Barnes v. State

261 S.W.2d 597 (1953)

BARNES v. STATE.

No. 26524.

Court of Criminal Appeals of Texas.

October 21, 1953.

No attorney on appeal for appellant.

Clyde Suddath, County Atty., Henrietta, Wesley Dice, State's Atty., of Austin, for the State.

MORRISON, Judge.

The offense is driving while intoxicated; the punishment, a fine of $50.

No statement of facts accompanies the record.

Bill of exception No. 1 complains of the action of the court in overruling appellant's motion for continuance. In the absence of a statement of facts, we are unable to appraise this bill.

Also, the motion recites that appellant learned the identity of the witnesses desired on February 17. The State's answer to the motion, filed on February 19, has attached thereto an affidavit of the County Clerk reciting that no application for subpoena for any witness had been made by appellant. It is axiomatic that an accused is required to use diligence in securing *598 the attendance of his witnesses; and since he failed to apply for subpoenas, no error is shown by the court's action in overruling his motion for continuance.

Bills of exception Nos. 2 and 3 relate to jury argument. The argument set forth violated no mandatory statute; and since we have no statement of facts from which we may appraise the propriety thereof, we are unable to say that the same was injurious to appellant. Elliott v. State, Tex.Cr.App., 243 S.W.2d 839.

Finding no reversible error, the judgment of the trial court is affirmed.