Hickerson v. State

Court of Criminal Appeals of Texas

Hickerson v. State

275 S.W.2d 801, 161 Tex. Crim. 140, 1955 Tex. Crim. App. LEXIS 1350

CourtCourt of Criminal Appeals of Texas

DecidedJanuary 5, 1955

Docket27253

StatusPublished

Cited by8 cases

This text of 275 S.W.2d 801 (Hickerson 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

Hickerson v. State, 275 S.W.2d 801, 161 Tex. Crim. 140, 1955 Tex. Crim. App. LEXIS 1350 (Tex. 1955).

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Opinions

MORRISON, Presiding Judge.

The offense is driving while intoxicated; the punishment, 30 days in jail and a fine of $100.00.

In view of our disposition of this case, a recitation of the facts will not be deemed necessary, other than to observe that the arrest occurred at 4:30 p.m. on the day in question. The only witnesses whom the appellant had, other than himself, were people who had seen him at approximately 10:30 a.m. in Lynn County before he left to go to his farm in Terry County and those who saw him at approximately 7:30 p.m. in the city of Lubbock some three hours after his arrest. Each of these witnesses testified that he was not intoxicated.

In his motion for continuance appellant swore that the witness L. D. Pemberton, a resident of Terry County, would testify [141]*141that he saw the appellant shortly after 4:00 p.m. on the day in question, some 30 minutes befort appellant’s arrest, and that the appellant was not intoxicated. The motion further recites that Pemberton had agreed to be present at appellant’s trial (this being a misdemeanor and compulsory process not being available) but that, due to inclement weather, his commercial airline flight from Ft. Worth to Lubbock had been delayed but that he would be available in court the following day.

Appellant’s motion for new trial is supported by the affidavit of the witness Pemberton.

From Bill of Exception No. 20 it is apparent that the trial court overruled appellant’s motion for continuance without reading the same.

While it is true that the overruling of a motion for continuance will not normally call for a reversal of the conviction, we are convinced that the trial court herein, in view of the above facts, fell into error in not granting the motion for new trial.

The judgment is reversed and the cause remanded.

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MORRISON, Presiding Judge.

The offense is driving while intoxicated; the punishment, 30 days in jail and a fine of $100.00.

In view of our disposition of this case, a recitation of the facts will not be deemed necessary, other than to observe that the arrest occurred at 4:30 p.m. on the day in question. The only witnesses whom the appellant had, other than himself, were people who had seen him at approximately 10:30 a.m. in Lynn County before he left to go to his farm in Terry County and those who saw him at approximately 7:30 p.m. in the city of Lubbock some three hours after his arrest. Each of these witnesses testified that he was not intoxicated.

In his motion for continuance appellant swore that the witness L. D. Pemberton, a resident of Terry County, would testify [141]*141that he saw the appellant shortly after 4:00 p.m. on the day in question, some 30 minutes befort appellant’s arrest, and that the appellant was not intoxicated. The motion further recites that Pemberton had agreed to be present at appellant’s trial (this being a misdemeanor and compulsory process not being available) but that, due to inclement weather, his commercial airline flight from Ft. Worth to Lubbock had been delayed but that he would be available in court the following day.

Appellant’s motion for new trial is supported by the affidavit of the witness Pemberton.

From Bill of Exception No. 20 it is apparent that the trial court overruled appellant’s motion for continuance without reading the same.

While it is true that the overruling of a motion for continuance will not normally call for a reversal of the conviction, we are convinced that the trial court herein, in view of the above facts, fell into error in not granting the motion for new trial.

The judgment is reversed and the cause remanded.

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Bluebook (online)

275 S.W.2d 801, 161 Tex. Crim. 140, 1955 Tex. Crim. App. LEXIS 1350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hickerson-v-state-texcrimapp-1955.

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