Stephens v. State, 27480
| Decision Date | 16 March 1955 |
| Docket Number | No. 27480,27480 |
| Citation | 161 Tex.Crim. 407,277 S.W.2d 911 |
| Parties | George Daniel STEPHENS v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
W. D. R. Owen, Eastland, for appellant.
Leon Douglas, State's Atty., Austin, for the State.
The offense is driving while intoxicated as a second offender, as denounced by Article 802b V.A.P.C.; the punishment, a fine of $100.
State Highway Patrolmen Womack and Hatton testified that on the day in question they observed a pickup truck weaving on the highway; that as it stopped for a red light they instructed the appellant, who was the driver thereof, to get out; that they smelled his breath, observed his manner of speech and manner of walking, and concluded that he was intoxicated. A partially empty bottle of whiskey was found in the truck, and the appellant was carried to jail. City Policeman Pence corroborated the testimony of the arresting officers.
The appellant did not testify, but offered several witnesses, who stated that the appellant was not intoxicated on the day in question.
The jury resolved the disputed issue of fact against the appellant, and we find the evidence sufficient to support the conviction.
We shall discuss the contentions raised in the appellant's brief.
A motion to quash the indictment was filed which complained of the allegation as to the prior conviction. Appellant contends that the same is insufficient because it does not recite the day on which the prior offense was committed and does not recite that the same was a final conviction.
Appellant relies upon Mullins v. State, 140 Tex.Cr.R. 261, 144 S.W.2d 565. The indictment in the Mullins case was drawn under Article 63, V.A.P.C. (Habitual Criminal), and alleged three prior convictions for enhancement purposes. We reversed the conviction because the indictment did not allege that each succeeding offense was committed after conviction for the preceding offense.
An indictment almost identical to the one before us here was before the Court in Broughton v. State, 148 Tex.Cr.R. 445, 188 S.W.2d 393, 395. There we said:
'Appellant cites us to the case of Allen v. State, 148 Tex.Cr.R. 1, 184 S.W.2d 470, as supporting his contention. It will be noted that in that case the State, for the purpose of enhancing the punishment as provided by Art. 63, P.C., charged two prior convictions.
Such is not the case here. In the present instance, the State charged a prior conviction to show that in the commission of the subsequent offense, appellant was guilty of a felony under Art. 802b, Vernon's Ann.P.C. and by reason thereof, the District Court had jurisdiction of the offense. The object and purpose of the two statutes are different: One is to enhance the punishment while the other is to charge a felony and is jurisdictional.
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Appellant next contends that the trial court erred in rendering a judgment in this case out of the presence of the appellant.
The verdict was received on November 5 and read in open court, the appellant being present. On November 8 a judgment was entered in the absence of the appellant. On November 12, while the appellant was in the courtroom, the court in his presence set aside the judgment dated November 8 and rendered and entered judgment as of that date.
This action of the court removed any question as to the...
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Ex parte Benson
...more than five (5).”).91 Broughton v. State, 148 Tex.Crim. 445, 448, 188 S.W.2d 393, 395 (1945). See also Stephens v. State, 161 Tex.Crim. 407, 409, 277 S.W.2d 911, 912–13 (1955) (quoting Broughton ).92 Hill v. State, 158 Tex.Crim. 313, 314–15, 256 S.W.2d 93, 94 (1953), overruled on other g......
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Shepherd v. State, s. 01-8200935-C
...its finding of guilt of aggravated robbery and replace it with a finding on a lesser, probatable offense. See Stephens v. State, 161 Tex.Cr.R. 407, 277 S.W.2d 911 (1955); Fuller v. State, 147 Tex.Cr.R. 250, 180 S.W.2d 361 (1944). Appellant makes no argument--nor is there evidence in the rec......
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Platter v. State
...Compas v. State, 451 S.W.2d 487 (Tex.Cr.App.1970); LaDuke v. State, 166 Tex.Cr.R. 160, 312 S.W.2d 242 (1958); Stephens v. State, 161 Tex.Cr.R. 407, 277 S.W.2d 911 (1955). In the present case both the judgment and the information upon which it was based were admitted into evidence, and both ......
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La Duke v. State, 29572
...upon which said judgment was based. The judgment was admissible. Koger v. State, 73 Tex.Cr.R. 448, 165 S.W. 577; Stephens v. State, 161 Tex.Cr.R. 407, 277 S.W.2d 911; Fullylove v. State, Complaint is made of the notations placed on the label of the whiskey bottle found in appellant's car af......