Ross v. State , 166 Tex. Crim. 442 ( 1958 )

DICE, Judge.

The conviction is for murder without malice under Art. 802c, V.A.P.C.; the punishment, two years in the penitentiary.

The sufficiency of the evidence to support the conviction is challenged.

The state’s testimony shows that the deceased was killed in a collision on Highway 73 in Harris County between a motorcycle on which he was riding with a companion and an automobile. The collision occurred between ten and eleven o’clock P.M. and according to the state’s testimony, after the collision, the motorcycle was under the right front wheel of the automobile and had been carried approximately 524 feet from the point of impact.

Officer T. W. Leonard testified that he went to the scene on the night in question to investigate the collision and took into custody a man whom he determined to be the driver of the automobile involved, who identified himself as B. W. Ross; that he took Ross from the scene to the Pasadena General Hospital where, with his consent, a blood sample was taken from him and later, after being duly warned, he took a written statement from him; and that while going to the hospital Ross talked with a thick tongue; had a smell of alcoholic beverage on his breath and that at such time he formed the opinion that he was intoxicated. Officer Leonard further testified that he could not identify the appellant as the B. W. Ross who was at the scene of the collision and from whom the blood specimen and written statement was taken.

The testimony further shows that the blood specimen taken from B. W. Ross, upon being examined by Chemist McDonald, was shown to contain .22% alcohol by weight from which results the chemist testified he determined that the person whose blood was examined had been intoxicated. A portion of the written statement of B. W. Ross given to Officer Leonard was introduced in evidence by the state in which Ross stated that on the night in question, after drinking two beers, he was driving a ’52 Chevrolet automobile which struck a motorcycle on which two men were riding. Appellant introduced the remaining portion of the statement wherein Ross further stated that at the time of the collision there were no lights burning on the motorcycle and that when he first saw it, it was so close that he could not miss it.

Mrs. Johnny Mae Isaacs, upon being called as a witness by the state, testified that on the night in question she was employed as a nurse at the Pasadena Hospital and had occasion to take a blood specimen from a B. W. Ross who had been brought to the hospital by Officer Leonard. While testifying Mrs. Isaacs positively identified the appellant as the B. W. Ross from whom she took the blood specimen. The state’s witness, Marvin Noye Coleman, testified that on the night in question he went to the scene of the collision and saw a man seated in a patrol car who he identified upon the trial as the appellant.

Appellant did not testify but recalled the witness Marvin Noye Coleman who testified that from his observation of the appellant after the collision, in his opinion, the appellant was not intoxicated. He further testified that before the collision he had observed the motorcycle on which the deceased was riding traveling on the highway without a tail light and with a flash light being used as a front light.

Appellant first insists that the court erred in admitting in evidence the written statement made to Officer Leonard because it was not shown that it was the appellant who gave the statement. While Officer Leonard could not identify the appellant as the person who gave him the statement he testified positively that the B. W. Ross who gave the statement and blood specimen was the same B. W. Ross whom he took custody at the scene of the collision. Appellant’s identity as such person was sufficiently shown by the testimony of Mrs. Isaacs, the nurse at the hospital, and the witness Coleman who identified appellant as the person he saw at the scene in the patrol car.

We find the evidence sufficient to sustain the jury’s verdict and overrule appellant’s remaining contention that the state failed to prove that he was the driver of the automobile involved in the collision, or that he was intoxicated, or if he was intoxicated, that such condition caused the death of the deceased. The operation of the motorcycle without a tail light and its manner of operation could not be urged by appellant as a defense as contributory negligence is no defense in cases of this nature. Anderson v. State, 135 Texas Cr. Rep. 104, 117 S.W. 2d 465 and Ruedas v. State, 143 Texas Cr. Rep. 291, 158 S.W. 2d 500.

The judgment is affirmed.

Opinion approved by the Court.