¶1concurring in part and dissenting in part.
¶2Appellant challenges his D.W.I. conviction on eight grounds:
1. Improper prosecutorial closing argument wherein the prosecutor expressed an opinion as to appellant’s guilt;
2. Insufficient evidence to sustain conviction;
3. Failure of the trial court to charge the jury on rebuttability of the presumption of intoxication;
4. Improper admission of intoxilyzer test results because appellant requested counsel before taking test and was denied counsel;
5. Failure of the trial court to charge the jury on the issue of voluntariness of appellant’s consent to the intoxilyzer test;
6. Unconstitutionality of a conclusive presumption as to intoxication;
7. Unconstitutionally fatal variance between the caption and the body of Act of June 16, 1983, ch. 303, 1983, Tex.Gen. Laws 1568; and
8. That the definition of “public place” is unconstitutionally overbroad.
¶3I concur in both the holding of the majority and the underlying legal reasoning in grounds of error two, three, six, seven and eight; i.e., there is sufficient evidence to convict, the appellant was not entitled to a charge on rebuttable presumption, there is no unconstitutional conclusive presumption, the caption fairly embraces the enacted provisions under attack in this appeal, and the definition of “public place” is not constitutionally overbroad.
¶4I concur with the result reached by the majority on ground of error one, but I do so on other grounds. The prosecutor first referred to you in addressing the jury as to its function in the trial process. He next referred to Mr. Forte’s rights. He next referred to I in connection with his burden of proof. He then referred to we in stating “We are not going to convict innocent people.” By using the collective we, the prosecutor would apparently include himself, defense counsel, the jury, the court and all the witnesses. This appears to me to be a truism inherent in our system and falls within the general category of a plea for proper law enforcement. I would hold the argument permissible and overrule this ground of error on that basis.
¶5As to appellant’s fifth ground of error concerning voluntariness, I concur with the result reached by the majority but, in light of my subsequent feeling about denial of counsel, I would go further and hold that under the evidence in this case no issue was raised as to the voluntariness of consent and thus no charge to the jury on same should be considered by the trial court.
¶6This brings us around to ground of error four, the challenge sustained by the majority which reverses this case because appellant insisted upon his right to counsel. As stated in the majority opinion, TEX.REV. CIV.STAT.ANN. art. 6701Z-5, sec. 1 (Vernon 1984) provides that the driving of a motor vehicle on a public street shall be deemed to constitute consent to the taking of a breath specimen. Consent removes any warrant requirement. I would treat this case in the same genre as all consensual search and seizure questions. I would affirm the cause.
¶7HILL, J., joins.