Parker v. State

397 S.W.2d 853, 1965 Tex. Crim. App. LEXIS 1119

Opinions

BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, seven (7) days in jail and a fine of $100.

The testimony of the state reveals that while the appellant was driving an automobile upon a public street about 8 P.M., he drove through a red traffic light at an intersection and along and near the curb striking a parked car in the parking lane with such force that it struck another parked car which also struck a car parked in front of it, and that a person in the second parked car was injured.

The testimony further reveals that the appellant’s eyes were glassy, his speech slurred, and that he was unsteady on his feet and staggered while walking, and he had the odor of alcohol on his breath. Four witnesses who observed the appellant at the scene expressed the opinion that he was intoxicated.

Testifying in his own behalf the appellant stated that when he applied the brakes as the traffic light changed, the car slid sideways and he could not regain control before it struck the parked cars; that he drank three beers before 6 P.M., but was not drunk at the time of the collision about 8:30 P.M. The testimony of appellant is corroborated by that of his brother and employer, and that of his wife who was riding in the car with him at the time of the collision.

The jury resolved the issue of intoxication against him and the evidence is sufficient to support the conviction.

Complaint is made of the trial court’s refusal of appellant’s motion to appoint a court reporter to attend the trial of this cause. A statement of facts in question and answer form on the merits accompanies the record. It is approved by counsel for appellant and the state and also the trial judge. From the record as presented no error appears.

The appellant next complains of the trial court’s refusal of his oral motion for an instructed verdict of not guilty, made at the close of the state’s case in chief, on the ground that he was denied the right to consult counsel, thereby denying him the opportunity to be examined by competent and disinterested persons as to whether he was intoxicated at the time of his arrest. The refusal of the motion was not error.

The arresting officer testified that the appellant was drunk when they arrived at the jail about 9 P.M., and that he then declined appellant’s request to use the telephone until he had “sobered up” which was about four hours later. The appellant was released on bond about 1 A.M., the following morning. He was represented by counsel upon and during the trial of the case.

No evidence was offered by the state of any statement made by the appellant after the collision, or that any body specimen was taken, requested or denied. There was no interrogation of the appellant after his arrest, and no need arose for the protection of his rights against self-incrimination.

By three formal bills of exception, the appellant insists that the state’s attorney erred in his argument to the jury as follows :

“ ‘Let’s look at the facts in the case. (Naming one witness in each bill) * * says that the Defendant was intoxicated. Mr. Brown here (pointing at Defense Counsel, Don Brown) says that the Defendant was sober.’ Such argument was made despite the fact that the Defense Counsel, Don Brown, had never stated at any time during the trial of the cause that Defendant was sober, nor had Defense Counsel stated words to that effect.”

Appellant claims that these three statements to the jury injected new facts in the case which were manifestly improper; that the court overruled his objection thereto and refused to instruct the jury not to consider them.

The record reflects that Don Brown represented the appellant during the trial, that appellant entered a plea of not guilty, that Brown cross-examined the state’s witnesses, and called four witnesses including the appellant, who testified that he was not intoxicated. From Brown’s position in the case, it is apparent that the argument complained of was a reasonable deduction from the evidence and is not of such nature as calls for a reversal.

By formal bill the appellant also urges reversal on the ground that the trial court refused his motion for a mistrial after the following argument by the state’s attorney :

“ ‘I’ve got him hurting; he’s hollering.’ Such argument was made immediately following Defense Counsel Don Brown’s objection, which was sustained by the Court, that argument by the said Ronald L. Wilson as to purported actions of Defendant’s wife at the scene of the accident injected a new fact into the case.”

The actions of the wife referred to in the bill are not shown. The objection thereto was sustained. No reversible error is perceived.

The other contentions presented have been carefully considered and they do not show error.

The judgment is affirmed.

Opinion approved by the Court.