Appellant insists that reversible error is reflected in the overruling of his motion for a continuance and that we erred in reaching a contrary conclusion.
By the allegations of the motion for a continuance, and not otherwise, it is shown that the absent witness would have supported appellant in his testimony that he was not intoxicated or under the influence of intoxicating liquor at the time of his arrest.
Appellant, testifying as a witness in his own behalf, admitted that he had "had a can or two of beer" when he was apprehended by the officers.
The arresting officers testified that appellant was "very muchly intoxicated" at the time.
It must be remembered that the right of an accused to a continuance as a matter of law is expressly withheld by Art. 543, C.C.P. Hence the overruling of a motion for a continuance which complies with all statutory requirements does not constitute error until the motion for new trial is heard, the absent testimony considered in connection with the trial of the case, and the trial court is shown to have abused his discretion in overruling the motion for a new trial based upon the overruling of the motion for a continuance. 9 Tex.Jur., p. 873, Sec. 161; Davis v. State, 133 Tex.Crim. R., 109 S.W.2d 756; Tindol v. State, Tex.Cr.App., 239 S.W.2d 396.
We remain of the opinion that no abuse of his discretion is shown by the trial judge in the overruling of the motion for new trial.
The motion for rehearing is overruled.
Opinion approved by the Court.