Garrison v. State, 19427.

• Decision Date: 16 February 1938
• Docket Number: No. 19427.,19427.
• Citation: 114 S.W.2d 557
• Parties: GARRISON v. STATE.
• Court: Texas Court of Criminal Appeals

114 S.W.2d 557

GARRISON v. STATE.

No. 19427.

Court of Criminal Appeals of Texas.

February 16, 1938.

Rehearing Denied March 23, 1938.

Appeal from District Court, Childress County; A. S. Moss, Judge.

Roger Garrison was convicted of driving an automobile on a public highway while intoxicated, and he appeals.

Affirmed.

Mahan & Broughton, of Childress, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

The appellant was convicted by a jury of driving an automobile on a public highway while intoxicated, and his punishment assessed at confinement in the county jail for five days and a fine of $50.

He complains in his brief of the insufficiency of the evidence, and insists that he is entitled to a reversal hereof because of such insufficiency. It is true that many witnesses testified that in their judgment the appellant was not intoxicated at the time charged in the indictment; however, the witness Miss Trudie Chewning testified as follows:

"I am familiar with the smell or odor of whisky or intoxicating liquor. As I neared the defendant I could smell liquor. It was a strong smell. I have seen from time to time people who were under the influence of intoxicating liquors.

"As to the appearance and movements and actions of the defendant that I observed as I went to him, well, when I walked up to the car he was sitting like this and when I asked him if he wanted to go to the doctor he did like that and said `I don't know;' he tried to raise his head and he didn't raise it. As to my judgment at that time he was under the influence of intoxicating liquor."

There was other testimony relative to his conduct immediately after the accident which the jury could have also used in substantiating their finding of his intoxication. This matter seems to us to have been a question of fact for the jury to decide on conflicting testimony, and we do not feel justified in disturbing their finding. They saw the witnesses and observed their conduct and demeanor while on the stand; all the circumstances were there revealed to them, and they accepted the testimony favorable to the state, and we will not disturb the judgment on the complained of ground.

Appellant further complains of the court's failure to charge on the law of circumstantial evidence as applied to the facts herein. In our opinion such charge was not called for. Paul Griffin, the driver of the truck with which appellant collided, testified that he saw appellant driving appellant's car towards the witness Griffin about two hundred feet up the road coming in witness' direction. The witness Trudie Chewning testified that she was present at the place of collision while the...