Kelley v. State

I dissent to the majority’s disposition of this appeal and would affirm the order of the trial court.

Section 42.08, V.T.C.A., Penal Code, provides in part:

“An individual commits an offense if he appears in a public place under the influence of alcohol or any other substance, to the degree that he may endanger himself or another.”

The majority hold that circumstantial evidence is insufficient to support a finding that one is “under the influence of alcohol,” and reverse because the officer did not use the magic words, that in his opinion appellant was under the influence of alcohol. I am…