dissenting.
The fact that appellant had been offered a blood test was first injected on the cross-examination of State’s Witness Bur-nip.
This testimony was before the jury and if there was any error in regard to its admissibility, it was waived when no motion to exclude or withdraw the answer was made. Bates v. State, 99 Texas Cr. Rep. 647, 271 S.W. 389; Johnson v. State, 90 Texas Cr. Rep. 229, 234 S.W. 891; Murray v. State, 136 Texas Cr. Rep. 38, 122 S.W. 2d 1119; Lawson v. State, 148 Texas Cr. Rep. 140, 185 S.W. 2d 439; Stanford v. State, 145 Texas Cr. Rep. 306, 167 S.W. 2d 517; Adams v. State, 158 Texas Cr. Rep. 306, 255 S.W. 2d 513; Deams v. State, 159 Texas Cr. Rep. 496, 265 S.W. 2d 96. Many other decisions to like effect are collated under Criminal Law 1044, Texas Digest.
The rule applies though the answer was not responsive. Parker v. State, 98 Texas Cr. Rep. 209, 261 S.W. 782; Kennedy v. State, 150 Texas Cr. Rep. 215, 200 S.W. 2d 400; Martin v. State, 157 Texas Cr. Rep. 210, 248 S.W. 2d 126.
The same rule applies to the testimony of Officer Burnip wherein he answered in the affirmative when asked by counsel for the state if he offered appellant a blood alcohol test. No motion was made to withdraw the testimony, though the objection made after the question had been answered was sustained.
The remaining interrogation set out in the majority opinion added nothing to the testimony that was twice before the jury, namély that a blood test had been offered. It could not, therefore, have been prejudicial and reversal should not be predicated thereon.