The opinion
ON APPELLANT’S MOTION FOR REHEARING
McDONALD, Presiding Judge.
Appellant urges that the majority has failed to distinguish the material facts in this case from those in the case of Vasquez v. State, 166 Tex.Cr.R. 89 , 311 S.W.2d 828 , where a conviction for driving while intoxicated was reversed because of insufficient evidence.
The evidence in Vasquez shows that two witnesses who had been in the company of that defendant prior to his automobile accident, and had had ample opportunity to form an opinion as to whether or not he was intoxicated, refused to testify that he was drunk. The only witness who expressed an opinion that Vasquez was intoxicated *821 based his opinion on the fact that Vasquez smelled of beer and that his conduct at the hospital was irrational. “In Vasquez, we were careful to spell out the description of accused’s conduct which was more indicative of mental derangement than the standard symptoms of intoxication.” Mendoza v. State, 169 Tex.Cr.R. 88 , 332 S.W.2d 335, 337 . The fact that Vasquez was unconscious when the patrolman went to the hospital to interview him, and apparently remained in that state until almost two hours after the accident, is significant in that it tends to show that Vasquez suffered injuries which would account for this irrational behavior. Moreover, there was testimony that this abnormal behavior continued long after the accident and that appellant’s conduct was still irrational at the time of his trial. Considering this evidence, this Court concluded that the jury could not find, beyond a reasonable doubt, that Vasquez was intoxicated.
We remain convinced that the evidence in this case does not preclude such a finding. Here, witness Brown testified that appellant drove his automobile as if he were drunk, and the record bears out this opinion and does not support appellant’s contention that he fell asleep at the wheel. Officer Martin testified that he noted a strong smell of alcohol when he approached appellant at the scene of the accident, but he did not have sufficient opportunity to observe appellant to form an opinion as to whether he was intoxicated. Officer Smith did have such an opportunity at the hospital, and his testimony of appellant’s slurred speech, strong alcoholic breath, and conduct comport much more strongly with a conclusion that appellant was “very intoxicated” than did the testimony in Vasquez. Completely absent here is evidence that, appellant’s irrational behavior persisted past a reasonable “sobering-up” period.
Appellant also urges that this Court erroneously affirmed his conviction because the state failed to prove that he had been previously convicted of the misdemeanor offense of driving while intoxicated, as alleged in the indictment.
At the beginning of the trial, the following transpired:
(COUNSEL FOR STATE): “This is stipulated. In other words, that means both sides have agreed to this. This is in evidence just as if we brought the witnesses in here to testify to it and prove it up.”
“It is hereby agreed and stipulated by and between Counsel for the Defendant and Counsel for the State and by the Defendant himself in open court that if the Clerk of the County Criminal Court of Dallas County, Texas were present in Court and sworn as a witness, she would testify that in a case on the docket of said Court No. 72479 on the 21st day of December, 1962 in the County Criminal Court, in Dallas County, Texas and the style of the case, State of Texas versus Teddy Joe Alexander, she would testify that this is one and the same Teddy Joe Alexander and was convicted in that Court on the 21st day of December, 1962 of the misdemeanor offense of driving and operating a motor vehicle while intoxicated and under the influence of intoxicating liquor. She would further testify that the Court then and there had jurisdiction and this conviction occurred and the judgment thereon became final prior to the first day of February, 1964 which is the date of the offense alleged in this indictment.”
(THE COURT): “Is that agreed to by?”
(COUNSEL FOR APPELLANT) s “That is agreed to by.”
(THE COURT): “All right, all sides, that is the facts so, it will be unnecessary for any further proof of that.”
Trial judge and prosecutor were careful to explain, in layman’s terms, the effect the stipulation would have on the conduct of the trial. The stipulation dictated by the prosecutor specified that both *822 counsel and appellant were parties to the agreement. While appellant did not personally voice his assent, but remained silent throughout this colloquy, we have concluded that this stipulation by appellant’s counsel, and appellant’s acquiescence thereto, are sufficient to obviate the necessity for further proof of the prior conviction. Locke v. State, 168 Tex.Cr.R. 507 , 329 S.W.2d 873 . This case is unlike Brookhart v. Janis, 86 S.Ct. 1245 , April 18, 1966, where it was held that counsel does not have the power to waive his client’s constitutional right to have a trial in which he can confront and cross-examine the witnesses against him, because, in that case, the waiver by counsel was found to be contrary to the desires of his client as expressed in open court.
Appellant’s motion for rehearing is overruled.