Boney v. State , 1977 Tex. Crim. App. LEXIS 1046 ( 1977 )

548 S.W.2d 730 (1977)

Harold D. BONEY, Appellant,
v.
The STATE of Texas, Appellee.

No. 51171.

Court of Criminal Appeals of Texas.

March 30, 1977.

Michael M. Phillips, Angelton, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough, Alvin M. Titus and Kenneth W. Sparks, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

BROWN, Commissioner.

Appellant was convicted by a jury of driving while intoxicated. The jury assessed punishment at a fine of Five Hundred Dollars and 365 days confinement in jail. The jury further found that appellant was entitled to probation and recommended probation as to the jail time but not the fine. The court placed appellant on probation for two years.

Appellant urges four grounds of error, but in view of our disposition of the case, only the first ground will be discussed. Initially, appellant contends that the court erred in permitting the prosecution, over appellant's objection, to elicit the fact that on the occasion of his arrest appellant was requested to take a breathalyzer test but he refused. We agree and reverse.

Appellant initially filed a motion in limine requesting the court to prohibit the prosecution from going into or making mention of the fact that appellant had refused to take a breathalyzer test. This motion the court overruled. Thereafter, in the presence of the jury and over the objections of appellant, such refusal by appellant to take the test was elicited from the arresting officer. We hold that such evidence was prejudicial to the rights of appellant and requires a reversal. Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977); Martinez v. State, 548 S.W.2d 719 (Tex.Cr.App. 1977); and Clinard v. State, 548 S.W.2d 716 (Tex.Cr.App.1977).

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

ROBERTS and ODOM, JJ., dissent for the reasons stated in Dudley.