Oden v. State ( 1949 )

GRAVES, Judge.

Appellant was convicted of drunken driving and given a penalty of 60 days in jail.

We adopt the portion of the brief of the State’s Attorney as follows:

“We think the evidence sufficient to support this conviction, and appellant’s amended motion for new trial was overruled on the 19th day of November, 1948, and he was allowed sixty days in which to file bills of exception, which said sixty days would have expired on the 18th day of January, 1949. Thereafter, on January 29, 1949, there was filed in the office of the county clerk of Sherman County an order of the court extending the time in which to prepare and file bills of exception and statements of facts to any time not exceeding eighty days from November 19, 1948, said order having been filed after the sixty-day period allowed by order of the court in which to file bills of exception.

“Thereafter, on February 4, 1949, another order was entered by the court extending the time in which to prepare and file the statement of facts to and including the 14th day of February, 1949.

“With an order by the court, the appellant, by statute, has ninety days from the overruling of the motion for new trial and giving of notice of appeal, in which to prepare and file a statement of facts, but without a court order, has only thirty days in which to prepare and file bills of exception; and the court is without authority to extend the time in which to file bills of exception after the time has expired under the statute, or the extended time under the order of the court. Simpson v. State, 110 Tex. Cr. R. 399, 10 S. W. (2d) 567; Malone v. State, 75 S. W. (2d) 104; Smith v. State, 144 Tex. Cr. R. 152, 161 S. W. (2d) 492; Snyder v. State, 149 Tex. Cr. R. 636, 198 S. W. (2d) 108.”

The testimony seems sufficient to show appellant’s erratic driving while proceeding down the highway; and soon thereafter, upon the arrival of the sheriff, he was found in a drunken condition and in possession of a partly consumed four-fifths bottle of whisky in his car.

We think the facts are sufficient to uphold the verdict of the jury.

The judgment will be affirmed.