Hayes v. State

• Decision Date: 20 May 1982
• Docket Number: No. 07-81-0019-CR,07-81-0019-CR
• Citation: 634 S.W.2d 359
• Parties: Robert HAYES v. The STATE of Texas.
• Court: Texas Court of Appeals

Page 359

634 S.W.2d 359

Robert HAYES v. The STATE of Texas.

No. 07-81-0019-CR.

Court of Appeals of Texas, Amarillo.

May 20, 1982.

David Hamilton, Amarillo, for appellant.

Thomas A. Curtis, Dist. Atty., Steve Schiwetz, Asst. Dist. Atty., Amarillo, for appellee.

Before REYNOLDS, C. J., and COUNTISS and BOYD, JJ.

COUNTISS, Justice.

Appellant was convicted of involuntary manslaughter, § 19.05, Tex.Penal Code Ann. (Vernon 1974) ^* and punishment, enhanced by a prior felony conviction, was assessed at fifteen years in the penitentiary. Appellant presents nine grounds of error in this court. Concluding that none justify reversal, we affirm.

The evidence is undisputed that appellant consumed a quantity of alcohol, drove his vehicle the wrong way down a one-way street and collided with another vehicle at an intersection. An elderly couple in the other vehicle was killed and appellant was injured. The amount of alcohol consumed by appellant, the circumstances that caused him to be driving the wrong way on a one-way street, and various other matters, are sharply disputed and will be discussed where appropriate as we resolve appellant's grounds of error in order of their presentation.

In his first ground, appellant contends the trial court erred in charging the jury that appellant could be convicted if his intoxication "caused or contributed to cause" (emphasis added) the death of his victim. Appellant argues that the italicized phrase permitted conviction on a theory not alleged in the indictment and lessened the State's burden of proof.

Appellant went to trial under a two-count indictment alleging that, while intoxicated, he operated a motor vehicle and by reason of such intoxication he did "cause the death of" each of his victims. The State elected to go to the jury under the first count, which alleged appellant's responsibility for the husband's death. In paragraph four of the charge, the trial court advised the jury of the elements it must find beyond a reasonable doubt, stating in subparagraph 4(e) that the jury must find:

(e) that the intoxication, if any, of defendant then and there caused or contributed to cause the death of the said William Edgar Farris; or, put another way, the defendant, by the means aforesaid and by accident or mistake, by reason of said intoxication, caused the death of William Edgar Farris. (Emphasis added).

The thrust of appellant's argument is that the indictment alleges intoxication as the sole cause of death and the jury should not have been told it could convict if intoxication was only a contributing factor.

Appellant's argument overlooks the statutory definition of causation. Appellant was charged under § 19.05 which assesses responsibility for conduct that "causes" the death of an individual. Causation, i.e., that conduct "causing" the death, is defined in § 6.04 as follows:

§ 6.04. Causation: Conduct and Results.

(a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. (Emphasis added).

It is obvious that, under § 6.04, causation in the Texas Penal Code embraces both individual conduct and joint or concurrent conduct. Thus, when the indictment alleges in the language of the statute that appellant, while intoxicated, did "cause the death of" an individual, causation must assume the meaning set out in § 6.04, i.e., appellant caused the death "either alone or concurrently with another cause." That is the tenor of the court's instruction in paragraph 4(e) of the charge. We find no error in the instruction.

We also note that the language in question was approved by the Court of Criminal Appeals in Yarborough v. State, 160 Tex.Cr.R. 239, 268 S.W.2d 154 (1954). See also P. McClung, Jury Charges for Texas Criminal Practice, 84-85 (1981) and S. Willson, Texas Criminal Forms Annotated § 93.11 (8th ed. 1977) for methods of submitting causation. Ground of error one is overruled.

By his second ground, appellant attacks the failure of the trial court to admit a photograph tendered by appellant. The collision in question occurred at the intersection of 10th Street and Harrison Street in Amarillo, Texas. The photograph was of the intersection of 16th Street and Harrison Street and apparently was tendered to show that one-way markings on Harrison Street were inadequate.

Before a photograph is admissible, it must be material and must truly and accurately depict or represent its subject at a particular time. Williams v. State, 461 S.W.2d 614, 616 (Tex.Cr.App.1970). The materiality of the photograph is questionable, because it depicts an area several blocks from the scene of the collision and there is no evidence that appellant was driving on Harrison Street at the location depicted in the photograph. More important, however, the witness who was asked to identify the photograph was equivocal in his identification of it as a true and accurate representation of the intersection at the time of the collision. Although the witness stated, "As far as I can tell, it looks the same", he also stated that he "didn't know if there is any radical difference" and "I can't be positive it would look just like that." Confronted with that testimony, the trial court did not abuse its discretion in refusing to admit the photograph. Jackson v. State, 575 S.W.2d 567, 570 (Tex.Cr.App.1979). Ground of error two is overruled.

Appellant's third ground concerns the trial court's failure to admit testimony from a witness called by appellant that appellant suffered two "blackout spells" at the hospital two days after the collision. Appellant admitted having some drinks prior to the collision but denied he was intoxicated. Instead, he said, he was hit on the back of the head by some men who were helping him start his car, which was parked near a bar, and had no recollection of events thereafter until he awakened in the hospital. The testimony in question was offered to show that appellant was continuing to lose consciousness two days after the collision.

We note that the witness was permitted to testify to the fact she was present in the hospital when appellant "blacked out or passed out," subsequent to the collision. The excluded testimony went into the matter in more detail, stating that it happened twice in the hospital room and that the witness sought assistance when it happened. In the absence of medical or other evidence connecting the subsequent loss of consciousness to a head injury of the kind appellant stated he suffered before the collision, we cannot say the trial court abused its discretion. Jackson v. State, 575 S.W.2d at 570. Ground of error three is overruled.

Next, argues appellant, his attorney should have been permitted to testify to his observations, approximately two and a half months after the collision, of the number of people driving the wrong way down Harrison Street in the vicinity of the collision. We observe, first, that a proper foundation was not established for the evidence, because there is no evidence that the physical conditions were similar at the time of the collision...