Bates v. State

312 S.W.2d 675, 166 Tex. Crim. 177, 1958 Tex. Crim. App. LEXIS 4554

• Court: Court of Criminal Appeals of Texas
• Decided: April 30, 1958
• Docket: 29753
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is driving while intoxicated; the punishment, three days in jail and a fine of $100.00.

Under an information charging two separate offenses alleged to have occurred on two separate days six months removed in time from each other, the appellant was found guilty under the second count and not guilty under the first, and the evidence submitted under the first count will be disregarded.

Deputy Sheriffs Hines and Beach testified that on the day charged in the second count, while on patrol, an automobile passed them in the “oncoming traffic lane” traveling at a speed of 85 miles per hour and that they gave chase, that the automobile driven by the appellant was brought to a halt, that they observed the appellant’s dilated eyes, noted his “slurred speech,” that he “staggered in his walk,” and expressed the opinion that the appellant was intoxicated.

Appellant, testifying in his own behalf, admitted driving his automobile on the day in question but denied that he was intoxicated. In support of his testimony, he called two witnesses who testified that they had observed the appellant consume intoxicants at the Saint George Bar and one witness who served him intoxicants at El Phoenix Restaurant on the day in. question, all of whom denied that the appellant was intoxicated. He also called witnesses as to his good reputation.

The jury resolved this conflict in the evidence against the appellant, and we find the same sufficient to support their verdict.

We shall discuss the contentions advanced by appellant’s attorney in argument. The allegations contained in the motion to quash the information are not supported in this record, and nothing is presented for review. Savage v. State, 155 Texas Cr. Rep. 576, 237 S.W. 2d 315. The fact that appellant’s counsel swears to the motion to quash will not alleviate the necessity of producing proof in support of such allegations.

Appellant’s requested charge, which was refused, would have told the jury that they could find the appellant guilty of only one offense. We find no merit in such charge because the offenses were charged to have been committed on two different dates, and Garber v. State, 145 Texas Cr. Rep. 44, 165 S.W. 2d 741, has no application. As stated, the jury found the appellant guilty only on one count, and Jones v. State, 161 Texas Cr. Rep. 492, 278 S.W. 2d 844, would control.

Finding no reversible error, the judgment of the trial court is affirmed.