Opinion
No. 06-06-00173-CR.
January 24, 2007.
February 6, 2007. DO NOT PUBLISH.
On Appeal from the County Court at Law Harrison County, Texas Trial Court No. 2005-1497.
BEFORE MORRISS, C.J., CARTER AND MOSELEY, JJ.
MEMORANDUM OPINION
Van Lee Tollett appeals from a conviction by a jury on the class C misdemeanor offense of speeding. Tollett's speed was clocked by radar at seventy-three miles per hour along a section of road with a posted speed limit of sixty miles per hour. Tollett argues on appeal the trial court erred in denying his motion to quash, the information was fundamentally defective, the evidence was factually insufficient, and the evidence was legally insufficient. We affirm the judgment of the trial court.
I. Motion to Quash and Defective Information
Tollett argues, in his first two points of error, that the trial court erred in denying his motion to quash and that the information was fundamentally defective. The State contends that Tollett failed to preserve error and that the information was not defective because it met the requirements of Section 543.010 of the Texas Transportation Code. The information alleges Tollett "did then and there, operate a vehicle at a speed in excess of the limits established by Subsection (b) of the Texas Transportation Code to-wit: 73 mph in a 60 mph zone." According to Tollett, the information fails to charge an offense because: 1) it fails to allege Tollett operated a motor vehicle, 2) the phrase "Subsection (b)" is meaningless, and 3) the phrase "73 mph in a 60 mph zone" is unclear as a matter of law. In addition, Tollett contends the information was required to allege he was "operating a motor vehicle at a speed that was greater than reasonable and prudent under existing conditions, having regard for actual and potential hazards." In support of this argument, Tollett cites Eaves v. State, 171 Tex. Crim. 670, 353 S.W.2d 231 (1961). Historically, "fundamental" errors in the indictment could be challenged at any point in the proceedings. See, e.g., Morris v. State, 13 Tex. Ct. App. 65, 71 (1882); see also Cook v. State, 902 S.W.2d 471, 476 (Tex.Crim.App. 1995). In 1985, Texas voters approved an amendment to Section 12 of Article V of the Texas Constitution that the presentation of an indictment or information vests the trial court with jurisdiction over the case. See Tex. Const. art. V, § 12; see also Studer v. State, 799 S.W.2d 263, 272 (Tex.Crim.App. 1990). A defendant waives any defect of form or substance in an information if no objection is made before the date trial commences. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); Nam Hoai Le v. State, 963 S.W.2d 838, 843 (Tex.App.-Corpus Christi 1998, pet. ref'd) (exception for justice and municipal courts does not apply when there is a trial de novo in county court). Tollett has failed to direct this Court to the place in the record where he objected to any defect in the indictment. While Tollett filed a motion to quash and a motion to dismiss in the county court at law, he has not directed us to the page or pages in the record containing a ruling on these motions. Tollett has failed to preserve error. See Tex. R. App. P. 33.1(a).II. Legal Sufficiency of the Evidence
Tollett testified that, just before he was stopped for speeding, he had been passing a slow-moving semitruck. Tollett estimated the slow-moving semitruck was traveling approximately forty-five miles per hour. Because he was approaching a point where the highway merged from a four-lane highway into a two-lane highway, Tollett testified he needed to speed in order to safely pass the slow-moving semitruck. Tollett believed it was safer to exceed the speed limit than to pass the slow-moving truck at the speed limit. Tollett argues there is no evidence that he endangered another vehicle or that his speed was unsafe under existing circumstances. In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Section 545.352(a) provides, "[a] speed in excess of the limits established by Subsection (b) or under another provision of this subchapter is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful." See Tex. Transp. Code Ann. § 545.352 (Vernon Supp. 2006); see also Tex. Transp. Code Ann. §§ 545.353, 545.355, 545.356 (Vernon Supp. 2006). Because Trooper Jesse Mitchell testified Tollett exceeded the posted speed limit, a rational trier of fact could have found that Tollett's speed was not reasonable and prudent. The evidence is legally sufficient. We overrule Tollett's fourth point of error.III. Factual Sufficiency of the Evidence
In his third point of error, Tollett argues his testimony was sufficient to overcome the presumption created by his exceeding the posted speed limit. In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong and manifestly unjust or whether the great weight and preponderance of the evidence is contrary to the verdict. Johnson, 23 S.W.3d at 7; see Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996); see also Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). The record does contain some evidence Tollett's speed was reasonable. Tollett testified that his semi was not loaded and that he would not have passed the slow-moving semitruck if his semitruck had been loaded. According to Tollett, the road was clear of other traffic and his action did not endanger anyone. Tollett testified it was safer, in his opinion, to exceed the speed limit than to pass the slow-moving semitruck at the speed limit. The evidence, though, is factually sufficient. Evidence that a person was exceeding the posted speed limit is prima facie evidence that the speed was unreasonable. Trooper Mitchell testified that the posted speed limit was sixty miles per hour and that Tollett was traveling seventy-three miles per hour as clocked by radar. While no vehicle had to take evasive action or was endangered by Tollett's operation of his semitruck, Mitchell testified Tollett's speed could have posed a danger, particularly since a semitruck has greater weight and takes longer to stop than other vehicles. Further, Tollett could have avoided the possibility of violating the speed law had he not attempted to pass the other semitruck at that time. When considered in a neutral light, the evidence supporting the verdict is not so weak that the jury's verdict is clearly wrong and manifestly unjust. Further, the great weight and preponderance of the evidence does not indicate that Tollett's speed was reasonable and prudent. We overrule Tollett's third point of error. For the reasons stated, we affirm the judgment of the trial court. Jack Carter Justice Section 543.010 of the Texas Transportation Code requires a complaint on a charge of speeding to specify:
(1) the maximum or minimum speed limit applicable in the district or at the location; and
(2) the speed at which the defendant is alleged to have driven.
Tex. Transp. Code Ann. § 543.010 (Vernon 1999).
We note an instrument which is not an "information" under Article V, Section 12 of the Texas Constitution fails to vest the trial court with jurisdiction and can be raised for the first time on appeal. See Duron v. State, 956 S.W.2d 547, 555 (Tex.Crim.App. 1997); Cook, 902 S.W.2d at 479-80. "To comprise an [information] within the definition provided by the constitution, an instrument must charge: (1) a person; (2) with the commission of an offense." Cook, 902 S.W.2d at 476. "[A] written instrument is an indictment or information under the Constitution if it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the indictment is otherwise defective." Duron, 956 S.W.2d at 550-51. Even though the information in this case fails to allege Tollett was not driving at a speed that was reasonable and prudent under the circumstances then existing, it is sufficient to identify the penal statute under which the State intends to prosecute.