
    Joseph Ramsey Johnston, Jr. v. State
    No. 27,830.
    November 30, 1955
    Appellant’s Motion for Rehearing Denied (Without Written Opinion) January 11, 1956
    
      Ray Stevens, Austin, for appellant.
    
      Leon Douglas, State’s Attorney, Austin, for the state.
   BELCHER, Judge.

The conviction is for the felony offense of driving while intoxicated, as defined in Art. 802b, Vernon’s Ann. P.C.; the punishment, six months in jail.

The indictment, after alleging the primary offense, further charged that the appellant had theretofore been convicted of the offense of driving- a motor vehicle upon a public highway while intoxicated on or about January 16, 1950, in Cause No. 28,723, in the county court at law of Travis County, Texas.

The state’s testimony sufficiently shows the commission of the primary offense alleged.

Police Officer Huddleston testified, without objection, that appellant was the same person convicted for the “misdemeanor offense of D.W.I., on or about the 16th day of January, 1950, in Cause No. 28,723, in the County Court at Law of Travis County, Texas.”

The state offered in evidence, without objection, instruments showing a plea of guilty, commitment, and a paid bill of cost with the name of J..R.'Johnston on each of them in Cause No. 28,723, in the County Court at Law of Travis County, Texas.

Appellant did not testify or offer any evidence.

Appellant challenges the sufficiency of the evidence to show the nature and character of the prior offense as alleged, and, further, that the appellant here is not identified as being the same person convicted of the prior offense alleged.

In view of the testimony of Officer Huddleston and the absence from the record of the instruments introduced in evidence showing the plea of guilty, committment, and paid bill of cost in the name of J. R. Johnston in Cause No. 28,723, in the County Court at Law of Travis County, Texas, we conclude that appellant’s identity and the nature and character of the prior offense alleged are sufficiently shown.

It is observed that the judgment herein recites that the appellant was adjudged to be guilty of “Driving While Intoxicated — Second Offense, as found by the Jury.” The indictment charged appellant with the subsequent offense of operating a motor vehicle upon a public highway while intoxicated and the verdict of the jury found him “guilty as charged in the indictment.” The judgment is hereby reformed to read that the conviction was had for the subsequent offense of operating a motor vehicle .upon a public highway while intoxicated. Reyes v. State, 265 S.W. 2d 605.

As reformed, the judgment of the trial court is affirmed.

Opinion approved by the court.  