Lawson v. State

394 S.W.2d 803, 1965 Tex. Crim. App. LEXIS 1174

• Court: Court of Criminal Appeals of Texas
• Decided: October 20, 1965
• Docket: No. 38283
• Status: Published

Opinion

McDONALD, Presiding Judge.

The offense is Driving a Motor Vehicle while Intoxicated; the punishment, a fine of $100.00 and three (3) days confinement in the County Jail.

The statement of facts, in narrative form, reflects that appellant was driving a Buick automobile on a street in Galveston; that he ran a red light and appellant’s car was struck by an automobile driven by Marshall Wells at approximately 12:30 P.M.; that appellant smelled strongly of alcohol; his eyes were glazed, and he staggered when he walked; that in the opinion of those who saw him he was intoxicated.

Appellant testified he played a card game called “pitty pat” with Dan Anderson and Tom Jackson from about 8:00 A.M. until 10:30 A.M. that Sunday morning; that the three of them went to the Golden Sparrow Cafe; that approximately 12:30 P.M. he left the cafe and drove through an intersection on an orange light; that he almost cleared the intersection when he was struck by the Wells automobile; that he was nervous and shaken up, but he was sober; that he had drunk only two cans of beer that morning.

The testimony of Anderson and Jackson corroborated that of appellant.

The jury chose to accept the testimony of the witnesses called by the State. We find the evidence sufficient to support the conviction.

To appellant’s amended motion for new trial counsel for appellant attached an affidavit in which he complains that reversible error was committed during the argument of the prosecutor. There is no formal nor informal bill of exception, and therefore the matter is not before this Court for consideration. Smith v. State, 166 Tex.Cr.R. 614, 317 S.W.2d 539.

“A motion for new trial cannot be made a substitute for or take the place of a bill of exception.” 5 Tex.Jur.2d 210, Sec. 134.

Finding no reversible error, the judgment is affirmed.