Hutson v. State
| Decision Date | 06 June 1956 |
| Docket Number | No. 28243,28243 |
| Citation | 296 S.W.2d 245,164 Tex.Crim. 24 |
| Parties | Edward L. HUTSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Paul Donald, Joe H. Cleveland, Bowie, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is for driving a motor vehicle upon a public highway while intoxicated; the punishment, three days in jail and a fine of $50.
The state's evidence shows that the appellant, while driving an automobile upon a public highway in Montague County, was stopped and arrested by State Highway Patrolmen E. R. Moore and Jerry Smith.
Both patrolmen testified that, before stopping the appellant, they observed the car weaving on the road, on and off the shoulder, and, after they had stopped the appellant, they found a pint bottle of whiskey almost empty in the car. They further testified that the appellant's eyes were 'red and blood-shot,' his speech was slurred, he staggered when he walked, and testified that both he and his brother, who was an occupant in the car, were drunk.
As a witness in his own behalf, appellant denied that he was intoxicated and testified that he had not drunk any beer or whiskey before his arrest. He testified that he had taken two pills to stay awake prior to the time he was arrested.
J. R. Fenoglio, the jailer of Montague County, upon being called as a witness by the appellant, testified that he observed appellant when he was placed in jail by the patrolmen; that he did not smell whiskey on his breath; and that he wouldn't say that the appellant was drunk at that time.
Sheriff J. T. Lindsey, upon being called as a witness by the appellant, testified that he observed the appellant when he was placed in jail; and, in answer to a question if, in his opinion, the appellant was drunk at the time, stated:
We shall discuss the contentions relied upon by the appellant in his brief and oral argument.
Appellant first insists that the court erred in denying him the right to prepare his motion for continuance before proceeding to trial and in requiring that the same be dictated without being reduced to writing before being acted upon by the court.
The record reflects that the motion for continuance was dictated upon agreement that it might be transcribed, signed, sworn to, and filed 'without at this time reducing the same to writing and having the same sworn to.'
The record does not support the contention in appellant's brief to the effect that he was compelled to dictate the motion and denied the right to prepare the same in writing and therefore such contention is overruled.
Appellant next insists that the court erred in overruling his first application for a continuance based upon the absence of three witnesses.
The motion alleged that the witnesses, W. G. Hutson, Mrs. Lucille Hutson, and Mrs. Mae Riley, were under process and were in attendance upon court on December 14, 1955, when the court announced that the case would be heard and tried on December 16, 1955, but that they had failed to appear when their names were called on December 16.
The application did not state the residence of the witnesses nor does the record show that appellant applied for an attachment for said witnesses. An application for continuance based upon the absence of a witness must state the residence of the witness and the time when he left the county of his residence, if temporarily absent therefrom. Mills v. State, 83 Tex.Cr.R. 515, 204 S.W. 642. Upon the nonattendance of a witness under subpoena, the failure to have an attachment issued constitutes lack of diligence. Morse v. State, 85 Tex.Cr.R. 83, 210 S.W. 965.
Under the record, no reversible error is shown.
Appellant objected to certain oral instructions given the jury by the court immediately after they had been selected and sworn on the grounds that such instructions were in violation of the rule providing that the charge shall be given after the testimony has been concluded and be presented to counsel for examination.
The oral instructions given the jury before any evidence was adduced were of an admonitory nature and related to the conduct expected of jurors during the trial and at recess while they were separated. We find nothing of a prejudicial nature in the instructions and know of no rule of law which was violated by the trial judge in giving these instructions to the jury prior to the time for the delivery of the court's charge in writing.
Appellant next insists that the court erred in permitting the state, for the purpose of impeaching the appellant's witness, Sheriff J. T. Lindsey, to introduce in evidence and to play before the jury a portion of a recording of a conversation in the county attorney's office between the sheriff, the county attorney, and the two highway patrolmen who arrested the appellant.
The record reflects that, after the sheriff had testified, on direct examination, that he wouldn't say the appellant was drunk but that 'He was drunk or doped or something.,' on cross-examination he denied that he had told the county attorney, in answer to a question, 'Would you say Mr. Hutson was drunk?,' that he answered, 'I damn sure would.'
The record shows that, after the sheriff denied making such statement, the county attorney produced a recording of the conversation, and, after identifying the sheriff's voice therein, over appellant's objection, a portion of the recording was played before the jury, which contained the question by the county attorney and answer by the sheriff which he had denied making.
Appellant objected to the introduction in evidence of the record of the conversation on the ground 'it is not a recognized manner or method of impeaching a witness.,' 'It was made in the absence of the defendant, truly ex parte and most prejudicial and inflammatory.,' and for the further reason that it was inadmissible under the theory of wire tapping which is condemned by the Federal Government.
We find no merit in appellant's contention that the recording of the sheriff's conversation was inadmissible under the theory of wire tapping. The wire tapping cases arise under the Federal Communications Act, Title 47, U.S.C.A. Sec. 605, which relates to communications by wire and radio. The recording of the sheriff's conversation in the county attorney's office was not the interception of a communication by wire or radio but merely the recording of his personal conversation with the county attorney.
In his brief, appellant contends that the recording of the conversation was inadmissible to impeach the sheriff because no proper predicate had been laid. Appellant is in no position to urge such contention as no objection was made to the evidence on that ground.
Appellant also in his brief contends that error is shown because the record played before the jury contains other statements by the sheriff which were damaging and prejudicial to him. Although the record played before the jury contained other statements by the sheriff, appellant did not specifically object to such portions and therefore is in no position to here complain.
We think the recording of the conversation was admissible for the purpose of impeaching the sheriff's testimony by showing a prior inconsistent statement which he had made as to his opinion of appellant's intoxication.
Appellant next insists that the court erred in assessing a fine against his counsel during jury argument. Such complaint is attempted to be shown by a transcript of a portion of the proceedings attached to the motion for new trial as an exhibit. There is no bill of exception and the facts are not certified by the trial judge; hence no error is shown.
Appellant's contention that the trial court was shown to be biased and prejudiced against appellant and erred in refusing to recuse himself is overruled.
Finding the evidence sufficient to support the conviction and no reversible error appearing in the record, the judgment of conviction is affirmed.
Opinion approved by the Court.
On Appellant's Motion for Rehearing
Counsel for appellant again urges that it was error to permit the 'attempted impeachment' of the testimony of the sheriff, a defense witness, with a recording of a conversation between the sheriff and the county attorney made without the knowledge of the sheriff.
Testifying in behalf of appellant, the sheriff answered in the affirmative when asked if in his opinion appellant acted more like one who had been using barbiturates than a man who was intoxicated. He further testified upon direct examination by appellant's counsel that he had talked to the county attorney about a week or so before the trial about the case and his testimony, and was asked and answered:
With this testimony the direct...
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