Lowery v. State
This text of 290 S.W.2d 532 (Lowery v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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The conviction is for drunken driving; the punishment, 30 days in jail and a fine of $50.
It is undisputed that the appellant was driving an automobile upon a public highway at the time and place alleged.
Officer Freeman testified that he observed appellant driving an automobile in an erratic manner crossing and recrossing the center stripe on the highway, signalled for him to stop, smelled the odor of alcohol on his breath, observed him stagger as he walked, heard him talk, and expressed the opinion that he was intoxicated.
[242]*242Appellant while testifying stated that he had drunk two cocktails about two hours prior to his arrest, but that he was not intoxicated. He also offered other testimony that he was not intoxicated shortly before his arrest.
The jury resolved the disputed issue of his intoxication against him and we find the evidence sufficient to support the conviction.
By Formal Bill of Exception No. 1 appellant complains of the state’s attorney being “permitted to ask the defendant, in the presence of the jury, that he, the defendant, knew that he was not drunk, but refused to take the test to find out.”
The court certified in said bill that “There was no objection to or exception taken by the defendant to the asking of the question complained of in this bill.”
In view of the court’s certification in the bill which was accepted by the appellant, no error is reflected.
Appellant insists that the trial court erred in permitting Officer Freeman to testify that he offered to give the appellant an intoximeter test which he refused, over his objection that such testimony was inadmissible because he was under arrest.
We find other testimony in the record without objection as to the offer by Officer Freeman to give appellant an intoximeter test which he refused. This constitutes a waiver of his objection. Hopkins v. State, 162 Tex. Or. Rep. 103, 282 S.W. 2d 232.
Fnding no reversible error, the judgment of the trial court is affirmed.
Opinion approved by the Court.
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Cite This Page — Counsel Stack
290 S.W.2d 532, 163 Tex. Crim. 241, 1956 Tex. Crim. App. LEXIS 1042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowery-v-state-texcrimapp-1956.