Blevins v. State

• Decision Date: 29 March 1984
• Docket Number: No. 13-82-330-CR,13-82-330-CR
• Citation: 672 S.W.2d 828
• Parties: William D. BLEVINS, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 828

672 S.W.2d 828

William D. BLEVINS, Appellant, v. STATE of Texas, Appellee.

No. 13-82-330-CR.

Court of Appeals of Texas Corpus Christi.

March 29, 1984.

Rehearing Granted May 17, 1984.

James A. Smith, Smith & Hood, Port Lavaca, for appellant.

Robert P. McGuill, County Atty., Refugio, for appellee.

Before NYE, C.J., and BISSETT and YOUNG, JJ.

OPINION

BISSETT, Justice.

This is a consolidated appeal from three (3) convictions for killing deer in closed season in violation of TEX.PARKS & WILD. CODE ANN. § 61.021 (Vernon Supp.1982-83), and from a conviction for discharging a firearm on or across a public road in violation of TEX.PENAL CODE ANN. § 42.01(a)(10) (Vernon Supp.1982-83).

Appellant was tried in the County Court before a jury and was assessed fines by the trial court of $100.00 in each case wherein he was charged for killing a deer in closed season, and $200.00 in the case wherein he was charged for discharging a firearm on or across a public road.

All of the three (3) causes for killing deer in closed season were docketed in the trial court as Causes Nos. 5270, 5271 and 5273. The cause for discharging a firearm on or across a public road was docketed as Cause No. 5272. All of the four (4) causes were consolidated in the County Court for purposes of trial.

The record shows that a complaint was filed for each alleged offense in a justice of the peace court in Refugio County, Texas. Following a trial by a jury in the justice court, the appellant was found guilty in each case and fines were assessed against him. He then appealed those convictions to the County Court of Refugio County where, following pleas of "not guilty," he was again convicted by a jury in a trial de novo. It is from the convictions in the County Court that appellant now appeals.

Counsel for the State has not seen fit to file a reply brief in this Court.

TEX. CONST. art. V, § 16, and TEX.CODE CRIM.PROC.ANN. arts. 44.17, 44.18 (Vernon 1979) provide that in an appeal from a misdemeanor conviction in a justice court to the county court that such appeal shall be tried de novo, upon the original papers, and upon the same issues as tried in the justice court. Neither the Constitution nor the statutes require the filing of an information in the county court upon the perfecting of such appeal because the original complaint in the justice court serves as the functional equivalent of an information in the county court. Zulauf v. State, 591 S.W.2d 869 (Tex.Crim.App.1979); Ex Parte Morales, 53 S.W. 107 (Tex.Crim.App.1899). See also Tidwell v. State, 547 S.W.2d 34 (Tex.Crim.App.1977).

Appellant brings forward five grounds of error. In his fourth ground of error, he contends that there was a fatal variance between the charging instruments (complaints) in the causes which charged him with killing a deer out of season and the proof, which mandated an acquittal. We agree.

Mr. Roy Lawrence, a game warden for the Texas Parks and Wildlife Department, was the sole witness for the State. Appellant did not testify, and did not offer any evidence in his behalf.

Each of the complaints for killing a deer in closed season charge that appellant, on February 8, 1981, in the County of Refugio and State of Texas, did then and there "intentionally and knowingly kill a game animal, to-wit, a wild white-tailed deer, at a time of the year not during the open season provided by law for the killing of said game animal." There is no evidence that defendant killed a wild white-tailed deer, although there is evidence that defendant killed "wild deer." Consequently, appellant's convictions for killing "wild white-tailed deer" cannot stand.

The law is well-established that when something necessary to be described in a criminal complaint (or information or indictment) is described with unnecessary particularity, all the circumstances of description must be proved and cannot be rejected as surplusage because they have thus been made essential to identity. Green v. State, 578 S.W.2d 411 (Tex.Crim.App.1979); Cohen v. State, 479 S.W.2d 950 (Tex.Crim.App.1972); Hardy v. State, 162 Tex.Cr.R. 166, 283 S.W.2d 234 (1955). Since the complaint went further than necessary in alleging that appellant killed a "wild, white-tailed deer," and the prosecution did not prove that the deer were white-tailed deer, there was a fatal variance between the complaint and the proof adduced at trial. The evidence is insufficient to sustain the conviction. Appellant's fourth ground of error is sustained.

In his fifth ground of error, appellant complains that the evidence was insufficient to support convictions for a) killing a wild white-tailed deer during closed season and b) knowingly, intentionally and unlawfully discharging a firearm on or across a public road in Refugio County. In view of our decision to reverse the convictions for the killing of deer out of season, we limit our decision as to the merits of the fifth ground of error to that portion which challenges the sufficiency of the evidence to support the conviction for unlawfully discharging a firearm on or across a public road.

We view the evidence in the light most favorable to the jury verdict, and will uphold the conviction only if a rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt. Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983) (Opinion on Motion for Rehearing). In reviewing the evidence, we also follow the well established rule that a jury may accept or reject any part of a witness' testimony. Johnson v. State, 571 S.W.2d 170 (Tex.Crim.App.1978).

Mr. Lawrence testified that on the date in question (February 8, 1982), at about 11:30 p.m., he observed the headlights of a vehicle proceeding west along Highway 774, which was a public road in Refugio County, Texas. The vehicle was approximately two miles from Lawrence's position "at a gate" when he first saw the headlights. He further testified:

"... I heard shots being fired. The vehicle lights were turned out, and the next thing I knew, the taillights were facing me as the lights were turned back on, and the vehicle was moving back in an easterly direction, going back toward 35, and then I observed what I thought to be a flashlight leaving the roadway and entering into the pasture on the north side of the highway. This I observed with my binoculars.

Q What type of binoculars were these?

A 750 Bausch and Lombs.

Q Did you have any trouble observing them with the binoculars?

A None whatsoever. It was a clear night.

Q What happened then?

A The vehicle left--well, it just went away from the area where the flashlight was in the pasture, and by this time it had come back to the highway, and then the vehicle proceeded again toward me, to my location.

Q Then what did you see next?

A I observed the vehicle moving at a very slow rate of speed. It approached the Alameda Creek bridge, crossed it, and I observed a spotlight working from the south side of the vehicle, which would have been the driver's side. At this time I had backed my car just inside the gate. I observed the vehicle stop; heard shots being fired; and saw muzzle flashes coming from the driver's side of the vehicle."

Lawrence then told the jury that the vehicle "came to the point where I was. It swept by me, and then came back to me." Lawrence, in response to questions propounded to him; then stated:

"Q What rate of speed was he going before the lights hit your car?

A Very slow rate of speed.

Q After the lights hit your car, what did the vehicle do?

A I turned my red light on, my headlights on, and proceeded to come out of the gate, and they took off at a high rate of speed heading in toward Refugio.

All right. Did you proceed to stop them?

A Yes, I proceeded down the road couple of miles ..."

* * *

* * *

"Q When you stopped the vehicle, who did you first observe in the vehicle?

A I observed William Don Blevins as the driver, Roy Leon Follis as the occupant in the passenger side, driver's, the front seat, actually, and Jerry Michael Manning and Barry Blevins sitting in the back of the pickup. It was a club cab type truck, so they were all inside the vehicle."

The vehicle was searched after it had been stopped by Lawrence. Located therein was a .223 rifle, a .30-06 rifle, a .41 revolver, a knife and scabbard on a belt, and a burnt-out spotlight.

Lawrence then placed all of the occupants in the vehicle under arrest. Following their arrest, he went "back down the high (sic) to the direction where they came from," and "at the location nearest me to where the shots were being fired from the vehicle I located two deer." The deer had been "freshly killed" and were "just on the roadside of the fence right against the fence, actually on the road right-of-way." He then proceeded "down the highway to the furtherest point where I had heard the first shots, where I located another dead deer with holes in it. The deer's throat had been cut and the deer "was located on the north side of the highway against the fence."

Appellant argues that the testimony of Lawrence is insufficient to establish that the vehicle in which appellant was riding was on a public road since Lawrence also testified on cross-examination that he could not remember which side of the road the truck was on. We do not agree. The jury was only required to find from the evidence that the vehicle was on a public road when the shots were fired, not that the vehicle (and appellant) were on a particular side of the road. This testimony is sufficient to establish that the vehicle was on the road for the purpose of upholding a conviction for a violation of TEX.PENAL CODE ANN. § 42.01(a)(10) (Vernon Supp.1982-83). Appellant's fifth ground of error, insofar as it pertains to the insufficiency of the evidence with respect to the alleged violation of § 42.01(a)(10) of the Penal Code, is overruled.

Appellant, in his first ground of error, contends that the "trial court erred in refusing to charge...