Potts v. State

319 S.W.2d 304, 167 Tex. Crim. 240, 1958 Tex. Crim. App. LEXIS 3544

• Court: Court of Criminal Appeals of Texas
• Decided: November 19, 1958
• Docket: 30079
• Status: Published

Opinions

DICE, Judge.

The conviction is for aggravated assault with a motor vehicle; the punishment, confinement in jail for 365 days.

Officer C. G. Wright of the Houston Police Department testified that while on duty and driving his patrol car on Richmond road, he observed a 1956 Ford car run a stop sign on Hazard street; that he attempted to stop the car but the driver tried to outrun him: that he proceeded to pursue the car through the residential area on various public streets for a distance of 5.4 miles with the speedometer on his car at one point reading 120 miles per hour; that during the later part of the chase “As we got onto Lamar Street going along the wrong way on Lamar at approximately 70 m.p.h. the car that I was chasing changed lanes in front of me and not slowing up. When I saw what he was doing I put on my brakes immediately to try to avoid an accident. I was unable to do so and this car turned right in front of me and I hit him almost broadside. He then hit a pedestrian and knocked him a few feet into the air and over the curb and this car went and slid into a city of Houston traffic signal. The driver of the car then climbed over the two occupants in the seat and tried to run away.”

Officer Wright further testified that there were three persons in the car he was pursuing and identified the appellant as the driver of the car when it turned in front of him immediately before striking the pedestrian.

Officer J. D. Belcher testified that he arrived at the scene of the accident within two and one half minutes after the collision and observed three men, one of whom was the appellant, standing at the side of the Ford automobile with their hands on the top and that he administered aid to the injured pedestrian.

Jimmy Benjamin Kemp, the injured pedestrian, testified that on the night in question, as he started across Lamar street at an intersection, he was struck by a car and knocked unconscious and that he could not identify the vehicle which struck him; that he received a cut lip, injury to his chest and a bruised knee; that he was carried to a hospital for treatment and that he still had pain in his chest and lip.

In his charge to the jury, to which no objections were addressed, the court having submitted the terms of Art. 1149 V.A.P.C. and defined the term “negligence,” authorized a conviction upon a finding by the jury that appellant while driving an automobile, committed an aggravated assault in and upon the person of Jimmy Benjamin Kemp by then and there colliding with and causing injury less than death to his person.

The effect of the charge was to authorize a conviction upon a finding that appellant wilfully or with negligence collided with Jimmy Benjamin Kemp.

In the absence of an objection the charge was sufficient.

The defense theory was that it was the officer’s car and not the automobile driven by appellant that collided with Kemp. The jury accepted the testimony of Officer Wright which was contrary to such theory.

The charge of the court was sufficient, in the absence of an objection, and required a finding that the car driven by appellant collided with Kemp and caused his injuries.

Appellant did not testify but called witnesses who testified that he had been in the penitentiary and had been released on parole, but that his reputation for being a peaceable, law abiding citizen was good. One of the witnesses was his mother who testified also that appellant had maintained his innocence in the case to her while confined in jail.

Appellant insists that reversible error is presented by Bill of Exception No. One which relates to a certain statement made by state’s counsel in his jury argument.

The bill reflects that state’s counsel, after commenting upon the state’s testimony in the case, stated “The defendant’s testimony was * * *” and before proceeding any further counsel for appellant objected on the ground that the statement was a comment upon the appellant’s failure to testify and an allusion thereto, and moved for a mistrial. Appellant’s objection was by the court sustained, the jury instructed not to consider the statement and the motion for mistrial overruled.

Recently in Hart v. State, 163 Texas Cr. Rep. 472, 293 S.W. 2d 659, in passing upon the contention that certain argument constituted a reference to the accused’s failure to testify, we said:

“For the argument to offend against the statute, Art. 710, V.A.C.C.P., prohibiting allusion to or comment upon the failure of a defendant to testify, the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the defendant’s failure to testify must be a necessary one. It is not sufficient that the language might be construed as an implied or indirect allusion thereto. Lewis v. State, 155 Texas Cr. Rep. 519, 236 S.W. 2d 812.”

We do not construe the statement of counsel as referring to the appellant’s failure to testify. While appellant did not testify he did call witnesses who gave testimony in his behalf before the jury. It is obvious that the prosecutor was referring to testimony which had been given in behalf of appellant and not to testimony that had not been given. Under the record and in view of the court’s instruction, we find no reversible error in the bill.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment of the trial court is affirmed.

Opinion approved by the Court.