Appellant, in his motion, strenuously insists that we erred in holding the evidence sufficient to sustain the judgment. We have again reviewed the statement of facts but remain of the opinion that the proof is sufficient to show that appellant was drunk on the night in question and while so intoxicated operated *Page 561 an automobile on Chaparral Street in the City of Corpus Christi as charged in the information.
He next claims that the witness, R. E. McKenzie, was permitted to express his opinion that appellant was drunk, without stating any facts upon which to base the same. We find that appellant is laboring under a false impression. The record shows that McKenzie testified:
"I noticed a car which seemed to be pulling out from the curb in front of me and I cut my speed down. * * * I saw the car ahead of me run into the persons in the street. * * * The car ahead of me had proceeded across the intersection and stopped about a quarter of the way down the block. I helped put the injured woman into the ambulance and then went to where the car was parked. I helped take a man out of the car. He appeared to be dazed and was slumped over the steering wheel. * * * He was the same man who is the defendant in this case and is sitting in the court room. The man's breath smelled like whisky."
In our opinion, this justified the conclusion that appellant was drunk. However, there is evidence from other sources that his breath carried the odor of whisky; that he staggered and weaved when he got out of the car; and a bottle containing whisky was found in his car.
All other matters re-urged have been carefully considered by us and deemed to be without merit.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.