Monett v. State, 30597

• Decision Date: 08 April 1959
• Docket Number: No. 30597,30597
• Parties: Barney Cecil MONETT, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 456

323 S.W.2d 456

168 Tex.Crim. 124

Barney Cecil MONETT, Appellant, v. STATE of Texas, Appellee.

No. 30597.

Court of Criminal Appeals of Texas.

April 8, 1959.

Matthews, Aultman & Riley, Fort Worth, for appellant.

Doug Crouch, Dist. Atty., John A. Brady, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is driving while intoxicated; the punishment, six months in jail and a fine of $100.

T. O. Brown testified that he was driving on his right-hand side of a four lane highway when he went around a curve, over a hill, and saw another automobile meeting him, traveling in its wrong lane; that he turned sharply and avoided a collision but that another automobile which was following him did collide with the automobile in question, which had only one occupant, the driver. Brown stated that he went immediately to the automobile in question and saw the appellant lying half in and half out and that he went to the other automobile, found it occupied by a man, a woman and a child, and that all parties appeared to be injured.

H. F. Hefley testified that he was the driver of the other automobile, that the collision with appellant's automobile occurred as Mr. Brown had stated, and that when he arrived at the hospital he heard the appellant tell the officer who was there that he had been drinking.

Officer Butler of the Highway Patrol testified that he went to the hospital soon after having been called to the scene of the collision and there saw the appellant, who smelled strongly of alcohol, secured his consent to take a blood test, asked him if he was the driver of one the automobiles involved in the collision, and when he received an affirmative reply asked him if he had been drinking, and the appellant replied, 'Hell yes, I've been drinking all day.' Butler expressed the opinion that the appellant was intoxicated, as did Dr. Boluch who took the blood sample which, upon analysis, showed to contain .21% of alcohol, which the witness stated was indicative of intoxication.

The appellant did not testify but called certain witnesses connected with the prosecution in an effort to establish a stipulation as to the testimony of an absent witness.

Appellant has presented twenty bills of exception. We shall discuss those which present the most serious questions.

Bill of exception No. 2 complains, in part, of the following argument:

'Why do I say this? Because it is evident beyond any controversion that that defendant, sitting there sullenly throughout the trial, chose to propel a vehicle down a highway where innocent peopel were traveling when he was drunk.'

The objection to such argument was that it was improper and prejudicial. When that objection was overruled the appellant moved for a mistrial in the following words:

'Now, I don't know whether it is in the record or not, but our exception is where he says without controversion, so you know what the exception is. May it be considered that the motion is filed?'

Appellant now contends that this constituted an allusion to the defendant's failure to testify. Such is not a direct reference since only one of the definitions of 'sullen' is 'ill-humoredly unsociable; hence gloomily silent,' and, since the objection was not made that this constituted a comment on the defendant's failure to testify, we find no error in the bill.

Bill of exception No. 4 relates to that portion of the argument in which the prosecutor said, 'It is not through any diligence on the part of this drunken maniac that his wife and child are alive today.' It is not every argument which is in bad taste that calls for a reversal of the conviction. In Threadgill v. State, 156 Tex.Cr.R. 157, 239 S.W.2d 813, we called attention to the many arguments which this Court has held were not reversible error. In Daniels v. State, Tex.Cr.App., 319 S.W.2d 321, in a driving while intoxicated case, we held that the use of the word 'maniac' in referring to the appellant did not call for a reversal.

Another group of bills relates to the...