Opinion
No. 29162.
October 23, 1957.
Appeal from the County Criminal Court No. 2, Dallas County, Dean Gauldin, J.
Tom Howard, Bill McMahan, Dallas, for appellant.
Henry Wade, Dist. Atty., Charles D. Cabaniss, Joseph M. Joiner, and A. D. Bowie, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is driving while intoxicated; the punishment, three days in jail and a fine of $50.
Deputy Sheriff Pritchett testified that, while on patrol on the night in question, his attention was directed to an automobile which 'whipped out from the Sadie Hawkins Club into the highway ahead of me,' that it proceeded for a time eastward in the lane designated for west-bound travel and then pulled back to the right and partly onto the gravel shoulder. He stated that he signaled for the automobile to stop and asked the appellant, who was the driver, for his driver's license, but that the appellant made no reply, that he smelled alcohol on his breath, noticed his speech was slurred, that he was unsteady on his feet, and expressed the opinion that the appellant was intoxicated. A search of the appellant's automobile revealed a nearly empty bottle of vodka.
The appellant did not testify or offer any evidence in his own behalf.
We find the evidence sufficient to support the conviction.
Bill of exception No. 1, discussed in appellant's brief, relates to jury argument and, as qualified by the court, reveals that appellant's attorney in his argument said, among other things, that the State had offered no evidence of a blood test having been given to the appellant and that the prosecutor answered in his argument that no one could be forced to take a blood test if he refused to take it.
We overrule the appellant's contention that this constituted a comment on the appellant's failure to testify and agree with the trial court that it was invited by appellant's argument.
Finding no reversible error, the judgment of the trial court is affirmed.