to the effect that he was not under the influence of intoxicating liquor at the time of the accident.
After appellant had been arrested and taken to jail he was required by the officers to submit to certain tests for the purpose of enabling them to determine whether he was intoxicated. According to the testimony of one of the officers, appellant was questioned and his answers reduced to writing. He was also required to walk and make sudden turns. Again, he was required to hold out his hand and make an effort to place a finger on his nose. This he was unable to do. Again, he was required to furnish a specimen of urine, in order that it might be analyzed for the purpose of determining whether alcohol was present. A chemist testified that an analysis of the urine disclosed the presence of alcohol. The officer reached the conclusion from the "intoxication tests" we have described that appellant was under the influence of intoxicating liquor.
Over appellant's proper objection that he had been required to give evidence against himself in violation of Article 1, Sec. 10 of the Constitution of Texas, Vernon's Ann.St., one of the officers was permitted to describe the tests to which we have referred and to express the opinion, in effect, that appellant was intoxicated. For example, the officer testified that appellant was unable to make a sudden turn after walking as directed by the officers, and, further, that his answers to the questions propounded to him by the officers showed that he was intoxicated. Again, the witness testified that appellant was unable to place his finger on his nose. We think appellant's objection to the testimony should have been sustained. In the Bill of Rights (Article 1, Sec. 10, Constitution of Texas,) it is declared that one accused of crime shall not be compelled to give evidence against himself. Demonstration by an act "which tends to self-incrimination is as obnoxious to the immunity guaranteed by the Constitution as one by words." See Ruling Case Law, Vol. 28, page 434, Sec. 20; Wharton's Crim. Ev., 10th Ed., Vol. 1, Page 617, Sec. 315.
We think the record clearly presents the legal question involved. Stated in another way, we are of opinion that it is reflected that appellant was compelled to give evidence against himself. In bill of exception No. 2 it is recited that appellant was "required to answer questions." We quote from appellant's testimony as follows: ...
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Olson v. State
...Tex.Cr.R. 272, 162 S.W.2d 706 (Tex.Cr.App.1942) (speaking certain words for identification under compulsion); Apodaca v. State, 140 Tex.Cr.R. 593, 146 S.W.2d 381 (Tex.Cr.App.1941) (urine sample, demonstrative acts); Meredith v. State, 73 Tex.Cr.R. 147, 164 S.W. 1019 (Tex.Cr.App.1914) (writt......
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Alexander v. State
...evidence of defendant's intoxication where such tests were given over objection of accused.' Cited was the case of Apodaca v. State [1941], 140 Tex.Cr.R. 593, 146 S.W.2d 381.' We did not find that defendant was tricked into submitting to the intoximeter test, but in effect found that the te......
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Thomas v. State
...Amendment. Cardwell, supra, only involved state confession statutes. 13 Specifically overruled were Apodaca v. State, 140 Tex.Cr.R. 593, 146 S.W.2d 381 (Tex.Cr.App.1941) (collection of urine specimen over defendant's objection violates Article I, 10, supra), Beachem v. State, 144 Tex.Cr.R. ......
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American Fork City v. Crosgrove, 19174
...regarding self-incrimination. See, e.g., Lorenz v. State, Okla.Crim.App., 406 P.2d 278 (1965); Apodaca v. State, 140 Tex.Cr.R. 593, 146 S.W.2d 381 (1940). Significantly, those decisions have been overruled. See State v. Thomason, Okla.Crim.App., 538 P.2d 1080 (1975); Olson v. State, Tex.Cri......