*1 566 is affirmed. approved by
Opinion the Court. Rehearing
On Motion for MORRISON, Judge
Complaint again Mar- made as to the service on already complain he had been position tin. He is no May long 1959, 5, served in this to the issuance cause on the alias scire facias.
Remaining properly disposed of this cause convinced we originally, appellant’s rehearing motion is overruled. for Edgar Lee v. State
Robert 32,850. January 25, Rehearing Motion for Overruled appellant. for Divine, Houston C. C. Robertson, Jr., Attorney, H. Samuel Walton, District Dan Attorney, Houston, and Rawitscher, Assistants
Jack J. Austin, Douglas, Attorney, state. State’s Leon DICE, V.A.P.C., for 802b, the subse- Art.
The conviction is under driving intoxicated; punishment, one quent while offense year jail. *2 alleged, the on the date undisputed that
The evidence was and upon public a street driving appellant, automobile while his a two highway County, in collision with in was involved Harris by state, the who observed other called Witnesses automobiles. they collision, could appellant testified that at the scene after the “very unstable,” breath; that smell he walked alcohol on his “incoherent,” speech”; “staggering”; with a “thick that he talked expressed opinion and that at such time he was intoxicated. the driving appellant for prior conviction of The misdemeanor stipulated. while was intoxicated behalf, appellant driving his
Testifying own admitted in his question having in and admitted con- automobile on occasion the collision, prior to the he was sumed but denied that two beers any and Appellant loss of his mental intoxicated. testified that by physical at time an asthmatic con- faculties such was caused suffering. he was dition from which then by appellant
A who testified he had was called that witness appellant prior the at seen such a short time to collision and that the he time not intoxicated. was jury disputed resolve the issue of intoxication
The chose-to against appellant and to sus- the we find the evidence sufficient tain its verdict. error, (1) that indict- Appellant urges fundamental the as by grand jury presented against him was returned which
ment duly (2) legally impanelled that the was and Criminal not and convicted, in he tried and was District Court No. which was authority try jurisdiction him cause without to because the legally to court. had not been transferred said juris- quash plea to the No motion to the indictment or court’s by appellant in trial court. diction the was filed against that was record shows the indictment returned August by empaneled grand jury which was County. The of Harris 1959 term of Criminal District Court the jury grand presented into the indictment was District Court on October Criminal law, and, accordance with was filed and docketed in District Court 2. On such Criminal No. date, the cause was transferred to the Criminal District Court and, April duly 13,1960, entered,- on order cause trans- ferred, permission, with the court’s to Criminal District Court County. of4 Harris grand jury
It is that contention which return- legally against empaneled ed the indictment him was not judges the record shows that the of Criminal District Courts County appointing grand jury Harris commissioners county empaneling juries grand following not were provision 52-158b, 6, V.A.C.C.P., see. of Article which reads: Judges of the Criminal District Courts of Harris “The District Jury County successively appoint shall Grand commissioners empanel agree. Juries.” such contention we not Grand With do record shows return the indictment *3 against appellant August 1959 term of the Criminal Dis- Court, Judges Court, trict the of Criminal District Dis- Criminal 3, trict County, 2 Court No. and Criminal District Court of Harris No. named, grand appointed jury
in the order had commis- grand juries 1958, sioners to select November the May 1959, creating 1959 terms of said The courts. statute County Criminal 4 District Courts Nos. 5 of Harris not was in effect at that appointment grand time. Such order of of the jury compliance commissioners inwas with the are statute. We agree to appellant unable provision with that the in the statute judges that “successively the appoint” grand jury shall the com- grand juries empanel missioners and appointment means the of grand jury empanelment grand juries commissioners and of the - by judges the district in consecutive numerical the order of they preside. courts over which We find no merit in that, contention the transferring order the cause from Criminal 2 District Court No. to Criminal District Court did not recite that it was transferred court, with provision of consent by the order was void reason of the 52-158b, of V.A.C.C.P., Article sec. which reads “* * * provided no case shall be transferred without the consent * * *” of the of the Court to which transferred. The mere omission, in transfer, of court’s order a recitation it of that was with consent of the court to which the transfer was made noted, however, would not render the order of transfer It void. that, shown, as heretofore order in the instant case transfer- ring the cause to No. 4 that Criminal Court does recite it permission with was of the court.
By exception, appellant complains informal bills court’s in permitting witness, action the state’s Officer Elwin J. Smith, to a appellant relate conversation which he with had after his arrest appellant which was test and refused offered blood to take same. that, witness, record reflects on cross-examination of the
appellant inquired first of him as to the details aof conversation which appellant he had with at the scene of the collision. On re- examination, by direct permitted the state was to show wit- appellant ness that in such conversation was offered blood test agreed to take the cross-examination, same. After further which testimony appel- elicited the witness from lant was police later taken to the station and that no blood test taken, permitted witness, the state was to show the over appellant’s objection, that then he refused to take the blood test. present Appellant having Under the record the bills do not error. inquired first portions into and offered of the conversation evidence, authorized, upon state was further examination of witness, inquire portions into of the same. Article V.A.C.C.P.; Stickney State, 533, — v. 169 Tex. Cr. R. 2d S.W. 133; State, 32,395, (page volume), and Johnson v. this 2d 170. S.W. is affirmed.
Opinion approved the court.
McDonald, judge *4 Appellant’s Rehearing
On Motion for McDONALD, Judge. rehearing, In his counsel, motion for appellant’s did not who
represent case, earnestly requests him in the trial of this this alleged court to consider the error trial in made court ad- mitting testimony by Skelly. deposition Teddy of the witness Appellant apparently urges this contention as fundamental error. exception. record reflects no formal nor bill informal bill find We no merit in contention.
Appellant agreed stipulated and his counsel open both and taking court to deposition of the of this witness. Appellant’s length counsel cross-examined the witness at at deposition
the time the was taken. trial, appel- deposition offered the
When state’s counsel agreed stipulation to the lant’s and the both counsel reading deposition. objections waived all of the and objection deposition In the time the absence of an at waiver, appellant’s read, motion offered view of rehearing is overruled. Billy Parker v. E. State 32,783. Clyde appellant. Woody, 2, for Houston W. Jr., Robertson, Attorney, H. Walton,
Dan Samuel Douglas, Houston, State’s Attorney, Leon Assistant District Attorney, Austin, for the state.
BELCHER, opinion is withdrawn. check, unlawfully passing a This worthless conviction for days jail and a at 10 punishment assessed with misdemeanor as it affirmed appeal of this case was former On a fine of $25. Rep. in Tex. Cr. S.W. reported opinion shown 2d 431. *5 judgment original pro tunc the
By judgment nunc entry of appellant plead correctly reflect that been reformed has not guilty. from this It is than guilty court rather in the trial appeal. prosecutes this reformed