Mitchell v. State

312 S.W.2d 245, 166 Tex. Crim. 197, 1958 Tex. Crim. App. LEXIS 4560

Opinions

WOODLEY, Judge.

The offense is driving a motor vehicle upon a public highway while intoxicated; the punishment, 90 days in jail and a fine of $200.

A seventeen-year-old school girl received a broken arm as the result o fbeing struck by a flat bed truck being driven south on Yale Street, in Houston.

The driver did not stop.

Appellant was shortly thereafter taken from a red flat bed Ford truck, some four blocks south from where the girl had been struck, by two unidentified men, and was taken to the place where she was hit.

A police officer driving north on Yale Street passed as appellant was being taken from the truck. He stopped when he came to the injured girl and, after appellant arrived, arrested him for failing to stop and render aid.

There is ample evidence that appellant was intoxicated at the time, including, the opinion expressed by officers who observed him and testimony that samples of his blood showed content of .19 per cent alcohol, .15 per cent indicating intoxication.

Appellant’s written statement was offered in evidence in which the following appears: “I was going home driving my 1952 Ford flat bed truck — south on Yale Street — a car pulled up beside me and someone said there had been an accident — and to pull over, that I had probably hit them. 1 drove the truck over and got out and went back to the scene of the accident. * * * An officer asked me if I was driving that' truck and he pointed to my truck, and I told him I was * *

Appellant did not testify.

Attention is directed to the fact that appellant was taken from the truck. In his statement he made no mention of anyone riding with him.

Applying the rule quoted in Bosquez v. State, No. 29,590, this day decided (page 147, this volume), we find evidence sufficient to support the jury’s finding that appellant was driving a truck on a public highway and that he was intoxicated.

It is contended that appellant’s written statement or confession was inadmissible as a matter of law.

He was arrested about 10:45 P.M. and was taken to the hospital where a blood specimen was taken at 12:45 A.M. He was then taken to the police station where he made the statement between 1 and 2 A.M. Complaint was filed during the same night after 2:25 A.M.

We overrule the contention that the statement or confession should have been excluded because appellant was not taken before a magistrate. Henson v. State, 159 Texas Cr. Rep. 647, 266 S.W. 2d 864; Goleman v. State, 157 Texas Cr. Rep. 534, 247 S.W. 2d 119.

There was no unreasonable delay in filing the complaint or in taking the accused before a magistrate. Gilbert v. State, 162 Texas Cr. Rep. 290, 284 S.W. 2d 906.

The judgment is affirmed.