Crowson v. State, 35331

• Decision Date: 13 February 1963
• Docket Number: No. 35331,35331
• Citation: 364 S.W.2d 698
• Parties: Elbert CROWSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 698

364 S.W.2d 698

Elbert CROWSON, Appellant, v. The STATE of Texas, Appellee.

No. 35331.

Court of Criminal Appeals of Texas.

Feb. 13, 1963.

Levey & Goldstein, Abe San Miguel, San Antonio, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $500.00.

We learn from the testimony of the State's witnesses as well as that of appellant that he had drunk vodka and beer on the night in question, following which he ran into the rear end of Benito Montoya's automobile containing his family. It was appellant's version of the incident that he thought Montoya was one of the persons who had driven by him at too high a rate of speed and in a dangerous manner and that he 'ran into the back of his car to try to stop him and pull him over,' and that after they came to a halt he realized his mistake and apologized.

The issue of appellant's intoxication was controverted. He testified that he had drunk three ounces of vodka before dinner and two and a half bottles of beer shortly before the collision but that he was not intoxicated.

Highway Patrolman Lafitte and Sergeant Wallasch testified that at the scene appellant confessed to them that he had drunk a half pint of vodka and that in their opinion, based upon his speech, his manner of walking and general demeanor, he was intoxicated.

The jury resolved the conflict in the evidence against appellant; we find it sufficient to support the conviction and shall discuss the contentions raised by brief and in argument.

Appellant first contends that the court refused to permit him to prove his reputation for sobriety. We must first determine if the question is properly before us. Appellant filed a bill of exception which recited that he offered the testimony of witnesses on the issue, that the State objected, and the court sustained such objection. The court refused to approve such bill and recited his reasons for failure to approve the same. Appellant refused to accept the court's reasons and filed a bystanders' bill. The bystanders' bill, as filed, was supported by the affidavits of himself and his two attorneys, who were not disinterested parties so as to authorize our consideration of the bystanders' bills. Avant v. State, 161 Tex.Cr.R. 577, 279 S.W.2d 863. The fact that the bill was attested, but not sworn to, by three other parties would not authorize its consideration. Ex parte Collins, Tex.Cr.App., 339 S.W.2d 67. In view of this state of the record, there is no bill of exception on the question which we may consider. Willis v. State, Tex.Cr.App., 336 S.W.2d 425.

Appellant next contends that the court erred in refusing to strike the testimony concerning the blood alcohol test. During appellant's cross-examination of Sergeant Wallasch, he asked him 'what was the conversation' had between the witness, appellant and patrolman Lafitte. After the witness had related a portion of the conversation, he was asked, 'All right. Anything else?' and the witness stated that he (Lafitte) 'asked him did he want to take a blood alcohol test and he refused.' No objection was made to the answer and no motion made at that time to withdraw the same from the jury's...