ON MOTION FOR REHEARING
Appellant Oris Reynolds, in his motion for rehearing, argues in four points for reversal and acquittal. Appellant argues that this Court erred in (1) finding sufficient evidence to support the jury’s finding that the offense of driving while intoxicated occurred as alleged; (2) holding that the sidebar remark of the State’s attorney did not constitute reversible error; (3) holding that there was sufficient evidence to establish that appellant was the same person previously convicted; and (4) holding that there was sufficient corroborating evidence to justify the admission of appellant’s statement against penal interest.
In his first point, appellant again argues that the testimony of the State’s witness, the arresting officer, as to the location of the offense, was equivocal and thus, could not support the jury’s finding. He additionally argues, as he did in his original brief, that defense counsel’s secretary’s testimony was the “only competent and unequivocal testimony offered.” However, as we noted in our original opinion, her testimony was based on personal observation of the distance of the location of the *163motor vehicle from Business 287, “based on the officer’s description and reference to defense counsel’s drawing (which counsel admitted was ‘not exactly to scale’)....”
The evident conclusion of the jury, as evidenced by their verdict, was their resolution of the conflicts in testimony in favor of the arresting officer. Such resolution and determination of credibility of witnesses is within their exclusive province as trier of fact. Penagrapk v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981).
Additionally, in regard to the sufficiency issue, appellant again argues that Johnson v. State, 517 S.W.2d 536 (Tex.Crim.App.1975) “in pertinent aspects” is indistinguishable from the present case. As he points out, in both cases there was no evidence of a “hot engine.” However, in this case, and contrary to Johnson, the appellant was found alone inside the motor vehicle with the driver’s door closed and seated in the driver’s seat with his feet on the floorboard under the steering wheel. In Johnson, the appellant was found in a group of people standing on the other side of the street from the motor vehicle, in addition to there being no other evidence, such as a “hot engine.” We continue to believe that the determinative facts in Johnson are distinguishable from those in the instant case.
In this case, as was the case in Keenan v. State, 700 S.W.2d 12, 14 (Tex.App.—Amarillo 1985, no pet.), this appellant was found alone in the automobile in a position that justified the jury’s conclusion that' he was the driver of the car. Viewing the evidence in the light most favorable to the State, Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984), we persist with our original finding of sufficient evidence to support the evident jury finding that the offense occurred as alleged. Appellant’s first point on motion for rehearing is overruled.
In his second point, appellant contends that we erred in holding that the sidebar remark of the State’s attorney did not constitute reversible error. Restated, the incident originated during the production of defense testimony and at a time when defense counsel was querying his secretary about her conversation with appellant concerning appellant’s health.
Appellant attempts to distinguish the cases relied upon by this Court in our conclusion that “[i]t is well established that a comment such as this which occurs prior to the time testimony in the case has closed, cannot be held to refer to a failure to testify which has not yet occurred.” In McCarron v. State, 605 S.W.2d 589, 595 (Tex.Crim.App.1980), the complained of comment, “you just have to accept it at face value unless you talk to the person who wrote it,” occurred during cross-examination of a witness by the prosecutor. The State had not closed its case and appellant had not rested her case. The Court based its finding on the facts that the prosecutor had no way of knowing whether appellant would testify at the time the complained of question was asked and that the question did not refer to her failure to testify, but as to her knowledge of the check as a “draw.” Id.
In Garcia v. State, 513 S.W.2d 559, 562 (Tex.Crim.App.1974), at the time the complained of statement occurred, the defense had not rested its case, and it was not known by the State's attorney or the jury, whether or not appellant would testify. The Court held that “such language could not refer to a failure that had not occurred.” Id. The contents of the question were held to have done no more than to indicate that appellant knew whether he was asleep or not at the time of the burglary, and made no allusion to his failure to testify. Id.
As appellant points out, Jackson v. State, 501 S.W.2d 660, 662 (Tex.Crim.App.1973), held that appellant’s point of error directed to a reference to failure to testify was waived due to failure to object on such ground. However, the Court went on to state the “well-established rule” that had such error been preserved, the statement, “if he would just tell us,” was made at a time when State’s counsel had no way of knowing whether appellant would testify or not; nor was it a direct allusion to appellant’s failure to testify. Id.
*164In Terry v. State, 489 S.W.2d 879, 881 (Tex.Crim.App.1973), the question was asked by the court of the defense counsel as to whether the defendant would testify, for the stated purpose of aiding the court in determining if there would be sufficient testimony to fill the remaining portion of the day. Immediately the next morning, the court apologized for the remark, gave a curative instruction to the jury to disregard his remark and, if the defendant chose not to testify, not to consider the defendant’s “failure to testify at that time for any purpose.” The appellant subsequently did testify, and the Court of Criminal Appeals held such question, although improper, could not be considered by the jury as an allusion to a failure that did not occur. Moreover, the Court said, if harm was done, it was cured by the instruction. Id.
Likewise, in our case, from the standpoint of the jury, Ramos v. State, 419 S.W.2d 359, 367 (Tex.Crim.App.1967), there was no necessary implication that the language used referred to the defendant’s failure to testify. It simply referred to the hearsay statement elicited from the witness as to appellant’s alleged health problems, since such defensive theory had not been tendered or pled. At the time of the statement by the prosecutor, it was not yet known whether appellant would testify or not.
Moreover, the instruction regarding the jury’s responsibility to not consider appellant’s failure to testify for any reason, was sufficient to cure any harm. Under the standard for testing objectionable remarks as to prejudicial value found in Maddox v. State, 591 S.W.2d 898, 903 (Tex.Crim.App.1979), cert. denied, 447 U.S. 909, 100 S.Ct. 2994, 64 L.Ed.2d 859 (1980), we believe the complained of statement was not so inherently prejudicial as to suggest the impossibility of withdrawing the impression created in the minds of the jury. Appellant’s second point on motion for rehearing is overruled.
In his third point on motion for rehearing, appellant argues that there was insufficient evidence to establish that the accused was the same person previously convicted. The State introduced a certified copy of the prior conviction for driving while intoxicated, probated, for Oris Reynolds, to which the County Clerk testified as to its authenticity. Such file also contained the revocation of such probation based on a conviction in Knox County, which was not introduced or certified by the witness. The County Clerk testified that she remembered the appellant “getting this DWI previously,” although she was not in the courtroom at the time of the proceedings. The County Attorney testified that he remembered prosecuting appellant for driving while intoxicated during his tenure in 1976-77, but that he had no independent recollection of whether there was a conviction in the case, without reviewing the file. Thus, under Daniel v. State, 585 S.W.2d 688, 690 (Tex.Crim.App.1979), meshing the testimony of the two witnesses, there was sufficient evidence through the testimony of witnesses who personally knew the appellant and knew the facts of his prior conviction, and who correctly identified appellant as the person previously convicted, to establish that appellant was the same person as the “Oris Reynolds” previously convicted. Appellant’s third point on motion for rehearing is overruled.
In his final point, appellant correctly points out that Rule 803(24) of the Texas Rules of Criminal Evidence requires that the corroborating circumstances required to admit a statement against penal interest must “clearly indicate the trustworthiness of the statement.” He argues that the testimony of the arresting officer as to appellant’s out-of-court statement that he “had been driving on the road and he had met another vehicle coming at him headon [sic] and that he swerved and went into the ditch” was not sufficiently corroborated. The officer had previously testified that he found the appellant behind the steering wheel in a car that was half off in a ditch and half in the road. He testified the appellant was alone in the car, with his feet on the floorboard under the steering wheel.
Appellant concedes that under the standard of James v. State, 538 S.W.2d 414, 416 (Tex.Crim.App.1976) (discussion of corroborating evidence necessary to support *165accomplice testimony), the declaration “would probably have been admissible.” However, he argues that such evidence does not “clearly indicate” the statement’s trustworthiness. We disagree.
The Texas Rules of Criminal Evidence were adopted December 18, 1985, and became effective September 1, 1986. Although there may be no case law interpreting the new rule, we may still rely upon the precedential value of prior case law on the subject.
In Weaver v. State, 721 S.W.2d 495 (Tex.App.—Houston [1st Dist.] 1986, pet. ref’d), the Court discussed the type of corroborating evidence necessary to support admission of an accused’s extra-judicial statement against interest. The Court used the Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, reh. denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) standard to evaluate the sufficiency of the evidence. In Weaver, there was evidence that the appellant had been drinking intermittently for several hours before the accident, there was a short lapse of time between appellant’s departure from the beer garden and the dispatch of the arresting officer, that appellant was found leaning against the vehicle shortly after the accident, and that his blood/alcohol level was very high. 721 S.W.2d at 499. The Court found sufficient corroborating circumstances to support the admission of appellant that he was driving the vehicle on the occasion in question. Id. at 500. In our case, there was evidence that the appellant was intoxicated at the time of the arrest and detailed observations that appellant was found alone, inside the vehicle, in the position of driver of the vehicle.
As to the wording used in Rule 803(24), Texas Rules of Criminal Evidence, “clearly indicate the trustworthiness of the statement,” assuming, arguendo, that such language would create a higher standard of review of the corroborating circumstances, we find the above evidence sufficient under such test as well. “Clear and convincing” has been held by the Court of Criminal Appeals to mean “so clear as to leave no substantial doubt and sufficiently strong to command unhesitating assent of every reasonable mind.” Spencer v. State, 466 S.W.2d 749, 752 (Tex.Crim.App.1971). “Clearly established” requires only that the proof be shown by a “clear preponderance of the evidence.” Labay v. Commissioner of Internal Revenue, 450 F.2d 280, 282 (5th Cir.1971). Our examination of the record reveals evidence of an incriminating nature which not only makes the declaration of appellant more likely true than not, it is sufficiently strong to meet the standard of “clearly” indicating the statement’s trustworthiness. Appellant’s fourth point is overruled.
In summary, all of appellant’s points on motion for rehearing are overruled, and there being no reversible error, the judgment of conviction is affirmed.