McCollum v. State

ON appellant’s motion for rehearing

DICE, Judge.

Appellant strenuously insists that the evidence is insufficient to sustain the conviction because there was no proof that his automobile struck either the injured party or the motorcycle upon which he was riding, but on the contrary the evidence shows that the motorcycle struck appellant’s automobile. Appellant insists that, upon such facts, the conviction cannot be sustained under our holding in Fannin v. State, 168 Tex. Cr. R. 593, 331 S.W. 2d 47.

Under the facts, we do not deem Fannin v. State, supra, here controlling.

In the Fannin case, the information alleged that the accused “collided” with Linda M. Hamilton, the injured party, and the evidence was undisputed that the automobile in which she was riding ran into the automobile driven by the accused. There was an absence of any proof that the accused “collided” with the injured party as alleged in the information. In the case at bar, the information did not allege that appellant committed the aggravated assault by “colliding” with Foursee McFadden, Jr., the injured party, but that he committed the assault “* * * by then and there negligently colliding with a motor vehicle, to-wit, a motorcycle * * * being driven by the said Foursee McFadden, Jr. * * *.” The evidence adduced in the instant case, including the testimony of the two investigating officers, is sufficient to *161support the finding of the jury that appellant negligently collided with the motorcycle being driven by the injured party as alleged in the information.

Remaining convinced that a proper disposition was made of the case in our opinion on original submission, the motion for rehearing is overruled.

Opinion approved by the Court.