Mitcham v. State

332 S.W.2d 714 (1960)

Nolan Frank MITCHAM, Appellant, v. STATE of Texas, Appellee.

No. 31592.

Court of Criminal Appeals of Texas.

March 9, 1960.

*715 Stephenson & Stephenson, Orange, by Marlin Thompson, Orange, for appellant.

Feagin W. Windham, Dist. Atty., James A. Morris, Asst. Dist. Atty., Orange, and Leon Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for the felony offense of driving while intoxicated under 802b, Vernon's Ann.P.C.

It appears from the agreement of the attorneys for both the state and the appellant and the certificate of approval by the trial judge that the statement of facts does not contain all of the evidence adduced on the trial, hence the sufficiency of the evidence cannot be appraised. Dominguez v. State, 164 Tex.Cr.R. 571, 303 S.W.2d 384; Stockman v. State, 164 Tex.Cr. R. 469, 303 S.W.2d 410.

This conviction rests upon the following verdict of the Jury:

"We the jury, find the defendant `guilty' as charged in the indictment, and assess his punishment at confinement in the County Jail for 45 days and/or by fine of $200.00 Dollars."

The punishment which the law authorizes for the offense charged could have 45 days in jail; or it could have been a fine of $200; or it could have been both 45 days in jail and a $200 fine. The and/or in the verdict renders it uncertain which of these punishments the jury intended to assess and for that reason it cannot be upheld. Allen v. State, 138 Tex.Cr.R. 303, 136 S.W.2d 323; Cobb v. State, 139 Tex. Cr.R. 337, 139 S.W.2d 272; James v. State, 139 Tex.Cr.R. 208, 139 S.W. 587; Jackson v. State, Tex.Cr.App., 328 S.W.2d 765.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.