Summary
addressing issue of whether punishment was incorrectly assessed under prior version of statute that had been amended for offense that was alleged to have occurred "on or about" certain date and concluding that in absence of any contradictory information in record, there is presumption "that the conviction was regular and that the offense charged was found to have been committed within the time prescribed by law authorizing the penalty assessed"
Summary of this case from Rodriguez v. StateOpinion
No. 27282.
January 5, 1955.
Appeal from the County Court, Smith County, Ned Price, J.
No attorney on appeal for appellant.
Wesley Dice, State's Atty., Austin, for the State.
Appellant appeals from a conviction for the offense of driving while intoxicated; his punishment was assessed, by the jury, at a fine of $50.
No statement of facts accompanies the record.
The offense was alleged to have been committed on or about November 25, 1953. The court's charge submitted said date as being on or about November 25, 1953. The charge submitted the punishment fixed by Art. 802, Vernon's Ann.P.C., prior to its amendment in 1953, and the jury assessed a fine of $50 and no jail term.
The state is not restricted to the exact date laid in the complaint or information, but may prove the offense, if it can, to have been committed at any time within the period of limitation. Randolph v. State, 117 Tex.Crim. R., 36 S.W.2d 484.
In the absence of a statement of facts, we are unable to determine that the offense was committed after the effective date of the amendment of Art. 802, Vernon's Ann.P.C., which provides for a compulsory jail term.
On appeal the presumption obtains that the conviction was regular and that the offense charged was found to have been committed within the time prescribed by law authorizing the penalty assessed unless the contrary is made to appear. 4 Tex.Jur. 534, Sec. 379; 4 Tex.Jur. 554, Sec. 390.
The judgment of the trial court is affirmed.
Opinion approved by the Court.