                                    NO. 07-01-0140-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                      APRIL 26, 2002

                          ______________________________


                            JOHN DAVID HURD, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

   FROM THE COUNTY CRIMINAL COURT AT LAW NO. 2 OF HARRIS COUNTY;

               NO. 1027078; HONORABLE MICHAEL PETERS, JUDGE

                          _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       In three issues, appellant John David Hurd challenges his conviction for the

misdemeanor offense of driving while intoxicated and the jury-assessed punishment of 21

days confinement in the Harris County Jail and a fine of $2,000. In those issues, he

contends the evidence is legally and factually insufficient to establish that he was operating

a motor vehicle and the trial court erred in admitting into evidence an exhibit that contained

hearsay. For the reasons explicated, we affirm the judgment of the trial court.
       On October 20, 2000, appellant was driving a motor vehicle on Spring-Stuebner

Road in Harris County. At the intersection of Falvel Road, a car driven by Jennifer Carroll

pulled out into the road and was struck by appellant’s vehicle. Carroll received a citation.

After the collision, a witness to the accident, Drue Ella Pean, observed appellant remove

some beer from his vehicle and hide it in the nearby woods. She reported that fact to the

investigating police officer, and appellant eventually led the police to the location of the

beer. After being observed with the smell of alcohol on his breath, appellant was given

field sobriety and intoxilyzer tests. Appellant registered a .091 and a .094 on the test,

which is above the level permitted by law.


       In his first two issues, appellant challenges the legal and factual sufficiency of the

evidence to prove he was operating a motor vehicle. He argues that the State failed to

present any evidence that he was operating a motor vehicle on the date of the accident

alleged in the information because neither Carroll nor Pean testified he was operating a

motor vehicle in a public place on October 20, 2000. In support of his position, he relies

on Pean’s following testimony:


       Q. Ms. Pean, you testified that you saw the defendant come out of the truck
       toward you?

       A. The first time?

       Q. Yes.

       A. Yes, ma’am.

       Q. Do you see who you have later learned to be John Hurd in this courtroom
       today?


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       A. Yes, ma’am.

       Q. Could you point to him and identify a piece of clothing that he’s wearing?

       A. He’s wearing a brown tie.

       Q. Okay. Could you point to him, please?

       A. I’m sorry. (Witness pointing.)

       MS. KIDD: Okay. At this time, may the record reflect that the witness has
       identified the defendant?

       THE COURT: Any objections to that, Mr. Hutson?

       MR. HUTSON: No, Judge.

       THE COURT: All right. There being no objections, the record will reflect the
       identification made of the defendant, John David Hurd.

       Q. (By Ms. Kidd) And ma’am, is that the person that you saw driving the
       other vehicle involved in this accident today?

       A. Yes, ma’am.

                                           *   *   *


Appellant further relies on Carroll’s following testimony:


                                           *   *   *
       Q. And what happened after you came to a stop?

       A. He got out of his car.

       Q. Did you see him get out of the car?

       A. No.

       Q. Okay. When did you first see him?

       A. When he was coming up to me to see if I was all right.

                                               3
       Q. Okay. And where – did you see where he came from?

       A. No, ma’am.

       Q. Do you know what direction he came from?

       MR. HUTSON: I would object, Judge, she already answered she did not see
       where he came from.

       THE COURT: Overruled. You can answer the question.

       A. He came from over here.

       Q. (By Ms. Kidd) And when was the first time that you actually saw him or
       his person?

       A. When I heard him asking if I was all right. That night.

       Q. And where was he standing when he asked you that?

       A. About midway between my car and his.

                                          *    *   *


       A person commits the offense of driving while intoxicated if he is intoxicated while

operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon

Supp. 2002). In reviewing a legal sufficiency challenge, we view the evidence in the light

most favorable to the prosecution and determine if any rational trier of fact could have

found the essential elements 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). In reviewing the

factual sufficiency challenge, we view all the evidence without the prism of in the light most

favorable to the prosecution, and we may only set the verdict aside if it is so contrary to the




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overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State,

922 S.W.2d 126, 129 (Tex.Crim.App. 1996).


       Identity may be proved by direct or circumstantial evidence. Earls v. State, 707

S.W.2d 82, 85 (Tex.Crim.App. 1986). In Hernandez v. State, 13 S.W.3d 78 (Tex.App.--

Texarkana 2000, no pet.), the evidence was found to be legally and factually sufficient to

support the verdict where witnesses, immediately after the accident, placed the defendant

on the driver’s side of a pickup truck belonging to him, even though they could not place

him behind the wheel and he claimed someone else, whom he could not identify, was

driving. Id. at 80-81.


       While it is true that Carroll could not state she saw appellant driving the other vehicle

that collided with her, Pean, a witness to the accident, testified that she saw the driver of

the other vehicle get out of his truck and run toward her and Carroll. He approached the

women close enough the first time to ask if they were all right. The second time he

approached the two women, he began to yell at them. Pean positively identified appellant

as the man in the other vehicle.


       Appellant argues that, because Pean identified him as that “person that you saw

driving the other vehicle involved in this accident today,” she identified him on the date of

her testimony, not October 20, 2000.        Since there had been no testimony about any

accident occurring on the date of trial and appellant was not on trial for any such offense,

such a construction of the testimony is not necessarily a reasonable inference. However,



                                               5
even if that particular statement is disregarded, Pean still stated she observed the accident,

saw him get out of the truck involved in the accident from the driver’s side, and identified

appellant as that man. Furthermore, Deputy Sean Riley testified that appellant made a

statement after the accident that he “had two passengers.” Appellant also stated, “[l]ook

at my truck, I finally got it fixed and now it’s wrecked again.” The evidence is both legally

and factually sufficient to support a finding that appellant was operating a motor vehicle.

Appellant’s first two issues are overruled.


       In his third issue, appellant complains of the admission into evidence of an exhibit,

which consisted of a diagram of the accident scene prepared by an unidentified police

officer. The exhibit was offered through Carroll, who testified that she was familiar with the

objects and locations in the diagram, that it was a fair and accurate portrayal of the

accident scene as she remembered it, and that the drawing was not to scale. Appellant

objected on the basis that, upon his voir dire examination, Carroll indicated the exhibit was

drawn by a police officer who did not discuss it with her and was based on hearsay. The

court overruled the objection.1


       Hearsay is a statement made other than by the declarant offered into evidence to

prove the truth of the matter asserted. Tex. R. Evid. 801(d). A “statement” is an oral or

written verbal expression or nonverbal conduct of a person, if it is intended by the person



       1
       The State argues that error was waived by a failure to continually object to several
pages of Carroll’s testimony concerning the exhibit. However, the court had already
admitted the exhibit prior to that testimony. The exhibit had also been admitted prior to
Pean’s testimony.

                                              6
as a substitute for verbal expression. Tex. R. Evid. 801(a). The basis for the rule against

hearsay is that such testimony is not subject to testing through cross-examination. Matz

v. State, 14 S.W.3d 746, 747 (Tex.Crim.App. 2000).


       In Mayfield v. State, 848 S.W.2d 816 (Tex.App.--Corpus Christi 1993, pet. ref’d), the

defendant argued that a diagram drawn by the prosecutor was unsworn hearsay testimony.

However, the police officer testified that the diagram was a fair representation of a specific

high school and he assisted in drawing it. Based on that testimony, the court found the

diagram to have been properly admitted. Id. at 819.


       In this instance, while Carroll did not draw the diagram or instruct the police officer

how to do so, those facts do not automatically render the diagram hearsay. Carroll

essentially adopted the diagram as her own based on her direct knowledge of the accident

scene. Thus, the diagram was not offered as the police officer’s statement as to how the

accident occurred, but was offered as Carroll’s statement after her authentication of it.

Furthermore, she was fully available for cross-examination as to her testimony on matters

related to the diagram and how the accident occurred. Pean also authenticated the exhibit

by identifying the diagram as showing the direction of travel and street names where the

accident occurred, and she testified it was a fair and accurate representation of the scene

as she remembered it, except the diagram was not drawn to scale.


       Even if the diagram constituted hearsay, its admission is not constitutional error.

Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998); Lee v. State, 21 S.W.3d



                                              7
532, 538 (Tex.App.--Tyler 2000, no pet.). Both Carroll and Pean were capable of testifying

as to the location of the streets at the accident scene and the location of the vehicles

involved both prior to and after the accident without the benefit of the diagram. The exhibit

merely served to assist the jury in a demonstrative manner in understanding those facts

more easily. Therefore, appellant’s substantial rights were not affected because any error

did not influence or only slightly influenced the jury. See Tex. R. App. P. 44.2 (b).

Appellant’s third issue is overruled.


       Having found no reversible error, we affirm the judgment of the trial court.



                                                  John T. Boyd
                                                   Chief Justice

Do not publish.




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