Pipes v. State

174 S.W.2d 260, 146 Tex. Crim. 282, 1943 Tex. Crim. App. LEXIS 568

Opinions

This is an appeal from a conviction for driving an automobile upon a public highway while intoxicated; the punishment, a fine of $100.00.

The record is before us without statement of facts.

The sole question presented for review is the action of the trial court in overruling appellant's motion averring that he was entitled to two days' time within which to prepare for trial and be furnished a copy of the information.

There is nothing in the record sustaining the allegations of the motion. The trial court nowhere certifies that the allegations of the motion are sustained by proof. The mere averments of the motion do not establish as a fact the allegations contained therein. 12 Tex. Jur., Sec. 319, P. 662; Wrenn v. State, 82 Tex.Crim. R., 200 S.W. 844; Kimbrough v. State, 124 Tex.Crim. R., 61 S.W.2d 110. Moreover, the record reflects that the information was filed January 1st, 1942, and that appellant was not tried until more than a year thereafter — at which time he filed the motion mentioned. The record does not reflect that, during that time, appellant was precluded from obtaining a copy of the information, nor that circumstances existed requiring service of a copy thereof upon him.

The judgment of the trial court is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.