Redding v. State

316 S.W.2d 724, 166 Tex. Crim. 517, 1958 Tex. Crim. App. LEXIS 4678

Opinions

MORRISON, Presiding Judge.

Our prior opinion is withdrawn.

Appellant was convicted under plural counts of the information of two separate offenses: (1) Operating a motor vehicle upon a public highway while intoxicated (Article 802, Vernon’s Annotated Penal Code), and (2) Failure to stop and give certain required information to the occupant of a vehicle with which he had collided, and his punishment assessed at 30 days in jail and a fine of $100 on count one and a fine of $100 on count two.

Count two was drawn under Section 40 of Article 6701d, Vernon’s Annotated Civil Statutes which the pleader evidently considered to be a misdemeanor punishable under the provisions of Section 143 of said act. We do not agree. Section 38 provides that the driver of a vehicle involved in an accident shall stop and shall remain at the scene until he has complied with the provisions of Section 40. It is therefore apparent that Section 40 does not denounce a separate misdemeanor but sets forth certain requirements, the failure to comply with which makes the offender guilty of the felony denounced in Section 38. For this reason, the conviction under count two is reversed.

We will now consider the questions raised as to count one.

One Thomas testified that he was seated in his parked pickup truck on the night in question when an automobile approached from his rear, sideswiped his pickup, causing considerable damage thereto, and proceeded on its way; that he started his pickup and gave chase; that during the chase the automobile hit two more parked automobiles and then ran onto a one-way expressway going in the wrong direction, and finally came to a halt when it ran over a curb and into a wall. Thomas stated that he approached the automobile, asked the driver why he had hit him and then run off, and asked for his name, but that the only reply he received was a threat which the driver made to kill him. He stated that he ran into a house, called the police, and upon his return the appellant drove away; that he again pursued him and the appellant again ran into the wall; that he again approached the automobile on foot, was again threatened, and then saw a squad car which he was able to-flag down.

Officer Telson testified that Thomas flagged him down near the expressway on the night in question; that he found the appellant seated in the driver’s seat of an automobile which had run over the curb while being driven in the wrong direction; that the appellant, when he got out of the automobile, walked with an unbalanced swaying motion, had an alcoholic smell on his breath, cursed the accident-investigating officer when he arrived, and expressed the opinion that the appellant was intoxicated.

Accident Investigator Graham testified that when he arrived upon the scene the appellant refused to give his name or display his driver’s license, cursed him and the other officers, claimed to be a prominent doctor, and threatened the officers with the loss of their jobs. He stated that he found a partially empty bottle of whiskey on the seat of the appellant’s automobile, arrested the appellant, whose breath smelled of whiskey, whose eyes were bloodshot, and who staggered in his walk, and carried him to jail, and expressed the opinion that the appellant was intoxicated.

Appellant, testifying in his own behalf, admitted having one drink of whiskey on the night in question, denied the presence of the bottle of whiskey in his automobile, claimed that Thomas had run into him, denied that he cursed the officers, claimed police brutality, and denied that he was intoxicated.

The appellant’s wife, a patron of his barber shop and several friends testified that he was not intoxicated when they saw him earlier in the evening.

The jury resolved this conflict in the evidence against the appellant, and we find the evidence sufficient to support their verdict.

Appellant first complains of an instruction or admonition by the court. The only reference thereto is found in the transcript, not in the form of a bill of exception, but which, if we considered it as such, presents nothing for review because it recites that no exception was taken to the action of the court.

Bill of exception No. 2 relates to an oral motion to quash the information predicated on the contention that the complaint upon which it was based was sworn to by an incompetent person. A motion to quash must be in writing, but we note that there is an entire absence of any proof in the record that such is the case. If, however, we considered the objection as evidence, this Court has held, in Catchings v. State, Tex.Cr.App., 285 S.W.2d 233, that such a person is not incompetent.

Bill of exception No. 3 relates to the action of the court in instructing the jury not to consider certain testimony as to the appellant’s good reputation from the witness Hawkins. Hawkins, upon cross-examination, repeatedly stated that he was basing his testimony on his own opinion rather than what other people in the community said about the appellant. We perceive no error in the bill.

By bill of exception No. 4 appellant complains that the prosecutor was permitted to bolster the witness Thomas. We cannot bring ourselves to agree. The .appellant was merely asked why he did not call the police as Thomas had done. The record is undisputed that Thomas called the police and that the appellant did not. Bill of exception No. 6 relates to the same ■matter and is likewise without merit.

Bill of exception No. 7 requires a duller discussion. On direct examination, the appellant testified that he had gone to the police station and had been permitted to make a copy of the offense report which the arresting officer had made in his case. At this juncture, the prosecution observed that they considered the evidence inadmissible but that they did not object to its introduction, and his copy was admitted in evidence. From the report, the appellant showed some discrepancy as to license numbers. On cross-examination, he was then asked if the report which he had introduced did not contain some other information such as that he had staggered, used profane language, and “refused test.” At this juncture, appellant objected and moved for a mistrial. The court instructed State’s counsel not to pursue the matter further.

Since the appellant introduced the report in evidence and testified concerning a portion thereof, the State might then, under the terms of Article 728, Vernon’s Annotated Code of Criminal Procedure, question him concerning the remainder of the report and argue the same matter to the jury.

The remainder of the jury argument complained of was normal argument in which the prosecutor urged the jury to accept the testimony of the State’s witnesses and reject that of the defense, and we find no error therein.

The conviction under count one is affirmed, and the conviction under count two is reversed.