Saunders v. State

353 S.W.2d 419, 172 Tex. Crim. 17, 1961 Tex. Crim. App. LEXIS 3541

• Court: Court of Criminal Appeals of Texas
• Decided: November 15, 1961
• Docket: 33814
• Status: Published

Opinions

MORRISON, Judge.

The offense is driving while intoxicated as a second offender; the punishment, two years in jail.

In view of our disposition of this case, a recitation of the facts will not be necessary.

Bill of Exception No. 1 reflects that while highway patrolman Stone was testifying he was asked by the prosecutor, “Did you offer to give (the appellant) any kind of a blood test?” to which the witness replied, “Yes, sir.” No evidence of the results of a blood test was introduced. We are called upon to decide whether or not this got before the jury the inadmissible evidence that appellant had been offered a blood test and refused to take it.

We have been furnished able briefs by both the state and appellant in which all of the cases on the subject have been discussed. We have concluded that the two principal cases which require distinction are Sublett v. State, 158 Texas Cr. Rep. 627, 258 S.W. 2d 336 (relied upon by the state), and Jordan v. State, 163 Texas Cr. Rep. 287, 290 S.W. 2d 666 (relied upon by appellant). In Sublett, the officer was asked if at the time he had accused under arrest he had in his possession an intoximeter test. The question does not appear to have been answered. The fact that the officer may or may not have had such a test in his possession in nowise informed the jury that such a test was offered to appellant and that he refused to take it.

In Jordan, on the other hand, the officer volunteered the information that he had offered the blood test to the accused and that he had not answered when such offer was made.

We have concluded that the rule in Jordan is here controlling and that reversible error is reflected by that which has been set out above. See also Brown v. State, 309 S.W. 2d 452.

The judgment is reversed and the cause remanded.