Beard v. State

385 S.W.2d 855 (1965)

Sarilla Feglee BEARD, Appellant,
v.
The STATE of Texas, Appellee.

No. 37233.

Court of Criminal Appeals of Texas.

January 20, 1965.

Forrest F. Baird, Houston, for appellant.

Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for the felony offense of driving while intoxicated; the punishment, fifteen months in jail.

Officer Plaster testified that when he arrived at the scene of a collision on a public street the appellant was seated behind the steering wheel of one of the automobiles involved, and that appellant told him she was driving the car at the time of the collision. He further testified that appellant had a strong odor of alcohol on her breath, that her speech was impaired and she staggered while walking, and he expressed the opinion that she was intoxicated. Two other witnesses for the state who observed the appellant at the scene expressed the opinion that she was intoxicated.

After the appellant gave her written consent, a blood specimen was taken from her by a physician. The testimony of a chemist who made an analysis of the blood specimen reveals that the specimen had an alcoholic content of.27 percent, and that such content was indicative of intoxication.

Testifying in her own behalf, the appellant admitted that she was driving the automobile, that she drank a cocktail at 11 P.M., and another at 11:45 P.M., before the collision at 12:30 A.M., but she denied that she was intoxicated.

The prior conviction as alleged was stipulated by the state, the appellant and her counsel; also, said conviction was admitted by the appellant while testifying.

Appellant contends that the trial court abused its discretion in refusing to permit Thomas Williams, Jr. to testify when he was called as a witness, by sustaining the objection of the state that Williams had remained in the court room and heard the testimony in violation of the rule invoked as to witnesses.

There is no showing in the record of the nature of the testimony sought or expected to be elicited from the witness Williams. Whether the trial court abused its discretion in excluding the testimony cannot be reviewed in the absence of such testimony. Until the contrary has been made to appear, it will be presumed on appeal that the discretion of the trial court was properly exercised. Therefore, the contention as presented reveals no error. Art 645, C.C.P.; 56 Tex.Jur.2d 381, Sec. 53; Harris v. State, 163 Tex. Crim. 183, 289 S.W.2d 605.

There are no formal bills of exception and no objections to the court's charge.

The evidence is sufficient to support the conviction and no error appearing, the judgment is affirmed.

Opinion approved by the Court.