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.
Opinion approved by the Court. *Page 504
ON MOTION FOR REHEARING.