Hypothetical:

A truck loaded with 7 people crashes into a residence at 2:00 am. The truck actually hits a bed with 2 elderly people in bed and pushes if forward. Miraculously, no one is hurt or injured. The truck backs out and leaves the scene. There is material at the scene that leads to someone that was present in the truck. This leads to the owner of the truck and he is found about 4 hours after the incident. The truck is visibly damaged. The owner of the truck is contacted and he denies driving the vehicle. He has the odor of alcohol about his person. He claims a friend was driving at the time of the accident, and he drove home after the accident. His "friend" claims the owner was driving at the time of the accident. More people have been contacted and claim that the owner was driving at the time of the accident.

What possible charges do you see?



John

Who do you believe? At the very least, perjury, DWI, Insurance Fraud? (did he have insurance for him, but is trying to defraud another insurance co. by alleging some other driver?), reckless driving. Just some thoughts. Your best case, the dreaded DWI - have the other "driver" testify against him.

Felony criminal mischief, assuming the damage to the residence is $1,500 or more, and false report to a peace officer.

Well, leaving the scene is an obvious one, but how about failure to report a felony under new PC Sec. 38.171? Seems like crashing through a home and hitting a bed with a vehicle would qualify as something a reasonable person would believe to have resulted in SBI/death. You can charge all the involved parties with it and then see what shakes out ...

How about Duty on Striking Fixture or Highway Landscaping. TEX TRANS CODE sec. 550.025. That's only a B misdemeanor.

DWI and FTLI a nice one two, but your still going to have to prove he drove. Go Shannon's way you only have to prove he was there.

I was hoping to find a felony in there somewhere, but it doesn't look like I have one. Criminal Mischief requires intentional acts, not just a drunk idiot.

John

A person commits an offense if, without the effective consent of the owner, the person enters a habitation and commits an assault or a felony.

If you can show an injury, thereby an assault or FSRA, you could charge the guy with burglary. A felony FSRA charge could push it all the way to a first degree burglary.

Can you make this an assault by charging him with knowingly threatening injury against the couple? Since voluntary intoxication is no excuse, the culpable mental state may not be a problem. :Evidence of such intoxication does not negate the elements of intent or knowledge.: Hawkins v. State, 605 S.W.2d 586 (Tex.Cr.App.1980).

Under 38.171 you could charge everyone in the truck.

Under the Burg of a Hab theory, the intoxication would not be an excuse for intentional conduct, but you'd still have to prove the intentional conduct. I don't think it would be difficult for the driver to claim he lost control, and therefore did not intend, drunk or not, to hit the house.

Take a look at 550.021-3 of the Transportation Code. If someone was injured, you've got a felony charge.

And while we're on the subject, Shannon, explain that WHACKED punishment range. When is it a SJF? When is it a 3rd Degree?

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And while we're on the subject, Shannon, explain that WHACKED punishment range. When is it a SJF? When is it a 3rd Degree?

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When is what a SJF or 3F? I'm lost, Philip ...

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Originally posted by Philip D Ray:

Under the Burg of a Hab theory, the intoxication would not be an excuse for intentional conduct, but you'd still have to prove the intentional conduct. I don't think it would be difficult for the driver to claim he lost control, and therefore did not intend, drunk or not, to hit the house.

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I'm not sure that's correct. Look at Jaynes v State, 673 sw2d 198. Defendant charged with failing to stop and render aid after "knowingly" striking and injuring a person. In such as case, you can easily see how a drunk person could fail to realize that they had hit and injured someone. CCA says, however, "The jury was free to find that appellant had no knowledge of the accident so long as they did not attribute that lack of knowledge to intoxication. Take a look at Montana v Egelhoff, too. The Supremes seem to agree that state's can pass laws which essentially make voluntary intoxication the anti-defense to mens rea--it almost seems to say that the State doesn't need to prove a mental state if we can show that you got yourself drunk.

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Originally posted by Shannon Edmonds:

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And while we're on the subject, Shannon, explain that WHACKED punishment range. When is it a SJF? When is it a 3rd Degree?

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When is _what_ a SJF or 3F? I'm lost, Philip ...

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The punishment range for leaving the scene of an accident when someone is injured or killed is 0-5 years. The sentence is split between the pen and county jail.

Look at the trans code 550.021

Wes: I didn't think of that. Interesting. If you've knowingly entered their house without permission (crashed through the wall) do you still have to enter with the intent of committing a crime or commit a crime while inside?

Doesn't Burglary require the unauthorized entry with the concurrent intent of committing or actual commission of the crime? I think you have to have the intent to do the bad thing while entering the structure. Don't you?

If so, how do you get around that needed simultaneity?

I don't think the statute necessarily requires that the entry be with any particular criminal intent (other than the intent of the owner to exclude you), but if you enter and then commit a crime, it doesn't matter if you intended to commit it when you entered

Philip, Ken Sparks in Colorado Co. has also expressed an interest in "standardizing" the hit-and-run punishments. If you'd like to help him, give him a call--I'm sure he could use all the help he can get.

[standard lecture]Remember, I can't just waive a magic wand and change things at the Capitol; my job is to help YOU change things at the Capitol[/standard lecture]

Back to the issue of intent - burglary of habitation intent to commit the offense must exist at the time of and accompany entry into the habitation. See Coleman v. State 832 S.W.2d 409, and Alexander v. State, 873 SW2d 793. Althouhg intent can be inferred by surrounding circumstances. McGee v. State, 923 S.W.2d 605, Matter of AS 954 SW2d 855. See also Blaylock v. State, 11-03-00270-CR, Sep 9, 2004, Eastland, not published - has good analysis of the intent element.

What's wrong with AA/DW?

His driving is clearly reckless and the truck is an easy DW since in ran through the house. Charge everyone in the truck and roll some of the passengers to talk about the drinking before the accident.

We have no injuries.

John

Well, without injuries, the only Agg. Assault d/w you can charge is 'threaten'. I think you'd have to prove he meant to hit the house with the truck to scare them to get to 'threaten'.

So you're back to leaving the scene of an accident. Maybe Deadly Conduct?

2 possible Felony charges. Felony Tampering with Physical Evidence (37.09). It most definitely can be inferred that he knew an investigation was �pending� (investigations tend to be so when you run a truck into someone�s house � and, of course, �pending� implies that it has not yet begun), and he took the truck, evidence, away from the scene. The other would be Felony Evading Detention. Here, case law might set you back insofar as he didn�t have knowledge of a particular peace officer from whom he was evading, but the statute, itself, doesn�t read as such (some case law, though, does). Of course your defendant �knew� the police were coming (again, police tend to do that when you run into someone�s house) and the only reason he left the scene was to evade the detention that was imminent/being attempted. Good luck!

I like the tampering with evidence idea. Especially if you can show that the defendant made any attempt to clean up his car afterwards. (Wash it, buff out the scratches, anything really.)