Millican v. State

BEAUCHAMP, Judge.

Appellant was convicted of driving a motor vehicle on a public highway while intoxicated, and assessed a penalty of thirty days in jail and a fine of $50.00.

The article of the statute under which the prosecution was had was amended by Act of the Forty-Seventh Legislature, changing the offense from a felony to a misdemeanor. The amendment went into effect subsequent to appellant’s indictment, trial and conviction, and while the case was before this court on appeal. Because of the amendment, it is contended that the case should be reversed and ordered dismissed. This question has been considered by this court in two recent cases and decided adversely to such contention — R. C. Davis v. State, No. 21,699, (142 Texas Crim. Reports 602) and Pete Houston v. State, No. 21,684, (Reported in this volume) neither of which has been reported.

Testimony was given in the case by a number of officers, some of whom saw appellant on the highway, observed his condition, and qualified to be able to testify on the subject and concluded that he was intoxicated. Several bills of exception complain of the testimony of officers who went to the jail after appellant was arrested and placed in a cell. Relying- upon the authorities of Abston v. State, 141 S. W. (2d) 337, and Apodaca v. State, 146 S. W. (2d) 381, appellant contends that the testimony which such officers gave results in forcing him to give testimony against himself; that the things which he said and did while in jail were not admissible against him, and that the officers could not testify as to conclusions which they reached while observing him in jail. We do not think that the Abston case is in point, and the Apodaca case is based upon an entirely different situation.

We have examined carefully the evidence before us and it appears that the officers went to the jail for the purpose of observing appellant; that they did so, and based their conclusion on what they saw, but no evidence was given quoting any statement or confession which appellant made. They did not force him to do anything. They made no test such as described in the Apodaca case, and it appears that they clearly had a right to make the observation which they did and to reach a conclusion from it. (Mikeska v. State, 182 S. W. 1127; Kirby v. State, 150 S. W. 455.)

It is true that appellant testified in his own behalf, using expressions which, considered alone, might indicate that the officers had forced him to do something. He says that they, “ordered me out of the cell,” but he does not give the court the benefit of anything they said to him and there are no words of the officers which this court might construe to determine whether or not it was an order or whether they asked him to come out, as one or two of the officers testified to having done.

We adhere strictly to the rule laid down in the Apodaca case and believe in the principle upon which it is founded, but do not think it is necessary to close the eyes of an officer and forbid him to testify to any act or conduct which a party arrested may do and perform indicating his intoxicated condition. Applied to the logical conclusion, it would simply mean that if officers came upon a party on a highway who was intoxicated, and immediately placed him under arrest they could not then testify to anything indicating that he was intoxicated and, in order to secure a conviction, it would be essential that they follow the party a sufficient length of time to determine definitely that he was intoxicated before making an arrest. The very purpose of the law which is intended to keep drunken drivers off the highways would be defeated. Other passengers entitled to use the hig'hway would be forced off and their rights suspended or their lives endangered. No rule was intended to go that far and, yet, that is the essence of the argument made in this case. It is contrary to the decisions of this court and cannot be sustained.

Other objections raised are without merit.

The judgment of the trial court is affirmed.