Lindsey v. State

353 S.W.2d 444, 172 Tex. Crim. 101, 1962 Tex. Crim. App. LEXIS 891

• Court: Court of Criminal Appeals of Texas
• Decided: January 10, 1962
• Docket: 34019
• Status: Published

Opinions

DICE, Judge.

The conviction is for driving while intoxicated; the punishment, 3 days in jail and a fine of $50.

The evidence was undisputed that appellant drove his automobile upon a public highway on the date in question and after having stopped on the highway, was arrested by Highway Patrolman Kenneth Wagner and taken to jail some twelve miles distant.

The issue of appellant’s intoxication was sharply contested.

By informal bill of exception, appellant complains of the court’s action in permitting Officer Wagner to relate to the jury a statement made to him by appellant after his arrest and while he was being taken to jail.

The record reflects that while Officer Wagner was being questioned by the state’s counsel on his direct examination, the following transpired:

“Q. Now, then, after the defendant was placed under arrest I believe you stated you drove his automobile to town, is that correct? A. That is correct.

“Q. Did you have any conversation with the defendant at any time? A. I did.

“MR. BROWN: Your Honor, we object to any conversation that they had after he was placed under arrest.

“THE COURT: We will sustain that objection.

“Q. (By Mr. Flynt) Mr. Wagner, I will ask you whether or not did the defendant make any voluntary statement to you after he was placed under arrest? Just a minute, Mr. Brown is going to object.

“MR. BROWN: Yes, we object to any statement made by the defendant after he was placed under arrest.

“THE COURT: Overrule the objection.

“Q. (By Mr. Flynt) You may answer that question. A. He did. The way to town, first we talked of two main subjects.

“Q. Only thing you can testify to is any voluntary statement the defendant made.

“MR. BROWN: May our objection go to all this testimony, any statement made after the defendant was arrested out there on the highway, any statement made by the defendant, voluntary, involuntary or force or otherwise. A. He said he would like to have a drunk charge and he asked if I was going to file DWI and I said yes, and he said could I file a drunk charge,, and I said no, and the other thing talked about was the gas mileage on his car * *

Appellant insists that the oral statement which he made to Officer Wagner, following his arrest, was in the nature of a confession and should not have been admitted in evidence because it was not made in compliance with our confession statute, Art. 727, V.A.C.C.P.

The state insists that the statement was admissible in evidence as a part of the res gestae. It is further contended, that in the absence of a showing that the statement was not a part of the res gestae, no error is shown under the rule followed by this Court in Garland v. State, 157 Texas Cr. Rep. 4, 246 S.W. 2d 204.

We are unable to agree that the statement was shown to be a part of the res gestae. The record clearly reflects that the statement was made by appellant after his arrest, in conversation with the arresting officer while he was being taken to jail from the scene of the arrest. Under the record, it is shown that the statement was not a part of the res gestae.

In the recent case of Bates v. State, 167 Texas Cr. Rep. 414, 321 S.W. 2d 76, a statement made to the arresting officer, under similar circumstances, was held not to be res gestae and its admission in evidence constituted reversible error.

The admission in evidence of appellant’s oral statement to the arresting officer while under arrest, which was in the nature of a confession, was error and calls for a reversal of the conviction. See also Womack v. State, 160 Texas Cr. Rep. 237, 268 S.W. 2d 140 and Brown v. State, 165 Texas Cr. Rep. 535, 309 S.W. 2d 452.

The judgment is reversed' and the cause remanded.

Opinion approved by the Court.