
    COTTEN v. STATE.
    No. 24135.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1948.
    Rehearing Denied Dec. 15, 1948.
    ■ Harvey P. Shead, of Longview, for appellant.
    Ernest S. Goens, State’s Atty., of Austin, for the State.
   DAVIDSON, Judge.

This is a conviction under Art. 802b, Vernon’s P.C., which makes it a felony for one to drive an automobile upon a public highway while intoxicated who had theretofore been convicted of the misdemeanor offense of drunk driving on a public highway. The punishment is one year in the penitentiary.

Peace officers saw appellant come out of a cafe, stagger across the street and get into her automobile and drive away. They followed and arrested her. According to their testimony, she was drunk at the time. This conclusion was based upon her acts and conduct, together with the smell of whisky upon her breath.

This testimony was sufficient to warrant the jury’s ’conclusion that she was intoxicated at the time, notwithstanding appellant’s denial and supporting testimony that she was not.

There was no dispute of the fact that appellant had been convicted about two years prior of the misdemeanor offense of drunk driving, as alleged.

The facts, therefore, support the conviction.

Only one 'bill of exception appears in the record. The State challenges consideration thereof because it was not filed in the trial court within the time allowed by law. The record sustains the State’s contention. The bill of exception cannot therefore be considered.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

GRAVES, Judge.

Appellant again requests that we take notice of and write relative to his Bill of Exception No. 1, which we refused to do in the original opinion.

The motion for a new trial was overruled on March 31, 1948, and at such date a written notice of appeal was given and entered of record. No time was mentioned therein relative to the preparation and filing of bills of exception. In such a con-fingency, the statute (Art. 760, Vernons Ann. C.C.P.) gives 30 days in which to have prepared and filed the bills of exception. Bill No. 1 herein, being the only one in the record, was filed on May 19, 1948, nineteen days too late. We think the original opinion was correct in refusing to consider the same.

The motion will therefore be overruled.  