Turner v. State

WOODLEY, Judge.

The conviction is for driving a motor vehicle upon a public highway while intoxicated; the punishment, six months in jail and a fine of $400.

The sufficiency of the evidence to support the jury’s finding that appellant drove a motor vehicle upon the occasion in question is challenged, as is the sufficiency of the evidence to show that he was at the time intoxicated.

Witnesses who were at a garage across the four-lane highway heard a collision and, upon looking out, saw that a Plymouth automobile had collided with and “run under the back of a parked truck.”

Appellant was identified as the person who was seated under the steering wheel of the Plymouth. “The wheel was just laying over in his lap.” No other person was in the car and no one was seen in or around the automobile or truck at that time.

There was evidence to the effect that appellant’s face was “scratched up with that windshield where it had been broken out” and that it would have been “might near impossible for anyone to have survived had he been seated on the other side.”

The case was submitted to the jury on circumstantial evidence, and the evidence mentioned is deemed sufficient to sustain the jury’s finding that appellant was the driver of the Plymouth automobile involved in the collision.

Veteran Officer John Boston, of the Terrell Police Force, investigated the collision; took appellant to a doctor’s office and later to jail. He testified to his long acquaintance with appellant and his experience in observing intoxicated persons and expressed the opinion that appellant was drunk. He testified, in part: “With all due respect to R.C. ’cause I still consider him a good friend of mine, he just wasn’t R.C. He smelled of liquor and he didn’t talk right and I kept him out long enough to find out if maybe something else was doing that, but I kept him out long enough to make my mind up myself talking to him, just for a reason, to see if R.C. was drunk in my opinion and he was ’cause it just wasn’t R.C.”

George King, also a member of the Terrell Police Force, saw appellant at the scene of the collision and testified that he was staggering; that he was acquainted with appellant and had talked with him on previous occasions, and that at the scene of the wreck he “talked at random.” King expressed the opinion, based upon his observation of appellant and his long ex-experience in observing drunks, that appellant was intoxicated.

Chief of Police Richie, who had known appellant for twenty years, observed him at the jail some hours after the wreck and expressed the opinion that appellant was at that time intoxicated, as did State Highway Patrolman Barton who also observed appellant some 45 minutes after the collision.

The only other witness who testified on the question of appellant’s condition of sobriety was the witness Flatt who heard him say nothing and did not detect any odor about his breath. Mr. Flatt declined to express an opinion that appellant was intoxicated or that he was sober.

The jury resolved the issue against appellant who did not testify or offer witnesses on the subject, and we find the evidence sufficient to sustain the jury’s finding that appellant was intoxicated.

In the amended motion for new trial and the juror’s affidavit attached thereto the juror states that he was inclined to believe that the fact that appellant failed to testify contributed to the verdict of guilty and the heavy punishment assessed, and that he himself took into consideration his failure to testify. There was no allegation supported by affidavit that the failure of the defendant to testify was discussed or mentioned by any juror during their deliberations.

The trial court did not err in refusing to permit the juror to impeach his verdict. Randall v. State, 121 Texas Cr. Rep. 563, 49 S.W. 2d 819.

The court also did not err in declining to hear testimony offered for the purpose of attempting to establish jury misconduct which was not alleged in the motion for new trial and supported by affidavits. Hill v. State, 153 Texas Cr. Rep. 105, 217 S.W. 2d 1009.

There are a number of bills which complain of remarks of the attorney representing the state, none of which show error of a nature that would justify reversal of the conviction.

The evidence is deemed sufficient to sustain the conviction and we find no reversible errors.

The judgment is affirmed.