
    WIMBERLY v. STATE.
    (No. 11053.)
    Court of Criminal Appeals of Texas.
    Feb. 15, 1928.
    Appeal Reinstated and Affirmed April 18, 1928.
    Rehearing Denied May 16, 1928.
    1. Criminal law &wkey;?l086(l3) — Defendant’s appeal will be dismissed, where record shows no sentence.
    Where record on appeal shows no sentence, defendant’s appeal will be dismissed on state’s motion.
    On Motion to Reinstate Appeal.'
    2. Automobiles <&wkey;>355(6) — Conviction for driving automobile while intoxicated held warranted by evidence.
    Evidence held sufficient to justify conviction of defendant for driving automobile on a public street while intoxicated.
    3. Criminal law &wkey;>72l(3) — District attorney’s statement in argument that defendant cannot be compelled to take stand in own behalf held not reversible error as comment on his failure to testify.
    District attorney’s statement in closing argument that defendant in a criminal ease is given benefit of presumption of innocence and reasonable doubt, and is not required, and cannot be required, to take witness stand, and testify as a witness in Iiis own behalf, held not reversible error as comment on his failure to testify.
    4. Criminal law <&wkey;>l 169(2) — Permitting testimony, over objection, that certain street was designated state highway, was harmless, where other witnesses testified to like effect without objection.
    Any error in permitting sheriff to testify, over objection, that street on which defendant was charged with driving while intoxicated was a certain state highway, as being secondary evidence when primary evidence of designation of such street as highway was obtainable, held harmless, where other witnesses testified to the same fact without objection.
    
      Appeal from District Court, Gillespie County; J. H. McLean, Judge.
    Joe Wimberly was convicted of driving an automobile on a public street while intoxicated, and he appeals.
    Affirmed.
    W. C. Linden, of San Antonio, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for driving automobile while intoxicated upon a public street; punishment, a fine .of $100 and 30 days in the county jail.

Appellant was convicted of a felony.. Claiming the record to present no showing of a sentence, the state moves to dismiss the appeal. We find no sentence in the record. The motion is granted. The appeal is dismissed.

On Motion to Reinstate Appeal.

At a former day of this term the appeal was dismissed because of the fact that no sentence appeared in the record. Appellant files his motion for reinstatement, and accompanies same by a duly certified copy of a sentence which appears to have been properly entered. The judgment of dismissal is set aside and the cause reinstated, and the case now considered on its merits.

The facts show, from the state’s standpoint, that appellant drove a car while under the influence of intoxicating liquor on highway No. 9 which runs through the town of Fredericksburg in Gillespie county. This occurred on the night of February 14, 1927. A number of witnesses testified to the facts supporting the state’s theory. Appellant does not seem to have testified, but he introduced a witness who testified that on the night in question appellant — in the language of witness — “was as drunk as a monk,” and that they started together down to the City Café; that they got in the car, and appellant tried to drive, and witness told him if he did not let him drive, he was going to get out of the car, whereupon appellant turned the steering wheel ovei; to witness. Witness stated that, when they left the café, he again drove the car, over the protest of appellant, who wanted to get under the wheel and drive it away from the café. On cross-examination this witness admitted that, when the car left the café, appellant got in the driver’s seat and took the wheel and turned the car around, and came very near running into a man out there in the street. Witness admitted at this time appellant was operating the ear, and that he drove it a distance estimated by witness to be about as far as across the courthouse, or building in which the case was being tried. This is substantially the testimony. We think it sufficiently shows appellant’s guilt.

The transcript contains tw,o bills of exception. The first complains of a statement made by the district attorney in his closing argument, deemed by appellant to be a comment on the failure of the defendant to testify. The statement made, as set out in the bill was as follows:

“The defendant in a criminal case has every right guaranteed to him', and is given the benefit of the presumption of innocence and the reasonable doubt; he is not required, and cannot be required, and cannot be compelled, to take the witness stand and testify as a witness in his own behalf.”

It is customary for trial courts to instruct the jury that the accused does not have to testify, and that his failure to testify cannot be taken as a circumstance against him, and it has been held that the attorney for the state in his argument, who reads that portion of the court’s charge, and makes no comment upon it, commits no reversible error. Unless something should appear in the statement made from which this court might conclude that the language used was such as to induce the jury to consider against the accused the fact that he did not testify, we would not be inclined to hold such action reversible error. The statement made by the district attorney in this instance was in almost the exact language used by the court in the charge, and it does not appear to have been made with any sort of purpose of calling the jury’s attention to the fact, or in. any wise using it against the accused. We do not believe the action amounted to more than a casual reference. Goldsberry v. State, 92 Tex. Cr. R. 108, 242 S. W. 221; Kimbrough v. State, 99 Tex. Cr. R. 535, 270 S. W. 862.

The other bill complains of the fact that the sheriff was permitted to testify, over objection, that the street running in front of the City Café in the town of Fredericksburg was highway No. 9, it being urged that this was secondary evidence, and that primary evidence of the designation of said street as such highway was obtainable. In view of the fact that other witnesses testified without objection that said street was highway No. 9, and that no contest whatever of this fact seems to be in the record, we deem the bill to manifest no error. McLaughlin v. State (No. 11286) 4 S.W.(2d) 54, opinion handed down April 4, 1928.

The judgment will he affirmed. 
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