Benton v. State

Court of Criminal Appeals of Texas

Benton v. State

328 S.W.2d 302, 168 Tex. Crim. 367, 1959 Tex. Crim. App. LEXIS 2569

CourtCourt of Criminal Appeals of Texas

DecidedOctober 21, 1959

DocketNo. 30,819

StatusPublished

Cited by3 cases

This text of 328 S.W.2d 302 (Benton v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benton v. State, 328 S.W.2d 302, 168 Tex. Crim. 367, 1959 Tex. Crim. App. LEXIS 2569 (Tex. 1959).

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Opinion

BELCHER, Judge.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of $50.00.

Highway Patrolman Jones testified that he stopped the appellant within a short distance after he saw appellant drive his pickup to his left side of the highway, causing a car, which was passing appellant at the time, to be driven into a bar ditch. Two officers testified that they observed appellant’s walk, heard him talk and smelled the odor of alcohol on his breath, and expressed the opinion that he was intoxicated. Several unopened bottles of whisky were found in the pickup.

Appellant testifying in his own behalf denied that he was intoxicated, but said he was sick and had been taking some medicine that contained a small amount of alcohol, and that a bottle of it was in the pickup when he was stopped. On cross examination appellant testified that he had bought the five fifths and several pints of whisky, found in the pickup, shortly before he was stopped.

The evidence is sufficient to support the verdict of the jury.

Appellant’s sole complaint appears only in his brief, which is, that the whisky and medicine introduced in evidence were not sent up with the record on appeal.

Whenever the trial court in its discretion deems it necessary, it has the authority and power on its own motion or the application of either party, to order the original papers or exhibits introduced in evidence forwarded with the record to the appellate court for inspection. 5 Texas Jur. 2d 513, sec. 314 and 4 Texas Jur. 463, sec. 321; 1 Branch 2d 586, sec. 613; Rule 379, Vernon’s Texas Rules of Civil Procedure; Singh v. State, 66 Texas Cr. Rep. 156, 146 S.W. 891. No application or order for the forwarding of the exhibits to this court appears in the record. The record being silent as to appellant’s complaint, a review thereof cannot be made. 5 Texas Jur. 2d 515, sec. 317 and 4 Texas Jur. 469, sec. 327.

The judgment is affirmed.

Opinion approved by the Court.

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BELCHER, Judge.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of $50.00.

Highway Patrolman Jones testified that he stopped the appellant within a short distance after he saw appellant drive his pickup to his left side of the highway, causing a car, which was passing appellant at the time, to be driven into a bar ditch. Two officers testified that they observed appellant’s walk, heard him talk and smelled the odor of alcohol on his breath, and expressed the opinion that he was intoxicated. Several unopened bottles of whisky were found in the pickup.

Appellant testifying in his own behalf denied that he was intoxicated, but said he was sick and had been taking some medicine that contained a small amount of alcohol, and that a bottle of it was in the pickup when he was stopped. On cross examination appellant testified that he had bought the five fifths and several pints of whisky, found in the pickup, shortly before he was stopped.

The evidence is sufficient to support the verdict of the jury.

Appellant’s sole complaint appears only in his brief, which is, that the whisky and medicine introduced in evidence were not sent up with the record on appeal.

Whenever the trial court in its discretion deems it necessary, it has the authority and power on its own motion or the application of either party, to order the original papers or exhibits introduced in evidence forwarded with the record to the appellate court for inspection. 5 Texas Jur. 2d 513, sec. 314 and 4 Texas Jur. 463, sec. 321; 1 Branch 2d 586, sec. 613; Rule 379, Vernon’s Texas Rules of Civil Procedure; Singh v. State, 66 Texas Cr. Rep. 156, 146 S.W. 891. No application or order for the forwarding of the exhibits to this court appears in the record. The record being silent as to appellant’s complaint, a review thereof cannot be made. 5 Texas Jur. 2d 515, sec. 317 and 4 Texas Jur. 469, sec. 327.

The judgment is affirmed.

Opinion approved by the Court.

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328 S.W.2d 302, 168 Tex. Crim. 367, 1959 Tex. Crim. App. LEXIS 2569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benton-v-state-texcrimapp-1959.

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