*1 Huckert Ann House v. State. 26,618. 18, 1953. November February Rehearing for Denied
Motion Brown, Burks & Brown, Lubbock, ap- W. Clifford pellant. Wesley Dice, Austin, Attorney, State’s for the state. GRAVES, Presiding Judge. Appellant was convicted in the court at law of Lub- County
bock unlawfully operating offense of a motor public highway vehicle while under the influence of in- toxicating liquor punishment and her was assessed at a fine of $400.
It is shown the facts day question police- that on the man of city Lubbock observed car driven manner, moving an erratic side, from side to into ditch, a bar highway crossing back on the from one lane to another. The officer appellant stopped blew his siren and got and started car out his As he street. middle in the again pro- away. The officer appellant, drove over *2 asking Upon for her stopped finally her. and his car in ceeded identification, produced a driver’s purse her in fumbled going to take he her that was informed The officer license. However, appellant got in her car. police to the station quite created go police willing station to not was attempted arrest had to be the disturbance, and the officer who doing so. by officers in further assisted appellant testimony was that also shown certain It was upon her condition; alcohol could be smelled that in drunken actions, manner, speech and which con-
breath; from that screaming, fighting as the scent cursing, as well of sisted breath, opinion all officers that she the it was on condition. in drunken was through going appellant
Her testified that husband change opinion, life, on and that in his her actions from nervousness of her were caused extreme occasion arrest physical testified and excitement due to her condition. He also “shotgun glasses” whisky before had two that arrest. the occasion of her exception find in the record.
We three bills argument made Bill of certain relates to discussing county attorney by the assistant the amount of required and that alcohol to effect the intoxication of a appeared testimony from the in the case that bodily not in control of her mental and faculties reason of quote: the recent intake of alcohol. From the we bill “ ‘It case she seems to me under all the evidence bodily faculties, and in type of her mental and those are control driving.’ trying people keep from we that “BE IT REMEMBERED AND CERTIFIED FURTHER argument, making upon quoted defendant of the above argument Now, just objected to said as follows: ‘Mr. Brown: argument moment, Honor, object amount- Your to that giving ing illegal, after the unsworn evidence being given attorney. closed, I think im- it is is proper jury sympathies from the and seeks to elicit to instruct for the State’s case. will ask the Court not to consider that.’ “BE IT FURTHER REMBERED AND CERTIFIED following objection being out, made as above set
occurred: objection. I will
“‘Court: overrule the “ exception. ‘Mr. Brown: And note our “ logical On the ‘Court: basis was a conclusion the evidence.
“ exception ‘Mr. Brown: And our of the note the remarks weight evidence, Court as on of the calculated lead to believe that the Court support there is evidence to the statement.
“ your You ‘Court: have bill.
“ ruling exception ‘Mr. Brown: And we like would our to the of the Court. your exception.’”
“‘Court: You have vigorously ruling It by appellant is contended the that such by and statements the court were comments calculated to lead jury the opinion believe court that the was of the the that supported evidence attorney. of the statement the state’s We complained are of the a that the statement but of was proven facts, is, of the statement lady admitted that that this faculties, bodily was not in of men- control her normal tally, and that her condition should have been driving According testimony officers, at the time. of the as well as that of her who testified that when paroxyms might rage, be, went into her of or whatever it that controlling way her; there was no of a drink that sometimes whisky her, usually would calm just had to but he sit it out. appears It attorney to us that statement the state’s was the a fair testimony conclusion from the uncontradicted in the case. fact, In no see other conclusion could be that drawn complained the statement of in bill. Exception complains Bill of that No. 2 the fact because arresting officer, gotten
the con- he under after driving trol, police took her to station and booked while This intoxicated and a blood asked her if she wanted test. objected by wit- and not answered ness. appellant convey The of the statement failed to answer of facts However,
when asked test. if she desired a blood get test. When did not blood that she shown objection had hitherto he done, court sustained being opinion, sustain, in his and this bill shows firm failed appellant. We think no answer offered there was ruling correct. on this matter was the court’s Paragraph 5-A 3 relates to Bill of fully charge, complaint did not the same court’s herein, was, present appellant’s and that that she defense change undergoing of life and that actions on the intoxication, question were not caused from but were occasion change life, caused the result of emotional strain same, thereof, jury or had a if the believed the reasonable doubt charged they acquit her. The court as fol- then should lows: defendant has introduced to the effect that
“The Now, you if not intoxicated at the time her arrest. she was thereof, said evidence or have reasonable doubt believe you say by acquit your will the defendant verdict not guilty.” do
We not think was incumbent court to set out grounds, possible many, whether there one or might account for erratic conduct at the Paragraph time of her arrest. think that 5-A of the court’s charge conveys quoted above the idea that no matter peculiar time, what would have caused her actions at the unless *4 intoxicated, they she was then or if reasonable doubt thereof, acquitted specifying any she should be without reason for her condition herein as an excuse for her conduct. Phil- See State, 612, lips (2d) 213; v. 152 Tex. R. 216 Cr. S.W. Wells v. State, 331, (2d) 148; Milligan 153 Tex. R. 220 Cr. S.W. and v. State, 448, (2d) 156 Tex. Cr. R. 243 S.W. support think the is sufficient to the convic-
tion, finding herein, judgment and no reversible error is affirmed. rehearing.
ON APPELLANT’S motion WOODLEY, Judge.
Appellant directs our attention to the fact that in her Bill complains judge No. 1 of the remarks of she argument and not of the of counsel. She insists that we should error shown reversible and case of hold relies State, Rep. 472, 156 Tex. Cr. 2d v. S.W. as di- Ward point. rectly in original opinion, county in our attorney
As stated discussing required of alcohol the amount to effect intoxication. argument maybe to the effect that one could The very sober, good quart job driving, and do drink somebody else, “maybe physical condition, due to their while may be, mental condition or to some whatever due couldn’t much, very intoxicated;---.” very and be drink He further woman, charged argued, them, “But this all of are with driving means, you know, while intoxicated and that as bodily control of their lack of mental faculties. It seems to in under all the evidence this case me she was not in control of bodily faculties, her mental and type people those are the driving.” trying keep from we objection argument, The made to this and the court having same, explanation ruling overruled the of his re- logical marked “On the basis that awas conclusion from the evidence.” We understand the conclusion drawn assistant
attorney appellant, though to be that may have consumed only intoxicating a small amount of liquor, was nevertheless intoxicated. We understand type the remarks as to “the people trying keep driving” we are referring in- drivers, regard toxicated without to the amount of alcohol have caused the loss of their normal faculties. construing So expressed the conclusion in original opinion our objection overruling the court did not err in argument. (cid:127) In view of motion we will further discuss the regarding contention judge. the remark of the trial provides Art. 707 part not, C.C.P. judge shall stage at proceedings previous return *5 verdict, make remark convey calculated to his opinion of the case. State, In v. Ward supra, provisions said court of Art. 707 mandatory, C.C.P. and reached conclusion
373 said provisions of violated the of the court remark error. reversible and constituted article 921, 500, 2d State, Rep. 202 Tex. S.W. 150 Cr. v. In Newton 454, 197, Rep. 2d State, 226 S.W. 154 Tex. Cr. and in v. Green ordinarily will result C.C.P. of Art. 707 that a violation we said 105, Rep. State, 217 Tex. v. 153 Cr. Hill And
in a reversal. rigidly enforced. 1009, that the article is to said 2d S.W. in conflict with the these as do not construe decisions prior to the Ward down many opinions court handed of this judge in the trial vio held that remarks of case wherein it ground unless are not for reversal of Art. C.C.P. lation 707 Rod operate prejudice the defendant. remarks 255; Rep. 190, riguez State, 5 v. 109 Tex. Cr. S.W. Crane v. 920; State, State, Rep. 304, Dipple v. 109 Tex. 240 S.W. 91 Cr. 339, 565; State, Rep. 4 2d 114 Tex. Cr. Davis v. Tex. Cr. Rep. 72, S.W. Clay 593, 417; State, Rep 40 51 24 2d v. Tex. Cr. S.W. 323, 693; State, Rep. 129 Tex. Cr. S.W. 2d v. Welburn S.W. State, Rep. 302, 259; 2d Martin 154 Tex. W. v. Cr. 227 S. 2d 213. recognized State, 158
The rule was in Farmer v. Tex. Cr. Rep. 397, 2d decided S.W. after Ward case. appear- testified
The state’s witnesses the conduct and ance alcohol on odor of her breath. That safely an she was in no condition to drive automobile on the dispute. public highway is without her condition to drunken-
The state’s witnesses attributed According appellant denied, at the ness. to the state’s evidence drinking. arrest, time of that she been her, Appellant’s car did not who was with description given officers,, state- question the ment, conduct, appearance or attitude. testify. only hus-
Appellant was her did not Her witness band, her condition was expressed who physical He ac- and mental condition. due to drink but to her fact counted of alcohol breath smell having taken one two drinks. or light In and the *6 made, agree we cannot judge the remark of the trial con- accept tributed cause the the conclusion of the state’s witnesses that reject was intoxicated and to the con- clusion of her the emotional strain and nervous condition alone accounted for her behavior on the occasion question. believing
Nor do we find basis for remark prejudice the court resulted in in the assessment punishment. fine as $400 Unless there be found in the remarks of the court a injury benefit to the state an or to the defendant which would present not simply have been had the court overruled the ob- jection, not, we would stated, under the rule be authorized to reverse because remark was made in violation of Art. 707 C.C.P. fail injury to find such and remain convinced that re-
versible error shown.
Appellant’s rehearing motion for is overruled. James v. State.
Bessie 26,588. December Rehearing (Without Opinion) Motion for Denied Written February 3, 1954. Moss, Post,
Joe S. appellant. Wesley Dice, Attorney, Austin, State’s for the state. WOODLEY, Judge.