Carter v. State

• Decision Date: 10 January 1962
• Docket Number: No. 33926,33926
• Citation: 172 Tex.Crim. 95,353 S.W.2d 458
• Parties: Jesse M. CARTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 458

353 S.W.2d 458

172 Tex.Crim. 95

Jesse M. CARTER, Appellant, v. The STATE of Texas, Appellee.

No. 33926.

Court of Criminal Appeals of Texas.

Jan. 10, 1962.

Billy Hall, Littlefield, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, 3 days in jail and a fine of $100.

The State's evidence shows that on the night in question, Highway Patrolman Charles Skinner, in response to a call, drove to a point on U. S. Highway 385, approximately four miles north of the City of Hereford in Deaf Smith County, where a lake had covered the highway. When he arrived shortly after 11 P.M., he observed a 1959, two tone green and white Chevrolet automobile parked off of the pavement in a ditch in the lake. Appellant was seated alone in the automobile behind the steering wheel and at such time was attempting to drive the vehicle from the lake. A barricade on the highway had been torn apart and there were certain tire and skid marks leading from the barricade to the automobile in which appellant was seated. An examination of the automobile showed that it had been damaged both in the front and right rear. On the front of the car there were marks of a dark stain similar to the color of the barricade, and on one side of the car the paint was scraped and the chrome bent. It was further shown that between 10:30 and 11:00 P.M., on the night in question, a 1959, two tone Chevrolet automobile was involved in an accident on the highway in the vicinity of where the road was covered by the lake and after 'side-swiping' another automobile had driven away. Highway Partrolman Skinner, in describing appellant's actions and appearance on the night in question, testified that he 'couldn't walk'; that he could smell alcohol on appellant's breath and expressed his opinion that at such time appellant was intoxicated. The witness J. D. Kirkland, who accompanied Patrolman Skinner to the lake, testified that at such time he could smell alcohol on appellant; that appellant couldn't walk and expressed his opinion that appellant was intoxicated.

Appellant did not testify but called his wife as a witness who testified that he had a phobia of being alone and as a result did not drive his automobile out of town alone. Other witnesses were called who testified that they had accompanied appellant on trips because he would not drive his automobile by himself. Dr. C. N. Stapp, a chiropractor, testified that appellant had a nervous and mental condition described as a psychoneurosis. He further testified that appellant's condition was such that he was afraid of space and of being alone, and if left alone in an open space appellant could become so nervous that he could not talk or walk.

By formal bill of exception No. 1, appellant insists that the court erred in overruling his motion for an instructed verdict on the ground that the State had failed to prove that he operated the automobile upon a public highway. The State's evidence clearly shows that appellant was seated in the automobile alone, behind the steering wheel, attempting to drive it from the lake. Tire and skid marks led from the broken barricade on the highway to where the automobile was parked off the pavement in the ditch. Such evidence was sufficient to show that appellant drove the automobile upon the public highway as alleged. See Thomas v. State, 162 Tex.Cr.R. 268, 283 S.W.2d 933; Sandford v. State, Tex.Cr.App., 334 S.W.2d 184, and Harrison v. State, Tex.Cr.App., 350 S.W.2d 204. We find no error in the bill.

Formal bill of exception No. 2 presents appellant's objections to the court's charge. Appellant objected to the charge on the ground that it did not submit to the jury as appellant's affirmative defense, the question raised by the evidence as to his physical and mental condition and his inability to be alone. The issue of appellant's intoxication was properly sbmitted to the jury. The evidence of appellant's physical and mental condition, if accepted by the jury, was not proof of such an independent fact, which if true, would entitle appellant to an acquittal. Under the record the court did not err in refusing to submit such issue to the jury. Humphrey v. State, 159 Tex.Cr.R. 396, 264...