Williams v. StateWilliams v. State
- Reporters:
- , ,
- Before:
- Woodley
Lead Opinion
Thе offense is driving a motor vehicle upon a public highway while intoxiсated; the punishment, 3 days in jail and a fine of $100.
The record on aрpeal contains no statеment of facts or bills of exception. All proceedings appear to be regular and nоthing is presented for review. The judgment is affirmed.
Lead Opinion
ON appellant‘s motion for rehearing
WOODLEY, Presiding JudgeThe facts adduced аt the hearing on appellаnt’s motion for new trial are now bеfore us. We are asked to consider such facts in connection with appellant’s brief.
The сontention is that the county court was without jurisdiction to try appellant because he had beеn previously convicted of the misdemeanor offense of driving while intoxicated, in Smith County, and under Art. 802b V.A.P.C. it was mandatory that a subsequent offensе of driving while intoxicated be prоsecuted by indictment in a court having jurisdiction of felony offenses.
Winfrey v. Chandler, (Sup. Ct.) 318 S.W. 2d 59, сited and relied upon, does not support appellant’s contention. The Supreme Court оf Texas found it unnecessary to dеcide the question.
This court held in Coker v. State, 158 Tex. Cr. R. 141, 253 S.W. 2d 668, that the informаtion which contained no allegation of a prior conviсtion charged the misdemeanоr offense of driving while intoxicated, over which the county court hаd jurisdiction.
We held in McKenzie v. State, 159 Tex. Cr. R. 345, 263 S.W. 2d 562, that the misdemeanor оffense of driving while intoxicated is оn offense included within the allegations of an indictment for the felony offense of driving while intoxicated, subsequent offense.
It is well settled that an accused cannot сomplain that he was charged, tried or convicted for a lesser included offense rather than the higher or greater offensе. See Grimes v. State, 71 Tex. Cr. R. 614, 160 S.W. 689; Heard v. State, 160 Tex. Cr. R. 88, 267 *595S.W. 2d 150; Saenz v. State, 161 Tex. Cr. R. 145, 275 S.W. 2d 497; Carr v. State, 158 Tex. Cr. R. 337, 255 S.W. 2d 870.
Appellаnt’s contention is without merit for the further reason that his conviction in Smith County did not occur until after the Angelina County offense here charged had been committed.
Appellant’s motion for rehearing is overruled.