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Clark v. State

Court of Criminal Appeals of Texas
Feb 20, 1957
164 Tex. Crim. 271 (Tex. Crim. App. 1957)

Opinion


298 S.W.2d 828 (Tex.Crim.App. 1957) 164 Tex.Crim. 271 Elgene CLARK, Appellant,v. The STATE of Texas, Appellee. No. 28840. Court of Criminal Appeals of Texas. February 20, 1957

[164 TEXCRIM 271] E. A. Blair, Lubbock, for appellant.

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

[164 TEXCRIM 272] MORRISON, Presiding Judge.

The offense is driving while intoxicated; the punishment, three days in jail and a fine of $75.

No statement of facts accompanies the record.

Bill of exception No. 1 complains of the action of the trial court in declining to grant appellant's motion for continuance predicated upon the absence of the appellant's witness Bull Johnson.

In the absence of a statement of facts on the trial, we are in no position to pass upon action of the court complained of in the bill. Ward v. State, 125 Tex.Cr.R. 593, 68 S.W.2d 1046. In Davis v. State, 133 Tex.Cr.R. 215, 109 S.W.2d 756, 757, we quoted from Branch's Annotated Penal Code as follows:

'It is not in every case, however, where the absent testimony is material and probably true, that the appellate court will revise the ruling of the trial judge in denying a continuance and a new trial to defendant. It is only in a case where, from the evidence adduced on the trial, the appellate court is impressed with the conviction, not merely that the defendant might possibly have been prejudiced in his rights by such ruling, but that it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted.'

The cases cited by the appellant all reflect in the opinions that a statement of facts was presented to this Court on appeal. We have checked the files of this Court and have determined that such was the case in Jeter v. State, 145 Tex.Cr.R. 559, 170 S.W.2d 772.

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


Summaries of

Clark v. State

Court of Criminal Appeals of Texas
Feb 20, 1957
164 Tex. Crim. 271 (Tex. Crim. App. 1957)
Case details for

Clark v. State

Case Details

Full title:Elgene CLARK, Appellant, v. The STATE of Texas, Appellee.

Court:Court of Criminal Appeals of Texas

Date published: Feb 20, 1957

Citations

164 Tex. Crim. 271 (Tex. Crim. App. 1957)
164 Tex. Crim. 271

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