Ramirez v. State

WOODLEY, Judge.,

The conviction is for murder without malice, the indictment being drawn under Art. 802c, V.A.P.C. The jury assessed the minimum punishment of two years in the penitentiary.

The error assigned is the insufficiency of the evidence to 'establish the corpus delicti and to support the jury’s verdict.

Appellant’s counsel, by brief and oral argument, contends that there is not sufficient evidence to corroborate appellant’s confession that he was the driver of the automobile, and insufficient evidence to prove that appellant was intoxicated. These contentions will be considered in the order mentioned.

The evidence reflects that on January 22, 1954, at about 2:00 or 2:30 P. M., a green 1952 model Chevrolet was involved in a collision with a 1953 Dodge coupe driven by Mrs. Jewel Reynolds Ruble. Mrs. Ruble was critically injured in the collision and died a few hours after the accident as a result of such injuries. The collision occurred at the intersection of the McNeil Road' and U. S. Highway 183, in Williamson County, Texas. Immediately prior to the accident the 1952 Chevrolet was traveling in a westerly direction on the McNeil Road and Mrs. Ruble' was driving her Dodge coupe in a northerly direction on U. S. Highway 183. The Chevrolet did not stop at a stop sign facing the McNeil road, but, instead, entered the intersection at a speed of 25 or 30 miles per hour and was driven out onto U. S. Highway 183 and directly in front of the Dodge coupe driven by Mrs. Ruble.

For a distance of some 49 feet before reaching the stop sign on the McNeil Road the view was clear and unobstructed for a distance of some 700 feet south on U. S. Highway 183. Immediately prior to the accident the Dodge coupe driven by Mrs. Ruble was traveling at a speed of about 40 to 45 miles per hour.

Appellant, on March 29, 1954, made a voluntary statement of which the following is a part: “We left Lee’s Place and went to the Steak House in Round Rock and I had some beer there. It was about 1:00or 1:30 when we were at the Steak House. We left the Steak House and went on toward Jolly-ville. I was sitting in the front seat driving. Ike Mercer and ‘Bubba’ Harbert were in the front seat with me. Pablo Pena, Epefiano Carrizales and Buck Herbert were sitting in the back seat. We took the old McNeil road from Round Rock, out by the lime kiln.. When we came to the intersection of Highway 183, I was going straight ahead. I started across the highway at the intersection and that’s when the accident happened. I was driving a light green, 1952 Model Chevrolet Deluxe car. I remember trying to get out of the car, because it was upside down. I tried to get out through the window but couldn’t so one of the boys pulled me out. I did not have any alcohol to drink after ! left the Steak House and didn’t drink anything after. I got to the hospital. I voluntarily took a blood test at the hospital.”

W. C. Curtner, a truck driver, witnessed the collision. He identified appellant as the occupant of the Chevrolet who had a bad wound on his head and was bleeding in the face.

Any question of the sufficiency of the evidence to show that appellant was the driver of the Chevrolet car, as he stated in the confession, was removed when appellant offered the following testimony in connection with his Exhibit 1.

“Q. Could you identify this, please, sir? A. Yes, sir; this is the view showing the rear end of the car driven by Manuel Ramirez.”

Appellant’s Counsel: - “We offer this in evidence, Your Honor.

“(The picture referred to was received in evidence as Defendant’s Exhibit No. 1, and same is hereto attached.)”

Defendant’s Exhibit No. 1 shows a rear view of the 1952 Chevrolet resting in an upside down position, at the scene of the collision.

As to the evidence showing that appellant was intoxicated, we have first his confession that he had been drinking.

He received a severe injury as a result of the collision and, when observed by the Witness Curtner, was lying down flat on his back and “there was nobody walking around except two of the colored men.”

Curtner made it clear that he was not testifying that anyone was drunk, but said that he detected the odor of alcohol on the breath of appellant and all of his companions except one of the colored men whose hand was badly cut.

Appellant was placed in an ambulance and taken to Brackenridge Hospital where, shortly after 5 o’clock, a specimen of blood was taken from him with his consent.

Analysis of this blood revealed an alcohol content of 1.3 miligrams of alcohol per cubic centimeter of blood, or otherwise stated, .13 percent of alcohol in the blood.

The State’s Witness Roland E. Tullís, chemist and toxicologist for the Texas Department of Public Safety, after his qualifications to testify on the subject were established, stated that he made the analysis showing such alcohol content and gave the following testimony.

“Q. * * * If you will explain to the jury the standards that are usually used in determining the point of intoxication, based on the percentage of alcohol in the blood. A. The concentration of alcohol in the blood necessary to cause a person to be intoxicated varies quite widely from one individual to another. Some individuals are intoxicated with concentrations of .6 of a milligram of alcohol per cubic centimeter of blood, while others would not be intoxicated at that concentration. As the blood-alcohol concentration increases; it would affect more individuals. By the concentration of one milligram of alcohol per cubic centE meter of blood, 80 per cent of the individuals who have been tested were intoxicated. By a blood-alcohol concentration of 1.2 milligrams of alcohol per cubic centimeter of blood, 90 per cent of the individuals who have been tested and reported on were intoxicated; and the blood-alcohol, concentration of 1(4 milligrams of alcohol per cubic centimeter of blood has been found to be high enough to,cause all the people who have been tested to be intoxicated; and in my opinion, that concentration is sufficient to cause any person to be intoxicated.

“Q. Now, will you state what organizations you know of that have adopted these standards as being accurate — that standard that you have just stated? A. Well, the interpretation of the blood-alcohol concentration, based on the testing, and the conclusion that the 1.5 milligrams of alcohol per cubic centimeter of blood is sufficient to cause all persons to be intoxicated is recommended for interpretation by the American Medical Association and the National Safety Council.

“Q. Now, you stated in your experiments you had given individuals controlled or measured amounts of alcohol, and then at varying times from the time that they consumed this alcohol, you had made blood tests to determine the amount of alcohol that had been absorbed into the blood. Will you tell the jury about how long after a person has had a drink it takes until all of the alcohol that he has consumed has been absorbed into the blood? A. Well, it requires from forty-five minutes to an hour for all of the alcohol to be absorbed from the stomach and intestine into the blood.

“Q. Then a person who has been drinking beer or any other intoxicant would reach the peak of concentration of alcohol in his blood within forty-five minutes or an hour after his last drink; is that correct? A. Yes, sir, it would require that long after his last drink.

“Q. Explain to the jury the rate of decrease of alcohol in the blood after an individual ceased drinking. A. As I stated, after the individual ceases drinking, as long as alcohol is in his stomach being absorbed — the stomach and intestine — the concentration in his blood is going to be increasing, and after the period of approximately an hour, it will reach a maximum, and then it starts going down, if he doesn’t drink any more, and the rate of decrease is fairly constant for the average individual, and that rate is two-tenths of a milligram of alcohol for each hour the alcohol in the body is gotten rid of, partly by excretion through the kidneys, some through the perspiration and breath, and most of it is oxidized or burned inside the body, principally in the liver, and that alcohol as it is used up and excreted decreases at two-tenths of a milligram of alcohol per cubic centimeter of blood each hour until it is all gone.

“Q. Now, assuming that this defendant who had been drinking beer took his last drink at from 1:00 to 1:30 P.M. and then was involved in an accident at from 2:15 to 2:30 P.M., and then a blood test was made at five minutes after 5 o’clock, and that at that time the percentage of alcohol in the blood was as stated by you, 1.3 milligrams of alcohol, what would be your opinion as to the amount of alcohol in the blood at the time of the collision— that is, 2:15 or 2:30 P.M. ? A. To make sure I have the conditions right, the last drink was swallowed from between 1:00 and 1:30 P.M. ?

“Q. That’s right. A. The accident happened at 2:15 or 2:30 and the blood specimen was drawn from the individual at five minutes after 5:00 ?

“Q. Yes. A. The concentration in the blood, if he had had nothing to drink in the meantime, would have been higher at 2:30 than it was at 5:00, and at the rate of decrease of two-tenths of a milligram per hour, it would be approximately 1.8 milligrams of alcohol per cubic centimeter of blood at 2:30, two and a half hours earlier.”

The foregoing expert testimony as well as the taking and result of fhe blood test for the alcohol concentration i!s quite similar to that in Greiner v. State, 157 Tex.Cr.R. 479, 249 S.W.2d 601.

The witness Tullís further testified, in answer to a hypothetical question based upon the State’s theory of the case, that the driver of the automobile from whom the blood was taken was intoxicated at the time of the accident.

Dr. Lawrence L. Griffin, who examined and took care of appellant after he arrived at the hospital, and who took the blood specimen for analysis, was called as a witness by appellant. He testified “I thought that he had been drinking, but I did not think that he was drunk at that time.” He further testified:

“I asked him where he hurt and where he was tender in going over him. I received coherent or rational answers to those questions; and I asked him something about the accident, whether or not he was unconscious or whether or not he remembered his accident, and his answers that he gave me appeared to me that he had his senses, that he was not actually drunk at that time.

“Q. Of course, you could smell alcohol, and that is the reason you knew he had been drinking? A. I could smell alcohol on his breath, yes.”

And on cross-examination he testified:

“Q. Now, Dr. Griffin, if I understand you correctly, you are basing your opinion that this man was not intoxicated on the fact that he could talk coherently and rationally? A. Yes, sir.

“Q. In other words, it is your opinion that 'anyone who can talk coherently and rationally is not intoxicated? A. That fits in with my idea of a man being drunk.”

Dr. Griffin estimated the time that he was called from his clinic as somewhere around 3 o’clock. The testimony shows, however, that Dr. Griffin took the blood specimen at 5 :05 P.M. and it is not shown that he first observed appellant prior to the occasion when he took the blood and administered to him for his injuries.

Dr. Griffin’s testimony is not inconsistent with the jury finding that appellant was intoxicated at the time of the collision.

In Greiner v. State, 157 Tex.Cr.R. 479, 249 S.W.2d 601, McKay v. State, 155 Tex. Cr.R. 416, 235 S.W.2d 173, and Jones v. State, 159 Tex.Cr.R. 29, 261 S.W.2d 161, we discussed rather fully the question of scientific findings and expert testimony concerning concentration of alcohol in the blood, in connection with proof of the condition of sobriety of the donor.

The effect of our holdings was that the evidence was admissible and might be utilized by the jury in reaching a verdict.

There is nothing in this record which disputes the expert testimony and we would not be warranted in holding that together with the testimony as to appellant’s drinking and the manner of his driving this evidence is not sufficient to support the jury’s finding that at the time of the accident he was intoxicated.

Viewed in the light most favorable to the State, the evidence supports the jury’s verdict.

Appellant’s able counsel has not questioned the sufficiency of the evidence in other particulars such as the causal connection between appellant’s intoxicated condition and the death of Mrs. Ruble, in the manner alleged in the indictment, and such will not be discussed except to say that we find the evidence sufficient in these particulars as well as the particulars in which the sufficiency is challenged.

The judgment is affirmed.