# Boney v. State

> Court of Criminal Appeals of Texas · March 30, 1977 · 548 S.W.2d 730

URL: https://www.frixlaw.com/law-library/cases/1497756

## Case

- **Full name:** Harold D. BONEY, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 30, 1977
- **Citations:** 548 S.W.2d 730; 1977 Tex. Crim. App. LEXIS 1046
- **Precedential status:** Published
- **Opinion:** Opinion by Brown
- **Judges:** Brown, Roberts, Odom, Dudley
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1497756

## Opinion text

OPINION
BROWN, Commissioner.
Appellant was convicted by a jury of driving while intoxicated. The jury assessed punishment at a fine of Five Hun
*731
dred Dollars and 365 days confinement in jail. The jury further found that appellant was entitled to probation and recommended probation as to the jail time but not the fine. The court pl'.^oU appellant on probation for two years.
Appellant urges four grounds of error, but in view of our disposition of the case, only the first ground will be discussed. Initially, appellant contends that the court erred in permitting the prosecution, over appellant’s objection, to elicit the fact that on the occasion of his arrest appellant was requested to take a breathalyzer test but he refused. We agree and reverse.
Appellant initially filed a motion in li-mine requesting the court to prohibit the prosecution from going into or making mention of the fact that appellant had refused to take a breathalyzer test. This motion the court overruled. Thereafter, in the presence of the jury and over the objections of appellant, such refusal by appellant to take the test was elicited from the arresting officer. We hold that such evidence was prejudicial to the rights of appellant and requires a reversal.
Dudley v. State,
548 S.W.2d 706 (Tex.Cr.App.1977);
Martinez v. State,
548 S.W.2d 719 (Tex.Cr.App.1977); and
Clinard v. State,
548 S.W.2d 716 (Tex.Cr.App.1977).
The judgment is reversed and the cause remanded.
Opinion approved by the Court.
ROBERTS and ODOM, JJ., dissent for the reasons stated in
Dudley .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1497756. Public record. Not legal advice.