Hines v. State, 48924

• Decision Date: 13 November 1974
• Docket Number: No. 48924,48924
• Parties: Ozell HINES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 670

515 S.W.2d 670

Ozell HINES, Appellant, v. The STATE of Texas, Appellee.

No. 48924.

Court of Criminal Appeals of Texas.

Nov. 13, 1974.

Charles Scarborough, Abilene, for appellant.

Ed Paynter, Dist. Atty., and Bud Arnot, Asst. Dist. Atty., Abilene, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

The appellant was convicted of murder without malice by automobile under Article 802c, Vernon's Ann.P.C., with punishment assessed by the jury at three (3) years' confinement in the Texas Department of Corrections.

It was developed by the State's witnesses and the appellant's own testimony that on the afternoon of May 13, 1973, the appellant was driving his 1966 green and black Pontiac automobile in an easterly direction on Interstate Highway 20 between Sweetwater and Abilene. Testimony established that a light rain was falling in that area and, as a result, the highway was somewhat slick. At approximately 5:30 p.m. at a point three (3) miles east of the town of Merkel, the appellant's automobile went out of control, left the east bound lanes of Highway 20, crossed the median and collided in the west bound lanes with a west bound Chrysler automobile. The lone occupant of the west bound automobile was pinned in his vehicle and died at the scene shortly after the collision. Witnesses at the scene testified that the appellant and his passenger smelled of alcohol, and one witness expressed the opinion that appellant was intoxicated. Two investigating Highway Patrolmen found one half-pint bottle of whiskey, which was one-half empty, and two empty broken bottles of wine in the appellant's vehicle. The appellant and his passenger, Parish, were placed under arrest and taken to a hospital where blood samples were drawn from them. Officer Morgan, who saw both men at the hospital, expressed the opinion that both were intoxicated. Appellant testified that he and Parish had purchased two six packs of beer earlier in the day and he had consumed only three beers by the time of the collision.

The blood samples were then given to the Department of Public Safety for analysis. The chemist who analyzed the blood testified that the appellant's blood was 0.24% ¹ alcohol by weight and a man of the appellant's size would need to consume at least six (6) beers in one hour to attain such a reading. The appellant, testifying in his own behalf, stated that he had consumed only three (3) beers during the whole afternoon and had not drunk any whiskey or wine.

In ground of error #1 the appellant contends that the trial court erred in allowing into evidence the analysis of the blood sample taken from appellant, as there was no testimony from the person who actually withdrew the blood sample. ² The State's evidence reveals that approximately one and one-half (1 1/2) hours following the collision a blood sample was taken from the appellant with his consent ³ at Hendrick Memorial Hospital by Garnet Gale Harrell, a qualified medical technologist.

Highway Patrolman Morgan was present and testified the blood sample was extracted by needle and placed in a vial he held. At the time of the trial Mrs. Harrell was no longer employed by the hospital, had left Abilene with her husband and was not called as a witness. Joe McGinnis, laboratory supervisor at the hospital, testified Mrs. Harrell had three years of college and one year's training under a pathologist in an approved school of medical technology. He testified she was a qualified medical technologist under the rulings of the American Society of Clinical Pathologists. He then related the general procedure employed in the hospital for taking blood samples, ⁴ though he acknowledged he was not present when the sample in question was taken.

Appellant contends the record does not show whether the technician used alcohol to cleanse the arm before extracting the sample and, if she did, the blood test would be invalid and untrustworthy. He contends that in absence of testimony from the technician as to what procedure she used the court erred in admitting evidence of the blood test. He cites Brown v. State, 156 Tex.Cr.R. 144, 240 S.W.2d 310 (1951). Brown, however, was reversed because it was not shown that the blood specimen examined by the chemist was taken from the defendant. In the instant case the chain of custody was clearly established.

The blood here was extracted in a hospital environment by a qualified medical technologist who was trained to follow the certain procedure of the hospital in extracting blood under the conditions here described. There is no testimony that it was improperly done by either Officer Morgan or by appellant in his testimony, both of whom were present. On appeal appellant only seizes upon the absence of the medical technologist to suggest that alcohol might have been used as a cleansing agent. When the exhibit was offered, the objection was that there was 'a missing witness in the chain of command.' As noted earlier, the chain of custody was established and there is no suggestion that anyone tampered with the blood sample. Appellant's contention is overruled.

Next, appellant contends the trial court erred in failing to grant his motion for an instructed verdict of not guilty because the State failed to prove by legal and competent evidence the cause of death. The record reflects that the Pontiac driven by the appellant went out of control while in east bound lanes of Interstate #20, crossed the median and struck a Chrysler driving in the west bound lane. The deceased was the driver and lone occupant of the Chrysler. Charles Doss, who witnessed the collision, testified that the Chrysler had only one occupant and following the collision the driver was pinned in the car, that 'the steering wheel was back sort of into him,' that when he reached the Chrysler he thought the driver was alive since the driver made a slight movement, but that a little later a woman on the other side of the car said the driver had no pulse although she had detected one earlier. Doss' wife testified when she reached the Chrysler the driver appeared dead. John Nolly Weaver testified he was unable to feel any pulse of the driver shortly after the collision.

Highway Patrolman Charles Poe, with five years' experience as a patrolman, testified he arrived after the collision and found the driver of the Chrysler still pinned in the car and, upon removing the driver from the car, discovered from his billfold that his name was Thomas Milton Brittain. He further testified that based upon his experience and training and his investigation on the scene in his opinion the death of Brittain was caused by the Pontiac 'hitting' the Chrysler. On cross-examination he testified the cause of death was multiple lacerations about the head and that the chest was struck by the steering wheel, but on further cross-examination he acknowledged he was not qualified to give a medical opinion as to the cause of death.

Although Poe indicated a Justice of the Peace was called to the scene to pronounce the deceased dead, there is nothing in the record to indicate that such official ever arrived and did so. It appears no autopsy was performed and no physician, nurse or undertaker testified. Thus, the foregoing constitutes all of the evidence bearing on the cause of death.

In 29 Tex.Jur.2d, Homicide, Sec. 180, p. 282, it is written:

'Opinion evidence is not the only mode of establishing the cause of the decedent's death; circumstantial evidence may fully suffice for this purpose. It is not necessary to establish by the testimony of a physician the fact that the wounds inflicted by the defendant caused the death; it is sufficient if it appears from all the evidence that the wounds were sufficient to cause death, and that death occurred within a reasonable time after the wounds were inflicted. It is permissible to show the good health of the deceased prior to a shooting, his condition thereafter and his subsequent death.'

See 4 Branch's Ann.P.C., 2d ed., Sec. 2212, p. 569. See also Jennings v. State, 154 Tex.Cr.R. 211, 226 S.W.2d 126, 128 (1950); Tellez v. State, 162 Tex.Cr.R. 456, 286 S.W.2d 154 (1955); White v. State, 165 Tex.Cr.R. 339, 306 S.W.2d 903 (1957), cert. denied, 355 U.S. 936, 78 S.Ct. 420, 2 L.Ed.2d 419 (1958); Morris v. State, 168 Tex.Cr.R. 29, 322 S.W.2d 632 (1959); Madden v. State, 171 Tex.Cr.R. 80, 344 S.W.2d 690 (1961); Williams v. State, 464 S.W.2d 114 (Tex.Cr.App.1971).

In the instant case the record shows the deceased, estimated by various witnesses as being between thirty and fifty, apparently in good health, driving a Chrysler automobile in a westerly direction on Interstate #20 when it was struck without dispute by the Pontiac driven by the appellant. Shortly thereafter, the deceased is found to have no pulse and to be pinned in the car. Other testimony shows he was dead when he was removed from the car, having suffered multiple head lacerations and a crushed chest.

While meager, we conclude that the evidence is sufficient to establish the cause of death, and the court did not err in overruling the motion for instructed verdict. See Gage v. State, 146 Tex.Cr.R. 305, 174 S.W.2d 491 (1943); Thompson v. State, 38 Tex.Cr.R. 335, 42 S.W. 974 (1897).

Appellant would further have us consider his contention that the indictment did not allege in plain and intelligible words how the offense was committed and the court erred in overruling his motion for instructed verdict.

The indictment is in the form recommended by Willson's Texas Practice, Criminal Forms, 7th ed., Sec. 1668. The form was approved by this court in McCreary v. State, 165 Tex.Cr.R. 436, 307 S.W.2d 948 (1957). We conclude the form is sufficient to comply with the requirements of Article 21.02, Vernon's Ann.C.C.P.

For the first time on appeal appellant contends that the trial court incorrectly charged the jury on the penalty provisions of Article 802c, Vernon's Ann.P.C. (murder by automobile)...