Ford v. State, 54916

• Decision Date: 18 October 1978
• Docket Number: No. 1,No. 54916,54916,1
• Citation: 571 S.W.2d 924
• Parties: Jesse FORD, Appellant, v. The STATE of Texas, Appellee. *
• Court: Texas Court of Criminal Appeals

Page 924

571 S.W.2d 924

Jesse FORD, Appellant, v. The STATE of Texas, Appellee.

No. 54916. ^*

Court of Criminal Appeals of Texas, Panel No. 1.

Oct. 18, 1978.

Ronald Ned Dennis, Marshall, for appellant.

Sam F. Baxter, Dist. Atty., Marshall, for the State.

Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

OPINION

W. C. DAVIS, Judge.

A jury convicted the appellant of the misdemeanor offense of driving while intoxicated, and assessed punishment at fifteen days' confinement in the county jail and a $500 fine. The appellant raises eighteen grounds of error, including a challenge of the sufficiency of the evidence. We reverse and order a judgment of acquittal be entered in this cause.

To sustain a conviction for driving a motor vehicle while intoxicated, the evidence must show that the appellant drove the vehicle while intoxicated on a public road, highway, street, or alley. Johnson v. State, 517 S.W.2d 536 (Tex.Cr.App.1975).

In response to an accident report at approximately 10:20 P.M., on March 15, 1975, a rainy night, Department of Public Safety troopers McVain and White arrived at approximately 10:40 P.M. at the intersection of an apparent private road leading to the Tomlin-Webber Lumber Company and State Highway 43, northeast of Marshall, Texas. They found the appellant's truck some 15 to 20 feet "completely off the roadway," resting partly in a creek and against a fence, parallel to the highway, but in the quadrant between the highway and the private road. Another car and three occupants were at the scene as the troopers drove up but left upon Officer McVain inquiring as to who was the driver of the pickup truck. The appellant, standing outside his truck, stated that "I was the driver", and that the accident occurred at approximately 10:15 P.M. The truck's front and side were damaged and the damage "seemed" to have been sustained in running over a stop sign at the intersection of the private road and the state highway. Both White and McVain stated that the appellant, who registered a .17 on the breathalyzer at approximately 11:20 P.M., was intoxicated.

Initially, we reject the State's construction ¹ of the term "highway" as defined in V.A.C.S., 6701d, Sec. 13(a):

"The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel."

As we stated in Harris v. State, 499 S.W.2d 9 (Tex.Cr.App.1973), citing Capps v. State, 171 Tex.Cr.R. 579, 352 S.W.2d 833 (1962), the pertinent language of Art. 802, Vernon's Ann.Penal Code, now 6701L -1, should be viewed in its ordinary sense, and we quoted Black's Law Dictionary definition of the term "road" :

"A highway; an open way for public passage; a line of travel or communication extending from one town or place to another; . . ."

Clearly, the facts in the instant case do not fall within the definition. Regardless, the proof fails as there is no evidence that the appellant Drove the vehicle on a public road or a highway. There is no evidence of tracks leading from the highway, skid marks from the highway, a trail of water leaking from the radiator leading back to the highway, nor any indication of which way the stop sign was run over. The diagram included in the record provides no assistance. See, generally, Johnson, supra. Additionally, there is no evidence that he had driven the vehicle while intoxicated.

The State argues that, "In this case, the defendant's rights were protected even greater by the granting of the circumstantial evidence charge. The jury, after hearing the evidence and receiving and reading the charge, found beyond a reasonable doubt that the defendant had operated a motor vehicle on a public road while intoxicated."

While it is true that when the sufficiency of the evidence is challenged we are required to view the evidence in a light most favorable to the verdict, Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App.1977), the rule has long been that a conviction based upon circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused, and proof amounting to only a strong suspicion or mere probability is insufficient. Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977). In Young v. State, 544 S.W.2d 421 (Tex.Cr.App.1976), we said:...