McClain v. State , 1963 Tex. Crim. App. LEXIS 1019 ( 1963 )

372 S.W.2d 341 (1963)

Harry Thomas McCLAIN, Appellant,
v.
The STATE of Texas, Appellee.

No. 36177.

Court of Criminal Appeals of Texas.

November 13, 1963.

No attorney for appellant on appeal.

Frank Briscoe, Dist. Atty., Houston, Carl E. F. Dally, Joe C. Shaffer and Bill White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Judge.

The offense is Driving While Intoxicated; the punishment, a fine of $200.00 and confinement in the County Jail for a period of three days.

The testimony of the State's witnesses, three police officers, indicated that on the date of the alleged offense the appellant was observed driving his automobile at a high rate of speed as he proceeded through an intersection on a red light, on a public highway in Harris County, Texas. It was the testimony of two of the officers who observed the appellant after his automobile had been stopped, that he staggered when he walked, that there was an odor of alcohol on his breath and about his person and that, in their opinion, the appellant was intoxicated. There was further testimony by the officers that the passenger in the automobile driven by the appellant was also intoxicated.

It was the appellant's testimony, corroborated by a defense witness who had been present in the company of the appellant on the evening of the alleged offense, that he had consumed approximately three glasses of wine during the evening at the Cork Club in Houston, Texas. The appellant further testified that during the evening he had taken medications prescribed by a Dr. Ray H. Skaggs, who then testified that these medications might cause drowsiness, unsteadiness, and a temporary subduing of consciousness due to lowering of the blood pressure.

The jury resolved the conflict as to his intoxication against appellant. We find the evidence sufficient to support their verdict.

Appellant complains of the action of the Court in overruling his objection to the admission of testimony concerning the state of sobriety of the passenger in the automobile with him at the time of his arrest. The condition of the other occupant or occupants of the automobile is clearly admissible as part of the res gestae. Baggett v. State, 154 Tex. Crim. 618, 229 S.W.2d 801. After this testimony, appellant's counsel admitted and offered to stipulate that appellant's companion "was intoxicated" and "was stone drunk". Appellant, later testifying in his own behalf, testified his companion was intoxicated.

No further points are presented for review, either by informal or formal bills of exception.

Finding the evidence sufficient to sustain the verdict, and no reversible error appearing, the judgment is affirmed.