Herring v. State , 117 Tex. Crim. 211 ( 1931 )

The appeal was dismissed at a former term, but later reinstated. The case is now considered on its merits.

The officer who arrested appellant testified that while drunk, appellant drove an automobile on a street in the city of Waco. The testimony of the officer was not controverted.

The record discloses that appellant entered a plea of guilty and that he was duly admonished by the court of the consequences of said plea. Appellant seeks now to challenge the sufficiency of the evidence. On a plea of guilty, the sufficiency of the evidence may not be challenged, except in a case in which the facts adduced are such as to show innocence or in which there is no legal evidence adduced. Crumbley v. State, 103 Tex.Crim. Rep., 280 S.W. 1064, and authorities cited.

Bill of exception No. 1 is concerned with the argument of the district attorney, wherein he stated that no one had challenged the statement of the officer that "no one got out of appellant's automobile." It is stated, as a ground of objection, that appellant did not testify and that no one else could have made the denial. It appears from the court's qualification of the bill that appellant's counsel had taken the position in argument that some one else might have been driving the car when the officer saw it. The statement of the ground of objection is not a certificate on the part of the trial judge that no one else could have denied that a person other than appellant got out of the automobile. A statement of a ground of objection is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Branch's Annotated Penal Code, Section 209; Buchanan v. State,107 Tex. Crim. 559, 298 S.W. 569. The bill of exception is insufficient to manifest error. While the question is not before us for decision, it is doubtful if the bill would in any event under the record here manifest error. Appellant pleaded guilty in the presence of the jury to driving the automobile under the conditions charged in the indictment.

Appellant's motion to quash the indictment was properly overruled. It was charged in the indictment that appellant was under the influence of intoxicating liquor when he drove the automobile. It was further averred that he was in a degree under the influence of intoxicating liquor. If the language "in any degree under the influence of intoxicating liquor" is so vague and indefinite as to make it obnoxious to the provisions of our Constitution, the use of such language did not have the effect of invalidating the indictment. Rejecting it as surplusage, the indictment still charges appellant with having driven his automobile while intoxicated. That part of the statute denouncing as an offense the driving of an automobile while intoxicated has been upheld. Nunn v. State,114 Tex. Crim. 487, 26 S.W.2d 648. See Article 802, P. C.

The proof was undisputed that appellant was drunk when he drove the automobile. Hence the fact that the court submitted that phase of the statute authorizing a conviction for driving an automobile while in any degree under the influence of intoxicating liquor would not, if error, warrant a reversal.

An examination of all of appellant's contentions leads us to the conclusion that error is not presented.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.