Parr v. State

• Citation: 575 S.W.2d 522
• Decision Date: 27 September 1978
• Docket Number: No. 54736,No. 1,54736,1
• Parties: J. D. PARR, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 522

575 S.W.2d 522

J. D. PARR, Appellant, v. The STATE of Texas, Appellee.

No. 54736.

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

Sept. 27, 1978.

Rehearing Denied Jan. 17, 1979.

James E. Forbis, Decatur, for appellant.

Jerry W. Woodlock, Dist. Atty., Brock R. Smith, Asst. Dist. Atty., Gainesville, for the State.

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

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of involuntary manslaughter. V.T.C.A., Penal Code, Sec. 19.05(a)(2). Punishment was assessed by the jury at five years' imprisonment.

The evidence adduced at trial revealed that on the evening of July 2, 1974, Mary Elizabeth Finley was struck and killed by a pickup truck driven by the appellant.

Virgil Waldrip testified that, on July 2, he was driving south on Highway 114 when he noticed the appellant's blue and white Chevrolet pickup truck driving toward him. When Waldrip first saw the appellant, the appellant was driving halfway on the shoulder of the road and halfway on the road. The appellant then drove onto the road and back onto the shoulder. Once again driving on to the road, the appellant crossed the center stripe and ran Waldrip off the road. Waldrip then observed the appellant drive back into the proper lane and off onto the shoulder. The appellant next swerved back onto the road, across the center stripe, across a ditch and ran into someone's yard, crashing into some trees. Waldrip turned his car around and drove to the scene. When he arrived, he saw the appellant sitting behind the steering wheel and went over to ask the appellant if he was hurt. The appellant replied that he was not injured. When the ambulance arrived, Waldrip and the ambulance driver helped the appellant out of the truck and into the ambulance. Waldrip noticed the smell of liquor on the appellant's breath.

Sheriff Eldon Moyers testified that he spoke to the appellant at the hospital and the appellant said he had driven the pickup. Moyers noticed a strong smell of alcohol about the appellant and the appellant's eyes were watery. It was Moyer's opinion that the appellant was intoxicated.

Patrolman Harold McFerrin testified that he received a call at 8:12 p. m. on July 2 and proceeded directly to the scene. Upon arrival, he ran a license check on the pickup truck and found it was registered to the appellant. McFerrin then examined the body of the deceased and when he felt her arm he could not find a pulse. He proceeded to the hospital to talk to the appellant. McFerrin noticed that the appellant's eyes were watery and bloodshot and there was the smell of alcohol on the appellant's breath. McFerrin stated that it was his opinion the appellant was intoxicated.

Diana Cottle, a ten-year-old friend of the deceased, testified that she, Lisa Eckman, and the deceased were playing in the yard immediately prior to the incident on July 2. In describing the incident, Cottle stated, "The truck well, it came and well, you know, we just let go and it got her (the deceased) on the bumper and took her through the tree and stuff."

Kathryn Finley, the deceased's mother, testified that the deceased was in good health prior to the accident and afterwards she was not breathing. Justice of the Peace H. M. Bunnell held a coroner's inquest after the incident and examined the body of the deceased, identified to him as Mary Elizabeth Finley. Bunnell observed that she was not breathing and her intestines were exposed. He pronounced her dead at the scene.

Officer Paul Geiser testified that he had been requested to go to the hospital to try to obtain a blood sample from the appellant. After arriving at the hospital, Geiser identified himself to the appellant and asked the appellant if he would give a blood sample. After the appellant refused three times, he finally consented to the taking of the blood sample. Geiser then asked a nurse to take the sample.

Fay Thurman stated that Officer Geiser asked her to take the blood sample from the appellant. Thurman agreed to take the sample with the appellant's consent. When Geiser and Thurman then approached the appellant and asked if they could draw blood, the appellant agreed, saying he couldn't deny it, "you might as well." She then took a sample of appellant's blood which Officer Geiser placed in a glass vial.

Dennis Johnson, a Texas Department of Public Safety chemist, testified that he received the vial in the mail and analyzed the blood for alcoholic content. The analysis revealed that the blood contained .23 percent alcohol. Johnson stated that, in his opinion, a person would be intoxicated if his blood contained .10 percent alcohol or more.

The appellant testified in his own behalf that he was a disabled veteran and was required to take several types of medication and use an aspirator. The appellant stated that while he had been drinking the two days preceding July 2, he did not drink any alcoholic beverages on that day. The appellant related that he went to Fort Worth accompanied by his housekeeper, and wife at the time of trial, Teresa Finoglio. After depositing his disability check in the bank, the appellant paid several bills. He then drove to the house of Finoglio's daughter where he left Finoglio to visit her four youngest children. After he went to the commissary at Carswell Air Force Base, the appellant returned after 6 o'clock to pick up his housekeeper and her children. Before leaving Fort Worth, the appellant stopped and bought two 12-packs of beer, which he did not open. They then proceeded to Irene Dawson's house in order to deliver some grocery items and left the Dawson residence at approximately 7:30 p. m. During this time, Finoglio had some beer to drink, but the appellant did not drink anything.

After they left Dawson's house, the appellant noticed a vehicle approaching, heading into his lane of traffic. The appellant swerved to the right but was still in the path of the oncoming car. He turned the wheel sharply to the left to miss the car, but when he tried to turn the truck back to the right the steering wheel locked. The appellant hit the ditch on the other side of the road and lost consciousness.

Teresa Finoglio Parr, the appellant's wife at the time of trial, corroborated the appellant's testimony. She stated that she did have a beer when she left her daughter's house and again at Irene Dawson's house. However, she testified that she did not see the appellant drink during the day. Concerning the accident, she stated that when they swerved left to avoid the oncoming car the steering wheel apparently locked. After the collision, the appellant appeared unconscious.

Irene Dawson testified that when the appellant left her house at 7:30 p. m. he appeared normal and was not intoxicated. The defense also introduced testimony from a bank teller and an electric company employee who testified that, during their dealings with the appellant on July 2, the appellant was not intoxicated.

Ernest McDaniel, the manager of a service station, testified that he examined the steering mechanism on the appellant's truck after the accident. He stated that the locking mechanism was not working properly and the steering wheel was in a locked position which could not be unlocked.

In his fourth ground of error, the appellant contends that the definition of intoxication under V.T.C.A., Penal Code, Sec. 19.05(b) is "too broad to meet the constitutional test of certainty and is unduly vague." V.T.C.A., Penal Code, Sec. 19.05(b) provides:

"For purposes of this section, 'intoxication' means that the actor does not have the normal use of his mental or physical faculties by reason of the voluntary introduction of any substance into his body."

Appellant argues that the statutory wording which condemns the voluntary introduction of Any substance into the body fails to give adequate or proper notice to the citizenry as to what conduct will be considered criminal on their part. As this Court stated in McMorris v. State, 516 S.W.2d 927:

"A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed.2d 989 (1953), and if it encourages arbitrary and erratic arrests and convictions. Papachristou v. City of Jacksonville, supra; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed.2d 1093 (1940); Herndon v. Lowrey, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed.2d 1066 (1937).

A clear and precise statute may nevertheless be overbroad if in its reach it prohibits constitutionally protected conduct."

Appellant argues that the statute does not give notice to the citizens of this State which substances are prohibited by Sec. 19.05(b) and that such statute condemns protected conduct. Specifically, appellant points out that the statute, in its reach, might prohibit the driving of a motor vehicle while a person is voluntarily taking a drug prescribed by a physician, such as a tranquilizer or an antihistamine.

It is presumed that, in enacting a statute, the entire statute is intended to be effective, a just and reasonable result is intended, and a result feasible of execution is intended. Lovell v. State, Tex.Cr.App., 525 S.W.2d 511; Article 5429b-2, V.A.C.S. In viewing Sec. 19.05 as a whole, we find that Sec. 19.05(b) seeks to define, and thereby prohibit under Sec. 19.05(a)(2) a specific type of conduct. The conduct condemned is when a person operates a motor vehicle when such person does not have the normal use of his mental and physical faculties and such conduct causes the death of an individual. As can be readily seen from this paraphrase of the statute, the statute does not focus on what substance or substances a person introduces into his body. Rather, the statute condemns only that conduct when, having voluntarily introduced a...