
    D. C. Musgrove v. State.
    No. 26,286.
    February 25, 1953.
    
      Fred Whitaker and L. P. Caston, Carthage, for appellant.
    
      George P. Blackburn, State’s Attorney, Austin, for the state.
   MORRISON, Judge.

The offense is driving while intoxicated, as a second offender; the punishment, sixty days in jail and a fine of $500.00.

Two members of the Texas Highway Patrol and a deputy sheriff testified that they observed a pickup truck being driven erratically and that they brought it to a halt and arrested the appellant, who was the driver thereof. Each of them testified that, in their judgment, appellant was under the influence of intoxicants. They stated that they found a full bottle and a half full bottle of bay rum in the pickup, smelled the contents thereof, and found it to have the same odor as appellant’s breath. The witness Clinton testified that appellant’s breath smelled strongly of alcohol.

Appellant was identified as being the same individual who had been convicted in the prior offense alleged.

Appellant did not testify, but offered several witnesses who had seen him before and after his arrest, and they denied that appellant was intoxicated. The jury resolved this fact issue against the appellant, and we find the evidence sufficient to support their verdict.

By Bills of Exception Nos. 1-3, appellant complains of the testimony of the officers in which they told of finding the bay rum in the pickup truck. Appellant contends that such evidence was not admissible. This court decided this question adversely to appellant’s contention in Wallace v. State, 145 Tex. Cr. R. 625, 170 S. W. 2d 762.

Appellant, in his brief, complains of the failure of the state to make certain proof concerning the term of court in which the prior conviction was had. We find a stipulation in the agreed statement of facts which covers such proof.

Finding no reversible error, the judgment of the trial court is affirmed.  