It was abundantly established that it was not a green light, but rather a blinking red light, that appellant was intoxicated and was at the scene, and that the automobile which caused the injury was registered in appellant's name and that no one else was with him in his automobile. These facts authorize an affirmance of this cause under the authority of the holding of this Court in Thomas v. State, 162 Tex.Crim. 268, 283 S.W.2d 933, and Hughes v. State, 161 Tex.Crim. 300, 276 S.W.2d 813. Appellant's second ground of error seems to be that he was never taken before a magistrate.

In many of these cases we have found, under the facts presented, the evidence sufficient to support the conviction. See Rios v. State, Tex.Cr.App., 398 S.W.2d 281; Hughes v. State, 161 Tex.Crim. 300, 276 S.W.2d 813; Harrison v. State, 171 Tex.Crim. R., 350 S.W.2d 204; Sandford v. State 169 Tex.Crim.

The conviction is under Art. 339, Vernon's Ann.P.C., for unlawfully resisting arrest; the punishment, a fine of $250. The statement of facts appearing in the record is not shown to have been filed with the clerk of the trial court as required by Art. 759a, Sec. 4, Vernon's Ann.C.C.P., and therefore cannot be considered as a part of the record on appeal. Hughes v. State, 161 Tex.Crim. R., 276 S.W.2d 813; Salyer v. State, 166 Tex.Crim. R., 316 S.W.2d 420. The complaint and information charged, in substance, that the appellant did unlawfully resist his arrest, which was being made for a criminal offense for which an arrest could be made without warrant; that such arrest was attempted by a duly qualified deputy sheriff who was legally authorized to arrest appellant and was attempting to arrest him in a lawful manner.

In the absence of a statement of facts which can be considered[166 Tex.Crim. 534] this court cannot pass upon appellant's contention that the evidence is insufficient to support the conviction; and likewise cannot appraise the exception to the court's charge or the action of the court in refusing the requested charges. Hughes v. State, 161 Tex.Cr.R. 300, 276 S.W.2d 813; Donley v. State, Tex.Cr.App., 310 S.W.2d 567. Finding no reversible error the judgment of the trial court is affirmed.

After a hearing, appellant was remanded to the custody of the sheriff of Dallas County to be delivered to the agent of the State of Ohio, the demanding state, and from said order he appeals. The statement of facts appearing in the record cannot be considered because it was not filed in the trial court within the time required by Art. 759a, Sec. 4, Vernon's Ann.C.C.P. Hughes v. State, Tex.Cr.App., 276 S.W.2d 813. No formal bills of exception appear in the record.

We find the evidence sufficient to support the conviction and overrule appellant's contention that it fails to show that he was operating the automobile prior to the collision or at any time on the occasion in question. See Hughes v. State, 161 Tex.Cr.R. 300, 276 S.W.2d 813, and Thomas v. State, Tex.Cr.R., 283 S.W.2d 933, where, under similar facts, the evidence was held to be sufficient to show that the accused was the driver of the motor vehicle. Appellant complains of the action of the court in questioning the state's witness Mrs. Becnel after her direct and cross-[164 TEXCRIM 169] examination by counsel.

In the absence of a statement of facts which can be considered, we are not in position to pass upon questions pertaining to the court's charge, admissibility of evidence, and the sufficiency of the evidence. Stephens v. State, Tex.Cr.App., 274 S.W.2d 829; Hughes v. State, Tex.Cr.App., 276 S.W.2d 813; Brown v. State, Tex.Cr.App., 282 S.W.2d 224. The indictment, as well as all other matters of procedure, appears regular; therefore, nothing is presented for review

We deem the evidence sufficient to show that appellant was the driver of the automobile in that the testimony shows that he was in the car slumped over the steering wheel after the collision and that no other person was in the automobile with him either immediately before or after the collision. This conclusion is supported by the reasoning in the recent case of Hughes v. State, Tex.Cr.App., 276 S.W.2d 813. The case of Spinks v. State, 156 Tex.Crim. R., 243 S.W.2d 173, relied upon by appellant, is not controlling here because in that case there was testimony that another person was seen in the automobile with the accused before the wreck and that such other person was on the driver's side of the car.

Rather, this is a case in which the officer found no one else associated with the van except Thomas, and the first person on the scene found Thomas to be the only person in the vehicle. Perez v. State, 432 S.W.2d 954 (Tex.Crim.App. 1968); Sandoval v. State, 422 S.W.2d 458 (Tex.Crim.App. 1967); Thomas v. State, 162 Tex.Crim. 268, 283 S.W.2d 933 (1955); Hughes v. State, 161 Tex.Crim. 300, 276 S.W.2d 813 (1955). The testimony that the van was still smoking is significant evidence to show recent operation of the van.

The court found that the evidence was sufficient to show the defendant was driving the vehicle. The facts in Keenan may be compared to Thomas v. State, 283 S.W.2d 933 (Tex.Crim.App. 1955) and Hughes v. State, 276 S.W.2d 813 (Tex.Crim.App. 1955). The facts in the present case must be distinguished.