Manning v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: BELCHER
• Citation: Manning v. State, 412 S.W.2d 656 (Tex. Crim. App. 1967)
• Decision Date: 15 February 1967
• Docket Number: No. 40109,40109
• Parties: James Logan MANNING, Appellant, v. The STATE of Texas, Appellee.

Page 656

412 S.W.2d 656

James Logan MANNING, Appellant, v. The STATE of Texas, Appellee.

No. 40109.

Court of Criminal Appeals of Texas.

Feb. 15, 1967.

Rehearing Denied March 29, 1967.

Harold J. Fleming, Dallas, for appellant.

Henry Wade, Dist. Atty., James F. Law and James M. Williamson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

This is an appeal from an order revoking probation.

Upon his plea of guilty before the court on September 8, 1965, appellant was found guilty of driving while intoxicated and his punishment was assessed at a fine of $100 and thirty days in jail.

Probation was granted the appellant for a period of one year from September 8, 1965. One of the nine conditions of his probation was that he commit no offense against the laws of this state.

The criminal district attorney filed a motion to revoke probation alleging that appellant had, on March 14, 1966, and during the period of his probation, violated a condition thereof in the following manner:

'The Defendant did then and there Drive a Motor Vehicle Upon a Public Road While Intoxicated in Dallas County, Texas.'

Officer Henke, while testifying at the revocation hearing, identified the appellant as the person he saw driving an automobile upon a public street in Dallas on March 14, 1966. He testified that after the appellant had stopped his automobile he observed him walk, heard him talk, and smelled the odor of alcohol about him, and expressed the opinion that the appellant was then intoxicated.

Testifying in his own behalf, the appellant admitted drinking 'two Manhattans' three or four hours before Officer Henke stopped him while he was driving his car, but he denied that he was intoxicated, and attributed his condition to working long hours, and being tired and sleepy, and also, to taking some sleeping pills.

In the judgment and order revoking probation, the court set out the condition of probation that he commit no offense against the laws of this state, and then found:

'That thereafter, to-wit, on or about the 14th day of March, 1966, and within the period of such probation, Defendant violated the terms and conditions thereof in the following particulars, to-wit:

'Driving a Motor Vehicle Upon a Public Road While Intoxicated, as charged in the information.'

It is concluded that the allegation in the state's motion that appellant drove a motor vehicle upon a public road while intoxicated in Dallas County comes within the...