Dominguez v. State, 27248

• Decision Date: 05 January 1955
• Docket Number: No. 27248,27248
• Citation: 161 Tex.Crim. 124,275 S.W.2d 677
• Parties: Joe Terrazas DOMINGUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 677

275 S.W.2d 677

161 Tex.Crim. 124

Joe Terrazas DOMINGUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 27248.

Court of Criminal Appeals of Texas.

Jan. 5, 1955.

Rehearing Denied Feb. 23, 1955.

Thomas G. Thigpin, Clifton Tupper, San Angelo, for appellant.

Wesley Dice, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is murder under Article 802c, Vernon's Ann.P.C.; the punishment, two and one-half years.

An automobile driven by the appellant collided with one driven by the deceased on the deceased's side of the road, which collision caused his death.

A specimen of appellant's blood was taken and sent to the chemical laboratory at the Department of Public Safety at Austin, where it was analyzed and was shown to contain 2.3 milligrams of alcohol per cubic centimeter.

Chastain, chemist and toxicologist for the Department, testified that such percentage of alcohol was indicative of intoxication according to standards recognized by the American Medical Association, the National Safety Council and by his own Department.

Appellant testified in his own behalf, admitted that he had gone to a dance the night before, had gotten 'pretty tight,' had drunk some beer earlier on the day in question, and had tried to buy some more, but denied that he was intoxicated at the time of the collision and stated that the collision was occasioned by a defective brake on his automobile. There were other witnesses who testified that they did not detect the odor of alcohol on the appellant's breath following the wreck.

The jury resolved the disputed issue of appellant's intoxication against him, and we find the evidence sufficient to support the conviction.

Before any testimony was adduced, the appellant moved the court to instruct the attorney prosecuting the case not to attempt to introduce any evidence pertaining to a blood test made upon a specimen of blood taken from the appellant on the grounds that the State could not prove that the specimen was taken with the consent of the accused. This was in the form of a motion to suppress evidence, which is not a part of the procedure recognized in this jurisdiction. Raymond v. State, 106 Tex.Cr.R. 147, 291 S.W. 251.

The proper time to have objected to such testimony was then the testimony as to the taking of the specimen or the results of the test were offered in evidence. We find that such evidence was admitted without objection.

Appellant testified and offered the evidence of a mechanic, who had recently repaired his automobile, that the left front wheel on his automobile had a tendency to lock. He requested the following charge:

'You are instructed that if you believe from the evidence that the collision in question was the result of or was caused by Defendant's losing control of his automobile due to the locking of the left front wheel thereon, regardless of whether or not he was intoxicated, you will find the defendant not guilty and so say by your verdict.'

It is contended that this action on the part of the court deprived him of his only affirmative defense.

In McKinnon v. State, Tex.Cr.App., 261 S.W.2d 335, 337, we said:

'Appellant timely excepted to the failure of the court to charge the jury that 'if the death of deceased was caused by the defective vision of the defendant,' he would not be guilty; and further excepted to the failure of the court to charge the jury that 'if the deceased's death was a result of a blurred or defective windshield upon defendant's car that defendant should be acquitted.'

'The conditions presented by one or both of such charges as to appellant's defective vision and the blurred windshield on his car, if found to be true, would not, in themselves, constitute an affirmative defense. If appellant was intoxicated and could have avoided the collision except for such intoxication, then the fact that his vision was defective or the windshield blurred would not constitute a defense though either or both may have...