Garza v. State, 42201
| Decision Date | 09 July 1969 |
| Docket Number | No. 42201,42201 |
| Parties | Mariano Resendez GARZA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Pena, McDonald & Guiterrez, by L. Aron Pena, Edinburg, for appellant.
Oscar B. McInnis, Dist. Atty., Joseph L. Nanus, Asst. Dist. Atty., Edinburg, and Jim D. Vollers, State's Atty., Austin, for the State.
The conviction is for the subsequent offense of driving a motor vehicle on a public highway while intoxicated; the punishment, a fine of $100 and confinement in jail for ten days.
The sufficiency of a evidence is not challenged.
In the first ground of error it is contended that the trial court erred on overruling a motion to dismiss the indictment because another case was heard, instead of the present case, after a definite setting had been made.
It appears from the record that appellant's case, after being set, was postponed for one day so that an accused who had been in jail for five months could be tried. The applicable rule is found in 1 Branch's Ann.P.C.2d, Sec. 286, pp. 329--330:
Unless an injustice is shown, it is not error for the court to give preference to jail cases. Wright v. State, 10 Tex.App. 476. There is no showing of injury; the first ground of error is overruled.
Complaint is made in the second ground to the verdict. to the verict.
The verdict of the jury was: 'We, the jury, find the defendant Mariano Resendez Garza, guilty of the offense of unlawfully driving a motor vehicle upon a public road while under the influence of intoxicating liquor as charged in the indictment.' It is contended that the phrase 'as charged in the indictment' does not show that he was found guilty as a subsequent offender.
The court's charge submitted only the felony offense to the jury, and instructed them if they found the accused had been previously convicted of the misdemeanor offense and thereafter drove upon a public road while intoxicated, they would find him 'guilty as charged in the indictment.'
The verdict is sufficient to support the judgment; the second ground of error is overruled.
It is contended in the third ground of error that reversible error was committed when Officer Marmolejo testified that he arrested appellant for a prior unrelated misdemeanor offense.
The record reflects that Officer...
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