Flanary v. State

316 S.W.2d 897, 166 Tex. Crim. 495, 1958 Tex. Crim. App. LEXIS 4669

Opinion

MORRISON, Presiding Judge.

The offense is driving while intoxicated; the punishment, 30 days in jail and a fine of $150.00.

Highway Patrolman Jones testified that on the day in question he observed a truck tractor being driven over the center of the road and gave chase, that the truck weaved back and forth across the roadway, that he brought it to a halt and observed the appellant who was the driver. He stated that the appellant’s eyes were glazed, his face was very red and flushed, that he walked unsteadily, smelled of alcohol, and expressed the opinion that he was intoxicated.

The appellant did not testify or offer any evidence in his own behalf. We find the evidence sufficient to support the conviction and shall discuss the one contention advanced by appellant’s able counsel in their brief.

They contend that, even though Jones testified that the appellant was driving “on a public highway in Knox County, Texas,” and at other places in his testimony referred to the “road” upon which the appellant was driving, this did not constitute sufficient proof of the allegation in the information that the appellant drove upon “a public road.” Appellant alleges that it is necessary for the state to go further and prove that the road was “public for travel or traffic.” They recognize the holding of this court in Anderson v. State, 149 Texas Cr. Rep. 423, 195 S.W. 2d 368, but take issue with that portion of the opinion in that case which reads, “especially in view of the fact that no issue was made thereof in the trial court and the matter is for the first time urged in this Court.”

We have considered their argument and remain convinced of the soundness of the holding in Anderson.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Judge.

Appellant correctly contends that the absence of sufficient proof that he drove a motor vehicle on a public road in Knox County while intoxicated may be pointed out and relied upon in this court, though not raised or made an issue in the trial court. If the opinion in Anderson v. State, 149 Texas Cr. Rep. 423, 195 S.W. 2d 368, implies or holds otherwise it is overruled.

We remain convinced that the testimony of Patrolman Jones set out in our original opinion is sufficient to sustain the allegation that appellant drove the motor vehicle upon a public road in Knox County.

Appellant’s motion for rehearing is overruled.