Bue v. State , 1963 Tex. Crim. App. LEXIS 942 ( 1963 )

368 S.W.2d 774 (1963)

John BUE, Appellant,
v.
The STATE of Texas, Appellee.

No. 35921.

Court of Criminal Appeals of Texas.

June 19, 1963.

Paxson & Santiesteban, by H. Tati Santiesteban, El Paso, for appellant.

Edwin F. Berliner, Dist. Atty., Sam W. Callan and Mike J. Thompson, Asst. Dist. Attys., El Paso, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Presiding Judge.

The offense is sodomy; the punishment, 15 years.

The allegations of the indictment were fully sustained by the testimony of a police officer who testified that he saw the appellant and one Ray, both males, in the lower bunk of the cell they were occupying in the El Paso City Jail, and that when he told them to get up and they moved, he saw the appellant extract his penis from the rectum of his cellmate Ray. Also the written statement of the appellant was introduced in which he admitted the act charged.

The jury rejected appellant's testimony at the trial in which he denied guilt, and the evidence is sufficient to sustain the jury's finding.

Appellant contends that the punishment is excessive, contending that he was in a "grossly drunken condition at the time of the arrest and at the time of the alleged sodomy incident."

The court instructed the jury on the law of temporary insanity produced by the voluntary recent use of intoxicating liquor, and the introduction of evidence thereof in mitigation of the punishment.

The punishment being within the limits authorized by statute was for the jury and is not excessive. Trevino v. State, No. 35,899 (not yet reported); Lambright v. State, 167 Tex. Crim. 96, 318 S.W.2d 653.

The judgment is affirmed.