Hart v. State

367 S.W.2d 345, 1963 Tex. Crim. App. LEXIS 868

• Court: Court of Criminal Appeals of Texas
• Decided: March 20, 1963
• Docket: No. 35476
• Status: Published

Opinions

WOODLEY, Presiding Judge.

The offense is operating a motor vehicle upon a public road while intoxicated; the punishment, 30 days in jail and a fine of $100.

No brief has been filed on appellant’s behalf.

The undisputed evidence, including the testimony of the appellant, shows that he was driving an automobile on Highway 80 in Hudspeth County at a high rate of speed and was stopped after he passed a Highway Patrol car.

Deputy Sheriff Stubbs, one of the arresting officers testified that appellant was unsteady on his feet; had the odor of alcohol on his breath and that “he didn’t talk normal as a person should.” He expressed the opinion that appellant was intoxicated.

Patrolman Dennis Palmer testified that when the appellant got out of the car “he was real unsteady on his feet, and he leaned against the car for support. * * * I could smell the odor of some alcoholic beverage on his breath, quite strong, and I formed the opinion that the man was intoxicated.”

Other evidence introduced by the state showed that a partially full fifth of whisky was found under the right hand seat of the car. It was also shown that a sample of urine taken from the appellant, and tested for alcohol content, contained .30% alcohol by weight and that any alcohol concentration above .125% in a urine specimen indicates intoxication.

The appellant testified that he poured out part of a bottle of coke and poured in whis-ky and “drank along on it”, and his companions in the car did likewise; that after he drank his he drank “a swallow or so” from someone else’s. He further testified that he had been drinking the night before.

It is apparent that the appellant believed that he was not intoxicated, despite his having consumed some whisky. When he was advised that he was to be charged with D.W.I. he volunteered to take a test to prove that he was not. Unfortunately the test showed intoxication, again demonstrating that the consumer of intoxicating liquor is apt to be a poor judge of his condition of sobriety.

Appellant filed motion for continuance because of the absence of Paul Horn, one of his companions at the time of his arrest. The witness was in the county when the appellant was released from jail, but was not served with a subpoena. He resides in the State of New Mexico and, according to the affidavit attached to appellant’s motion for new trial, his only reason for failing to appear at the trial was that he forgot.

The testimony which the witness averred he would have given follows closely the appellant’s version of his condition of sobriety and his consumption of whisky. The trial judge was warranted in concluding that, had a new trial been ordered and had the witness remembered to appear, as he says he promised, a different result would not likely have been reached.

We conclude that the record does not show an abuse of discretion on the part of the trial judge in overruling the appellant’s application for continuance and for new trial. Hoover v. State, 107 Tex.Cr.R. 600, 298 S.W. 438.

The judgment is affirmed.