Alexander v. State

401 S.W.2d 818, 1966 Tex. Crim. App. LEXIS 963

• Court: Court of Criminal Appeals of Texas
• Decided: March 2, 1966
• Docket: 39310
• Status: Published

Opinions

DICE, Commissioner.

The conviction is for the subsequent offense of drunk driving, a felony; the punishment, one year in jail and a fine of $200.

The sufficiency of the evidence to support the conviction is challenged.

It was shown by the state’s testimony that while driving a pickup truck upon a public street and highway in Dallas County, appellant was involved in a collision with another motor vehicle. The collision occurred around 12:40 a. m. on Industrial Boulevard, a six-lane divided highway, when appellant’s vehicle — while traveling north— crossed over into the lanes of traffic for southbound vehicles and collided with an Oldsmobile automobile.

Alfred Shelby, who was traveling north on the highway and witnessed the collision, testified that when he went to appellant’s pickup after the accident he (appellant) was lying on the ground with his feet up in the truck. He stated that at such time appellant groaned like he was hurt. He further stated that he did not see appellant walk or hear him talk, and expressed no opinion as to appellant’s sobriety.

Otto Brown, another witness to the collision who observed appellant at the scene, gave a similar description of his appearance but stated that he could not say that appellant was drunk.

Officer J. H. Martin testified that as the result of a call received at 12:45 a. m., he went to the scene, where he helped put appellant in an ambulance to be carried to Parkland Hospital. Officer Martin testified that when he got near appellant he could smell a strong odor of alcoholic beverages but that he did not talk to appellant and formed no opinion as to his sobriety.

Officer William A. Smith testified that he went to the scene of the accident and from there to Parkland Hospital, where he talked to the appellant, who was on a roller table covered with a sheet. At such time appellant complained of pains in his left leg and arm. Officer Smith testified that appellant was not under arrest and that when he asked him how the accident happened appellant first said there had not been an accident and then said “the reason he had the accident was he couldn’t see because of fog. His windshield wipers didn’t work.” The officer stated that on the night in question there was no fog. He further stated that at the time he talked to appellant at the hospital his speech was slurred and “incoherent in places” and that he was cursing a lot. The officer further stated that appellant’s breath had a strong odor of alcoholic beverage and that he said he had been drinking beer. The officer expressed his opinion that appellant at the time was “very intoxicated.”

Proof was made of the prior misdemean- or conviction alleged in the indictment.

Testifying as a witness in his own behalf, appellant stated that the reason for his driving over into the wrong lane of traffic was that he fell asleep. He stated that he had had nothing to drink and was not intoxicated. He also stated that he was unconscious after the collision until 4 or S o’clock that morning and did not remember seeing any officer and if he did any cursing it was because of pain and agony from a leg injury.

It is insisted that the evidence is insufficient to sustain the conviction because Officer Smith, the only witness to express an opinion that appellant was intoxicated, based his opinion upon facts which were as consistent with injury as with intoxication. Vasquez v. State, 166 Tex.Cr.R. 89, 311 S.W.2d 828, and other cases recognizing the rule announced therein are cited in support of his contention.

We do not agree that Vasquez v. State, supra, is here controlling, under the facts. In Vasquez v. State it was undisputed that following an accident the accused was unconscious in the hospital before he was observed by the witness who expressed the opinion that he was intoxicated.

In the instant case there is a dispute in the testimony as to whether appellant was conscious or unconscious after the accident. Appellant swore that he was unconscious, while Officer Smith swore that he was conscious. This fact, alone, distinguishes the • case from Vasquez, supra.

The evidence is sufficient to establish the corpus delicti and support the judgment of conviction.

The judgment is affirmed.

Opinion approved by the Court.