Nam Hoai Le v. State

• Decision Date: 12 February 1998
• Docket Number: No. 13-96-607-CR,13-96-607-CR
• Citation: Nam Hoai Le v. State, 963 S.W.2d 838 (Tex. App. 1998)
• Parties: NAM HOAI LE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 838

963 S.W.2d 838

NAM HOAI LE, Appellant, v. The STATE of Texas, Appellee.

No. 13-96-607-CR.

Court of Appeals of Texas Corpus Christi.

Feb. 12, 1998.

Blaise J. Heaney, Bellaire, for Appellant.

Robert E. Bell, Crim. Dist. Atty., Edna, Jim Vollers, Austin, for Appellee.

Before DORSEY, YANEZ and RODRIGUEZ, JJ.

OPINION

YANEZ, Justice.

Upon a plea of nolo contendere, Nam Hoai Le, appellant, was convicted in the Justice Court, in Jackson County, Texas for the offense of speeding and fined $200. He was convicted again after a trial do novo upon his plea of not guilty in County Court, ordered to pay $200 plus court costs. By three points of error, he contends his conviction should be reversed due to fundamental defects in the complaint against him and because the evidence was insufficient to convict him. We affirm.

Facts

On July 6, 1996, Texas Department of Public Safety Trooper Kenneth Whitehead observed appellant traveling at a high rate of speed on U.S. Interstate 59 in Jackson County, Texas. In order to confirm his visual observation, Whitehead directed his radar device at appellant, and it registered at ninety-five miles per hour. Whitehead testified he is certified in the use of the Dopler radar device, and stated he regularly tests the radar device before and after each daily shift to ensure its accuracy. He said he tested the radar device on July 6, 1996, before appellant's offense. Once he clocked appellant's speed, Whitehead testified that he then pursued appellant, who passed a total of eight other vehicles before Whitehead caught up to him. Whitehead issued a citation to appellant, which indicated he was charged with driving at a speed of 95 miles per hour in a zone where the posted speed was 70. Whitehead explained that, based upon his seven years of experience as a DPS trooper, he believed appellant was traveling at a "very dangerous speed." Whitehead identified appellant as the person he cited on July 6, 1996.

Points on Appeal

By his first point of error, appellant contends the trial court erred in denying his motion for instructed verdict because the State failed to prove its allegation of speeding. Specifically, appellant contends that, because the complaint ¹ charged him with "intentionally and knowingly" driving in excess of the speed limit, the State was obliged to prove this mental state.

A challenge to the denial of a motion for instructed verdict is essentially a challenge to the legal sufficiency of the evidence. Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App.1990); Garcia v. State, 827 S.W.2d 25, 26 (Tex.App.--Corpus Christi 1992, no pet.). If the evidence is sufficient to sustain the conviction, then the trial judge did not err in denying appellant's motion. Madden, 799 S.W.2d at 686. In determining the merits of a legal sufficiency claim, we review the evidence adduced to determine if any rational trier of fact could have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex.Crim.App.1991).

An operator of a motor vehicle may not drive at a speed greater than is reasonable and prudent under the circumstances then existing. TEX.TRANSP.CODE ANN. § 545.351(a) (Vernon Pamph.1998). Section 545.352 of the transportation code states, "a speed in excess of the limits established by Subsection (b) or under another provision of this subchapter is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful." TEX.TRANSP.CODE ANN. § 545.352(a). The highest rate of speed considered lawful under subsection (b) is 70 miles per hour, and that rate is only considered lawful if it is attained in a passenger car, during the daytime, on a highway numbered by this state or the United States outside an urban district, including a farm-to-market or ranch-to-market, where no special hazard exists that requires a slower speed for compliance with section 545.351(b). Id. at subsection (b).

The offense of speeding is a strict liability offense, and requires no showing by the State that a person charged with such offense acted intentionally or knowingly. Zulauf v. State, 591 S.W.2d 869, 872-73 (Tex.Crim.App.1979). With regard to the contention that speeding required the requisite mens rea to sustain a conviction for that offense, the court of criminal appeals held almost ninety years ago:

The article of the Code under which defendant was tried does not require that the State prove that the act was 'willfully' done. It makes it an offense to drive a car at a greater rate of speed than that named, and if the jury believed that he was driving the car at a speed greater than permitted by law they would be authorized to convict. Very few people in driving a car have an evil intent; but the Legislature, in protection of the public, has decreed it wise to limit the speed at which these cars may run, and each one is required to keep within that limit.

Goodwin v. State, 63 Tex.Crim. 140, 138 S.W. 399, 400 (1911). The law remains the same today in this regard. See Albritton v. State, 676 S.W.2d 717, 720 (Tex.App.--Fort Worth 1984), on reh'g, 680 S.W.2d 80, 81 (Tex.App.--Fort Worth 1984, no pet.) ("We stand by our statement that the offense of speeding could be committed by an individual without intentionally meaning to do so."). Therefore, to the extent that the information contained an unnecessary allegation, such as a nonessential culpable mental state, we consider it surplusage which need not be treated as an essential element of proof. See Whetstone v. State, 786 S.W.2d 361, 364 (Tex.Crim.App.1990); Hardie v. State, 588 S.W.2d 936, 938-39 (Tex.Crim.App.1979); Bustillos v. State, 832 S.W.2d 668, 674 (Tex.App.--El Paso 1992, pet. ref'd).

Whitehead's testimony was not controverted in any manner by appellant. Based on his uncontroverted testimony alone we find the evidence legally sufficient to warrant conviction and, consequently, we find no error in the trial court's denial of appellant's motion for instructed verdict. Point one is overruled.

By his second and third points, appellant contends the complaint filed in the county court was fundamentally defective. He contends in his second point that it did not allege the speed at which appellant was traveling, and in his third point that, because the complaint failed to literally track the statutory offense, it failed to allege an offense at all. We disagree on both counts.

The essence of appellant's second point is that the complaint filed in the county court failed to comply with the requirements of section 543.010 of the transportation code, which states,

The complaint or summons or notice to appear on a charge of speeding under this subtitle must specify:

(1) the maximum or minimum speed limit applicable in the district or at the location; and

(2) the speed at which the defendant is alleged to have driven.

TEX.TRANSP.CODE ANN. § 543.010 (Vernon Pamph.1998). Without citation to any authority other than the statute itself, appellant concludes, "this is a clear violation of Section 543.010," without further explanation or argument.

We note initially that appellant made no objection regarding a defect in the complaint accompanying the information prior to the commencement of trial. If a defendant fails to object to a defect in an indictment or information before trial, that defendant may not complain about such defect on appeal. TEX.CODE CRIM.PROC.ANN. art. 1.14(b) (Vernon 1977). Appellant relies on Huynh v. State, 901 S.W.2d 480 (Tex.Crim.App.1995), wherein the court held that article 1.14 does not apply to complaints. Although not expressly stated, appellant suggests, because he is challenging a defect in the complaint, he is not estopped by article 1.14 from bringing the complaint on appeal for the first time on appeal. For the reasons set out below, we disagree.

Appellant's reliance on Huynh is misplaced. In that case, the defective complaint was the charging instrument in municipal court. The Huynh court construed the limitations contained in article 1.14 literally, as applying only to indictments and informations. In the instant case, on the contrary, the defective complaint at issue was filed in support of the information in county court, where the information serves as the charging instrument. TEX.CODE CRIM.PROC.ANN. art. 21.20 (Vernon 1989).

Because appellant entered a plea of nolo contendere in justice court, it was not necessary for the State to file a complaint. See TEX.CODE CRIM.PROC.ANN. art. 27.14(d) (Vernon 1989). Given appellant's plea, the notice of the offense, or citation, served as the complaint. Id. Thus, any argument regarding a defect in a complaint which was not required in the justice court would be frivolous. ² However, as was his right, appellant appealed the cause to county court. TEX.CODE CRIM.PROC.ANN. art. 4.08 (Vernon 1977).

With respect to the de novo trial in the county court, the State concedes a "new" complaint should be filed in county court. See Op.Tex.Att'y Gen.No. JM-869 (1988). However, a "complaint" in county court has a different meaning than a "complaint" in justice or municipal court. In the latter, if a defendant pleads not guilty, the complaint itself serves as the charging instrument. TEX.CODE CRIM.PROC.ANN. 27.14 (Vernon 1977). In county court, however, the information is the charging instrument. See TEX. CONST. art. V § 12; TEX.CODE CRIM.PROC.ANN. art. 27.01 (Vernon 1989) ("The primary pleading in a criminal action on the part of the State is the indictment or information."). While the information does need to be accompanied by a complaint, TEX.CODE CRIM.PROC.ANN. art. 21.22 (Vernon 1989), the "complaint" referenced in the county court proceedings is an affidavit made by a particular credible person which supports the charging instrument. TEX.CODE CRIM.PROC.ANN. art. 21.22. Although this complaint accompanies the...