
    Antonio Salinas Mata v. State.
    No. 29,503.
    February 26, 1958.
    Appellant’s Motion for Rehearing Overruled March 19, 1958.
    Appellant’s Second Motion for Rehearing Overruled (Without Written Opinion) April 2, 1958.
    
      Homero M. Lopez, Kingsville, for appellant.
    
      Leon Douglas, State’s Attorney, Austin, for the state.
   ON MOTION TO REINSTATE APPEAL

MORRISON, Presiding Judge.

Our prior opinion dismissing the appeal is withdrawn, and the case will now be considered on its merits.

The offense is driving while intoxicated; the punishment, three days in jail and a fine of $50.00.

The statement of facts is in narrative form. Deputy Sheriff Allen testified that he arrived upon the scene of an accident, “which accident involved an automobile driven by the appellant ;” that the appellant stated he had been the driver of the automobile and “testified as to the defendant’s physical condition” and expressed the opinion that the appellant was intoxicated.

Highway Patrolman Scoggins testified that he arrived upon the scene after Sheriff Allen and “testified further on the issue of the defendant’s intoxication” and expressed the opinion that he was intoxicated.

The witness Williams testified that he ran an establishment in Palfurrias where beer was sold, that the appellant drank a bottle of beer at his place of business on the day in question and that, in his opinion, the appellant was not intoxicated at the time.

The witnesses Lerma and Bocauegra testified that they spent the afternoon in company with the appellant, that the appellant drank beer at “two” or “three” establishments but that in their opinion the appellant was not intoxicated.

Appellant, testifying in his own behalf, stated that “during some four or five hours that they were driving around they stopped at one place in Alice and two places in Falfurrias where beer is sold;” that later on “the car began to sway and went out of control and turned over and that after the accident he discovered that three tires of his automobile were flat,” but denied that he was intoxicated.

In his brief, the appellant contends that the evidence is not sufficient to sustain the conviction because the witnesses Allen and Scoggins testified only as to their conclusions that the appellant was intoxicated and gave no facts upon which they based such a conclusion. We have concluded that the testimony quoted above is sufficient to sustain the conviction.

Appellant further urges error on the part of the trial court in failing to sustain his motion to quash the information and in failing to sustain his objection to argument. Neither matter is preserved by bill of exception and is therefore not properly before this court for review.

Finding no reversible error, the judgment is affirmed.

ON SECOND MOTION FOR REHEARING

MORRISON, Presiding Judge.

Our attention has been directed to a supplemental transcript in which we find two bills of exception to argument.

Bill of Exception No. 1 complains that the prosecutor argued that the appellant and his companions had been going all afternoon from beer joint to beer joint.

Bill of Exception No. 2 complains that the prosecutor argued that it would be impossible for three tires to go flat at the same time.

We have concluded that the recitation of facts set forth in our original opinion fully justifies such argument.

Appellant’s motion for rehearing is overruled.  