Anderson v. State

385 S.W.2d 391 (1965)

Robert ANDERSON, Appellant, v. The STATE of Texas, Appellee.

No. 37530.

Court of Criminal Appeals of Texas.

January 6, 1965.

No attorney of record on appeal for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is driving while intoxicated; the punishment, three days in jail and a fine of $50.00. Trial was before the court without the intervention of a jury.

Officers Garrett and Lutrell of the Lubbock Police testified that while on patrol at 9:00 p. m. on the night in question they observed an automobile being driven across the double center stripe of a four lane street at approximately five miles an hour, that they brought it to a halt and observed the appellant who was the driver. They testified that he was very talkative, that his eyes were bloodshot, that he had "a hard time holding his head up", that he staggered when he walked, that he had a strong odor of alcohol on his breath and expressed the opinion that he was intoxicated.

Appellant's employer testified that he had been with appellant until 7:00 p. m. and that appellant had had nothing to drink. Appellant's sister-in-law testified that she arrived upon the scene of the arrest and stated that appellant did not appear intoxicated to her and expressed the opinion that he was not drunk. Appellant, testifying in his own behalf, stated that he had drunk only one can of beer after he left his employer, that he was not intoxicated, and that he was preparing to turn left on the *392 four lane street at the time he was apprehended.

The trial court resolved the conflict in the evidence against appellant and we find the evidence sufficient to sustain his judgment. We find several objections in the record to alleged hearsay testimony, but where the trial is before the Court, it is presumed that he considered only admissible evidence. Skelton v. State, 165 Tex. Cr.R. 247, 306 S.W.2d 127.

Finding no reversible error appearing, the judgment is affirmed.