Jett v. State, 45388

• Decision Date: 22 November 1972
• Docket Number: No. 45388,45388
• Parties: Buford Alton JETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 101

489 S.W.2d 101

Buford Alton JETT, Appellant, v. The STATE of Texas, Appellee.

No. 45388.

Court of Criminal Appeals of Texas.

Nov. 22, 1972.

Rehearing Denied Jan. 17, 1973.

Don M. Wilson, Bill G. Thomas, Dallas, for appellant.

Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the subsequent offense of driving a motor vehicle while intoxicated. The jury assessed the punishment at eighteen months.

Appellant initially contends that the court erred in sustaining an objection made by the district attorney to the following statement made by appellant's counsel to the prospective jurors during voir dire examination:

'Now, this does not mean the Grand Jury has necessarily heard any testimony whatsoever. They may or may not. They are not required to hear a single witness.'

As appellant states in his brief, '. . . it is well settled that a court may not look behind the return of an indictment to inquire into the character or quantum of the evidence on which the indictment was found.' 27 Tex.Jur.2d, Grand Jury, Section 40, page 256. There was no attempt by the court to go behind the indictment. Appellant contends that when the trial court sustained the district attorney's objection such action constituted a comment as to the evidentiary value of the indictment. We disagree. The court sustained the objection and made no comment. This Court has held that the action in controlling the interrogation of prospective jurors on voir dire is subject to review only to ascertain whether the court abused its discretion. No abuse of discretion has been shown. Further, the court's charge specifically states, 'You are further instructed that an indictment is no evidence of guilt.'

Next, appellant complains that his cross-examination of Officer C. E. Volcik was improperly limited in scope. He contends that he was restricted when the trial court sustained the district attorney's objection to counsel's question of Officer Volcik as to whether or not beer was the weakest beverage from the standpoint of intoxication. The record does not show that Officer Volcik was qualified as a toxicologist or chemical expert. Counsel argues that if he is not qualified as such then he is not qualified to give his opinion on intoxication. We disagree. This Court has held on numerous occasions that a nonexpert witness may express his opinion as to intoxication when such opinion is based upon his observation of the appearance, acts and conduct of an accused. Little v. State, 169 Tex.Cr.R. 7, 331 S.W.2d 317; Ritchie v. State, 164 Tex.Cr.R. 38, 296 S.W.2d 551; Mozley v. State, 163 Tex.Cr.R. 250, 290 S.W.2d 518. An officer of twelve years experience is qualified to give his opinion based on such observation. See Drake v. State, Tex.Cr.App., 450 S.W.2d 625. Appellant's right to cross-examination was not improperly limited by the trial court's ruling. His second...