Woodard v. State

368 S.W.2d 623, 1963 Tex. Crim. App. LEXIS 932

• Court: Court of Criminal Appeals of Texas
• Decided: June 5, 1963
• Docket: 35863
• Status: Published

Opinions

MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 60 days in jail and a fine of $500.00.

In view of our disposition of this case, a recitation of the facts is not called for other than to observe that there were no aggravating circumstances involved and only one peace officer was called as a witness.

There are two formal bills of exception and an informal bill relating to the same argument. Since the court qualified one of the formal bills and not the other, a conflict would appear to exist, and we will look to the informal bill. From it, it appears that during prosecutor’s closing argument he made the following statements, the following objections were made, and the rulings of the court as set out were made as follows:

“ * * * And I say to you, if you can’t believe an officer who has been on your police force, whom you are paying indirectly by your taxes, for a period of nine years, who can you—

“MR. SUTTON: Excuse me, Mr. Miles. Your Honor, he is trying to bolster his witness. That is the un-sworn testimony of the County Attorney. And I object to it and ask the Court to instruct the jury not to consider that line of argument.

“THE COURT: Overrule the objection.

“MR. SUTTON: Note our exception.

“MR. MILES: I have a little better faith in the officers that we have on this police force — that you have on this police force, that under the direction of Warren Dodson and the City Commission. And he has been on this police force for nine years. And he saw that man, J. C. Woodard—

“MR. SUTTON: Your Honor, he is trying to bolster his own witness. And I object to it—

“MR. MILES: Talking about the—

“MR. SUTTON: May I make my objection, please, sir?

“THE COURT: Overrule the objection.

“MR. SUTTON: I would like to ask that you instruct the jury not to consider that line of argument.

“THE COURT: Overrule the objection.

“MR. SUTTON: Note my exception.”

The prosecutor here went further than those in Rice v. State, 161 Tex.Cr.R. 89, 275 S.W.2d 105, and Vasek v. State, 163 Tex. Cr.R. 632, 294 S.W.2d 810, and told the jury that they were paying the officer witness’s salary and that since the City Commission had retained him in office for so long the Commission must have had confidence in his integrity.

In Womack v. State, 160 Tex.Cr.R. 237, 268 S.W.2d 140, we reversed a conviction where the prosecutor described the officer witnesses as fine citizens and fine men and cited McCool v. State, 159 Tex.Cr.R. 432, 264 S.W.2d 734, where the court had stated that the officer witness had been vouched for and was a qualified officer.

See also Puckett v. State, 168 Tex.Cr.R. 615, 330 S.W.2d 465, 81 A.L.R.2d 1237, wherein my brother Woodley dissented, and the cases under Texas Digest, Crim.Law 720(5).

For the error set forth, the judgment is reversed and the cause is remanded.