Hanna v. State, No. 26391
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
| Writing for the Court | MORRISON |
| Citation | 259 S.W.2d 570,159 Tex.Crim. 2 |
| Parties | HANNA v. STATE. |
| Decision Date | 03 June 1953 |
| Docket Number | No. 26391 |
Page 570
Rehearing Denied June 27, 1953.
J. D. Crow, Canadian, for appellant.
Wesley Dice, State's Atty., Austin, for the State.
DAVIDSON, Commissioner.
This is a drunk driving conviction, with punishment assessed at a fine of $150.
The statement of facts in this case was prepared and filed by the trial judge under a certificate by him that the parties had failed to agree upon a statement of facts. Such procedure was authorized by Art. 759a, subd. 1, par. E, Vernon's C.C.P.
Witnesses testified that appellant was drunk and in an intoxicated condition when he was seen and apprehended driving an automobile upon a public highway. Such testimony warranted the jury's conclusion of guilt.
A bill of exception appears complaining of the overruling [159 Tex.Crim. 3] of the motion to quash the jury panel. The motion is set forth in the bill of exception, and contains various allegations of fact. Nowhere therein are those facts shown or certified as existing or as true. Nor does the record otherwise reflect that evidence was introduced touching the allegations of the motion.
The matter sought to be presented, then, for our review constitutes only a pleading. The allegations of the motion do not prove or establish the truth thereof. The truth of the matters complained of must be, in some manner, verified. 4 Tex.Jur., Sec. 250, p. 369.
It is apparent, therefore, that the bill of exception presents nothing for the review of this court.
The judgment is affirmed.
Opinion approved by the court.
On Motion for Rehearing
MORRISON, Judge.
In a forceful brief appellant has called our attention to what he denominates his motion for instructed verdict and bill of exception No. 2 and to our holding in Ross v. State, 154 Tex.Cr.R. 79, 225 S.W.2d 189. He says that the phraseology of the bills of exception in the two cases is identical. In this he is correct. Appellant overlooks,
Page 572
however, several more recent decisions of this Court on the question.Bill of exception No. 2 contains the following certificate of the trial judge:
'The court erred in overruling the defendant's motion of 'Not Guilty', because the evidence on the part of the State is insufficient to convict the defendant as charged * * *.'
In McGee v. State, 155 Tex.Cr.R. 639, 238 S.W.2d 707, 715, we said:
'In addition, we are not bound by any certificate of the court where we...
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Hicks v. State, No. 49508
...Webb v. State, 460 S.W.2d 903 (Tex.Cr.App.1970); Hardin v. State, 453 S.W.2d 156 (Tex.Cr.App.1970); and Hanna v. State, 159 Tex.Cr.R. 2, 259 S.W.2d 570 (1953). Holding otherwise would be contra to Article 40.09, Subdivision 6, V.A.C.C.P. See Nash v. State, 486 S.W.2d 561 In the case at bar ......
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Williams v. State, No. 40575
...statement of facts in his case. See also Rodriguez v. State, 164 Tex.Cr.R. 377, 298 S.W.2d 835. In Hanna v. State, 159 Tex.Cr.R. 2, 259 S.W.2d 570, this Court denied appellant's motion to strike the statement of facts on his claim that the same had not been presented to him for his approval......
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Bowles v. State, No. 30374
...and do not agree with such conclusion of the trial judge and decline to be bound thereby.' See also Hanna v. State, 159 Tex.Cr.R. 2, 259 S.W.2d 570, and Free v. State, Tex.Cr.App., 307 S.W.2d DAVIDSON, Judge (dissenting). I can not agree that this court should have one rule for the state an......
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Johnson v. State, No. 35259
...Hudson v. State, 156 Tex.Cr.R. 612, 245 S.W.2d 259; Sublett v. State, 158 Tex.Cr.R. 627, 258 S.W.2d 336; Hanna v. State, 159 Tex.Cr.R. 2, 259 S.W.2d 570, and Free v. State, 165 Tex.Cr.R. 374, 307 S.W.2d 808, that where the entire matter is before us we will not be bound by the trial court's......
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Hicks v. State, No. 49508
...Webb v. State, 460 S.W.2d 903 (Tex.Cr.App.1970); Hardin v. State, 453 S.W.2d 156 (Tex.Cr.App.1970); and Hanna v. State, 159 Tex.Cr.R. 2, 259 S.W.2d 570 (1953). Holding otherwise would be contra to Article 40.09, Subdivision 6, V.A.C.C.P. See Nash v. State, 486 S.W.2d 561 In the case at bar ......
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Williams v. State, No. 40575
...statement of facts in his case. See also Rodriguez v. State, 164 Tex.Cr.R. 377, 298 S.W.2d 835. In Hanna v. State, 159 Tex.Cr.R. 2, 259 S.W.2d 570, this Court denied appellant's motion to strike the statement of facts on his claim that the same had not been presented to him for his approval......
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Bowles v. State, No. 30374
...and do not agree with such conclusion of the trial judge and decline to be bound thereby.' See also Hanna v. State, 159 Tex.Cr.R. 2, 259 S.W.2d 570, and Free v. State, Tex.Cr.App., 307 S.W.2d DAVIDSON, Judge (dissenting). I can not agree that this court should have one rule for the state an......
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Johnson v. State, No. 35259
...Hudson v. State, 156 Tex.Cr.R. 612, 245 S.W.2d 259; Sublett v. State, 158 Tex.Cr.R. 627, 258 S.W.2d 336; Hanna v. State, 159 Tex.Cr.R. 2, 259 S.W.2d 570, and Free v. State, 165 Tex.Cr.R. 374, 307 S.W.2d 808, that where the entire matter is before us we will not be bound by the trial court's......