Ricardo BAYONA, Appellant, v. The STATE of Texas, Appellee.
No. 51090.
Court of Criminal Appeals of Texas.
Dec. 15, 1976.
In the instant case the appellants who had been arrested for prostitution by Officer Kunkel on numerous occasions were observed by the officer in an area frequented by prostitutes in the early morning hours “flagging cars.” After making the arrangements with the other officers above described, Kunkel observed the appellants go into the public street and successfully “flagging down” an automobile containing two men whom they engaged in conversation. Under the circumstances, the officer clearly had probable cause to arrest without a warrant the appellants for violating
Lastly appellant complains that the trial court “committed fundamental error by failing to instruct the jury on the law applicable to the fact question of whether J. W. Kunkel was lawfully attempting to arrest the” appellants.
The court applied the law to the facts and instructed the jury that before they could convict the appellants they must find that Officer Kunkel was lawfully attempting to arrest the appellants. There was no objection to the charge or any request for a special requested charge. See
The judgments are affirmed.
George N. Rodriguez, Jr., County Atty. and Michael S. McDonald, Asst. County Atty., El Paso, Jim D. Vollers, State‘s Atty., David S. McAngus, Asst. State‘s Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
This is an appeal from a conviction for simple assault. Appellant was found guilty in a bench trial and punishment was assessed at one year‘s probation. The offense occurred on July 27, 1974 and trial was held on February 28, 1975.
Appellant and a co-defendant were charged by information with criminally negligent homicide in the death of one David Martinez. The evidence showed that Martinez, a known hemophiliac, was struck at least once by the appellant in the course of an argument. He died several days later as the result of an intracranial hemorrhage.
The trial court expressly acquitted appellant of criminally negligent homicide, but found him guilty of simple assault on a lesser included offense theory.
“(a) A person commits an offense if he causes the death of an individual by criminal negligence.”
“Criminal negligence” is defined in
“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
“(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
“(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
“(4) it consists of an attempt to commit the offense charged or an otherwise included offense.”
The higher degree of mental culpability required for an assault clearly removes it as a lesser included offense under Subsec. (3), above; in fact, a more culpable mental state is required to establish its commission. This distinction also defeats the lesser included offense argument under Subsec. (1), above. Assault requires proof of a fact not needed to establish criminally negligent homicide, to-wit: a higher degree of culpability.
With respect to Subsec. (2), relied upon by the State, assault certainly involves a less serious injury to the victim than does the homicide offense. But, by the terms of Subsec. (2), this less serious injury must be the only difference between the two offenses, and this is clearly not the situation in this case. Finally, assault is obviously not an attempt to commit negligent homicide under Subsec. (4).
We conclude that simple assault cannot be a lesser included offense of criminally negligent homicide. Compare Day v. State, 532 S.W.2d 302 (Tex.Cr.App. 1976). There
The judgment is reversed and the prosecution ordered dismissed.
ODOM, Judge (concurring).
I agree with the majority that this conviction for simple assault as a lesser included offense to the charge of criminally negligent homicide must be reversed, but I would reach that conclusion by different reasoning.
The information charged appellant and another with criminally negligent homicide in the following terms:
“. . . RICARDO BAYONA and DAVID CARRILLO, acting together, did then and there cause the death of DAVID MARTINEZ by criminal negligence, namely by striking DAVID MARTINEZ with their fists and kicking him with their feet, and the said Ricardo Bayona and David Carrillo ought to have been aware of the substantial and unjustifiable risk that said result would occur, and said risk was of such nature and degree that the failure to perceive it constituted a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the standpoint of the said Ricardo Bayona and David Carrillo.”
Appellant was found guilty by the court of assault under
The State relies on the doctrine of lesser included offenses to uphold the conviction. The majority point to the variance in culpable mental states required for criminally negligent homicide under
In Day v. State, Tex.Cr.App. 532 S.W.2d 302, the doctrine of lesser included offenses and
“The careful reader will observe that each definition in Art. 37.09 is stated with reference to ‘the offense charged,’ and moreover, each such definition specifically states the manner in which the lesser included offense differs from the offense charged. The enumerated variations in the statute do not enlarge upon the offense charged, but instead vary in a manner that either is restrictive or reduces culpability as compared to the offense charged. In view of those restrictions, we hold Arts. 37.08 and 37.09, supra, are constitutional insofar as they authorize, as did the prior scheme of degrees of offenses, conviction upon an indictment charging one offense for a lesser included offense of the offense charged. We must add, however, that whether one offense bears such a relationship to the offense charged is an issue which must await a case by case determination, both because the statute defines lesser included offenses in terms of the offense charged and because it defines lesser included offenses in terms of the facts of the case.”
My disagreement with the majority‘s reasoning lies in the manner of determining the applicability of
For these reasons, I concur.
DOUGLAS, J., joins in this concurrence.
Patricia T. DAUGHTREY, Appellant, v. The STATE of Texas, Appellee.
No. 52256.
Court of Criminal Appeals of Texas.
Dec. 15, 1976.
Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Hogan S. Stripling, Asst. Dist. Attys., Houston, Jim D. Vollers, State‘s Atty., David S. McAngus, Asst. State‘s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
This appeal arises out of a conviction for resisting arrest, a Class A misdemeanor, under the provisions of
In her sole ground of error appellant challenges the sufficiency of the evidence to support the verdict.
The transcription of the court reporter‘s notes found in the record is entitled “Partial Statement of Facts.” The certification of the court reporter shows the foregoing transcription of “all the testimony adduced that was reported by me upon the trial.” (Emphasis supplied.) In the court‘s approval of the record the following excerpt is found: “I, Neil McKay, Judge of the County Criminal Court at Law No. 5, of Harris County, Texas, do hereby certify that the foregoing portion of the 196 pages comprise a true, complete and correct record in the above styled and numbered cause.”
It is not clear just what part of the record is missing. We do note there does not appear to be a transcription of the court reporter‘s notes at the penalty stage of the trial, despite the fact that the order grant-