Balderree v. State

312 S.W.2d 642, 166 Tex. Crim. 223, 1958 Tex. Crim. App. LEXIS 4566

• Court: Court of Criminal Appeals of Texas
• Decided: May 7, 1958
• Docket: No. 29,796
• Status: Published

Opinion

MORRISON, Presiding Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $50.00.

Highway Patrolmen McEIroy and Allee testified that on the night in question they observed a pickup truck being driven on and off the shoulder of the highway and gave chase, that the appellant who was the driver staggered when he walked, had a flushed face, bloodshot eyes, spoke incoherently, and smelled of intoxicants. Appellant was carried before Justice of the Peace Holberg, who testified that he staggered, spoke with a thick tongue, and smelled of intoxicants. All three witnesses expressed the opinion that the appellant was intoxicated. Appellant requested that he be given a blood test, and he was carried to the hospital for that purpose; but those in charge refused to give the test.

Appellant, testifying in his own behalf, stated that he had come to San Angelo on the Sunday in question, had spent the afternoon and evening prior to his arrest in drinking beer and dancing, admitted drinking four beers, but denied that he was intoxicated. He called several witnesses as to his reputation.

No formal bills or brief have been submitted.

Appellant objected to the testimony oí Judge Holberg as to appellant’s intoxication. The judge testified that he had served ten years as a peace officer before becoming a magistrate and based his opinion upon the facts enumerated above. His testimony was admissible. Mozley v. State, 163 Texas Cr. Rep. 250, 290 S.W. 2d 518.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.