
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?

	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.

	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
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,
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
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
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.
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. 

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NO. 07-10-00242-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL C
 

JULY
13, 2011
 

 
CHRYSTOPHER DON PRECIADO, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 47TH DISTRICT COURT OF
POTTER COUNTY;
 
NO. 60,196-A; HONORABLE RICHARD DAMBOLD, JUDGE

 

 
Before QUINN,
C.J., and HANCOCK and PIRTLE, JJ.
 
OPINION
            Appellant,
Chrystopher Don Preciado,
was indicted on two counts of aggravated robbery,[1]
enhanced by allegations of one prior felony conviction.  A jury convicted appellant on both counts
and, after appellant pleaded true to the enhancement allegation, sentenced
appellant to confinement in the Institutional Division of the Texas Department
of Criminal Justice for a period of 40 years on each count with the sentences
to run concurrently.  Appellant filed a
motion for new trial contending that there was but one offense, and that the
convictions were barred by considerations of being convicted and punished twice
for the same offense.  The trial court
sustained the motion for new trial as to count II and the State filed a motion
to dismiss count II of the indictment, which the trial court granted.  Appellant appeals contending that the trial
court erred in not granting a new trial as to the entire indictment.  We affirm.
Factual & Procedural Background[2]
            John
Perez, the victim of the aggravated robbery, was accosted at knifepoint on July
17, 2009, and robbed of his wallet. 
Appellant was subsequently arrested for the offense.  When appellant was indicted, the indictment
alleged two counts of aggravated robbery. 
The first count alleged aggravated robbery by,
intentionally, knowingly, or recklessly caused bodily injury to John Perez by
cutting him with a knife, and the defendant did then and there use and exhibit
a deadly weapon, namely, a knife, . . . .
The second count of the indictment
alleged aggravated robbery by,
intentionally or knowingly threaten and place John Perez in fear of imminent bodily
injury and death, and the defendant did then and there use and exhibit a deadly
weapon, to-wit: a knife, . . . .
            At
trial, the court submitted both counts and the jury returned a verdict of
guilty as to each.  After appellant
pleaded true to the enhancement allegations during the punishment phase of the
trial, the jury returned a sentence of confinement for 40 years on each
count.  
            Appellant
then filed a motion for new trial alleging that the indictment simply alleged
two different manner and means of committing but one incident of aggravated
robbery.  The State agreed with appellant
that there was only one aggravated robbery. 
The trial court granted the motion for new trial as to count II and the
State subsequently dismissed that count. 
Appellant then perfected his appeal contending that the trial court
erred when it did not grant the motion for new trial as to the entire
case.  We will affirm.
Standard of Review
            We review the granting or denial of a motion for new
trial under an abuse of discretion standard. 
Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). 
As the reviewing court, we do not substitute our judgment for that of
the trial court, rather we decide whether the trial
courts decision was arbitrary and unreasonable.  Id. 
Further, we must view the evidence in the light most favorable to the
trial courts ruling and presume all reasonable factual findings that could
have been made against the losing party were made.  Id. 
Accordingly, a trial court abuses its discretion by denying a motion for
new trial only when no reasonable view of the record could support the trial
courts ruling.  Id.
Analysis
            Appellants
contention is straight forward.  Simply
put, appellant contends that since the indictment was not truly one indictment
with two counts, but rather one indictment with two paragraphs alleging
different manner and means to commit the single offense of aggravated robbery,
the trial courts action in granting the motion for new trial had to extend to
the entire indictment.  To support this
proposition, appellant cites the Court to Texas Rule of Appellate Procedure
21.9(b);[3]
State v. Bates, 889 S.W.2d 306 (Tex.Crim.App.
1994); Reed v. State, 516 S.W.2d 680 (Tex.Crim.App.
1974); and Sanders v. State, 832 S.W.2d 719 (Tex.App.Austin
1992, no pet.).  We will review the applicability
of these citations to appellants issue.
            As
an initial matter, we look to rule 21.9(b). 
This rule provides that, if a motion for new trial is granted, the case
is restored to the position it was in before the former trial was conducted.  This leads to the question of what was the
former position of the case before the former trial was conducted?  To answer this question, we turn to the Texas
Code of Criminal Procedure.[4]  Article 21.24(a) provides that,
Two or more offenses may be joined in a single
indictment, information, or complaint, with each offense stated in a separate
count, if the offenses arise out of the same criminal episode, as defined in
Chapter 3 of the Penal Code.
Criminal episode is defined in
section 3.01 of the Texas Penal Code as,
In this chapter, criminal episode means the
commission of two or more offenses, regardless of whether the harm is directed
toward or inflicted upon more than one person or item of property, under the
following circumstances:
(1)         
the offenses are
committed pursuant to the same transaction or pursuant to two or more
transactions that are connected or constitute a common scheme or plan; or
 
(2)         
the offenses are the repeated commission of the same or
similar offense.
See Tex. Penal Code Ann. § 3.01 (West
2011).[5]  When read together, these provisions give the
complete legal landscape for using an indictment to allege offenses in multiple
counts within an indictment.  Appellants
reference to rule 21.9(b) gives an incomplete picture of the results of the
trial courts granting a new trial as to count II.  After reviewing the indictment in question,
it is clear that the State did, in fact, allege a completed offense in each of
the two counts.  Appellant did not object
to the indictment prior to trial; rather the record reflects that his objection
was made during the charge conference about what the jury would be allowed to
consider in rendering its verdict.  To
the extent appellants argument might be construed to be an objection to the
indictment, the same has been waived.  See
Rule 33.1(a)(1). 
The fact that the State erred in attempting to allege the incident in
two counts does not change the fact that it was alleged in two separate counts
and not in paragraphs.
            Appellant
first cites us to Bates, 889 S.W.2d 306, for the proposition that the
granting of the new trial places the case back in the position it was in before
the trial.  That is correct, however, the
factual and procedural posture of Bates was far removed from the case at
bar.  In Bates, the trial court attempted
to grant a new trial on the issue of punishment only.  Id. at 308.  The Court of Criminal Appeals pointed out
that the trial court was not one of the courts, enumerated in art. 44.29, with
the authority to order a new trial on punishment only, therefore the effect of
the order was to place the case back into its posture before trial.  Id. at 310.   
            Appellant
next contends that the case of Reed, 516 S.W.2d at 680, controls our
disposition of this case.  We cannot
agree with appellants reading of Reed. 
Reed dealt with the effect of the trial court granting a new
trial on the basis of the appellants having filed a pro se notice of appeal following a guilty plea wherein the
appellant had waived the right of appeal. 
Id. at 681-82.  The issue was whether or not the notice of
appeal could be treated as a motion for new trial, and the court said that it
could.  Id. at
682.  The court stated that the
action of the trial court in granting a new trial should not be subject to
review by this Court except where it is contended that the trial court was
without jurisdiction. . . .  Id.  Such was not the claim, and the court
affirmed the new trial.  Id.  Rather than supporting the position of
appellant, our reading of Reed seems to support the granting of a new
trial as to count II since appellant does not challenge the trial courts
jurisdiction to grant a new trial.
            Appellants
citation to Sanders, 832 S.W.2d 719, simply states that, when a new
trial for punishment only is granted by an intermediate appellate court, the
case begins again as if a finding of guilt had been returned by the jury.  Id. at 721.  This provides the Court with no direction
about the disposition of the matter before us.
            Appellant
then cites us to Hathorn v. State, 848
S.W.2d 101 (Tex.Crim.App. 1992), for the proposition
that, when an indictment alleges different paragraphs setting out the manner
and means of commission of an offense, the separate paragraphs are not subject
to severance as provided in sec. 3.04(a). 
Id. at 113.  That is a correct proposition; however, this
proposition does not control our disposition of the case.  The indictment in Hathorn
was set forth in one count with three paragraphs.  Id. 
Essentially, appellant is asking the Court to treat the separate counts,
admittedly erroneously pleaded, as a pleading of separate paragraphs.  We find no authority for this proposition and
decline to do so.  
            Our
jurisprudence provides that, when an appellant has been subjected to multiple
punishments for the same conduct, the proper remedy on appeal is to affirm as
to the most serious offense and to vacate the other convictions.  See Bigon
v. State, 252 S.W.3d 360, 372-73 (Tex.Crim.App. 2008). 
We find no legal reason that the trial court, when made aware of the
violation of the rule against multiple punishments for the same conduct, cannot
affect the same result by granting a motion for new trial.  More especially, when the error occurred in
the context of an indictment presented in separate counts, we have found no bar
to the action taken by the trial court in the present case.  In the final analysis, we hold that the trial
court did not abuse its discretion in granting the new trial as to count
II.  See Charles, 146 S.W.3d at 208. To hold otherwise would be to force
appellant to appeal the multiple convictions and, ultimately, have the
appellate court take the exact same course of action that the trial court has
taken in this case.  Such a holding would
be a waste of judicial resources and require a needless appeal.  Our holding is made more compelling by the
lack of any known prohibition against the trial court taking such an action.  Accordingly, we overrule appellants issue.
 
 
 
Conclusion
            Having
overruled appellants issue, we affirm the judgment of the trial court.
 
 
                                                                                                Mackey
K. Hancock
                                                                                                            Justice




 
Publish.
 
 




[1]  See Tex. Penal Code Ann. § 29.03 (West 2011).


[2] Appellant is not challenging the sufficiency of the
evidence to sustain the conviction, therefore, only
limited factual matters will be discussed.


[3] Further reference to the Texas Rules of Appellate
Procedure willl be by
reference to Rule ___ or rule ___.
 


[4] Further reference to the Texas Code of Criminal
Procedure willl be by
reference to Art. ___ or art. ___.


[5] Further reference to the Texas Penal Code willl be by reference to sec. ___ or § ___.


