Broughton v. State, 23155.

• Citation: 188 S.W.2d 393
• Decision Date: 20 June 1945
• Docket Number: No. 23155.,23155.
• Parties: BROUGHTON v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

188 S.W.2d 393

BROUGHTON v. STATE.

No. 23155.

Court of Criminal Appeals of Texas.

June 20, 1945.

Commissioners' Decision.

Appeal from District Court, Dawson County; J. E. Garland, Special Judge.

Carl Broughton was convicted as a second offender of the offense of driving a motor vehicle upon a public street while intoxicated, and he appeals.

Judgment and sentence affirmed as reformed and amended.

Thomas & Thomas, of Big Spring, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted as a second offender of the offense of driving a motor vehicle upon a certain public street in the town of Lamesa while intoxicated, and his punishment was assessed at confinement in the state penitentiary for a period of one year.

He brings forward a number of complaints, each of which he contends presents reversible error.

His first complaint relates to the court's action in overruling his motion to quash the indictment in this case. He contends that it is insufficient in the following respects: (a) Because the former conviction is not described in definite terms, that is, the style of the case and the date of the commission of the offense is not stated therein; (b) because it is not averred that the offense of which he is charged therein was committed after the offense for which he was convicted in the County Court of Dawson County on June 19, 1943, for a like offense; (c) because the date of the prior offense is not set out in the indictment; (d) because the indictment fails to allege that Carl Broughton, who was convicted in the County Court of Dawson County on June 19, 1943, is the same person as the one named in the indictment in the present case; (e) because the indictment charges two separate offenses in one count; (f) because the indictment failed to charge that his conviction in the County Court was a final conviction, etc.

It may not be amiss to here set out the indictment. Omitting the formal parts thereof, it reads as follows: "That on or about the 2d day of July, A.D., 1944, and anterior to the presentment of this indictment, in the county and state aforesaid, Carl Broughton did, then and there unlawfully while intoxicated, and while under the influence of intoxicating liquor, drive and operate a motor vehicle upon a public street there situate, to-wit, North First Street, within the limits of the incorporated city of Lamesa, Texas, in said county; and prior to the commission of the aforesaid offense by the said Carl Broughton, on the 19th day of June, 1943, in the County Court of Dawson County, Texas, in Cause No. 1880, on the docket of the last named court, the said Carl Broughton, was duly and legally convicted of the offense of driving and operating a motor vehicle upon a public street while intoxicated and while under the influence of intoxication liquor, the same being an offense of like character and of the same nature as that heretofore charged against him in this cause, etc."

While we do not regard it as a model indictment, yet it is not subjected to the objections addressed thereto. The date of the former conviction in the County Court of Dawson County is alleged to have been on the 19th day of June, 1943, in cause No. 1880, while the primary offense charged in the indictment is alleged to have been committed on the 2nd day of July, 1944. Consequently, it sufficiently charged that the prior conviction was for an offense which he had committed before he committed the one on the 2nd day of July, 1944, as charged in the indictment. He could hardly have been convicted in June, 1943, unless he had theretofore committed the offense of driving a motor vehicle on a public street in the town of Lamesa, Texas. Hence, the indictment sufficiently charges that the prior conviction was for an offense committed prior to the 2nd day of July, 1944. It was not necessary to set out the prior conviction with the same particularity as it was set out in the original complaint and information. It was sufficient to charge that he had been convicted of an offense of like character prior to the commission of the primary offense charged. A conviction means a final conviction. If the conviction was not final, it could be shown as a matter of defense. See Ellis v. State, 134 Tex.Cr.R. 346, 115 S.W.2d 660.

Appellant cites us to the case of Allen v. State, Tex.Cr.App., 184 S.W.2d 470, as supporting his contention. It will be noted that in that case the State, for the purpose of enhancing the punishment as provided by Art. 63, P.C., charged two prior convictions. Such is not the case here. In the present instance, the State charged a prior conviction to show that in the commission of the subsequent offense, appellant was guilty of a felony under Art. 802b, Vernon's Ann.P.C. and by reason thereof, the District Court had jurisdiction of the offense. The object and purpose of the two statutes are different: One is to enhance the punishment while the other is to charge a felony and is jurisdictional.

He next complains of the action of the trial court in admitting in evidence, over his objection, the complaint and information upon which he was convicted in the County Court of Dawson County in cause No. 1880 of the offense of driving an automobile on Dallas Street in the city of Lamesa while intoxicated. He objected thereto on the ground that it failed to charge an offense because it was not alleged therein that the city of Lamesa was an incorporated city. We are of the opinion that Art. 802, P.C., does not limit or restrict violations of said article to incorporated cities only. To so hold would be giving an unreasonable construction to the statute in question. The people of unincorporated towns and villages are to be protected against drunk drivers as well as those of incorporated cities and those who are on the public highways. To hold otherwise would leave the people of unincorporated towns and villages to be run over, killed or maimed at will by drunk drivers. To this we cannot agree. Furthermore, he cannot in this proceeding collaterally attack the complaint and information in the county court case. See Lutz v. State, 146 Tex.Cr.R. 503, 176 S. W.2d 317, and cases there cited.

Appellant's third complaint is that there is not any evidence to show that the town of Lamesa...