White v. State
299 S.W.2d 151
Tex. Crim. App.
1957
Check Treatment

*1 between a battle criminal case has become legal technicalities

opposing counsel over than purely procedural rather matters or of if one proceeding to determine charged and guilty is of the crime crime accordance with been accorded has a trial law. ap- it is not

It must he remembered that majority opin- pellant’s counsel —whom the mind, fail- unjustly, my convicts ion to make the withdraw —who ure motion to years in going penitentiary is for five going case. It is the who this punishment, serve that not because perfectly thing to do a but be- failed useless cause his counsel did. agree cannot

I to the affirmance of this positive in the face case errors. respectfully dissent. WHITE, Appellant, B. E. Texas, Appellee. Bryan Christi, Wingo, Corpus appel- for Nov. lant. Motion to Reinstate Douglas, Atty., B. Leon Austin State.

DAVIDSON, Judge. is a conviction for drunken driving, punishment with assessed a fine of $100 days jail. five motion for new trial was overruled April 6, at which time on notice of given. this On the day, appellant filed an same *2 152 clearly ruling, convic- same. In this the at which this

The term court appellant request in error. The in session until failed to tion remained occurred June the disregard court to instruct the 19S6. seemingly unresponsive answer, the and so entered, Hence, in appellant has this alone would not er- reflect reversible tíme, appeal rather than term into an bond ror. 158 Sublett required under the recognizance which is this, However, 258 S.W.2d 336. following C.C.P.; circumstances stated. Art. during the redirect the wit- examination of Hankins by counsel, ness State’s the witness Tex.Cr.App., S.W.2d Banti v. asked during “whether or not the course S.W.2d of those the conversations defendant Appellant again a blood test?” ob- Appellant’s liberty during being jected, and this Im- time it was sustained. recog without a valid bail bond or mediately following ruling, the the court’s deprives jurisdiction nizance this court of transpired: following appeal. of the Bedell 161 Tex. “Q. Burnip, you, yourself, Mr. -did Nunez v. during the Tex.Cr.App., course of three the S.W.2d 745. conversations with the defendant which is dismissed. you previously question.? have been about, scene, police at the at 'the sta- may Appellant ap-. move to the reinstate tion, upstairs, and offer the defendant peal days, by within fifteen filing a new a blood alcohol test? proper appeal and

“A. I did.”

On Motion Reinstate Appellant again objected, again and the objection was this, sustained. Following MORRISON, Presiding Judge. during the redirect jail examination of the perfected, The record has now been and guard Aleman, question he .was asked this properly the case is before this Court for counsel, “During this conversa- consideration. there, up tion was the defendant offered Appellant a blood test?” again objected, disposition hereof, In of our view a reci- and this time the court same, the overruled tation of the facts is not deemed neces- but the witness stated that did he not hear sary. the offer. testified that he ar Shortly this, after the witness was asked upon the “paddy rived scene in the wagon” if sign there was not a jail in the “to the appellant custody. took the into He effect that a blood upon test is available appellant stated that talked the request?” Again, appellant objected, than an hour while booking more him at the court this time sustained the same. jail, appellant that the good had a “at at first but later titude” became belliger Recently, Bumpass 160 Tex. cross-examination, ent. he was asked paral S.W.2d we had a he had said to the what during lel which grew situation out of continued lengthy conversation,, reply their and his questioning, which we held to be tanta was, “I don’t believe I recall the exact proving mount to that the accused refused said, were but during proc words to take the blood test. asked him if .he wished- to take ess (cid:127) Appellant’s test.” counsel immedi- In Cardwell v. ately objected, but the court overruled the we discussed the reasons to take why of the the refusal Dorphy RHODES, Appellant, J. admitted not be sobriety should him. against evidence *3 Appellee. Texas, out, judgment pointed For the error remanded. the cause reversed

WOODLEY, (dissenting). Judge 1957. appellant had been

The fact that cross- injected on the a blood test was first Burnip. Witness of State’s examination testimony before the was ad- its regard to error in if there was motion no missibility, was waived when it the answer exclude or withdraw State, Tex.Cr.R. made. Bates v. State, Tex. 389; 271 S.W. Johnson State, 891; Murray v. S.W. 1119; Law- 38, 122 S.W.2d 136 Tex.Cr.R. 185 S.W.2d 148 Tex.Cr.R. son 439; 145 Tex.Cr.R. Stanford v. Tex. 517; Adams 167 S.W.2d 513; Deams v. 255 S.W.2d Many collated are like effect other decisions to Digest. Law Texas under Criminal applies though The rule the answer responsive. Parker v. Tex.Cr. not App., Kennedy 261 S.W. Martin 210, 248 S.W.2d applies testimony rule The same to the wherein he answered the affirmative when asked Counsel for if he offered the State alcohol test. No motion was made to with- testimony, objection though draw question had been answered made after the was sustained. remaining interrogation set out in opinion majority nothing added

testimony jury, that was twice before the

namely a blood had been offered. therefore, not, prej- have been

It could predi- be and reversal should not udicial thereon, cated