# Pesina v. State

> Court of Criminal Appeals of Texas · September 19, 1984 · 676 S.W.2d 122

URL: https://www.frixlaw.com/law-library/cases/9638188

## Case

- **Full name:** Joe PESINA, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 19, 1984
- **Citations:** 676 S.W.2d 122; 1984 Tex. Crim. App. LEXIS 741
- **Precedential status:** Published
- **Opinion:** Dissent by Teague
- **Judges:** Onion, Clinton, Teague, Miller
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9638188

## How later opinions describe it (automated extraction)

- recognizing probable cause that evidence of driving while intoxicated would be found in suspect’s blood when defendant was involved in a collision and had a strong odor of alcohol on his breath
- finding probable cause to arrest based on a collision where appellant was driving the wrong way on a highway, gave off a “strong odor of alcohol,” and was observed in the hospital “muttering and stuttering” incoherently hours after the accident
- recognizing that officer had probable cause to arrest defendant where the defendant was involved in a collision with another vehicle and had a strong odor of alcohol on his breath
- recognizing that officer had probable cause to arrest defendant where defendant was involved in a collision with another vehicle and had a strong odor of alcohol on his breath
- recognizing that officer had probable cause to arrest defendant where evidence of intoxication included fact that defendant had "a strong odor of alcohol on his breath"

## Opinion text

TEAGUE, Judge,
dissenting.
Because the majority opinion is just as legally wrong as the majority panel opinion of this Court was in Aliff v. State, 627 S.W.2d 166 (Tex.Cr.App.1982), which is the majority’s authority for reversing the excellent opinion of the Beaumont Court of Appeals, which was authored by its Chief Justice, Hon. Martin Dies, Jr., I am compelled to dissent for the same reasons I expressed in the dissenting opinion I filed in Aliff v. State, supra. I point out that no rehearing was sought by either the defendant or the State in Aliff v. State, supra. Thus, Aliff only represents the voice of one former judge of this Court, who was joined in chorus by another former judge of this Court. Aliff, supra, along with all cases which have followed it, should be expressly overruled.
The decision of the Beaumont Court of Appeals, finding that the taking of appellant’s blood without a warrant was error, should be affirmed. However, its decision ordering an acquittal is clearly erroneous. Therefore, the judgment of the court of appeals should be affirmed but the cause should be remanded to the trial court for retrial. To the failure of the majority to enter such an order, I respectfully dissent.
MILLER, J., joins.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9638188. Public record. Not legal advice.