Hickerson v. State, 27914

• Decision Date: 01 February 1956
• Docket Number: No. 27914,27914
• Citation: 286 S.W.2d 437,162 Tex.Crim. 446
• Parties: Cecil Couch HICKERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 437

286 S.W.2d 437

162 Tex.Crim. 446

Cecil Couch HICKERSON, Appellant, v. The STATE of Texas, Appellee.

No. 27914.

Court of Criminal Appeals of Texas.

Feb. 1, 1956.

Calloway Huffaker, Harold Green, Tahoka, for appellant.

George E. Gilkerson, County Atty., Gene S. Cobb, Asst. County Atty., Lubbock, Leon B. Douglas, State's Atty., Austin, for the State.

DAVIDSON, Judge.

This conviction is for the drunken driving of a motor vehicle upon a public highway; the punishment, thirty days in jail and a fine of $250.

Upon a former trial, that conviction was reversed and remanded by this court. Hickerson v. State, Tex.Cr.App., 275 S.W.2d 801.

In that case there was a sharp dispute under the facts as to appellant's intoxication.

According to the testimony of two highway patrolmen, appellant, while driving an automobile in an erratic manner, passed them upon a public highway. Each of the officers expressed the opinion that appellant was intoxicated when they stopped him, found beer in his car, observed him walk, and noticed the odor of beer on his breath.

It was shown that a specimen of appellant's blood, which was obtained with his consent, contained an alcoholic concentration of 1.9 milligrams per cubic centimeter. Proof was offered that any person having such concentration of alcohol in his blood would be intoxicated.

Appellant admitted that he was driving a car upon a public highway at the time in question and that he had drunk some beer during the day but denied being intoxicated. He offered several witnesses who had seen and observed him shortly before and after his arrest, and each expressed the opinion that he was not intoxicated.

Reliance for a reversal is based upon alleged harmful and prejudicial argument.

By a proper bill of exception it is shown that in closing argument, state's counsel made the following statement:

'Now, gentlemen, this case happened a long time ago and I want you to know each and every one of you, that I am just as interested as your County Attorney in protecting the rights of the innocent that are tried in this Court as any defense lawyer, as any judge or anybody else, and I most certainly do not want any conscious (sic) to go through the years that I have prosecuted an innocent man, and certainly an innocent man, and certainly years, I am still trying this case today.

That is what I think of that.' (Emphasis supplied.)

The objection to such argument was that it expressed the personal opinion and belief of the county attorney and invaded the province of the jury. The objection was sustained and the jury instructed not to consider said argument, but a request for a mistrial was denied.

Notwithstanding the trial court's action in sustaining the objection to the argument and withholding it from the jury's consideration, state's counsel immediately continued his argument and stated to the jury:

'And so today, even though the time is long since this happened, we are still in here and we are still bringing witnesses from Austin to try to stick this man here in the courtroom today. What do you think about that? What do you think about that?'

The bill of exception recites that, further in the argument, state's counsel stated to the jury:

'Why in the world would we be trying this case today, sometime after it happened? Why would I stand behind these gentlemen up here, these officers on the witness stand if there was one slight tinkle in may mind that they were lying to you? You know I Wouldn't.'

Appellant's objection to that argument, for practically the same reasons as those sustained to the previous argument, was overruled.

Following the court's ruling, counsel further continued his argument to the jury, as follows:

'All of those officers, that is their duty, myself, George, the Court, it is our duty to come in here and present these cases to you, to bring in all the evidence that we can. Do you think that for one minute that I or anybody that I am associated with is going to frame a case against a man? We have got too many of them on the docket and you know it. We are not going to do any such of a thing and you know it, gentlemen. * * *

'And Calloway would have you believe that this boy was subject to some sort of collusion and that he would deliberately lie or fabricate a result of a chemical analysis for the purpose of sticking this man today. He is just not that interested in this gentlemen and you know it. And I certainly would not be a single party to it if I even suspected it, and you know it.'

The same objection as to the previous argument was overruled.

The bill of exception setting forth the above arguments and objections and ruling relative thereto was approved by the trial court without qualification.

Looking to the several statements as an overall picture, we are compelled to come to the conclusion that state's counsel, as effectually as if he, himself, had testified to such facts from the witness stand, was getting before the jury his personal opinion that the appellant was guilty, that the witnesses for the state were telling the truth, and that...