Hall v. State, 63320
| Decision Date | 04 May 1983 |
| Docket Number | No. 3,No. 63320,63320,3 |
| Citation | 649 S.W.2d 627 |
| Parties | Roger Dale HALL, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Dean White, Canton, for appellant.
Richard Davis, Dist. Atty. and Jeffrey B. Keck, Asst. Dist. Atty., Canton, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before ODOM and McCORMICK, JJ.
This is an appeal from a conviction for driving while intoxicated. Punishment was assessed at forty-five days and a $300 fine, probated.
In his second ground of error, appellant argues that the trial court erred in refusing his specially requested instruction on the issue of whether he voluntarily consented to take a breathalyzer test. At trial, appellant testified as follows:
DPS Trooper Higdon testified that he and his partner advised appellant that refusal to take the breath test could mean suspension of his driver's license for up to a year. 1 Appellant contends this testimony raised the issue of voluntariness.
In Turpin v. State, 606 S.W.2d 907 (Tex.Cr.App.1980), this Court held that whether a driver's consent to take a breathalyzer test was voluntary is a question of fact for the factfinder. Article 38.23, V.A.C.C.P. In Turpin, there was conflicting evidence as to whether Turpin's consent to take the breathalyzer test was fraudulently induced. We concluded that, in view of the conflicting evidence, the issue was properly submitted to the jury.
Although the evidence as to voluntariness in the instant case may not be as strong as that in Turpin v. State, supra, we find that the issue was sufficiently raised and the trial court should have instructed the jury on the issue of voluntary consent.
The judgment is reversed and remanded.
1 Article 6701l-5, Section 2, V.A.C.S., provides that if an individual under arrest refuses to take a breathalyzer test the Department of Public Safety may institute an administrative proceeding whereby the individual's...
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