AT AUSTIN
NO. 3-93-049-CR
RONALD J. HUTCHISON,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
NO. 371,488, HONORABLE DAVID PURYEAR, JUDGE PRESIDING
PER CURIAM
The county court at law found appellant guilty of driving while intoxicated, first offense. Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (West Supp. 1993). The court assessed punishment at incarceration for 180 days and a $1000 fine, probated.
Shortly after 10:30 p.m. on August 9, 1991, Donald Thomas and his wife heard a "horrendous noise, which we recognized being a vehicle crash" outside their house near Pflugerville. While his wife called for help, Thomas drove to the scene of the accident near the intersection of Cameron Road and Pflugerville Road East, approximately 100 yards from the Thomas house. Thomas found a badly damaged pickup truck with the engine still running in a culvert on his property. Appellant was lying on the ground just behind the vehicle, unconscious and obviously injured. Thomas saw no one else in or near the truck.
Officer Dwayne Pruitt arrived at the scene a few minutes later. Pruitt determined that the pickup had rolled over and landed upright. Appellant smelled strongly of alcoholic beverage, and the officer found a cold can of beer beside the truck. From a check of vehicle records, the officer determined that the truck was registered to appellant. Appellant was taken to the hospital where a blood test revealed an alcohol concentration of 0.31. See art. 6701l-1(a)(2)(B).
In his first point of error, appellant contends the evidence is legally insufficient to prove that he was driving the pickup truck at the time and place in question. Appellant argues that the evidence does not exclude the reasonable hypothesis that someone else was driving the truck and walked away from the accident before Thomas and Pruitt arrived. Appellant relies on the opinions in Ballard v. State, 757 S.W.2d 389 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd) and Reddie v. State, 736 S.W.2d 923 (Tex. App.--San Antonio 1987, pet. ref'd).
Ballard and Reddie are distinguishable from this cause because they are based on the reasonable alternative hypothesis construct abandoned by the Court of Criminal Appeals in Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). In Geesa, the court ruled that appellate courts are no longer to use the reasonable alternative hypothesis construct to determine the sufficiency of circumstantial evidence. Id. at 161. We hold that from the evidence in this cause, a rational trier of fact could infer beyond a reasonable doubt that appellant was the driver of the pickup truck at the time of the accident. See Jackson v. Virginia, 443 U.S. 307 (1979); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). Even in the absence of the Geesa holding, we would find the evidence sufficient because appellant's alternative hypothesis is based on pure speculation. Pope v. State, 802 S.W.2d 418, 420 (Tex. App.--Austin 1991, no pet.). Point of error one is overruled.
Appellant's second point of error also challenges the legal sufficiency of the evidence, this time with regard to the proof that he drove the vehicle in a public place. Appellant notes that the ditch in which the truck was found was shown to be on Thomas's property. Appellant argues that there is no evidence that either Cameron Road or Pflugerville Road East are public roads. Finally, he urges that the evidence does not establish that the only access to the ditch was by public road or highway, and thus does not exclude the possibility that he was driving on private property. In support of these contentions, appellant cites Nelson v. State, 628 S.W.2d 451 (Tex. Crim. App. 1982).
Again, the opinion on which appellant relies is both factually and legally distinguishable. Nelson was decided before Geesa and expressly relied on the reasonable alternative hypothesis construct that does not apply in this cause. Nelson, 628 S.W.2d at 453. In addition, Nelson was decided at a time when article 6701l-1 required proof that the accused was driving upon a public road or highway. Act of May 28, 1979, 66th Leg., R.S., ch. 682, § 3, 1979 Tex. Gen. Laws 1608, 1609 (Tex. Rev. Civ. Stat. Ann. art. 6701l-1, since amended). In this cause, the State was required to prove only that appellant was driving in a public place. Art. 6701l-1(b). A "public place" means any place to which the public has access and includes, but is not limited to, streets and highways. Tex. Penal Code Ann. § 1.07(29) (West 1974).
Thomas repeatedly referred to the "highway" bordering his property. Thomas also said, when describing the sound of the accident, "We live near an intersection; we've heard it before." This implies that the accident occurred in an area to which the public has access. Finally, Thomas testified that appellant's truck badly damaged the fence surrounding his property. Since appellant's truck was found inside the fence, this strongly suggests that appellant lost control of the vehicle while outside the fence, and was not driving inside the fence on Thomas's property. We hold that a rational trier of fact could find beyond a reasonable doubt that appellant was driving his pickup in a public place when he lost control, crashed through the fence, and came to rest on Thomas's property. Point of error two is overruled.
The judgment of conviction is affirmed.
[Before Justices Powers, Kidd and B. A. Smith]
Affirmed
Filed: June 30, 1993
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