Rowell v. State

308 S.W.2d 504, 165 Tex. Crim. 507, 1957 Tex. Crim. App. LEXIS 2393

• Court: Court of Criminal Appeals of Texas
• Decided: November 27, 1957
• Docket: 29188
• Status: Published

Opinions

WOODLEY, Judge.

James O. Suggs was driving his 1951 Chevrolet in the 5600 block of Harrisburg, in Harris County, when his car was struck from the rear by a hit and run driver who was traveling in the same direction, driving a red and white 1956 Ford. As a result of this collision Suggs was rendered unconscious and sustained an injury to his neck. His injuries did not prove to be of a permanent nature and he was released from the hospital the following day.

Appellant stands convicted of the offense of aggravated assault with a motor vehicle and has appealed from the judgment rendered on February 26, 1957, upon a jury verdict assessing his punishment at thirty days in jail and a fine of $200.

The sufficiency of the evidence is challenged in two particulars, the first being that the state failed to prove that the driver of the Ford car was guilty of an act of negligence. Appellant did not testify.

A witness estimated the speed of the Ford car just prior to the collision “at 70 or more” and said that this was “a conservative estimate.”

The evidence shows that Suggs was traveling at a speed of some 20 to 25 miles per hour, having pulled away from the curb some 30 feet to a half block or more prior to the collision, into the one line of traffic for vehicles traveling east, as were both Suggs and the driver of the Ford. Suggs testified that he had driven “a little over a half a block, I imagine; close to a block.”

There were black skid marks extending for a distance of 180 feet and ending at the point of impact at the scene of the collision ; the Chevrolet came to rest some 200 feet from the point of impact, while the Ford was driven quickly from the scene.

Under the allegations of the complaint and information and the court’s charge, a conviction was authorized upon a finding that appellant committed an assault upon the person of Suggs by wilfully or with negligence colliding with and causing injury less than death to his person.

There appears to be no question but that the driver of the Ford car was negligent in driving at an excessive speed and colliding with the Chevrolet from the rear. We find the evidence sufficient in this regard.

Next it is contended that there is not sufficient proof that appellant was the driver of the Ford automobile which collided with the Chevrolet.

James 0. Suggs testified that some time after the collision he called on appellant and told him his name, whereupon appellant said “Are you the fellow I hit?” and offered to fix his car.

Lawrence Shea testified that he saw the collision and followed the red and white ’56 Ford that ran into the rear of the ’51 Chevrolet as it was driven at a rapid speed away from the scene of the collision; that he followed it for about a mile and a half to where it was parked in a carport; that he saw a man leave the car and enter a house; and that no one else got out of the car. He identified appellant as the man he later saw leave the house.

Shea and his companion called the officers and directed them to the scene of the collision.

Shea also testified that the front end of the Ford he followed was bashed in and the radiator badly damaged.

Officer C. L. Peterson testified without objection that he learned that appellant was the owner and operator of the car which he saw in the carport and which was pointed out to him as the car that struck the Chevrolet in the 5600 block of Harrisburg; that he learned that appellant was the driver of the ’56 Ford at the time of the collision; that he arrested appellant at his home where he was in bed, and he had the smell of alcoholic beverage on his breath. He testified that he saw no other man in appellant’s home or “that could have gone in there.”

Appellant, the evidence shows, had an epileptic seizure after his arrest, and was carried to a hospital and after treatment there, to jail where he made a statement. This statement was offered in evidence in which appellant said that at about 10:15 P.M. he had three beers at a bar and “I left there about 11:45 and drove out on Harrisburg1;” that he was driving East on Harrisburg when he “blacked out” and the next thing he remembered was when the officers woke him up at his home and told him he was under arrest and that he had been involved in an accident.

We are not impressed with the suggestion that appellant’s unfortunate physical condition in any way supports his statement that he “blacked out” while driving on Harrisburg.

The state’s evidence showing that the Ford car was driven hurriedly from the scene of the collision to the home of appellant removes any doubt but that the driver was not “blacked out” by reason of an epileptic seizure at that time.

We find the foregoing evidence sufficient to sustain the jury’s finding that appellant was the hit and run driver of the car which collided with and caused injury to Mr. Suggs.

The judgment is affirmed.