Hunter v. State

324 S.W.2d 17, 168 Tex. Crim. 160, 1959 Tex. Crim. App. LEXIS 2490

Opinions

WOODLEY, Judge.

The conviction is for driving while intoxicated; the punishment, 3 days in jail and a fine of $350.

A motion to dismiss the appeal has been filed in this court by the county attorney who prosecuted the case because a copy of the statement of facts has not been filed with the clerk of the trial court as required by law. The failure to file the statement of facts in duplicate as required by Art. 759a, Sec. 4, V.A.C.C.P., does not divest this court of jurisdiction of the appeal. Paulos v. State, 157 Texas Cr. Rep. 341, 248 S.W. 2d 928. The motion is therefore overruled.

It was undisputed that on the date alleged the appellant drove his automobile upon a public highway in Oldham County, and the only conflict in the evidence was on the issue of his intoxication.

The highway patrolman who stopped and arrested the appellant, after describing his manner of driving and his actions and appearance, testified that in his opinion the appellant was on such occasion under the influence of intoxicating liquor. Another officer who observed appellant after his arrest testified that in his opinion appellant was under the influence of intoxicating liquor.

Appellant, as a witness in his own behalf, testified on direct examination that on the day in question he had been rabbit hunting with his brother and another companion who were riding in the automobile with him; that he only had one drink of whisky that day; that there was nothing wrong with him and that he at all times had the automobile under control.

On cross examination by state’s counsel, appellant was asked “Did you ever have any trouble with drinking,” to which he replied “No, sir,” whereupon counsel for appellant objected to the inquiry on the ground that it was going into a matter of an offense not involving moral turpitude and that it had not been shown that appellant had been tried and convicted of such an offense. Upon the objection being overruled, appellant was required by the court to again answer the question, to which he replied “I have been arrested two or three times.”

In overruling appellant’s objection to the question and requiring him to give his answer thereto the court fell into error.

It was not shown that appellant had been convicted of any offense.

A witness may not be impeached by proof of mere accusations against him or evidence of particular acts of misconduct. See 1 Branch’s Ann., P.C., 2nd Ed., Sec. 190, page 209, and cases there cited.

Under the provision of Art. 732a, V.A.C.C.P., the fact that a witness has been charged with an offense is inadmissible for the purpose of impeaching him unless the charge has resulted in a final conviction. Tomlinson v. State, 163 Texas Cr. Rep. 44, 269 S.W. 2d 267. Furthermore, the convictions must be for a felony offense or one involving moral turpitude. Neill v. State, 158 Texas Cr. Rep. 551, 258 S.W. 2d 328, and Mauldin v. State, 165 Texas Cr. Rep. 405, 308 S.W. 2d 36.

Drunkenness is not an offense involving moral turpitude. Powell v. State, 60 Texas Cr. Rep. 201, 131 S.W. 590, and Garrison v. State, 94 Texas Cr. Rep. 541, 252 S.W. 511. Also, drunken driving is not an offense involving moral turpitude. Burton v. State,, 149 Texas Cr. Rep. 327, 194 S.W. 2d 398.

The question propounded did not relate to a felony offense or one involving moral turpitude and appellant’s objection thereto should have been sustained.

We.are unable to agree with the state that the question propounded was within the legitimate scope of cross examination because the appellant testified on direct examination that he never drank while hunting with a rifle or that the answer was not responsive to the question and appellant should have therefore moved to strike the testimony.

The fine assessed against appellant being in excess of the minimum prescribed by law, we cannot say that the testimony given by appellant over his objection relative to his previous arrests was not harmful to him.

For the error pointed out, the judgment is reversed and the cause remanded.

Opinion approved by the Court.