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                                             OPINION

                                        No. 04-08-00633-CR

                                         Joe Don BAILEY,
                                             Appellant

                                                  v.

                                         STATE of Texas,
                                            Appellee

                          From the County Court, Bandera County, Texas
                                    Trial Court No. 07-00665
                           Honorable Richard A. Evans, Judge Presiding

Opinion by:      Steven C. Hilbig, Justice

Sitting:         Catherine Stone, Chief Justice
                 Phylis J. Speedlin, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: October 28, 2009

REVERSED; JUDGMENT OF ACQUITTAL RENDERED

           Appellant, Joe Don Bailey, appeals his conviction for obstructing a highway. Bailey

complains the evidence is legally and factually insufficient to support a finding he intentionally,

knowingly, or recklessly obstructed the roadway. We reverse the judgment of the trial court and

render a judgment of acquittal.
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                                           BACKGROUND

       At approximately 1:45 a.m. on November 23, 2007, Bailey had a single-vehicle accident

while driving his three-quarter ton Dodge crew cab truck on Bear Springs Road in Bandera County,

Texas. After the accident, Bailey’s truck was lying on its side, straddling the road, and partially

blocking both lanes of travel. Bailey immediately called a friend, William Wyman III, and told him

about the accident. Wyman drove to the accident scene. Wyman then called his sister Rachael and

she and her friend Jerald Alex Donaldson went to the scene. Donaldson testified he never saw

Bailey at the accident site. Wyman returned to Rachael’s house, and Donaldson called Frank Roller,

a friend who operated a tow truck, to come remove Bailey’s truck from the road.

       When Roller arrived with his wrecker at approximately 3:30 a.m., Bailey was not present,

but Donaldson was still there. Using his tow truck, Roller righted Bailey’s truck and moved it to

the side of the road. About this time, Bandera County deputy sheriffs arrived and began an

investigation. Collectively, the deputies testified they were concerned whether the driver of the truck

had been injured and wanted to locate him. The deputies described the people at the scene as

somewhat uncooperative, and testified they told the deputies that the driver was uninjured.

       Several witnesses testified Bailey’s truck created a hazardous condition on the road.

Witnesses described the road as a two-lane, unlit, small, winding, and dangerous road, and that a

person could not see the truck until nearly “on top” of it. The deputies identified Bailey as the owner

of the truck through insurance papers found in the vehicle.

       Bailey was subsequently charged with obstructing a highway. See TEX . PENAL CODE ANN .

§ 42.03 (Vernon 2003). The jury found him guilty and the trial judge imposed a sentence of a $1,000


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fine and 180 days in jail. The jail sentence was suspended and Bailey was placed on probation for

six months. Bailey complains the evidence is legally and factually insufficient to support a finding

he intentionally, knowingly, or recklessly obstructed the roadway.

                                     STANDARD OF REVIEW

        We review the evidence for legal sufficiency by looking at all of the evidence in the light

most favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Prible v. State, 175 S.W.3d 724, 729-

30 (Tex. Crim. App.), cert. denied, 546 U.S. 962 (2005). We resolve any inconsistencies in the

testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). In

a factual sufficiency review, we view the evidence in a neutral light and ask whether the evidence

supporting the verdict is so weak or so against the great weight and preponderance of the evidence

as to render the verdict manifestly unjust. Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App.

2008). We cannot hold the evidence factually insufficient merely because there are “reasonably

equal competing theories of causation.” Steadman v. State, 280 S.W.3d 242, 247 (Tex. Crim. App.

2009) (quoting Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001)).

                                           DISCUSSION

        Bailey was charged with obstructing a highway pursuant to section 42.03 of the Texas Penal

Code. The information filed in this case tracked the language of section 42.03, which provides in

part:

        (a) A person commits an offense if, without legal privilege or authority, he
        intentionally, knowingly, or recklessly:

               (1) obstructs a highway, street, sidewalk, railway, waterway, elevator,
               aisle, hallway, entrance, or exit to which the public or a substantial


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                 group of the public has access, or any other place used for the passage
                 of persons, vehicles, or conveyances, regardless of the means of
                 creating the obstruction and whether the obstruction arises from his
                 acts alone or from his acts and the acts of others[.]

                                                   *    *    *

        (b) For purposes of this section, “obstruct” means to render impassable or to render
        passage unreasonably inconvenient or hazardous.

TEX . PENAL CODE ANN . § 42.03 (Vernon 2003).

        The parties disagree on the mental state or mens rea required by the statute. Bailey contends

the State was required to prove he acted intentionally, knowingly, or recklessly at the time his truck

blocked the roadway. The State contends Bailey acted “recklessly,” thereby supplying the requisite

mens rea, when he left the vehicle in the roadway without either removing the truck or taking

precautions to warn motorists the road was blocked.

        We must consider the nature of the crime in order to apply the mens rea requirement of

section 42.03. Texas law generally classifies a crime as either result-oriented (e.g., injury to a child,1

murder2), conduct-oriented (e.g. credit card abuse,3 aggravated sexual assault4), or nature of the

circumstances-oriented (unauthorized use of motor vehicle5). See Huffman v. State, 267 S.W.3d

902, 905-09 (Tex. Crim. App. 2008). The parties have not cited nor have we found any Texas case

that has considered the nature of the crime of obstructing a highway. Based on a plain reading of



        1
         … Jefferson v. State, 189 S.W .3d 305, 312-14 (Tex. Crim. App.), cert. denied, 549 U.S. 957 (2006).

        2
         … Lugo-Lugo v. State, 650 S.W.2d 72, 80-81 (Tex. Crim. App. 1983).

        3
         … Huffman v. State, 267 S.W.3d 902, 906 (Tex. Crim. App. 2008).

        4
         … Vick v. State, 991 S.W.2d 830, 832-33 (Tex. Crim. App. 1999).

        5
         McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989).

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the statute, we conclude obstructing a highway is a conduct-oriented crime, i.e. a person must engage

in the conduct with the requisite mental state. Accordingly, the State was required to show Bailey

intentionally, knowingly, or recklessly engaged in the act or acts that caused his truck to obstruct the

highway. Contrary to the State’s argument, it would not be an offense if Bailey formed the “intent”

to obstruct the highway at a later time because generally, the mens rea must exist at the time the act

is performed. See, e.g., Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994) (holding “in

order to constitute a crime, the act or actus reus must be accompanied by a criminal mind or mens

rea”); Hobbs v. State, 175 S.W.3d 777, 782 n.3 (Tex. Crim. App. 2005) (holding “intent to commit

the felony or crime of theft, essentially necessary to constitute the crime of burglary, must exist at

the time of and accompany the entry into the house”); Peterson v. State, 645 S.W.2d 807, 811 (Tex.

Crim. App. 1993)(holding that to constitute theft, intent to deprive owner must exist at time property

is taken).

        There is no evidence to support the jury’s determination Bailey intentionally, knowingly, or

recklessly obstructed the road. The State consistently referred to Bailey’s wreck as an accident and

nothing in the record contradicts that characterization. There is no evidence upon which a rational

jury could have found all the essential elements of the offense beyond a reasonable doubt. The

evidence is therefore legally insufficient to support the trial court’s judgment.

                                            CONCLUSION

        The judgment of the trial court is reversed and we order the entry of a judgment of acquittal.

                                                        Steven C. Hilbig, Justice

PUBLISH




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