Slagle v. State

• Decision Date: 20 September 1978
• Docket Number: No. 54947,No. 2,54947,2
• Citation: 570 S.W.2d 916
• Parties: Jack Bryan SLAGLE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 916

570 S.W.2d 916

Jack Bryan SLAGLE, Appellant, v. The STATE of Texas, Appellee.

No. 54947.

Court of Criminal Appeals of Texas, Panel No. 2.

Sept. 20, 1978.

Frank Maloney and David H. Reynolds, Austin, for appellant.

Ned Granger, County Atty. and Juan Gallardo, Asst. County Atty., Austin, for the State.

Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for driving while intoxicated. Punishment was assessed at 30 days' imprisonment and a $100.00 fine, probated.

Appellant's first ground of error complains that the trial court erred in submitting the instruction concerning the presumption of intoxication under Article 6701L -5, Section 3(a), V.A.C.S., ¹ because the State failed to prove beyond a reasonable doubt the facts required to establish said presumption. It is the contention of appellant that the testimony on the administration of the breathalyzer examination showed that the results of a breathalyzer test could vary according to a number of variables. These variables included the body temperature of the subject, the temperature of the subject's breath, whether the subject discharged alcohol through his saliva glands, the ratio of blood alcohol to alveolar alcohol, whether the subject hyperventilated, the time lapse between operation of the motor vehicle and administration of the breathalyzer test, the amount of solution in the test ampoule, and whether the subject's circulatory system was at equilibrium. However, it is noted that at no time did the appellant establish that these particular variables that might create error in the test results were applicable to him at the time the test was administered.

Article 6701L -5, Section 3(b), V.A.C.S., provides:

"(b) Chemical analysis of the person's breath, to be considered valid under the provisions of this section, must be performed according to methods approved by the Texas Department of Public Safety and by an individual possessing a valid certificate issued by the Texas Department of Public Safety for this purpose. The Texas Department of Public Safety is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analysis, and to issue certificates certifying such fact. These certificates shall be subject to termination or revocation, for cause, at the discretion of the Texas Department of Public Safety."

Appellant does not contend that the evidentiary basis for submission of the presumption to the jury, as set forth above, was not established by the evidence. Neither does appellant contend that the evidence of the breathalyzer test results was introduced without a proper predicate as required under Texas case law. ² Although appellant's Ground of Error No. 1 on appeal does not comport with his written objections to the charge at the time of trial, ³ we conclude that the trial court did not err in submitting the instruction on the presumption of intoxication to the jury. Nor did the trial court misstate the law in submitting the instruction to the jury. V.T.C.A., Penal Code Section 2.05(1) provided at the time of appellant's trial:

"When this code or another penal law establishes a presumption with respect to any fact, it has the following consequences:

(1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact Must be submitted to the jury, Unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact ; . . . ." (Emphasis added)

Thus, the law mandated submission of the instruction concerning the presumption of intoxication if there was sufficient evidence of the facts required to give rise to the presumption. The only requirements for the presumption to become operative are that (1) the test "be performed according to methods approved by the Texas Department of Public Safety and ((2)) by an individual possessing a valid certificate issued by the Texas Department of Public Safety for this purpose." The evidence reflects that the appellant was stopped by Highway Patrol Officer Martin at approximately 1:22 a. m. on November 3, 1974. Appellant was stopped after being observed driving erratically and failing to remain in a single marked lane. Upon being stopped and asked to exit his vehicle, the appellant walked with some hesitancy towards the rear of the vehicle, leaned on his vehicle, had red, glassy eyes, was swaying as he stood, had "thick tongued" speech, and smelled of alcoholic beverages. He was arrested for driving while intoxicated and was transported to the Travis County Sheriff's Office. He was read the standard warning ⁴ and agreed to take the breathalyzer examination. He was tested at 1:58 a. m. by Officer Martin with a test result showing .11 percent alcohol present in appellant's blood. Officer Martin is certified by the Department of Public Safety for conducting such tests and operated this test according to the DPS "Breathalyzer Operational Checklist." The evidence shows that the facts giving rise to the presumption were proven by the State. These particular facts were never controverted by the appellant, save for the question of the voluntariness of his consent to take the test which was not presented here on appeal. Thus, we must conclude that there being no contested factual issue concerning the facts giving rise to the presumption, the trial court was under a mandatory obligation to submit the presumption to the jury. The evidence of the breathalyzer test results having been admitted into evidence without objection, the jury was free to conclude that the presumption of intoxication applied and proved the element of intoxication in appellant's prosecution for driving while intoxicated.

The evidence relied upon by the appellant for the proposition that, as a matter of law, the presumption was inapplicable really addresses the question of whether the use of such a presumption is appropriate. Such a decision is legislative in nature and is foreclosed by the Legislature's judgment as reflected in Article 6701L -5. It is our belief that the Legislature was cognizant of the possible variables involved in the administration of the breathalyzer examination insofar as it provided the right, upon request, to have a blood test conducted for the purpose of determining the alcoholic content of the blood. We note that there is no evidence that the appellant requested such an examination. Furthermore, the appellant has not demonstrated that he himself possesses those unique physical characteristics that would remove him from the general class of individuals upon which the scientific assumptions underlying the breathalyzer test theory are based. The evidence adduced by appellant does not "clearly preclude" the jury from finding the presumed fact.

Finally, we note that the appellant was allowed to introduce the evidence concerning these variables before the jury and the jury apparently chose to disregard any discounting effect the appellant thought it might have. Such evidence goes to the weight to be accorded to the breathalyzer test results. The instruction required to be submitted to the jury under V.T.C.A., Penal Code, Section 2.05(2)(B), provides:

"that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, But it is not bound to so find ; . . . ." (Emphasis added)

Appellant's first ground of error is overruled.

Appellant's next contention is that the presumption involved in Article 6701L -5, V.A.C.S., constitutes a presumption based upon a presumption. The appellant bases his contention on the various underlying scientific assumptions upon which the breathalyzer test theory rests. As stated above, the Legislature has seen fit to conclude that these potential margins of error are not sufficiently significant to foreclose the use of the breathalyzer examination results in the prosecution of this offense. The Legislature has made appropriate provision for those individuals who might believe they have such individual variations in their metabolism. These people can request a direct examination of their blood. See Article 6701L -5, Section 3(c), Footnote 4, supra. Further, appellant admits that the presumption has a rational basis. Thus, the doubts of some scientists concerning the accuracy of the breathalyzer examinations conducted in the law enforcement environment are not sufficient to countervail the long line of case law holding that such scientific test results are admissible. Such evidence being admissible and the presumption acknowledged as valid, we cannot conclude that this legal presumption based upon evidence obtained by scientific method, which in turn is premised on scientific assumptions, constitutes the type of evidentiary deficiency condemned by this Court in Hart v. State, 152 Tex.Cr.R. 537, 215 S.W.2d 883; Williamson v. State, 156 Tex.Cr.R. 520, 244 S.W.2d 202; Stallings v. State, 158 Tex.Cr.R. 74, 252 S.W.2d 939; and Emanus v. State, Tex.Cr.App., 526 S.W.2d 806.

Appellant's second ground of error is overruled.

Appellant's third ground of error complains that the trial court erred in failing to apply the law of Article 6701L -5, Section 3(a), V.A.C.S., and V.T.C.A., Penal Code, Section 2.05 to the facts of this case. Counsel for the appellant acknowledges that no objection was made to the alleged omission, but that the omission constitutes fundamental error and may be reviewed by this Court. Cf. Romo v. State, Tex.Cr.App., 568 S.W.2d 298; Pitts v. State, Tex.Cr.App., 569 S.W.2d 898. Appellant filed no special requested instruction, but suggests that the court should have submitted a charge of the following tenor:

"Now, if you believe from the evidence that a chemical analysis of the blood, breath, urine or other bodily substance of the Defendant, ...