Dossey v. State

• Decision Date: 08 January 1958
• Docket Number: No. 29431,29431
• Citation: 165 Tex.Crim. 652,310 S.W.2d 321
• Parties: William Thomas DOSSEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 321

310 S.W.2d 321

165 Tex.Crim. 652

William Thomas DOSSEY, Appellant, v. The STATE of Texas, Appellee.

No. 29431.

Court of Criminal Appeals of Texas.

Jan. 8, 1958.

Rehearing Denied March 5, 1958.

[165 TEXCRIM 652]

Chas H. Dean, Plainview, for appellant.

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

MORRISON, Presiding Judge.

The offense is driving while under the influence of drugs; the punishment, 30 days in jail and a fine of $100.

Police Chief Cage testified that on the day in question, while he was leading a funeral procession, he motioned to the appellant, who was driving a pickup truck, to await the passage of the procession but that the appellant, instead of complying with such instruction, pulled in front of the hearse; that he called the [165 TEXCRIM 653] Highway Patrol on his radio; and that after the completion of the procession he returned and found the appellant in the custody of the patrolman. He stated that when he arrived upon the scene the appellant was asleep leaning on the steering wheel; that he aroused him, observed that 'his eyes were all glassy and his tongue was thick, he couldn't hardly talk.' He testified that he instructed the appellant to get out, observed that he could not stand without bracing himself against the truck, carried him to a doctor's office for examination, and then placed him in jail. He further stated that he had known the appellant for some time and based his observation on him on the day in question on such acquaintance, and he expressed the opinion that the appellant was under the influence of drugs to a degree which rendered him incapable of safely driving a vehicle.

Dr. Jordan testified that he examined the appellant at the request of the officers and concluded that he was under the influence of 'a drug, probably barbituric' to a degree which would render him incapable of safely driving a vehicle.

The appellant did not testify in his own behalf but called witnesses who testified that the muffler on his pickup truck was defective and that the appellant had been ill and vomiting for several days before his arrest.

We find the evidence sufficient to support the conviction and shall discuss the contentions advanced by appellant's able counsel in his brief.

He first contends that Section 50(a) of Article 6701d, Vernon's Ann.Civ.St., under which this prosecution is brought is unconstitutional. It is as follows:

'It is unlawful for any person who is under the influence of any narcotic drug or who is under the influence of any other drug to a degree which renders him incapable of safely driving a vehicle to drive a vehicle within this state. The fact that any person charged with a violation of this Section is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this Section.'

Appellant relies upon Ex parte Chernosky, Tex.Cr.App., 217 S.W.2d 673; Cogdell v. State, 81 Tex.Cr.R. 66, 193 S.W. 675; and Griffin v. State, 86 Tex.Cr.R. 498, 218 S.W. 494.

[165 TEXCRIM 654] In Chernosky, this Court held that the term 'reckless driving' as defined in the act relating to traffic on highways was too vague and indefinite to be enforceable.

In Cogdell, this Court held that an act which provided that 'any agent selling any concentrated commercial feeding stuff with a label stating that said feeding stuff contains substantially a larger percentage of protein, or a smaller quantity of crude fiber than is contained therein, shall be fined' was too indefinite and too uncertain to prescribe an offense. [81 Tex.Cr.R. 66, 193 S.W. 676.]

In Griffin, this Court held inoperative and unenforceable because of vagueness the following statute:

'It shall be unlawful for any person to operate an automobile, motorcycle or bicycle, upon the public highways of this state, at nighttime, whose front lamps shall project forward a light of such glare and brilliancy as to seriously interfere with the sight of, or temporarily blind the vision of, the driver of a vehicle approaching from an opposite direction.'

The appellant pitches his criticism at the phrase 'to a degree which renders him incapable of safely driving a vehicle.'

The State, on the other hand, relies upon a number of cases, among them being Ex parte Trafton, 160 Tex.Cr.R. 407, 271 S.W.2d 814, 815, wherein we held that our muffler statute was not vague and uncertain because of the use of the terms 'excessive and unusual noise.'

Attention is further directed to the holding in Morgan v. State, 134 Tex.Cr.R. 490, 116 S.W.2d 1079, 1080, wherein this Court said that, if the phrase 'while in a degree under the influence of intoxicating liquor' be rejected as surplusage, the driving while intoxicated statute still charged an offense. We have concluded that the rule expressed in Morgan is here controlling and, if the phrase about which the appellant complains be rejected as surplusage, the act still denounces the offense of driving a motor vehicle while under the influence of a drug.

Appellant objected to the portion of the charge wherein he set forth the terms of the act under which this prosecution was had because of the use of the word 'narcotic'. He contends that, since the evidence did not show the appellant was under the influence of a narcotic drug, it was error for the court to mention the same in his charge.

[165 TEXCRIM 655] Recently in Martinez v. State, 157 Tex.Cr.R. 603, 252 S.W.2d 186, 187, we said:

'Appellant's next contention is that the court erred in his charge by including some of the elements of the statute which did not apply to the instant prosecution. The court first stated the law and then, when he came to apply the law to the facts of the case, made a direct application to the evidence in the case.

'It has long been the law in this State that the court properly states the general principles of law defining the offense charged and then makes a direct and pertinent application of the law to the case as made by the facts. Davis v. State, 10 Tex.App. 31.'

The rule there stated applies and is conrolling here.

Appellant next complains that the court erred in failing to submit his defense of 'sickness'.

In Humphrey v. State, 159 Tex.Cr.R. 396, 264 S.W.2d 432, we had a similar contention. We held that sickness was not an affirmative defense in a driving while intoxicated case.

He further objected to the charge because it did not define the terms 'incapable' and 'safely driving a vehicle.' It has been the consistent holding of this Court that non-technical terms which have an ordinary meaning and are commonly understood need not be defined. See Randolph v. State, 145 Tex.Cr.R. 526, 169 S.W.2d 178.

He contends that the rule announced in Apodaca v. State, 140 Tex.Cr.R. 593, 46 S.W.2d 381, was violated when the court permitted the witness Cage to given his opinion that the appellant was under the influence of drugs when it appeared that Cage had required the appellant to get out of his pickup truck and 'walk around.'

During his direct examination by State's counsel, no mention was made of Cage's requiring the appellant to walk. On cross-examination, appellant's counsel elicited such information and then moved for a mistrial. Recently, in Galan v. State, Tex.Cr.App., 301 S.W.2d 141, in discussing a similar contention, we held that a motion requesting the court to instruct the jury not to consider certain testimony of a witness would not take the place of an objection which should have been timely [165 TEXCRIM 656] made. Here, the testimony about which the appellant complains was developed by the appellant himself, and he cannot now be heard to complain of its admission into evidence. See also Housewright v. State, 154 Tex.Cr.R. 101, 225 S.W.2d 417.

Appellant's last contention is that two of the State's witnesses were permitted to testify as to the ultimate issue which was to be determined by the jury. Recently, in Cordero v. State, Tex.Cr.App., 297 S.W.2d 174, this Court had occasion to discuss such a contention and there overruled the position which the appellant takes in the case at bar. See also Piester v. State, 161 Tex.Cr.R. 436, 277 S.W.2d 723.

Finding no reversible error, the judgment of the trial court is affirmed.

On Appellant's Motion for Rehearing Rehearing Denied.

DAVIDSON, Judge.

The majority of the court overrule appellant's motion for rehearing without written opinion.

To that conclusion, as also the affirmance of the conviction, I here respectfully enter my dissent:

There is no statute which makes unlawful the acts which the appellant was charged in the information with having committed.

The information against the appellant charged him with the commission of no offense denounced by any law of this state. He has been convicted and condemned to serve thirty days in jail and pay a fine of $100 for doing an act not made unlawful by any statute of this state.

When the majority of this court affirm this conviction, they create the offense by the exercise of judicial power and make unlawful the act for which appellant stands convicted, which is the violation of a law created by the judicial legislation of a majority of this court enacted and ordained after the acts of appellant had been committed. That conviction is affirmed by the same authority that created the law.

Appellant's conviction is without authority of law and is [165 TEXCRIM 657] a flagrant violation of due process of laws as guaranteed by both State and Federal Constitutions.

In support of what I have said and charged, I call attention to the following:

In 1947, the legislature of this state, in an apparent endeavor to cover the subject of traffic regulation on the highways, enacted Chap. 421, Acts of the Regular Session of the 50th Legislature, and denominated it as the 'Uniform Act Regulating Traffic on Highways'. (Emphasis supplied.) The act is annotated under Vernon's Revised Civil Statutes as Art. 6701d, and is composed of...