Lacy v. State

325 S.W.2d 392, 168 Tex. Crim. 220, 1959 Tex. Crim. App. LEXIS 2512

• Court: Court of Criminal Appeals of Texas
• Decided: May 13, 1959
• Docket: 30742
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $125.00.

The Mayor of Turkey, Texas, after closing his store on the night in question, drove over to Quitaque where he was arrested by the sheriff and his deputies. According to the officers, appellant was intoxicated and admitted to them that he had had too much to drink. According to the appellant, he had had only two drinks, was not intoxicated, and made no such admission. The jury resolved this conflict in the evidence against the appellant; we find the evidence sufficient to sustain the conviction, and will discuss the contentions advanced by brief and argument.

He first objected to the jury list because it contained thirteen names. If appellant sought to complain of the inclusion of this additional name, he should have done so by a motion to quash the panel and preserved the same by a formal bill of exception or by a separate statement of facts, as required by Articles 760e and Section 6 of 759a, V.A.C.C.P. This has not been done in the case at bar, and nothing is presented for review. However, we find no error in drawing and listing the names of all of the members of the jury panel.

He next complains that he was not permitted to examine the panel “each one separately in the absence of each other.” Recently, in Templin v. State, 167 Texas Cr. Rep. 605, 321 S.W. 2d 877, we passed upon a similar contention, and there held that we were aware of no reason why the accused might not have examined the panel collectively as well as in the absence of each other, as the accused had requested. Nothing appears in this record to differentiate the case at bar from Templin. If such reason did exist, the appellant should have brought the matter forward in a formal bill of exception, which he has not done.

Appellant complains of the overruling of his motion for continuance. There is no motion for new trial and no affidavit showing what the absent witness would have testified to if he had been present. No error is shown. Parsons v. State, 160 Texas Cr. Rep. 387, 271 S.W. 2d 643.

His last contention is that the court erred in overruling his motion to suppress the evidence concerning the finding of an additional unopened fifth of whisky in the appellant’s automobile. This court does not recognize motions to suppress. Dominguez v. State, 161 Texas Cr. Rep. 124, 275 S.W. 2d 677. When the whiskey was offered in evidence, it was admitted without objection. We are aware of no rule nor have we been cited any which would render this evidence inadmissible.

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