complaint that did not allege essential elements of offense was fundamentally defective
How later courts described this case
- complaint that did not allege essential elements of offense was fundamentally defective
Written by the judges who cited it.
The opinion
OPINION
BROWN, Commissioner.
Appellant was convicted by a jury in the County Court of Hamilton County of the offense of “failing to control speed of a vehicle on a public road,” and the jury assessed his punishment at a fine of $125.00.
Section 166(a) of Article 6701d, Vernon’s Ann.Civ.St. provides: “No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the circumstances then existing.” Appellant was involved in an automobile accident shortly after 10:00 A.M. on the morning of June 20, 1973, on State Highway 36 about five and two-tenths miles northwest of Hamilton. On this date the maximum speed limit for automobiles on State or Federal Highways was 70 m. p.h. during daylight hours.
At the outset we are faced with a fundamentally defective complaint. After alleging the date, the complaint reads: “in the County of Hamilton and State of Texas, Wayne Kenneth Adams did then and there unlawfully fail to control speed causing accident against the peace and dignity of the State.” The complaint does not allege that appellant was operating (1) a vehicle (2) on a highway. Both of these facts are essential elements of the offense sought to be charged. Vallejo v. State, Tex.Cr.App., 408 S.W.2d 113 .
The judgment is reversed and the prosecution ordered dismissed.
Opinion approved by the Court.