Weldon v. State

397 S.W.2d 859

• Court: Court of Criminal Appeals of Texas
• Decided: January 12, 1966
• Docket: 38760
• Status: Published

Opinion

DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of $50.

The caption found in the transcript fails to show the date of adjournment of the trial court.

For such reason, the appeal must he dismissed for want of jurisdiction. Holder v. State, 113 Tex.Cr.R. 81, 18 S.W.2d 661; Thompson v. State, Tex.Cr.App., 236 S.W.2d 619.

The appeal is dismissed.

Appellant is granted fifteen days from this date to perfect the record.

OPINION ON MOTION TO REINSTATE APPEAL

McDONALD, Presiding Judge.

By supplemental transcript, the defect in the caption has been corrected, and the record is properly before this Court for review. The appeal is re-instated.

The evidence, as revealed in the narrative statement of facts, consists of testimony by three police officers and by appellant. One police officer testified that his attention was attracted when he noticed a step-van truck make an improper turn, and by the fact that he observed no license plate on this truck. While following the vehicle he noticed that it was driven erratically. The officer then stopped the truck and identified its driver, but the statement of facts does not reveal who the driver was, or that appellant was in the vehicle.

It is uncontradicted that appellant had been drinking beer, and his conduct and demeanor tended to show that he was intoxicated when arrested near the truck. There is no evidence showing that appellant was driving a motor vehicle, however, and the evidence is therefore insufficient to sustain appellant’s conviction for driving while intoxicated. Article 802, Vernon’s Ann. P.C.; Brewster v. State, 154 Tex.Cr.R. 177, 226 S.W.2d 124; Snider v. State, 145 Tex.Cr.R. 59, 165 S.W.2d 904.

The judgment is reversed.