Martinez v. State , 1977 Tex. Crim. App. LEXIS 1036 ( 1977 )

548 S.W.2d 719 (1977)

Felipe L. MARTINEZ, Appellant,
v.
The STATE of Texas, Appellee.

No. 52188.

Court of Criminal Appeals of Texas.

March 23, 1977.

Marvin Miller, San Antonio, for appellant.

Ted Butler, Dist. Atty., Ted Arevalo, Stephen P. Allison and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

PHILLIPS, Judge.

This is an appeal of a conviction by a jury on a not guilty plea for the offense of driving while intoxicated. Punishment was assessed by the court at six months confinement in jail and a $100.00 fine, probated for a period of two years.

Appellant's sole contention on appeal is that the court reversibly erred in permitting the State, over appellant's objection, to elicit testimony before the jury that appellant had been offered and had refused to take a breath test.

In Dudley v. State, 548 S.W.2d 706 (Tex. Cr.App., decided this day), this Court held the admission of testimony concerning refusal to take a breathalyzer test constitutes reversible error. For the reasons set forth in Dudley v. State, supra, the trial court reversibly erred in admitting testimony before the jury that appellant had been offered and had refused to take a breath test.

The judgment is reversed, and the cause remanded.

ONION, Presiding Judge, concurring.

I concur in the reversal for the reasons stated in my concurring opinion in Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.), this day decided.

DOUGLAS, Judge, concurring.

I concur in the result of the opinion of Judge Phillips in that the conviction must be reversed because of the evidence of the refusal to take the breathalyzer test is not admissible because of the decision of the Supreme Court of the United States in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). See also Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).

ROBERTS, Judge, dissenting.

For the reasons stated in my dissenting opinion in Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977), decided this day, I dissent. See also the dissenting opinion on appellant's motion to reinstate in Clinard v. State, 548 S.W.2d 716 (Tex.Cr.App.1977), decided this day.

The judgment should be affirmed.

ODOM, J., joins in this dissent.