Bradley v. State

703 S.W.2d 308, 1985 Tex. App. LEXIS 12691
CourtCourt of Appeals of Texas
DecidedDecember 12, 1985
DocketNo. 10-85-114-CR
StatusPublished

This text of 703 S.W.2d 308 (Bradley v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bradley v. State, 703 S.W.2d 308, 1985 Tex. App. LEXIS 12691 (Tex. Ct. App. 1985).

Opinion

HALL, Justice.

Pleading not guilty, appellant Faye P. Bradley was found guilty by a jury of the offense of involuntary manslaughter. Punishment was assessed by the jury at confinement in the Texas Department of Corrections for a term of seven years.

In two grounds of error, appellant complains that (1) the trial court erred in commenting on the admissibility and the weight of the evidence, and (2) the evidence is insufficient to prove each element of the offense of involuntary manslaughter. We affirm the judgment.

The record reflects that on September 2, 1984, at approximately 8:40 p.m., a brown Ford automobile covered with dirt struck a woman who was pushing a baby stroller on or near the shoulder of Highway 116 in Copperas Cove, injuring the woman and killing her child. An eyewitness to the accident who had been following the car testified that when the car first turned onto Highway 116 it turned too wide and went onto the shoulder of the road. After following the car for a few blocks, the witness saw what he thought was a body being thrown from the passenger window of the vehicle, and a metallic object flying forward from the car. The car then accelerated, without ever taking evasive action or making an effort to stop. The eyewitness pulled over and flagged down the car behind him, which was driven by a military policeman, and told him to follow the brown automobile. The military policeman pursued the car at a high rate of speed for approximately ten minutes, however, he was unable to keep up and ultimately lost it. He testified that the car was being driven erratically, “weaving all over the road,” and that, based on his experience, it appeared that the car was consciously evading him and fleeing from the scene. Although it was around dark, he was able to get close enough to the vehicle to get a good view of it. Both men ultimately identified appellant’s vehicle as being the one involved in the accident.

Around 9:00 p.m., Officer Yandell was dispatched to an address given by an anonymous caller who heard a description of the vehicle on a police scanner where she found an automobile parked in front of the house. The hood was still warm, and the car was covered with dirt except for certain spots on the right front bumper. The front portion of the top of the fender and the side of the fender had recently been wiped off. The bumper bore a bluish-white substance. Officer Yandell also noticed that the anten[310]*310na was broken and dented at its base, and was wiped clean. After her examination of the vehicle was completed, some forty to fifty minutes after the accident occurred, the officer approached the residence where she spoke with a woman identified as Mrs. Long. When she asked her to summon the driver of the car and any passengers, Mrs. Long called appellant’s name. Subsequently, Mr. Long came to the door, followed by appellant. A discussion with Mr. Long and appellant resulted in a determination that appellant and the Longs had been at the “Moose Lodge” earlier in the evening, and that appellant had driven Mr. Long to his home in her car while Mrs. Long went to buy dinner for them. Mr. Long told Officer Yandell that they had been home for three hours, however appellant expressed surprise at this statement and said, “I thought we left at 9:00.” Officer Yandell described Mr. Long as appearing to be intoxicated. She testified that appellant appeared to be “very intoxicated, ... had a very strong odor of alcoholic beverages on her breath ... and [needed] the support of the door or the side of the building in order to help her stand.” Officer Yandell also noted that appellant’s speech was slurred and that she was unable to maintain her concentration. She concluded that at that time appellant’s intoxication would have affected her ability to drive. She also stated that if someone drank four to six beers over a two or two and one-half hour period, their state of intoxication would stay the same or decrease after such a period of time had elapsed.

Officer Moines also spoke with appellant, and testified that he smelled a strong odor of alcohol. He stated that she seemed upset and slurred her speech. Moines concluded that appellant was intoxicated to some degree, and that it would have affected her ability to drive. Officer Moines and Officer Lawrence also testified that, in their opinion, there was no reason why a driver could not have seen an individual on the side of the road, and that there were no skid marks found in the area.

At approximately 10:00 p.m., Officer Levitt interviewed appellant at the police department. He testified that appellant was very upset and that “her breath smelled heavily of an alcoholic beverage.” He stated that she was “definitely under the influence of alcoholic beverage,” but that he could not say whether she was drunk. Upon questioning appellant, she admitted that she had been at the Moose Lodge, but insisted that she was not drunk. Officer Levitt also examined appellant’s vehicle, and stated:

[I]t appeared as though something had slid over the right front fender and portion of the hood and over past the right front passenger side of the door ... it looked like a portion of the body and left hand slid, because you could see finger marks along the hood and in the dust, or sliding up and over....

In addition, Levitt noticed a “fresh break” on the antenna, “fresh abrased paint” on the right front fender, a “blue substance” adhered to the bumper, and a small “piece of fiber” on the antenna and on the right front wheel well. Furthermore, he stated that the baby stroller in which the victim was riding was blue.

A forensic chemist testified that scrapings of a brown substance taken from the stroller were consistent with paint scrapings taken from appellant’s automobile. He also stated that the small amounts of blue fiber taken from the car were consistent with those found in the stroller.

A bartender at the Moose Lodge testified that she served appellant four to five cans of beer from sometime after 5:30 until 8:00 or 9:00 p.m., and that to her best understanding, appellant drank them.

Appellant testified that she had approximately one-half of a beer before she got to the Lodge and at the most three beers overall between 3:00 p.m. and approximately 8:30 p.m. She was not sure exactly when she left the Lodge with Mr. Long and his son, however, she was “absolutely positive” that she did not hit anything on the way home from the Moose Lodge except possibly some pavement bumps, and she saw no one on the road. Mr. Long con[311]*311curred with appellant in her testimony that she did not hit anything. Appellant also testified that sometime after she turned off Highway 116, her glasses broke and Mr. Long drove the rest of the way home. When she got to the Long’s house, she had nothing alcoholic to drink. She and her husband testified that the dent in her car was the result of her hitting a mailbox a few days before.

Appellant, in her first ground of error, complains of remarks made by the trial judge regarding the admission of several photographs of appellant’s car into evidence. However, no objection was made to the judge’s remarks, nor was there a request for instruction to disregard the comment. Thus, any error was waived. Sharpe v. State, 648 S.W.2d 705, 706 (Tex.Cr.App.1983); Marks v. State, 617 S.W.2d 250, 251-52 (Tex.Cr.App.1981); Downey v. State,

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Related

Guerrero v. State
605 S.W.2d 262 (Court of Criminal Appeals of Texas, 1980)
Hardie v. State
588 S.W.2d 936 (Court of Criminal Appeals of Texas, 1979)
Downey v. State
505 S.W.2d 907 (Court of Criminal Appeals of Texas, 1974)
Dorsche v. State
514 S.W.2d 755 (Court of Criminal Appeals of Texas, 1974)
Marks v. State
617 S.W.2d 250 (Court of Criminal Appeals of Texas, 1981)
Annis v. State
578 S.W.2d 406 (Court of Criminal Appeals of Texas, 1979)
Rathmell v. State
653 S.W.2d 498 (Court of Appeals of Texas, 1983)
Sanchez v. State
398 S.W.2d 117 (Court of Criminal Appeals of Texas, 1965)
Sharpe v. State
648 S.W.2d 705 (Court of Criminal Appeals of Texas, 1983)
Daniel v. State
577 S.W.2d 231 (Court of Criminal Appeals of Texas, 1979)

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Bluebook (online)
703 S.W.2d 308, 1985 Tex. App. LEXIS 12691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradley-v-state-texapp-1985.