Mersiovsky v. State

McKAY, Justice.

This is an appeal from a conviction for driving a motor vehicle upon a public highway while intoxicated. Appellant pleaded not guilty, and the jury assessed punishment at eighteen (18) months confinement in the Anderson County Jail and a fine of $500.00.

Appellant brings four grounds of error. Appellant’s first contention is twofold. Appellant initially contends the blood sample taken from him while he was in the hospital was obtained without his effective consent. Appellant’s consent is required only if he was under arrest at the time the blood sample was taken. Bennett v. State, 522 S.W.2d 507, 509 (Tex.Cr.App.1975). In determining if appellant was under arrest, several factors need to be considered, including the subjective intent of the law enforcement officials, the subjective belief of the suspect, whether the focus of the investigation had centered on the suspect, and whether there was probable cause to arrest appellant. Gonzales v. State, 581 S.W.2d 690, 691 (Tex.Cr.App.1979).

Nothing in the record supports appellant’s assertion that he was under arrest at the time the blood sample was taken. Appellant had an automobile wreck and was carried to the Palestine Hospital by ambulance. The investigating officers traveled to the hospital by car. There is no evidence that any officer attempted to restrain appellant or prevent appellant from leaving the hospital. Likewise, no evidence or testimony is in the record either from appellant or the police officers that appellant was ever detained while he was in the hospital. We therefore conclude that under the facts of this case appellant was not under arrest; thus, the chemical analysis of his blood was admissible. Darland v. State, 582 S.W.2d 452, 454 (Tex.Cr.App.1979).

Secondly, appellant contends the results of the chemical analysis of the blood sample were inadmissible. Appellant argues that the State failed to prove chain of custody because the blood itself was not introduced into evidence; rather, the only evidence produced by the State was the chemist’s testimony regarding the results of his analysis on the blood.

Highway Patrol Officer David T. Ray-mer, III testified he observed the nurse prepare appellant’s arm and withdraw blood from it. Raymer stated he witnessed the entire process and thereafter took possession of the vial. After taking possession of the vial, the officer labeled the vial, sealed it, placed it in a cardboard box and mailed it to the laboratory of the Department of Public Safety in Waco, Texas.

The Department of Public Safety chemist, Charles Mott, testified that he received appellant’s blood specimen in mail which was delivered to the Waco office of the Department of Public Safety, and that receiving such items of evidence in the mail was standard procedure. Mott further testified that his examination of the blood sample revealed it contained 0.18% alcohol. He testified that the name on the sample was Charles Bryan Mersiovsky. He further testified there was no way to confuse appellant’s blood sample with some other blood sample. From these facts, we find the State has proved the chain of custody of the blood sample, and that the chemist’s testimony concerning the results of the chemical analysis was admissible. Appellant’s first ground of error is overruled.

Appellant’s second ground of error contends there was insufficient evidence to support the verdict because he was never properly identified in court as the actual perpetrator of the offense. We find no merit in appellant’s contention. Officer Raymer identified appellant as the “man there with the blue shirt on at the counsel table” and another witness, Yvonne Dodd, stated that appellant was “sitting there at the counsel table next to his attorney.”

In Rohlfing v. State, 612 S.W.2d 598, 601 (Tex.Cr.App.1981) where similar in court identifications were made, the court stated:

Absent any indication, prior to appeal, that the jury may have been misled by the in-court identification procedure, we will not presume that some person other than appellant may have been identified and that the jury nonetheless chose willfully to convict appellant without evidence that he was the sole perpetrator of this offense.

Appellant’s second ground of error is overruled.

Appellant’s next ground of error contends the trial court committed reversible error in assessing punishment less than the minimum provided by law. We sustain this ground of error. Tex.Rev.Civ.Stat. Ann. art. 67017-1 (Vernon Supp. 1979), the statute under which appellant was charged, provides for a minimum mandatory fine of not less than $50.00 and three days confinement in the county jail up to a maximum of $500.00 and two years confinement in the county jail. The trial court’s judgment found that the jury had assessed punishment at eighteen (18) months confinement and a $500.00 fine. The trial court’s judgment assessed punishment of eighteen (18) months confinement, but did not assess a fine.

We agree with appellant that the trial court’s judgment should have reflected both the monetary fine and the period of confinement assessed by the jury in the county jail, and that where the court assesses punishment at less than the statutory minimum, we must reverse and remand. Smith v. State, 424 S.W.2d 228 (Tex.Cr.App.1968); Gassoway v. State, 385 S.W.2d 386 (Tex.Cr.App.1965); Mendez v. State, 379 S.W.2d 333 (Tex.Cr.App.1964). Our remand to the trial court, however, is not for a new trial; rather, it is for a reassessment of punishment. Jenkins v. State, 615 S.W.2d 231, 232 (Tex.Cr.App.1981).

Appellant’s last ground of error contends the trial court committed reversible error by probating a portion of the jail time assessed by the jury. We sustain appellant’s last ground of error. The jury assessed appellant’s punishment at a $500.00 fine and eighteen (18) month confinement in the county jail. The court, however, probated twelve (12) months of the eighteen month jail sentence.

The law has been that when jail time and a fine have been assessed in a misdemeanor case, the jail time cannot be probated. Puente v. State, 579 S.W.2d 237 (Tex.Cr.App.1979); Franklin v. State, 576 S.W.2d 621, 624 (Tex.Cr.App.1978). In 1979, however, after the Puente decision, art. 42.13 of the Texas Code of Criminal Procedure dealing with misdemeanor adult probation was substantially amended. The new statute gives the trial court broad discretion in granting probation.¹ We do not believe, however, the new statute enables the trial court to probate appellant’s jail time as he did.

Sec. 6b(a) of art. 42.13 specifically provides, “When the court having jurisdiction of the case grants probation to the defendant ... the court may require as a condition of probation that the defendant submit to a period of detention in jail to serve a term of imprisonment not to exceed thirty (30) days or Várd of the sentence, whichever is lesser. ” This provision gives the trial court specific guidelines to use if it chooses to grant probation and wants to require the defendant to serve a portion of his sentence. The trial court, upon a misdemeanor conviction, may either deny probation or suspend imposition of the entire sentence and at its discretion require the defendant to serve the lesser of one-third of his sentence or thirty (30) days. In the instant case the trial court granted probation, but failed to follow the guidelines of art. 42.13, sec. 6b(a). Such was error. We therefore reverse the judgment of the trial court and remand the cause for reassessment of punishment. See Jenkins, supra.

1 . Sec. 1 of art. 42.13 states:

It is the purpose of this article to place wholly within the state courts of appropriate jurisdiction responsibility for determining when the imposition of sentence of certain cases shall be suspended, the conditions of probation, and the supervision of probationer ....

Sec. 3c states:

Nothing herein shall limit the power of the court to grant a probation of sentence regardless of the recommendation of the jury or prior conviction of the defendant.