Fowler v. State

247 S.W.2d 393, 157 Tex. Crim. 147, 1952 Tex. Crim. App. LEXIS 1718

• Court: Court of Criminal Appeals of Texas
• Decided: February 13, 1952
• Docket: 25700
• Status: Published

Opinions

WOODLEY, Judge.

The conviction is for transporting beer in a dry area; the punishment, a fine of $1000.

Appellant drove up to a house in Lubbock which was being searched by inspectors of the Texas Liquor Control Board. He engaged in conversation with the officers, in the course of which he told them that he had a case of beer in his car. A search of the car was made resulting in the finding of 48 cans of beer.

It was admitted that Lubbock County was a dry area.

There is one bill of exception which complains that the assistant county attorney, in his opening argument to the jury, indirectly alluded to appellant’s failure to testify. According to this bill, the attorney for the state remarked to the jury, “why was Lefty out there?” (Referring to the place where the search was in progress and where the arrest was made.)

Appellant objected to said argument “for the reason that the same constituted an improper indirect allusion to the failure of the defendant to testify since there was no evidence that anyone, save and except the defendant, could explain why he was out there.”

The objection being overruled, the assistant county attorney repeated the remarks as follows: “Why was Lefty out there? I don’t know. Lefty was out there, but I was not. I can only surmise what he was doing out there.”

Appellant again objected to the argument as being an improper indirect allusion to the failure of the defendant to testify, and excepted when his objection was overruled.

The bill certifies that no one was present at the time of the arrest except the defendant and the arresting officers.

The reason for appellant’s presence was not a matter necessarily concealed within his own breast, or known only to himself and the officers he encountered. Others may well have known of appellant’s purpose.

We find no certification in the bill that no one save appellant was in a position to testify why he drove up to the house that was being searched. It follows that such bill fails to show that the argument complained of necessarily referred to the failure of appellant to testify.

The applicable rule is stated in 4 Tex. Juris, p. 397, Sec. 264, as follows:

“A bill complaining of a statement that certain testimony or facts had not been denied or disproved, or of a reference to the absence of evidence to show certain facts, or of an argument challenging the jury to explain certain matters as being an indirect reference to the failure of the accused to testify, is insufficient when it does not show that no one other than the appellant was in a position to contradict the testimony or to disprove the statement, or to explain the matter.”

No reversible error appearing, the judgment is affirmed.

Opinion approved by the court.