dissenting.
Appellant was convicted for committing the offense of involuntary manslaughter and a jury assessed his punishment at five years’ confinement in the Texas Department of Corrections.
He complains on appeal, inter alia, of the failure of the trial court to charge the jury on the lesser included offense of criminally negligent homicide. The indictment, which states the offense of involuntary manslaughter, see V.T.C.A. Penal Code, Sec. 19.05(a)(1), omitting the formal introductory and concluding portions, reflects the following:
* * * * * *
. . . CHARLES EDWARD ALIFF did then and there recklessly cause the death of an individual, CHARLES HALDO BLOODSWORTH, to-wit: the said Charles Edward Aliff while then and there driving and operating a motor vehicle at a greater rate of speed than permitted by the laws then and there governing the rate of speed of motor vehicles upon public highways in the State of Texas, and proceeding and going in a westwardly direction along Highway 31 in the City of Tyler, Smith County, Texas, and upon arriving at or near the intersection of said Highway 31 with Loop 323, all within the City of Tyler, Smith County, Texas, the said Charles Edward Aliff did then and there fail to stop his said vehicle at a duly and legally authorized and existing traffic control signal light which said traffic control signal light, was then and there legally and duly placed and located at and near the center of said intersection, and which said traffic control signal light was then and there red requiring all vehicles, such as the said Charles Edward Aliff was then and there driving, to stop prior to entering into the said intersection, but the said Charles Edward Aliff after failing to stop at said traffic control signal light at said intersection, did then and there drive said motor vehicle into said intersection at a greater rate of speed then permitted by the laws then and there governing the rate of speed of motor vehicles upon public highways in the State of Texas, and did thereby collide with another vehicle which had previously entered into said intersection and was proceeding within said intersection along said Loop 323 going south, and which other vehicle was occupied by Charles Haldo Bloodsworth and the said Charles Edward Aliff did then and there and thereby cause the said Charles Haldo Bloodsworth to be crushed and killed, and the said Charles Edward Aliff was then and there aware of but consciously disregarded the substantial and unjustifiable risk that said result would occur, and said risk was of such nature and degree that its disregard constituted a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the standpoint of the said Charles Edward Aliff;1
******
V.T.C.A. Penal Code, Sec. 19.05(a)(l)(2) provides in pertinent part as follows:
(a) A person commits an offense if he:
(1) recklessly causes the death of an individual; or
(2) by accident or mistake when operating a motor vehicle while intoxicated and, by reason of such intoxication, causes the death of an individual.
V.T.C.A. Penal Code, Sec. 19.07, the Criminally Negligent Homicide statute, provides as follows:
*174(a) A person commits an offense if he causes the death of an individual by criminal negligence.
* * * * * *
The definitions of “recklessly” and “criminal negligence,” as provided by V.T.C.A. Penal Code, Sec. 6.03(c) and (d), are as follows:
(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantia] and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint, (emphasis added)
In Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976), Presiding Judge Onion wrote for a majority of this Court, and discussed when an offense may be a lesser included offense. Day involved the question whether or not, where the main offense was burglary with intent to commit theft, but the evidence raised the issue of criminal trespass, it was necessary for the trial court to charge on the latter offense. In answering the question in the affirmative, Presiding Judge Onion first quoted Art. 37.09, V.A.C. C.P., which at the time of appellant’s trial provided:
An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.
He then addressed -the dissenting opinion of Judge Douglas, and said: “Surely it cannot be contended that if there is evidence raising the issue of a lesser included offense an accused would not be entitled to a charge on the same merely because there is also other evidence which supports proof of the greater offense charged or some other offense.” Id. at 307. Judge Odom, on State’s motion for rehearing, pointedly said: “We must add, however, that whether one offense bears such a relationship to the offense charged is an issue which must await a case by case determination, both because the statute defines lesser included offenses in terms of the offense charged and because it defines lesser included offenses in terms of the facts of the case.” Id. at 315-16.
Although it is probably true that in most cases a defendant, if guilty at all, will be guilty of the offense charged or nothing, e.g., Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981); Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1980); McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974); and Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952), that principle of law is not at all exclusive, for there are cases, as at bar, where the facts of the case contain elements of two separate, but related offenses.2 Also, this Court has consistently *175held that when the evidence from any source raises an issue that a lesser included offense may have been committed, and a jury charge on the issue is properly requested, the issue must be submitted to the jury. Ormsby v. State, 600 S.W.2d 782, 785 (Tex.Cr.App.1980).
Criminally negligent homicide may be a lesser included offense of involuntary manslaughter. See Ormsby v. State, supra; Moore v. State, 574 S.W.2d 122 (Tex.Cr.App.1978). Where the primary or main offense alleged is involuntary manslaughter, this Court makes the determination on a case by case basis whether or not a charge on the lesser included offense of criminally negligent homicide should have been given.
The distinctions between involuntary manslaughter and criminally negligent homicide, though facially apparent, are often difficult to decipher — until applied to a given set of facts. Succinctly stated, a person recklessly causes the death of another when that person is aware of but consciously disregards a substantial and unjustifiable risk that the death will occur. A person causes death by criminal negligence when the person is not but ought to be aware of a substantial and unjustifiable risk that death will occur. In sum, a reck-less defendant is aware of the risk created by his or her conduct; a criminally negligent defendant is not but ought to be aware of the risk created. “Reckless conduct . . . involves conscious risk creation . . . Criminal negligence . . . involves inattentive risk creation ...” Lewis v. State, 529 S.W.2d 550, 553 (Tex.Cr.App.1975). See also 5 Matthew Bender’s Texas Criminal Practice Guide, Secs. 124.04 and 124.05.
Ormsby, supra, involved the offense of involuntary manslaughter, and the record reflects that Ormsby was charged by indictment, omitting the formal parts, that he did:
. . . while intoxicated, knowingly and intentionally operate a motor vehicle and by reason of such intoxication cause the death of DEBORAH STITT through accident and mistake by driving said motor vehicle into a motor vehicle occupied by the said deceased; . . ,3
This alleged a V.T.C.A. Penal Code, Sec. 19.05(a)(2) offense. See ante.
The opinion in Ormsby reflects that the defendant undertook the operation of a motor vehicle while in a state of exhaustion and after he had consumed approximately three beers on an empty stomach. The evidence also showed that the defendant had previously driven on the road on which the accident occurred, and that he was familiar with its shoulderless narrow surface and many hills. This Court reversed the conviction because the evidence was deemed sufficient to warrant a charge on criminally negligent homicide, which the trial court had refused to give.
With the above in mind, I will now review the facts of this cause to show why a charge on the offense of criminally negligent homicide was called for by the evidence.4 Appellant did not testify or offer any evidence during the trial.
The evidence shows that appellant was operating a motor vehicle on Highway 31 at high rates of speed7 at times estimated in excess of 100 miles per hour. Occasionally, he drove his vehicle in an erratic manner. It was also shown he passed a vehicle driven by Billy Ray House on the right shoulder of the highway. Subsequently, Highway Patrolman Sellers, who was then traveling in the opposite direction, became attracted to appellant’s vehicle because of the rate of speed at which appellant’s vehicle was trav*176eling. Sellers turned his vehicle around and proceeded to chase appellant’s vehicle, using a flashing red light, but no siren, in an attempt to stop appellant. Sellers admitted that appellant might not have been aware that he was traveling behind him. Sellers kept appellant’s vehicle in his sight for several miles until Sellers entered a “dip” or “rise” in the highway, approximately four-tenths of a mile from the fatal intersection-Highway 31 and Loop 328. At that point, he lost sight of appellant’s vehicle for a few seconds. When he next saw appellant’s vehicle, it was then colliding with another vehicle. By the evidence, after going over the “rise,” appellant locked the brakes on his automobile, which caused it to turn or swerve to the left. From this evidence, I believe it is reasonable to infer that appellant was attempting to avoid colliding with vehicles later shown to be driven by Mrs. Billie Owens and Charles Haldo Bloods-worth. Appellant’s vehicle left 38 feet of skid marks before the fatal impact between his vehicle and Bloodsworth’s. The collision between appellant’s vehicle and Bloods-worth’s caused Bloodsworth’s vehicle to collide with Owen’s car. As a result of the collision, Bloodsworth sustained fatal injuries. Also, due to the collision, appellant was rendered unconscious and remained unconscious for some period of time until after he was administered treatment at a local hospital.
Though there was testimony that this intersection was the most dangerous intersection in the City of Tyler, based on the frequency of accidents occurring at that location, no evidence was offered to show that appellant had ever previously traveled through this intersection. There was conflicting testimony as to whether appellant accelerated his speed before entering the intersection, although it was undisputed that appellant “braked” his vehicle prior to his vehicle colliding with Bloodsworth’s.
The State argues, “there is no evidence that the appellant was unaware of the risk he was creating,” while appellant argues that his “inattention and unmindful acts show that he was criminally negligent.”
Whatever appellant’s actual point of view toward the other parties involved in the collision might have been, I must assume by his defensive actions that he wished to preserve his own life. Had he been aware that he was in mortal danger, but consciously disregarded that risk, he would have had no reason to try to avoid colliding with the other vehicles by braking and swerving his vehicle to the left. His attempts to avoid the collision, however futile, are evidence that he was unaware of the risk before that time. Contrary to the majority’s conclusion, that the facts do not call for a charge on criminally negligent homicide, I believe the evidence adduced can reasonably be viewed as showing either a conscious disregard of a substantial and unjustifiable risk, thus showing recklessness, or a failure by appellant to appreciate the substantial risk his actions were creating when he should have been aware of it, thus showing criminal negligence. Since either interpretation is reasonable, I would hold that the charge on criminally negligent homicide, properly requested, should have been given so the jury as the finder of fact, could make this decision. Giles v. State, 617 S.W.2d 690 (Tex.Cr.App.1981); and Dillon v. State, 574 S.W.2d 92 (Tex.Cr.App.1978). The jury, if it believed the version favorable to appellant, could have found that the appellant ought to have been, but was not, aware that his conduct would create a substantial and unjustifiable risk.
Although I recognize that in Ormsby, supra, the Court was confronted with a V.T. C.A. Penal Code, Sec. 19.05(a)(2) offense, whereas the appellant was charged with committing a Sec. 19.05(a)(1) offense, nevertheless, I find the facts here are equal to if not superior to those found in Ormsby, thus justifying a charge on the lesser included offense of criminally negligent homicide. See also Campbell v. State, 614 S.W.2d 443 (Tex.Cr.App.1981); Branham v. State, 583 S.W.2d 782 (Tex.Cr.App.1979); London v. State, 547 S.W.2d 27 (Tex.Cr.App.1977); Dockery v. State, 542 S.W.2d 644 (Tex.Cr.App.1976).
*177For failure of the trial court to instruct the jury on the lesser included offense of criminally negligent homicide, the conviction should be ordered reversed and the cause remanded.
I will next discuss appellant’s complaint, which concerns the taking of his blood when he was unconscious at the hospital. The blood was actually obtained by a nurse, Grace Beck, who was then acting on instructions from Tyler police officers.
The evidence at pre-trial and trial undis-putedly shows the only reason a sample of appellant’s blood was obtained was because Lieutenant Audy Adams of the Tyler police department, a “shift-commander,” “advised” Patrolman Tom Giorgio to obtain a sample of blood from the unconscious appellant. Adams testified that he sought a sample of appellant's blood because “we were still in the investigative area, trying to establish what had happened.” Adams never amplified this statement. Other than being “advised” by Adams to obtain a sample of blood from the unconscious appellant, Giorgio gave no other reason or explanation for his actions in instructing Beck to take a sample of appellant’s blood.
Giorgio testified that after being advised by Adams to obtain the blood sample, and after obtaining a vial from Officer Sellers, he went to Nurse Beck, and asked her if he could get a sample of appellant’s blood. She told him it would be alright. After Beck obtained the sample of blood from appellant’s body, and put it in a vial, she turned it over to Giorgio, who turned it over to a Captain Finley of the Tyler police department, who turned it over to a Lieutenant Scott of the Tyler police department, who mailed it to the Department of Public Safety office in Tyler.
Joe Hogan, a Department of Public Safety chemist, testified he made an analysis of the blood, and in his opinion it contained 0.14 per cent alcohol by weight.
I emphasize: at no time before or during the appellant’s trial was any reason given for obtaining appellant’s blood other than it was obtained because, as Adams put it: “We were still in the investigative area.” I also emphasize that at no time did Adams amplify or explain his statement.
The testimony was also undisputed that appellant was never under arrest or restraint from the time he was removed by ambulance from the scene of the collision until he was released from the hospital. Tyler Police Detective Nelson Downing testified he was assigned to investigate the case four or five days later.5 Exactly one week from the date of the accident, September 9, 1976, after reviewing the case with members of the District Attorney’s staff, Downing lodged a charge against appellant. However, it was not until September 15, 1976, when the police were notified that appellant was ready to be released from the hospital that appellant was formally arrested.
Because appellant was not at any time shown to be under arrest by law enforcement officials, the implied consent law, see Art. 67017-5, V.A.C.S., is not applicable to this cause. See Darland v. State, 582 5.W.2d 452 (Tex.Cr.App.1979); Bennett v. State, 522 S.W.2d 507 (Tex.Cr.App.1975). Although there need not be an actual physical taking into custody of a person in order to have an arrest,6 I find no evidence in this record which would warrant a finding that appellant’s movements were restricted or that he was ever restrained by any law *178enforcement official until he was formally arrested.
I first observe, in addressing appellant’s complaint, that the seizing of one’s blood is not “testimonial” in nature, and therefore forcing its production is not considered compelled self-incrimination, as contemplated by the Fifth Amendment to the United States Constitution, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), although such searches may implicate the due process clause of the Fourteenth Amendment, because such seizures have the potential to humiliate or debase the dignity of the person, thereby “shocking the conscience” of the court. See Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396 (1952).
It was formerly the rule in Texas that in the absence of a showing that a specimen of blood was taken with the defendant’s consent, testimony of a toxicologist as to his results of an analysis of a specimen of the defendant’s blood was inadmissible to prove intoxication of the defendant in a prosecution for driving while intoxicated. See Trammell v. State, 162 Tex.Cr.R. 543, 287 S.W.2d 487 (1956), a case where the facts are very similar to those at bar.
Until Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972), overruled Trammell, it appears that the rights guaranteed by Art. I, Sec. 10, of the Texas Constitution,7 were superior to those guaranteed by the Fifth Amendment to the United States Constitution. The pre-Olson requirements for taking of blood from a person in Texas were: (1) it had to be done with the consent of the person whose state of sobriety was questioned, and (2) it had to be taken by competent and trained nurses, doctors, or laboratory technicians.
However, Trammell, supra, was laid to rest by Olson, supra, when this Court held that “compelling a blood test, if taken under conditions which comport with due process, does not constitute requiring an accused to ‘give evidence against himself.’ ” Thus, though dicta, it became the law in Texas that the provisions of Art. I, Sec. 10, were applicable only to the self-incrimination privilege and were “a safeguard similar to that contained in the Fifth Amendment,” where the obtaining of blood was at issue.
But, the question which was not decided by Olson was whether or not the Fourth Amendment to the United States Constitution applied to the taking of an accused’s blood. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Also of importance is Art. I, Sec. 9, of the Texas Constitution, which provides:
The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.
However, since Olson, supra, was decided, this Court has not hesitated in holding that if the item of evidence is blood, and it was sought only to study it for type or immutable characteristics, a search warrant is necessary before the accused’s blood may legally be obtained.
In Escamilla v. State, 556 S.W.2d 796 (Tex.Cr.App.1977), this Court expressly ruled that the taking of a defendant’s blood is a search and seizure under Texas constitutional law, Art. I, Sec. 9, and to obtain a person’s blood without con'sent, it is necessary to obtain a search warrant. In Escam-illa, it was expressly pointed out that no *179warrant could be obtained for blood, as blood was not one of the items for which a search warrant could issue under then Art. 18.02, V.A.C.C.P. Cf. the recent amendment to the statute, which provides in part that a warrant may be obtained “(10) for property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense.” There is no need to discuss the applicability of the amendment to this cause, for it is undisputed there was no search warrant sought or obtained by the law enforcement officials involved. Nor do I discuss the issue of “consent,” for it is also undisputed that appellant was at all times either unconscious, comatose, or incoherent at the time that the blood was obtained from his body by Nurse Beck. Nor, lastly, do I find it necessary to discuss, for reasons hereinabove stated, whether or not under Texas law there is an exception to the warrant requirement for the taking of blood where “exigent circumstances” exist, such as the taking of blood based upon the fact that alcohol in the blood is by its nature highly evanescent, and disappearing within several hours of ingestion of the alcohol.
I simply do not believe that our forefathers, who enacted the Bill of Rights found in the Texas Constitution, wanted this Court to ever second-guess the reason blood was obtained from the human body. And yet, that is exactly what the majority does today in arriving at its conclusion: “In the present case the exigency of rapidly dissipating alcohol justified the search.” Textbook law should never be substituted for the actual and real facts of a case. But, I feel that is what the majority does here, for the facts of the case do not sustain the above conclusion.
Escamilla, supra, was diligently and carefully followed by this Court in Smith v. State, 557 S.W.2d 299 (Tex.Cr.App.1977), see also Ferguson v. State, 573 S.W.2d 516 (Tex.Cr.App.1978). In Smith, supra, this Court said: “It would appear that the only exception to the warrant requirement in a search for blood would be that on consent.”8 Id. at page 302. This Court also said in Smith:
There can be no exigent circumstances that would dispense with the warrant requirement if the defendant is in custody. A person’s blood type remains constant throughout his lifetime. A search for blood cannot be based on the incident to a lawful arrest exception. It is not unlawful to possess blood. The possession of blood would not endanger the arresting officer. It would appear that the only exception to the warrant requirement in a search for blood would be that of consent. Id. at 301-02.
The harmless error rule may be applicable to a particular case, even where a warrant is not obtained to search for blood. See Ferguson v. State, 573 S.W.2d 516 (Tex.*180Cr.App.1978), where it was again recognized that “if the defendant is in custody, either a warrant must be obtained or the defendant must consent to the taking of his blood.” However, in Ferguson the Court found that the wrongful admission into evidence of the defendant’s blood was cured because of the overwhelming evidence of the defendant’s guilt.
I also pretermit for another day what warrantless “minor intrusions [if any] into an individual’s body under stringently limited conditions” may take place. Schmerber v. California, supra, 86 S.Ct. at 1836.
I find and conclude from the facts of this cause that the taking of appellant’s blood, without warrant or consent, was unlawful. I arrive at this conclusion based on the very simple fact that the evidence in this record is not sufficient to clearly establish why appellant’s blood was sought by Adams. The only testimony by Adams or Giorgio pertaining to the taking of appellant’s blood was Adams’ statement, “We were still in the investigative area.” Although Beck, who took the blood sample, indirectly indicated she expected it was being taken to test for alcoholic content, and Patrolman Sellers stated the type of vial used in taking the sample was used in blood tests for alcohol, this testimony is not conclusive that such was indeed the intent of Adams or Giorgio. For all I can tell from this record, Adams’ “investigative area” may have been far removed from the accident in which appellant was involved.
I find it interesting that the State in her trial court brief, filed [just] over three months after Ferguson, supra, was decided, neither cites nor discusses Escamilla, Smith or Ferguson, supra. This perhaps is understandable in light of the facts of the case. The State’s reliance on broad general statements found in Olson, supra, and Schmer-ber, supra, to sustain the search and seizure of appellant’s blood, should be rejected.9
For the additional and foregoing reasons, I find that the learned trial court committed reversible error by admitting into evidence the seizure of appellant’s blood, as under these facts the search and seizure of appellant’s blood were not authorized by Art. I, Sec. 9 of the Texas Constitution. The results of the blood test were erroneously admitted.
To the majority’s failure to order reversal, I respectfully dissent.
. The indictment also alleged a violation of V.T.C.A. Penal Code, Sec. 19.05(a)(2), but this was abandoned on motion of the State after both sides rested.
. The prosecutor in this cause, when reviewing the facts of the case after both sides had rested, had a most difficult choice to make as to which *175paragraph of the indictment he wished the jury to thereafter consider, for there was evidence going in both directions. However, by electing as he did, he brought into issue the question whether or not the lesser included offense of criminally negligent homicide was in the case.
. Excluding the name of the deceased, the wording of the second paragraph of the indictment in this cause, which was dismissed, is virtually identical to that found in Ormsby, supra.
. In doing so, I give only the facts most favorable to the issue presented, which this Court’s decisions require. See Day v. State, supra.
. Downing’s investigation, by the record, consisted of interviewing several witnesses. The “fruits” of his investigation, as far as obtaining admissible evidence in court, were nil. Nearing the conclusion of the prosecutor’s direct examination, the trial judge, in part, remarked to the prosecutor:
Well, thus far, to my knowledge, the entire testimony of Officer Downing has shed absolutely no light on any issue that the Jury is going to have to determine ....
. See Art. 15.22, V.A.C.C.P., for a definition of “arrest.” An arrest is complete whenever a person’s liberty of movement is restricted or restrained, see Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975), and see also Judge Roberts’ pointed remarks in Stone v. State, 583 S.W.2d 410 (Tex.Cr.App.1979) (Dissenting Opinion).
. Art. I, Sec. 10, provides: “. . . He shall not be compelled to give evidence against himself,..."
. The fact that the appellant was not formally arrested until he was released from the hospital does not preclude him from questioning or contesting the obtaining of blood from his body — a search in its truest form — because I find he had “standing” to object to the admissibility of the evidence going to the taking of the blood and the use of the chemical analysis made of the blood. Texas recognizes the right of an individual to privacy, see Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971), and the United States Supreme Court has recognized that an individual has a constitutionally protected reasonable expectation of privacy, see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). For my comments regarding the doctrine of “standing,” see Goehring v. State, 627 S.W.2d 159 (1982).
Surely, if an individual has the right of privacy to use a toilet stall, see Buchanan, supra, or has the right of reasonable expectation of privacy in a public telephone booth, see Katz, supra, the right of privacy and the right of reasonable expectation of privacy carries over to the human body. Thus, appellant has “standing” to contest the search and seizure of his blood by an agent of the police. My remarks in a per curiam opinion, see Boyd v. State, 620 S.W.2d 149 (Tex.Cr.App.1981), may appear contradictory to what I say here. However, a close reading of Boyd will show that I found that the defendant in that cause, “From a totality of the circumstances, did give a valid consent to the taking of his blood by the highway patrolman.” Thus, what I say here and what I said in Boyd are compatible.
. The State in her brief acknowledges, and does not question the fact appellant was unconscious when blood was taken from his body, nor does the State dispute the fact that appellant did not consent to the taking of his blood. However, in nonchalant fashion, the State argues: “Neither, however, was he able to deny his consent. There is no testimony in the record that the Defendant at any time resisted the taking of the blood sample. There is no evidence that he was even aware that the blood sample was being taken, or the purpose for which the blood was to be used.” These comments border on being tongue in cheek, in light of the facts and well known and unquestioned principles of law that are set forth in Ferguson, supra. “In any case in which consent is at issue, the burden is upon the State to show the consent was freely and voluntarily given . . . The prosecution must show the consent given was positive and unequivocal, and there must not be duress or coercion, actual or implied . . . The burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority ...” Id. at page 520. How a person may be unconscious and consent, or be unconscious and aware that something is occurring is not explained by the State.