Clifton v. State
| Decision Date | 05 December 1951 |
| Docket Number | No. 25524,25524 |
| Citation | 156 Tex.Crim. 655,246 S.W.2d 201 |
| Parties | CLIFTON v. STATE. |
| Court | Texas Court of Criminal Appeals |
A. Foy Curry, Jr., Jack Ray, Fort Worth, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
The offense is driving while intoxicated as a second offender, as denounced by Article 802b, Vernon's Ann.Penal Code; the punishment, one year and one day in the penitentiary.
The elder Farris testified that on the night in question, while he and his family were driving along the highway approaching the city of Jacksboro, a truck overtook him and 'bumped' his automobile off the highway; that neither vehicle stopped but that the truck followed him into the city and to the residence of one Walker, where they both came to a halt. Farris testified that appellant jumped out of the truck, cursed and assaulted him, forcing him and his family out on the opposite side of his automobile. Four witnesses who were present at the Walker home testified that appellant was under the influence of intoxicating liquor, that he cursed and assaulted several of those present, and that he left only after being informed that the peace officers had been called.
Officer Eubank testified that appellant was just driving away when he arrived at the Walker home, that he caught up with him and brought him to a half some blocks away, that appellant was under the influence of intoxicants and created another breach of the peace at the time of his arrest.
The appellant testified, denying that he had been drinking, and explaining his conduct by stating that he had gotten mad at Farris out on the highway because Farris had pulled out in front of him, thereby endangering his truck.
We feel that the jury were warranted in concluding that appellant was intoxicated.
Bills of exception Nos. 1 to 7, inclusive, relate to the indictment and will therefore be considered in connection with appellant's motion to quash the same.
The indictment is not in the form suggested by Willson's Texas Criminal Forms. The difference herein is that the prior offense is charged first and then the primary offense is set forth, reciting the matters chronologically rather than in the sequence generally employed.
The requisite element of such a charge is that it be shown therein that the person charged had, prior to the commission of the primary offense, been convicted in the prior case and that such conviction had become final.
In the instant indictment, the first paragraph alleges 'having been theretofore convicted of the misdemeanor offense' (describing the same), and the second paragraph begins 'did thereafter' (here describing the primary offense).
In Square v. State, 145 Tex.Cr.R. 219, 167 S.W.2d 192, we held that paragraphs comparable to the above were not 'counts' as the term is properly used when charging the commission of separate offenses in one indictment, and, therefore, each paragraph need not have the requisites of a count.
We hold this indictment to be sufficient.
Bill of exception No. 8 sets forth the entire testimony of the witness L. V. Farris objections were to all of it. We objection were to all of it. We see nothing in the testimony incorporated therein subject to the objections advanced.
Bill of exception No. 9 likewise sets forth all the testimony of the witness Humphrey on direct examination and also recites that appellant's objections were leveled at the entire testimony. Some of the testimony of said witness was clearly admissible.
In Cagle v. State, 147 Tex.Cr.R. 354, 180 S.W.2d 928, 941, we cited with approval Section 211, Branch's Ann.Tex.P.C., as follows: "A bill of exceptions is too general to be considered if it includes a number of statements some of which are clearly admissible, and there is nothing in the objections to directly challenge or single out the supposed objectional evidence."
In Mitchell v. State, Tex.Cr.App., 239 S.W.2d 384, 391, we said: 'Having seen fit to link the two statements together, one of which was clearly admissible, and having leveled only one objection to the two, we must hold, in line with many decisions of this Court, that the bill shows no reversible error.'
Bill of exception No. 10, in the same manner as the other bills, presents the entire direct examination of the arresting officer Eubank, including...
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...is applicable only to felonies by its express terms. Cf. Ortiz v. State, 626 S.W.2d 586, 588-89 (Tex.App.1981); Clifton v. State, 156 Tex.Crim. 655, 246 S.W.2d 201, 203 (1952) (op. on reh'g) (holding that a prior misdemeanor may not be utilized to enhanced a punishment for a subsequent felo......
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