Cotten v. State

• Decision Date: 08 June 1966
• Docket Number: No. 39657,39657
• Citation: 406 S.W.2d 452
• Parties: Dearl Ray COTTEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 452

406 S.W.2d 452

Dearl Ray COTTEN, Appellant, v. The STATE of Texas, Appellee.

No. 39657.

Court of Criminal Appeals of Texas.

June 8, 1966.

Rehearing Denied Oct. 19, 1966.

C. O. McMillan, Stephenville, for appellant.

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

OPINION

WOODLEY, Judge.

The offense is murder (Art. 802c Vernon's Ann.P.C.); the punishment, 5 years.

Appellant's amended motion for new trial was overruled and notice of appeal was given on October 14, 1965.

Reversal is sought upon three grounds. The first is the overruling and refusing of the defendant's motion for change of venue.

The state contends that this claim of error is not properly before this court.

Two motions for change of venue appear in the transcript. The first was filed June 21, 1965. The second was filed September 15, 1965. Both motions were controverted.

There is nothing in the transcript to show any action of the court or any exception relating to either of said motions.

The record includes a statement of facts relating to a hearing on defendant's motion for change of venue held on September 15, 1965, at the conclusion of which the court ruled: 'I will carry your motion along and see how the jury looks,' to which counsel for the state and appellant's counsel replied 'All right.'

The statement of facts relating to the trial on the merits reflects that before the jury selected was sworn the court announced that he had overruled the defendant's motion for change of venue and appellant's counsel noted his exception and it was agreed between the court and appellant's counsel that 6 jurors of the regular panel disqualified on the ground of having an opinion; two on suspended sentence, and one had some folks that had been killed or were involved in an accident.

We agree with the state's contention that the question of whether the trial court abused his discretion in not changing the venue is not properly before us as an informal bill of exception.

Assuming that the question is before us, there is no showing in the record that appellant's trial was influenced by the prejudice claimed to exist or that such prejudice reached the jury box.

The record does not reflect the voir dire examination of the jury panel and there is no showing that appellant exhausted his peremptory challenges or that any objectionable juror served in the case.

No error is shown in the overruling of the motion for change of venue. Johnson v. State, 156 Tex.Cr.R. 534, 244 S.W.2d 235; Phillips v. State, 168 Tex.Cr.R. 463, 328 S.W.2d 873, and cases cited; Hagans v. State, Tex.Cr.App., 372 S.W.2d 946.

Appellant next complains that the evidence is insufficient to sustain the conviction.

Viewed from the standpoint of the state, the evidence shows:

Dwayne Sowell was driving his car toward Brownwood about 7:30 P.M. Jacky Wilson was riding with him.

Appellant was driving an automobile on the four lane street in the opposite direction without lights and across the center line in Sowell's lane of travel. Sowell swerved to the right to avoid him.

After passing the Sowell car appellant's car, traveling in the same lane, collided with another car traveling toward Brownwood in which Martha Loraine Miller was a passenger, causing her death.

Dwayne Sowell testified that he had an opportunity to observe appellant following the accident and noticed the odor of alcohol about him. He expressed the opinion that appellant was intoxicated and testified that he based his opinion 'first off on the strong odor of alcohol in his car' and 'the way he acted when the door was opened and he was helped out of the car.' He also testified there was a whiskey bottle in the car. On cross-examination, when asked if there was anything else on which he based his opinion that appellant was intoxicated, the witness testified: 'Will, I would say that anyone driving at that time of night on the wrong side of the road without his headlights on would have to be something wrong.'

Patrolman Homer Smith testified that he found 'an empty fifth of Sunnybrook Whiskey bottle and also a pint about half full of Sunnybrook Whiskey' in appellant's automobile. He testified that from his observation of appellant at the scene of the accident and in the Emergency Room at the Medical Arts Hospital, he thought he was intoxicated.

Deputy Sheriff Ray Williams, the first officer to arrive at the scene after the accident and who assisted in prying off the door and getting him onto the stretcher, expressed the opinion that appellant was intoxicated and testified that he saw nothing about the car that would account for his condition other than being intoxicated.

Dr. Harry Thomas, who saw appellant at Medical Arts Hospital where he was first taken following the accident, testified that he asked him if he had had anything to drink and he 'stated he had had about a half a pint of whiskey'; that he seemed unconcerned about his injuries; refused to follow any advise he gave him; and that his reactions were consistent with those of a man who had been drinking and was under the influence of intoxicating liquor. Dr. Seale T. Cutbirth, who also...