Howeth v. State

635 S.W.2d 636, 1982 Tex. App. LEXIS 4676
CourtCourt of Appeals of Texas
DecidedJune 16, 1982
DocketNo. 3-81-123-CR
StatusPublished
Cited by5 cases

This text of 635 S.W.2d 636 (Howeth 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
Howeth v. State, 635 S.W.2d 636, 1982 Tex. App. LEXIS 4676 (Tex. Ct. App. 1982).

Opinion

POWERS, Justice.

After a de novo trial in the County Court at Law Number 2 of Travis County, to which he had appealed from a municipal court conviction, appellant Jerry W. How-eth was found guilty of speeding in violation of an ordinance of the City of Austin, Texas. He was fined $125.00.

The complaint alleged that appellant’s excessive speed occurred “upon a public street [in the City of Austin], to-wit: 5500 block Cameron Road.” In his appeal to this Court, appellant challenges his conviction upon the single ground of error that “the evidence produced by the State in regard to the location of the offense was inadmissible hearsay.” He urges the rule that the State must prove each and every element of an offense which it alleges; and when the State makes any additional allegations which are descriptive of an essential element, the additional allegations must also be proved by competent evidence. Burrell v. State, 526 S.W.2d 799 (Tex.Cr.App.1975).

The State’s witnesses, the officers who stopped appellant and issued a citation to him, based their conclusion that the offense [637]*637occurred in the 5500 block of Cameron Road upon (1) a street sign and (2) the street number signs on business establishments, both of which they observed at the place where the offense occurred. Contending both kinds of signs constituted inadmissible hearsay, and that the officers lacked personal knowledge of the block number, appellant complains there was no competent evidence to prove the descriptive averment that the offense occurred in the 5500 block of Cameron Road. We disagree.

Implicit in appellant’s hearsay contention is a premise that the declaration on the signs (5500 block of Cameron Road) referred to an officially designated segment of the street, akin to the line of municipal limits fixed by a city’s governing body or a county line fixed by statute. For the signs’ declaration to be hearsay, it must have been offered to prove the truth of the matter stated; and we know of no “true” designation of a street segment and name other than a designation by official action and authority. Appellant cites no authority for the proposition that place descriptions in a charging instrument must be by an official description, and we know from the reported cases that charging instruments frequently describe the location of the offense by reference to a common or popular name. For example, the offense of disturbing the peace of “the inhabitants of a public place, to-wit: 500 block of Shreiner St; Christine’s Place” is sufficient, and no more particular description of the public place is required. Ex parte Nichols, 158 Tex.Cr.R. 218, 254 S.W.2d 518 (1952). We therefore interpret the officer’s complaint in the present case, in its reference to the 5500 block of Cameron Road, to be a statement of local knowledge or repute as to that location. Cf. Vaught v. State, 145 Tex.Cr.R. 623, 171 S.W.2d 128 (1943) (holding essential an evidentiary showing that Highway 84, averred in the indictment, was also “known as” Shallowater Highway, identified in the evidence as the place of the offense). Our interpretation satisfies the purpose of the charging instrument in a criminal action: giving fair notice to the defendant and making available a plea of double jeopardy. Byrd v. State, 456 S.W.2d 931 (Tex.Cr.App.1970). Therefore, the State was not required in the present case to prove that the signs observed by the officers conformed to any official designation of the street and block, either in their location, name or number. The nature of Cameron Road as a public street was the essential and controlling element; official action in laying out a road is not a prerequisite to its being a “public” road. City of Houston v. Hughes, 284 S.W.2d 249 (Tex.Civ.App.—Austin 1955, writ ref’d n. r. e.).

The words “5500 block of Cameron Road” were descriptive of the “public street” where the offense occurred — an essential element of the offense of unreasonable and imprudent speed. City of Austin, Code of Ordinances, § 11-2-97. Municipal control of motor vehicle operation and speed extends only to their occurrence on the “public streets.” Tex.Rev.Civ.Stat.Ann. art. 1175(20).

The term “public street” is a generic term which includes all urban public ways used for the ordinary purposes of travel. Town of Refugio v. Straueh, 29 S.W.2d 1041 (Tex.Comm’n App. 1930, judgmt adopted). That Cameron Road was a public street is sufficiently shown by circumstantial evidence found in the record of trial. The issue reduces to whether the precise location of the offense along that public street, gratuitously alleged by the State, is sufficiently shown by the officers’ testimony based upon their seeing the signs at that location.

The cases relied upon by appellant are quite different from the present case in the controlling legal principle. In Lowe v. State, 132 Tex.Cr.R. 153, 103 S.W.2d 159 (1937), the municipal boundary, and the precise location of that line, were matters fixed by the city’s governing body; and the location of that line determined the criminality of the act proscribed by statute. The act was criminal under the relevant statute only if it occurred outside municipal limits; hence the precise place where the act occurred was an essential element of the of[638]*638fense and not merely a description of that element. In Green Tree Acceptance, Inc. v. Harrison, 595 S.W.2d 608 (Tex.Civ.App.—Austin 1980, no writ), the legal issue was venue, which depended upon whether the event occurred in a particular county or not. Thus, the place of the event was again an essential element, and not one merely descriptive, in a resolution of the relevant legal issue before the court. In Cohen v. State, 479 S.W.2d 950 (Tex.Cr.App.1972), the evidence was held insufficient to establish “that appellant was in the 12,300 block” of Westheimer Road, there being no testimony which placed appellant’s act in that block, as opposed to another block of Westheimer Road. The opinion makes clear, however, that common repute was the means used to prove the segments of Westheimer Road involved in the case.

The testimony in the present case, relative to the street and block number signs, consists in the testimony of two officers who made the traffic stop, having detected by radar appellant’s excessive speed. By their testimony as to the location proclaimed by the signs, we conclude they were not reciting any extra-judicial statements to which the hearsay rule would apply. Rather, they were simply describing objective physical facts, which they observed firsthand, from which one might reasonably conclude, as the complaining officer did, that the place of the offense was commonly known as the 5500 block of Cameron Road.

The signs were markings on chattels.

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Bluebook (online)
635 S.W.2d 636, 1982 Tex. App. LEXIS 4676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howeth-v-state-texapp-1982.