*1 Lowery State Thomas Allen Appellant’s Motion for May 23, 1956. McMahan, D. N. Piranio, Angelo and Ballowe, Piranio &
Piranio, Dallas, Douglas, Attorney, Austin, Leon for the state. BELCHER, driving; conviction punishment, drunken and of $50. undisputed
It an auto- place alleged. mobile at time and appellant driving Freeman testified that he observed crossing an in an recrossing automobile erratic manner signalled stripe highway, the center on the stop, for him to breath, stagger smelled odor of alcohol on observed him walked, talk, expressed opinion heard him he was intoxicated. testifying drunk two stated that had arrest, prior that he
cocktails about two hours *2 not testimony other that he was not intoxicated. He also offered shortly before arrest. intoxicated his jury disputed The of his intoxication resolved the issue support against the him find to and we the evidence sufficient conviction. complains
By Exception appellant Bill of Formal No. 1 defendant, attorney being in “permitted to ask the the state’s he, defendant, presence jury, the knew that of the that he the drunk, find to take the test to out.” refused objection The in that “There was no court certified said bill asking by exception of the taken the to the to or defendant complained of in bill.” question this court’s the which was ac- view the certification in bill appellant, cepted by reflected. the no error Appellant permitting the trial court erred in insists that give testify appellant offered Freeman to he to the that objection that test which he over his an intoximeter testimony inadmissible he was under arrest. because such objection as find other in the record without We give by appellant an intoximeter the offer Officer Freeman to to objec- waiver he refused. This constitutes a which Rep. 103, Hopkins 162 Tex. Or. S.W. 2d tion. error, Fnding judgment no trial court reversible the the affirmed. Opinion by approved the Court. FOR REHEARING APPELLANT’S MOTION
ON WOODLEY, Judge. original opinion holding our he construes as that objection the introduction of evidence the to to effect
waived test when cross-examined the officer he refused blood consequences testimony. minimize of such attempting to the any to hold. intent so disclaim We propounding Prior the the wit- to state’s ness, give (which test” to whether he offered “to examination), cross- appellant’s was on had on re-direct “Why asked the didn’t take him out examination witness: Hospital to Parkland test?” and him blood “Are telling department take it’s the not to rule of test?” them there and them blood
Following this, on asked re-direct the officer was give appellant test,” appel- whether offered to “a to which objected. objection being overruled, lant the officer answer- ined the affirmative. Thereafter, attorney was asked witness objection: and answered without
“Q. you of sort did What offer to him. A. An test, intoximeter sir. “Q. Would state what sort a test is. A. It’s suspected a test where the man that is while drunk balloon, analysis blows his breath into a chemical it can * * *
be deduced whether or not he was within sufficient suffi- ciently or drunk not.
“Q. charged To be with the offense of D. ? A. W. I. Yes sir. “Q. Did offer this Defendant that sort A. I test? did, sir.
“Q. Refuged did he A. it, What do? sir.
“Q. Did why he state or indicate he refused it? A. No sir.
“Q. though? He A. Yes sir.
“Q. agree did test, He coordination is that correct? A. Yes sir.
“Q. But would not take the intoximeter? A. No sir.” Appellant’s having inquired on cross-examination arresting why appellant given officer as to a blood test, reversing we would not be warranted in the conviction be- permitted cause the on redirect to show v. had offered to him a Earwood
that State, the witness test. Rep. 171, 275 2d 652. 261 Tex. Cr. S.W. ruling any event, any on lat- error in the court ex- redirect
ter rendered harmless further objection. to which there was no amination the witness or admitted without ob- the same similar Where improper jection, evidence not call for the admission of does 578, Moseley R. 2d 158 Tex. Cr. reversal. 331; S.W. Digest, Law, (2). Texas Cr. rehearing
Appellant’s motion for overruled. McDonald v. State Arrie Haskell Appellant’s Motion 23, May (Without Opinion) Written *4 Cate, Terrell, for Brin Pearson, Kaufman, Doug-
Wayne County Attorney, and Leon Austin, Attorney, las, state.
WOODLEY, upon appeal is from conviction verdict a motor vehicle offense having intoxicated, punishment been assessed at 3 $50.