Royal v. State , 160 Tex. Crim. 598 ( 1954 )

MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 20 days in jail and a fine of $50.00.

The original opinion herein is withdrawn, and the following substituted in lieu thereof.

Bill of Exception No. 13 complains of an allusion to the failure of the appellant to testify contained in the following argument of the prosecutor, to-wit:

“According to Mr. Vaughan, and nobody has denied the truth, Mr. Vaughan said to him when he arrested him, ‘You are drunk.’ He said, ‘No, I am not drunk, I have had some beer.’ According to my observation hie had become intoxicated and under the influence of intoxicating liquor as shown by his own conduct, which nobody has denied.”

Now that we ascertain that the bill of exception is sufficient, we are inclined to agree with appellant and hold that the above argument violated the mandatory provisions of Article 710, C.C.P., and constitutes reversible error. See also Clepper v. State, 136 Texas Cr. Rep. 161, 124 S.W. 2d 398, and Williams v. State, 156 Texas Cr. Rep. 484, 243 S.W. 2d 837.

Another matter which we have concluded to be error is reflected by Bill of Exception No. 10. The witness Springer testified that soon after the appellant’s arrest he went to the jail to see him. He was then asked this question, “Did the defendant Charlie Royal ask you to get Dr. Mansel to make a blood test on him to determine whether he was intoxicated?” In response to the state’s objection, the court instructed the jury to disregard the question and the witness’ affirmative answer. In so doing, he fell into error.

It is true that in Cardwell v. State, 156 Texas Cr. Rep. 457, 242 S.W. 2d 702, we held that it might not be shown that the appellant, while under arrest, refused to take a sobriety test. But that case is bottomed upon the fundamental rule of law that the state cannot avail itself of the silence or refusal of an accused person as a circumstance tending to establish his guilt.

We are here confronted with an entirely different situation. The state proved that the arresting officers requested Dr. Mansel to make a blood test, yet the court declined to permit the jury to consider testimony that appellant also desired that such a test be made by Dr. Mansel. If the request had been granted, the results of the test, if it had been made, would have been admissible for either the state or the accused. It therefore follows that such request alone was not a self-serving declaration.

We are grateful to appellant’s able attorney for pointing out the errors in our original opinion herein.

The motion for rehearing is granted; the judgment of affirmance is set aside; and the judgment is now reversed and the cause remanded.