Trammell v. State, 27864

• Decision Date: 01 February 1956
• Docket Number: No. 27864,27864
• Citation: 162 Tex.Crim. 543,287 S.W.2d 487
• Parties: James Emmet TRAMMELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 487

287 S.W.2d 487

162 Tex.Crim. 543

James Emmet TRAMMELL, Appellant, v. The STATE of Texas, Appellee.

No. 27864.

Court of Criminal Appeals of texas.

Feb. 1, 1956.

Tom Howard, Dallas, for appellant.

Henry Wade, Dist. Atty., Charles S. Potts, Asst. Dist. Atty., Dallas, Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is driving while intoxicated; the punishment, ten days in jail and a fine of $200.

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 grounds 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.R. 144, 240 S.W.2d 310, 311, 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.

WOODLEY, Judge (dissenting).

There is but one point of error submitted by appellant in his brief, which is that the trial court erred in admitting testimony of Dr. Morton F. Mason as to the result of an analysis of a blood sample taken from the defendant shortly after his arrest.

Prior to Dr. Mason's appearance as a witness, Police Officer A. L. Curtis, who investigated the accident in which the car driven by appellant was involved, testified that he observed appellant at the scene, smelled his breath, noticed that his speech was slurred, that he was unable to walk straight and required help to prevent falling in the street; that he called an ambulance and had appellant carried to Parkland Hospital. He expressed the opinion that appellant was intoxicated and testified 'I thought he was, but I wanted to be sure that he wasn't injured.'

Witness Curtis then testified, without objection being offered, that he went to the hospital and was present when a doctor took 'a blood test', after cleaning appellant's arm with soap; that he sealed the blood specimen, labeled the container and placed it in the ice box, in the usual place.

Thereafter, during the trial, Dr. Mason...