Huckert v. State

264 S.W.2d 121, 159 Tex. Crim. 368, 1953 Tex. Crim. App. LEXIS 1897

• Court: Court of Criminal Appeals of Texas
• Decided: November 18, 1953
• Docket: 26618
• Status: Published

Opinions

GRAVES, Presiding Judge.

Appellant was convicted in the county court at law of Lubbock County of the offense of unlawfully operating a motor vehicle upon a public highway while under the influence of intoxicating liquor and her punishment was assessed at a fine of $400.

It is shown by the facts that on the day in question a policeman of the city of Lubbock observed a car being driven by the appellant in an erratic manner, moving from side to side, into a bar ditch, then back on the highway and crossing from one lane to another. The officer blew his siren and appellant stopped in the middle of the street. As he got out of his car and started over to the appellant, she drove away. The officer again proceeded in his car and finally stopped her. Upon asking for her identification, she fumbled in her purse and produced a driver’s license. The officer then informed her that he was going to take her to the police station and got in her car. However, appellant was not willing to go to the police station and created quite a disturbance, and the officer who attempted the arrest had to be assisted by further officers in doing so.

It was also shown by certain testimony that appellant was in a drunken condition; that alcohol could be smelled upon her breath; that from her manner, speech and actions, which consisted of cursing, fighting and screaming, as well as the scent on her breath, it was the opinion of all the officers that she was in a drunken condition.

Her husband testified that the appellant was going through the change of life, and that in his opinion, her actions on the occasion of her arrest were caused from extreme nervousness and excitement due to her physical condition. He also testified that appellant had had two “shotgun glasses” of whisky before the occasion of her arrest.

We find three bills of exception in the record.

Bill of Exception No. 1 relates to certain argument made by the assistant county attorney in discussing the amount of alcohol required to effect the intoxication of a person and that it appeared from the testimony in the case that appellant was not in control of her mental and bodily faculties by reason of the recent intake of alcohol. From the bill we quote:

“ ‘It seems to me under all the evidence in this case she was not in control of her mental and bodily faculties, and those are the type of people we are trying to keep from driving.’

“BE IT FURTHER REMEMBERED AND CERTIFIED that upon the making of the above quoted argument, the defendant objected to said argument as follows: ‘Mr. Brown: Now, just a moment, Your Honor, we object to that argument as amounting to the giving of illegal, unsworn evidence after the testimony is closed, being given by the county attorney. I think it is improper argument and seeks to elicit sympathies from the jury for the State’s case. We will ask the Court to instruct the jury not to consider that.’

“BE IT FURTHER REMBERED AND CERTIFIED that upon the objection being made as above set out, the following occurred:

“‘Court: I will overrule the objection.

“ ‘Mr. Brown: And note our exception.

“ ‘Court: On the basis that it was a logical conclusion from the evidence.

“ ‘Mr. Brown: And note our exception to the remarks of the Court as being on the weight of the evidence, calculated to lead the jury to believe that the Court is of the opinion that there is evidence to support the statement.

“ ‘Court: You may have your bill.

“ ‘Mr. Brown: And we would like our exception to the ruling of the Court.

“‘Court: You may have your exception.’”

It is vigorously contended by the appellant that such ruling and statements by the court were comments calculated to lead the jury to believe that the court was of the opinion that the evidence supported the statement of the state’s attorney. We are of the opinion that the statement complained of was but a statement of the admitted and proven facts, that is, that this lady was not in control of her normal faculties, bodily and mentally, and that a person in her condition should not have been driving at the time. According to the testimony of the officers, as well as that of her husband, who testified that when she went into her paroxyms of rage, or whatever it might be, that there was no way of controlling her; that sometimes a drink of whisky would calm her, but usually he just had to sit it out. It appears to us that the statement of the state’s attorney was a fair conclusion from the uncontradicted testimony in the case. In fact, we see no other conclusion that could be drawn from the statement complained of in this bill.

Bill of Exception No. 2 complains because of the fact that the arresting officer, after he had gotten appellant under control, took her to the police station and booked her for driving while intoxicated and asked her if she wanted a blood test. This was objected to by the appellant and not answered by the witness. The statement of facts failed to convey the answer of the appellant when asked if she desired a blood test. However, it is shown that she did not get a blood test. When such was done, the court sustained the objection that he had hitherto failed to sustain, being firm in his opinion, and this bill shows that there was no answer offered by the appellant. We think the court’s ruling on this matter was correct.

Bill of Exception No. 3 relates to Paragraph 5-A of the court’s charge, the complaint being that the same did not fully present the appellant’s defense herein, and that was, that she was undergoing a change of life and that her actions on the occasion in question were not caused from intoxication, but were the result of emotional strain caused by her change of life, and if the jury believed the same, or had a reasonable doubt thereof, then they should acquit her. The court charged the jury as follows:

“The defendant has introduced testimony to the effect that she was not intoxicated at the time of her arrest. Now, if you believe said evidence or have a reasonable doubt thereof, then you will acquit the defendant and say by your verdict not guilty.”

We do not think it was incumbent upon the court to set out any of the possible grounds, whether there be one or many, which might account for the appellant’s erratic conduct at the time of her arrest. We think that Paragraph 5-A of the court’s charge above quoted conveys to the jury the idea that no matter what would have caused her peculiar actions at the time, unless she was then intoxicated, or if they had a reasonable doubt thereof, she should be acquitted without specifying any reason for her condition herein as an excuse for her conduct. See Phillips v. State, 152 Tex. Cr. R. 612, 216 S.W. (2d) 213; Wells v. State, 153 Tex. Cr. R. 331, 220 S.W. (2d) 148; and Milligan v. State, 156 Tex. Cr. R. 448, 243 S.W. (2d) 581.

We think the testimony is sufficient to support the conviction, and finding no reversible error herein, the judgment is affirmed.