Duran v. State
| Decision Date | 03 January 1962 |
| Docket Number | No. 33878,33878 |
| Citation | 171 Tex.Crim. 535,352 S.W.2d 739 |
| Parties | Beneditos T. DURAN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Joseph J. Rey, El Paso, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is driving a motor vehicle on a public highway while intoxicated; the punishment, a fine of $50.00 and 3 days' confinement in the county jail.
Appellant's sole contention is that the evidence is insufficient to support the judgment.
The State's evidence reflects that two cars were parked along the curb of a street in El Paso. The cars had their bumpers hung together, one car having bumped into the one in front of it, pushing it into the one in front of it. As reflected by the statement of facts and counsel's briefs, there is no question as to the intoxication of the appellant, as later pointed out by us, the sole question being the sufficiency of the evidence to connect the appellant as being the driver of the vehicle at the time of the accident. We shall quote from the testimony of the various witnesses.
The witness Galvan was asked:
'
The witness Jose B. Drusina related that he turned to see a car without the driver moving faster than you would say a car could roll from an incline and hit his car in the rear bumper; that he walked up to the car and saw a man in a white shirt behind the wheel, not driving it but behind the wheel, the car was parked completely and the motor off, and another man that seemed to be a little lower in stature was sitting beside him; that Officer Rodriguez asked him to identify the man, and he stated that he couldn't, other than a white shirt and the approximate stature that he was. This witness was then asked:
'Q. Let me indicate to you the defendant Mr. Duran--could you say that he was the driver of the car? A. Not positively.
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'Q. Then at that time you were able to recognize him, is that it? A. No, sir. I kept on saying it was a man with a white shirt, about 5' 6", 5' 8".
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'Q. As far as you know this is not the man that was behind the wheel?
A. I would rather say that I don't know, because if I could not identify him positively I would be harming the man.
State's witness, Patrolman Cortez Martin, related that when he arrived at the scene he found nobody in vehicle No. 3 (); that two witnesses told him what happened, and as he was taking measurements and investigating the accident the appellant 'came back to his car with his wife and the witnesses stated that he was the driver and he also stated that he had been driving the car, too.'
'The Court: What did he say? Witness: He had stated that he had been driving the car.
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'Q. All right, at the scene at that time did you have occasion to question the Defendant as to whether he was the driver of the car at the time it ran into the No. 2 vehicle? A. That happened when we were taking him into the police car, sir.
'Q. All right, well, what did he say? A. He stated that it was his car and that he had been the driver.
'Q. Did he indicate that he had been in the--anything about the accident, why it had happened or what his reasoning was? A. I don't remember that there, sir, he--I was getting the measurements--at that particular time we escorted him over to the car and the reason he was processed for D.W.I. was on account of the witnesses.
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'The Court: Said what, now? Witness: That he had parked the car. He was the driver of the car and he stated that he had parked the car.
'The Court: He didn't say that he was driving the car at the time of the accident? Witness: Well, no, otherwise, he had stated that he had been driving the car, yes sir. I want to express myelf on that he had said he did.
'Q. Well, what the Court is trying to find out, did he say he was driving at the time of the accident or that he had parked the car there? A. Well----
'The Court: Just if you can remember. A. Yeah, well, sir, I can't recall the whole thing, I do know that he had told me that he had been driving the car.
'Q. He didn't tell you what time? A. No, sir.
'Q. He didn't admit the accident?
A. No, sir, he never did.'
Officer Rodriguez of the El Paso Police Department related that he went to the scene of the accident and asked the appellant if that was his automobile and he said it was; that he asked appellant if he had been driving that automobile and he said that he had; that he took appellant to the patrol car and questioned him further if he had been the driver of the automobile during the accident and he said he was trying to gain a parking space and that's the reason he had just bumped the car in front, but had no knowledge of that car hitting the other one in front. The witness Rodriguez further stated that he asked appellant 'if he knew there were two vehicles involved in the accident, other than him,' and he said he had no knowledge of it.
The appellant's testimony was to the effect that he had parked his car by Newberry's to wait for his wife; that he parked his car at 5:00 o'clock; that his wife got off from work at 6:00 o'clock; that he locked his automobile; that he went to drink a few beers at the Lounge Bar on the other side of the post office; and that when he came back the officer arrested him. 'Q. The officers were there. And then what happened? A. They told me if I was driving the car and I told them yeah, I was driving.
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There is no question presented as to the intoxication of the appellant. He voluntarily submitted to a blood test, and all of the evidence with reference to the blood test was stipulated by counsel. In the opinion of the expert witness, the blood sample, showing .22, indicated that the person from whom the sample was taken was intoxicated at the time it was taken.
In viewing the evidence adduced most...
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