Moore v. State

209 S.W.2d 192, 151 Tex. Crim. 542, 1948 Tex. Crim. App. LEXIS 1092

• Court: Court of Criminal Appeals of Texas
• Decided: February 11, 1948
• Docket: No. 23922.
• Status: Published

Opinions

DAVIDSON, Judge.

Driving while intoxicated is the offense; the punishment, a fine of $50.00.

The information was presented in the name of and signed by an “Assistant County Attorney of Lubbock County, Texas.”

It is insisted by the appellant that since an information must be presented by the county attorney, or in his name, the information is, therefore, fatally defective.

By Article 331, R. C. S., the Legislature authorized the appointment of assistants county attorney, “who shall have the same powers, authority and qualifications as their principals, at whose will they shall hold office.” This authorized an assistant county attorney to present an information. Wilkins v. State, 33 Tex. Cr. R. 320, 26 S. W. 409. See, also, Goodman v. State, 85 Tex. Cr. R. 279, 212 S. W. 171; and Stalcup v. State, 99 Tex. Cr. R. 415, 269 S. W. 1044. It follows that the information was not defective in the particular claimed.

Policemen of the city of Lubbock arrested appellant about three o’clock in the morning while he was driving an automobile. Based upon his acts and conduct, together with the odor of whisky upon his breath, the officers testified that appellant was drunk. Appellant denied that he was drunk. He accounted for his condition and appearance as the result of his having taken a tablet of amytal a short time before he was apprehended. Disinterested witnesses testified to facts corroborating his testimony that he was not drunk.

The jury accepted the testimony of the officers. The facts warranted that conclusion.

Bills of exception complain of the argument of State’s counsel.

The rule is well-established that argument of State’s counsel does not constitute reversible error unless, in extreme cases, the language complained of is manifestly improper, or where some mandatory provision of a statute is violated or some new and harmful fact is injected into the case. Vineyard v. State, 96 Tex. Cr. R. 401, 257 S. W. 548; McMahon v. State, 182 S. W. (2d) 712, 147 Tex. Cr. R. 508; Mickle v. State, 191 S. W. (2d) 41; Gordon v. State, 194 S. W. (2d) 775.

The language here complained of, especially in view of the minimum punishment assessed by the jury, is not deemed within the rule stated.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the Court.