Huckert v. State
| Decision Date | 18 November 1953 |
| Docket Number | No. 26618,26618 |
| Citation | 264 S.W.2d 121,159 Tex.Crim. 368 |
| Parties | HUCKERT v. STATE. |
| Court | Texas Court of Criminal Appeals |
Burks & McNeil, Lubbock, by Clifford W. Brown, Lubbock, for appellant.
Wesley Dice, State's Atty., of Austin, for the State.
Appellant was convicted in the County Court at Law of Lubbock County of the offense of unlawfully operating a motor vehicle upon a public highway while under the influence of intoxicating liquor and her punishment was assessed at a fine of $400.00.
It is shown by the facts that on the day in question a policeman of the City of Lubbock observed a car being driven by the appellant in an erratic manner, moving from side to side, into a bar ditch, then back on the highway and crossing from one lane to another. The officer blew his siren and appellant stopped in the middle of the street. As he got out of his car and started over to the appellant, she drove away. The officer again proceeded in his car and finally stopped her. Upon asking for her identification, she fumbled in her purse and produced a driver's license. The officer then informed her that he was going to take her to the police station and got in her car. However, appellant was not willing to go to the police station and created quite a disturbance, and the officer who attempted the arrest had to be assisted by further officers in doing so.
It was also shown by certain testimony that appellant was in a drunken condition; that alcohol could be smelled upon her breath; that from her manner, speech and actions, which consisted of cursing, fighting and screaming, as well as the scent on her breath, it was the opinion of all the officers that she was in a drunken condition.
Her husband testified that the appellant was going through the change of life, and that in his opinion, her actions on the occasion of her arrest were caused from extreme nervousness and excitement due to her physical condition. He also testified that appellant had had two 'shotgun glasses' of whisky before the occasion of her arrest.
We find three bills of exception in the record.
Bill No. 1 relates to certain argument made by the Assistant County Attorney in discussing the amount of alcohol required to effect the intoxication of a person and that it appeared from the testimony in the case that appellant was not in control of her mental and bodily faculties by reason of the recent intake of alcohol. From the bill we quote:
"It seems to me under all the evidence in this case she was not in control of her mental and bodily faculties, and those are the type of people we are trying to keep from driving.'
'Be It Further Remembered And Certified that upon the making of the above quoted argument, the defendant objected to said argument as follows:
'Be It Further Remembered And Certified that upon the objection being made as above set out, the following occurred:
It is vigorously contended by the appellant that such ruling and statements by the court were comments calculated to lead the jury to believe that the court was of the opinion that the evidence supported the statement of the State's Attorney. We are of the opinion that the statement complained of was but a statement of the admitted and proven facts, that is, that this lady was not in control of her normal faculties, bodily and mentally, and that a person in her condition should not have been driving at the time. According to the testimony of the officers, as well as that of her husband, who testified that when she went into her paroxysms of rage, or whatever it might be, that there was no way of controlling her; that sometimes a drink of whisky would calm her, but usually he just had to sit it out. It appears to us that the statement of the State's attorney was a fair conclusion from the uncontradicted testimony in the case. In fact, we see no other conclusion that could be drawn from the statement complained of in this bill.
Bill of Exception No. 2 complains because of the fact that the arresting officer, after he had gotten appellant under control, took her to the police station and booked her for driving while intoxicated and asked her if she wanted a blood test. This was objected to by the appellant and not answered by the witness. The statement of facts fails to convey the answer of the appellant when asked if she desired a blood test. However, it is shown that she did not get a blood test. When such was done, the court sustained the objection that he had hitherto failed to sustain, being firm in his opinion, and this bill shows that there was no answer offered by the appellant. We think the court's ruling on this matter was correct.
Bill No. 3 relates to Paragraph 5-A of the court's charge, the complaint being that the same did not fully present the appellant's defense herein, and that was, that she was undergoing a change of life and that her actions on the occasion in question were not caused from intoxication, but were the result of emotional strain caused by her change of life, and if the jury believed the same, or had a reasonable doubt thereof, then they should acquit her. The court charged the jury as follows:
We do not think it was incumbent upon the court to set out any of the possible grounds, whether there be one or many, which might account for the appellant's erratic conduct at the time of her arrest. We think that Paragraph 5-A of the court's charge above quoted conveys to the jury the idea that no matter what would have caused her peculiar actions at the time, unless she was then intoxicated, or if they had a reasonable doubt thereof, she should be acquitted without specifying any reason for her condition herein as an excuse for her conduct. See Phillips v. State, 152 Tex.Cr.R. 612, 216 S.W.2d 213; Wells v. State, 153 Tex.Cr.R. 331, 220 S.W.2d 148, and Milligan v. State, Tex.Cr.App., 243 S.W.2d 581.
We think the testimony is sufficient to support the conviction, and finding no reversible error herein, the judgment is affirmed.
Appellant directs our attention to the fact that in her bill of exception No. 1 she complains of the remarks of the judge and not of the argument of counsel. She insists that we should hold that reversible error is shown and relies upon...
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...Reliance is had upon Ward v. State, 156 Tex.Cr.R. 472, 243 S.W.2d 695. The rule in Ward was modified by this Court in Huckert v. State, 159 Tex.Cr.R. 368, 264 S.W.2d 121, wherein we held that the statement, 'I will overrule the objection on the basis that it was a logical conclusion from th......
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Haynes v. State, 45143
...judge should not have made the comments herein, we do not see that reversible error was committed thereby. In Huckert v. State, 159 Tex.Cr.R. 368, 264 S.W.2d 121 (Tex.Cr.App.1953), this Court stated: 'Unless there may be found in the remarks of the court a benefit to the state or an injury ......
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Le Marr v. State, 29204
...to the state or injury to the appellant can be found in the remark of the court; hence, no reversible error is shown. Huckert v. State, 159 Tex.Cr.R. 368, 264 S.W.2d 121. Appellant complains of the admission in evidence of state's exhibits Nos. 2 and 6 which consists of a photograph taken b......