Stevens v. State, 25479

• Citation: 245 S.W.2d 499,157 Tex.Crim. 19
• Decision Date: 19 December 1951
• Docket Number: No. 25479,25479
• Parties: STEVENS v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 499

245 S.W.2d 499

157 Tex.Crim. 19

STEVENS v. STATE.

No. 25479.

Court of Criminal Appeals of Texas.

Dec. 19, 1951.

George P. Blackburn, State's Atty., of Austin, for the State.

MORRISON, Judge.

The offense is driving while intoxicated as a second offender; the punishment, one year and one day in the penitentiary.

The sufficiency of the evidence to support the conviction, except as hereinafter shown, is not questioned, and therefore a recitation of the facts is not necessary.

The district court of Red River County, where this trial was had, has county court misdemeanor jurisdiction. Article 1970-314, Vernon's Ann.Civ.St.

The indictment herein charges, first, a felony, alleging the primary offense of driving while intoxicated and, then, charging a former conviction for a similar offense. Count two charges a misdemeanor in that it charges the same primary offense without mentioning the prior conviction.

At the close of the State's testimony in chief, only the primary offense; i. e., the misdemeanor charge, had been established.

Bills of exception Nos. 1, 2, 6 and 7 seek to raise in different ways the question of election by the State at the close of its case in chief.

It will be remembered that the primary offense in both portions of the indictment is the same.

We have held that where the same act or transaction is charged in different counts which are phrased differently in order to meet possible variations in proof, the State is not required to elect. Avery v. State, 135 Tex.Cr.R. 557, 121 S.W.2d 992, and cases cited there.

The court's qualification to the final bill is as follows: 'When the state rested, the defendant also rested and if the evidence had ended there, the only count that would have been supported by the evidence was the misdemeanor, and the court practically so stated, to which no exception was taken. Then, as stated in the bill, the defendant asked to reopen the case, which the court permitted, and the defendant having reopened the case, the jury were held together, and as stated in the bill, the Court then permitted the evidence complained of to be introduced. There was no election between counts either by the State or the Court. The defendant having requested the court to reopen the case simply afforded the state an opportunity to make its case.'

If this did not reflect the truth of what occurred, it became appellant's duty to except thereto.

This disposes of appellant's contentions in connection with the...