Opinion
No. 25103.
January 17, 1951.
Appeal from the County Court at Law, Lubbock County, James G. Denton, J.
None on appeal for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
The conviction is for driving, while intoxicated, upon a public highway; the punishment, a fine of $250.
No statement of facts and no formal bills of exception appear in the record.
On page 5 of the transcript appellant calls this court's attention to the form of the information, levelling his complaint against the use of the phrase: '* * * on the written affidavit of Lester Harris, a competent and creditable person herewith filed prior to the presentment of this information.' Appellant contends that this is an effort to bolster the state's case by hearsay testimony as to the credibility of state's witness.
Like contention has been recently held by this court to be without merit. Ashley v. State, Tex.Cr.App., 237 S.W.2d 311.
Appellant insists that a variance exists between the complaint and the information, but fails to point out the same. An inspection thereof fails to reveal any substantial variance.
On page 15 of the transcript there appears, though not in the form of a bill of exception, an exception of appellant to the court's failure to sustain his motion for new trial. This cannot be considered as a bill of exception because the motion for new trial, itself, sets up at least five separate and distinct grounds and is, therefore, multifarious. Smithwick v. State, Tex.Cr.App., 234 S.W.2d 237; Humphrey v. State, 152 Tex.Crim. R., 212 S.W.2d 159; Sharp v. State, 151 Tex.Crim. R., 210 S.W.2d 174; White v. State, 150 Tex.Crim. R., 203 S.W.2d 222; Miller v. State, 129 Tex.Crim. 166, 84 S.W.2d 459; Spruell v. State, 119 Tex.Crim. 317, 44 S.W.2d 733; Ellison v. State, Tex.Cr.App., 235 S.W.2d 157; Granado v. State, Tex.Cr.App. 228 S.W.2d 530.
No error appearing, the judgment of conviction is affirmed.