Joles v. State, 57500

• Citation: 563 S.W.2d 619
• Decision Date: 29 March 1978
• Docket Number: No. 57500,No. 3,57500,3
• Parties: Spencer JOLES, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 619

563 S.W.2d 619

Spencer JOLES, Appellant, v. The STATE of Texas, Appellee.

No. 57500.

Court of Criminal Appeals of Texas, Panel No. 3.

March 29, 1978.

Frank B. Murchison, Corsicana, on appeal only, for appellant.

Pat Batchelor, Dist. Atty., W. D. Ralston, Jr., Asst. Dist. Atty., Corsicana, for the State.

Before ROBERTS, PHILLIPS and VOLLERS, JJ.

OPINION

ROBERTS, Judge.

Appellant waived trial by jury and entered a plea of guilty before the court to an indictment charging him with a subsequent offense of driving an automobile over and upon a public road in Navarro County while under the influence of intoxicating liquor. The punishment was assessed at imprisonment for three years.

The appeal is before us on the following four grounds of error:

"I.

"THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ENTERING A JUDGMENT OF CONVICTION BASED UPON THE INDICTMENT FOUND IN THE TRANSCRIPT AT PAGE 7, BECAUSE THE INDICTMENT FAILS TO ALLEGE THAT THE DEFENDANT WAS OPERATING HIS MOTOR VEHICLE UPON A 'STREET OR ALLEY WITHIN THE LIMITS OF AN INCORPORATED CITY, TOWN OR VILLAGE' WHEN IN FACT THE DEFENDANT WAS ARRESTED WITHIN THE CITY OF CORSICANA, TEXAS, BY CITY POLICEMEN OF THE SAID CITY.

"II.

"THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ENTERING A JUDGMENT OF CONVICTION AGAINST THE DEFENDANT UPON AN INDICTMENT AND EVIDENCE IN SUPPORT OF SUCH INDICTMENT WHICH ALLEGED AND PROVED A PRIOR MISDEMEANOR CONVICTION FOR D.W.I. DATED JUNE 1, 1953, BECAUSE THE SAME WAS OVER TWENTY-TWO (22) YEARS REMOTE, WAS STALE AND BARRED FROM USE AS A MATTER OF LAW.

"III.

"THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN SENTENCING THE DEFENDANT FOR A TERM OF ONE (1) DAY TO THREE (3) YEARS IN THE STATE PENITENTIARY BASED ON A JUDGMENT ENTERED FINDING THE DEFENDANT GUILTY OF D.W.I., WHEN THE LAWFUL RANGE OF PUNISHMENT FOR D.W.I. IS NOT LESS THAN THREE (3) DAYS NOR MORE THAN TWO (2) YEARS IN COUNTY JAIL.

"IV.

"IN THE ALTERNATIVE TO GROUND OF ERROR NO. III, THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ENTERING A JUDGMENT OF RECORD FOR D.W.I., AFTER PRONOUNCING JUDGMENT IN OPEN COURT FOR D.W.I. SUBSEQUENT OFFENSE, THE TWO OFFENSES BEING SEPARATE AND INDEPENDENT."

We overrule these contentions and affirm the judgment of the trial court.

Art. 6701l -2, Vernon's Ann.Civ.St., provides:

"Any person who has been convicted of the misdemeanor offense of driving or operating an automobile or other motor vehicle upon any public road or highway in this state, or upon any street or alley within an incorporated city, town or village, while intoxicated or under the influence of intoxicating liquor, and who shall thereafter drive or operate an automobile or other motor vehicle upon any public road or highway in this state, or upon any street or alley within the limits of an incorporated city, town or village, while such person is intoxicated or under the influence of intoxicating liquor, shall for each and every subsequent such violation be guilty of a felony; and upon conviction shall be punished by a fine of not less than One Hundred ($100.00) Dollars nor more than Five Thousand ($5,000.00) Dollars or confinement in the county jail not less than ten (10) days nor more than two (2) years, or by both such fine and imprisonment, or by confinement in the state penitentiary not to exceed five (5) years."

In his first ground of error appellant argues that, since the indictment alleged that appellant drove an automobile "over and upon a public road" in Navarro County, the conviction cannot stand, because the proof showed that appellant was arrested within the city limits of Corsicana by the Corsicana City Police. He further argues that, to properly charge appellant with the offense under the instant case, the indictment should have alleged that appellant drove his automobile upon a street or alley within the incorporated city limits of Corsicana.

Appellant's first contention was decided adversely to him in the case of White v. State, 131 Tex.Cr.R. 69, 95 S.W.2d 429 (1936). There it is stated:

"Appellant contends that there is a variance between the proof and the allegation in the indictment as to the place where the automobile was operated. In short, it is his position that proof that the car was operated on a public street in the city of Wellington will not sustain the allegation that said car was operated on a public highway in the county of Collingsworth. This contention cannot be sustained. We have expressly held that a street within a city is a public road within the meaning of the statute (Vernon's Ann.P.C., art. 802). Blackman v. State, (Tex.Cr.App., 20 S.W.2d 783). As already observed, in...