Waldrep v. State

382 S.W.2d 266, 1964 Tex. Crim. App. LEXIS 1056

• Court: Court of Criminal Appeals of Texas
• Decided: June 10, 1964
• Docket: No. 36986
• Status: Published

Opinions

WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, 30 days in jail and a fine of $100.

The contention is advanced that there is no testimony in the record that the appellant was driving a motor vehicle.

The attorney for the state questioned the witness about “the car” the appellant was driving on the streets of Graham. The witness Walker testified that .he saw a car skidding which came to rest in an intersection and that “the motor on the vehicle * * * wouldn’t start right off. It started a little bit later.” He also testified that the car came near to colliding with the gasoline pumps in front of his service station, and that he notified the police and gave them “the license number off the vehicle.”

Police Officer Pitts testified that he received a radio call and went to investigate “ah car or automobile which the number had been called into the station * * * ”; that “the car came in front of me that I was looking for and I stopped it at the Reed Station”; that the appellant was driving it; that the appellant was “in his car.”

We find the above evidence sufficient to sustain a finding that the appellant drove a motor vehicle as alleged in the information.

Police Officer Pitts testified that he had known the appellant and had seen him on other occasions; that his appearance was “sloppy”; that he did not have the normal use of his mental and physical faculties and did not talk or act like he did when he had not been drinking; that he had been drinking alcoholic beverages and was drunk.

Sheriff Edwards, who was with Patrolman Pitts, testified that appellant’s breath smelled like alcohol; that he talked with him and heard him talk and observed his actions when he knew he had not been drinking intoxicating liquor and that on the occasion in question he was drunk.

Appellant did not testify but called his mother as a witness who testified that he was sober when he came from work and when he left her home.

The jury resolved the issue of appellant’s condition as to being intoxicated against him and the evidence is sufficient to sustain their verdict.

Upon his direct examination, Patrolman Pitts was asked and answered: “Q. Have you seen him (appellant) when he wasn’t drinking? A. I have seen Claude sober lots of times; I have seen him drunk a few times.” Appellant’s objection was sustained and the jury was instructed not to consider the answer. The court’s failure to grant his motion for mistrial is urged as ground for reversal.

The objectionable portion of the answer, “ * * * I have seen him drunk a few times,” was not responsive or called for by the question. There is no showing of bad faith on the part of the attorney for the state.

We find no reversible error.

The judgment is affirmed.