Bayona v. State
544 S.W.2d 155
Tex. Crim. App.
1976
Check Treatment

*1 to the failure of the court the occu- said that employment business from be any now pant sponte appellants of vehicle.” as the charge sua injure rights was calculated to contend who appellants In the instant case the deprived of they nor were appellants by Offi- prostitution had been arrested for impartial trial. See a fair ob- Kunkel on numerous occasions were cer Ann.C.C.P. Vernon’s frequented served the officer in an area morning hours by prostitutes early judgments are affirmed. making cars.” the ar- “flagging After above rangements with the other officers

described, appellants Kunkel observed successfully

go into the street and containing

“flagging down” an automobile they whom in conversa- engaged

two men circumstances, officer

tion. Under the probable without had cause to arrest appellants violating a warrant the Arti- BAYONA, Appellant, Ricardo 6701d, 81(c), cle In view of the supra. appellants’ prostitu- numerous arrests for involved, prob- the officer there was The STATE able cause for the officer to believe appellants were flagging the cars for the purpose soliciting occu- business from of Texas.

pants of such busi- appellants’ vehicles in prostitution. ness of the State sufficiently proved that Kunkel was Officer

“lawfully attempting time to arrest” at the flight of both appellants. Consider-

ing jury’s light verdict in the most thereto, we

favorable find the evidence suf- support to

ficient the verdict.2

Lastly appellant the trial complains that “committed error fundamental

failing appli- to instruct the the law jury on to the fact J. W.

cable of whether lawfully arrest attempting

Kunkel appellants.

the”

The court to the applied the law jury

facts and instructed that before they convict must appellants could lawfully at

find that Officer Kunkel was

tempting arrest There appellants. objection any re

was no special charge.

quest requested for a See Ann.C.

Articles Vernon’s undisputed showed evidence

C.P.

probable cause for the warrantless arrests. was not a

The lawfulness the arrests timely issue.

contested absence of

objection request the charge special or a charge,

ed no error It cannot is reflected. appellants during challenge probable

2. At no time the trial did the arrest. cause to *2 156

person simple commits a assault if he “in- tentionally, knowingly, recklessly or bodily injury to another . .” It can culpability required be seen that the mental prove higher an assault is than that required criminally negligent homicide. V.A.T.C., 6.02(d), Sec. Penal Code. 37.09, V.A.C.C.P., provides that an Joseph A. Calamia and Charles Michael a lesser is included offense if: Mallín, Paso, El “(1) by proof it is established Jr., George N. Rodriquez, County Atty. required same or less than all the facts McDonald, and Michael S. establish the commission of the offense Paso, Atty., El charged; Aus- “(2) it differs from the offense tin, for the State. only respect in the that a less serious injury injury risk to the same per- son, property, interest suffices ROBERTS, Judge. commission; to establish its appeal This is an from a conviction for “(3) it differs from the offense simple Appellant assault. guilty was found only a less respect that in a trial punishment bench was as- mental state suffices establish its com- probation. sessed at one year’s The offense mission; or 27,1974 July occurred on and trial was held “(4) attempt it consists of an to commit February on or an otherwise in- Appellant and a co-defendant were cluded offense.” charged by information with higher degree re- of mental negligent homicide in the death of one quired clearly for an assault removes it as a David Martinez. The evidence showed that (3), lesser included offense under Subsec. Martinez, hemophiliac, a known was struck above; fact, culpable mental a more at least once in the course is its commission. state to establish argument. days of an He died later several This distinction the lesser in- also defeats hemorrhage. result of an intracranial (1), argument, cluded offense under Subsec. requires proof above. Assault of a fact not appel-

The trial court expressly acquitted homicide, needed to establish lant of criminally negligent homicide, higher to-wit: a guilty simple found him assault on a bility. theory. Arts. 37.08 only V.A.C.C.P. The (2), respect With relied Subsec. presented by simple this is whether State, certainly involves a by the assault assault is a lesser included offense of crimi- than does injury less serious to the victim nally negligent homicide. But, by the terms of the homicide offense. (2), injury this less serious Subsec. Code, 19.07, V.A.T.C., Penal defines Sec. only the two of- difference between criminally negligent homicide in the follow- fenses, this is not the situation ing way: Finally, obviously in this case. “(a) commits an offense if he attempt negligent homi- not an to commit causes the death of an individual crim- (4). cide under Subsec. negligence.” inal assault cannot negligence” “Criminal is defined in 6.03(d) and the information in be a lesser included offense Code State, Compare Day faithfully. this case tracked the definition There- 22.01(a)(1) (Tex.Cr.App.1976). Under Sec. 532 S.W.2d 302 against negligent homicide can- fore, appellant’s conviction for assault above-quoted out in the as set stand. “intentionally, information, no because prose- judgment reversed and bodily in- knowingly, or cause[d] cution ordered dismissed. alleged in the offense jury” is *3 conclusion, however, not mean does ODOM, Judge (concurring). included never be a lesser that assault can agree majority I with the that this con- offense to viction for assault as a lesser includ- State, Tex.Cr.App. 532 S.W.2d Day criminally negli- ed offense to the offenses of lesser included the doctrine reversed, I gent homicide V.A.C.C.P., were discussed by reach that conclusion different would length. It was there stated: at reasoning. observe that careful reader will “The The information in Art. 37.09is stated with each definition another with homicide charged,’ and reference to ‘the offense following terms: moreover, specifical- each such definition . . BAYONA and “. RICARDO lesser manner in which the ly states the CARRILLO, together, did acting DAVID from offense differs included and there cause the death then in charged. The enumerated variations negli- DAVID MARTINEZ criminal enlarge upon the of- the statute do not gence, namely by striking DAVID MAR- charged, vary but instead in a man- fense kicking him TINEZ with their fists and reduces ner that either is restrictive or feet, Bay- with their and the said Ricardo the offense compared as ought to have ona and David Carrillo restrictions, view of those charged. unjust- been aware of the substantial 37.09,supra, are we hold Arts. occur, ifiable risk that said result would authorize, constitutional insofar as and said risk was of such nature and degrees prior as did the scheme perceive that the failure to it con- offenses, conviction an indictment gross stan- stituted a deviation from the charging offense for a lesser included one ordinary person dard of care that an the offense We must offense of would circumstanc- exercise under all the add, however, one offense that whether standpoint es as viewed from relationship to the offense bears such a Bayona said Ricardo and David Carrillo. an issue which must await a determination, both because case case guilty by the court of Appellant was found included of- the statute defines lesser V.T.C.A.,Penal 22.- assault under Code Sec. of the offense fenses in terms 01(a)(1), “A commits provides, which defines lesser included of- and because it (1) intentionally, knowing- an offense if he: terms of the facts of the case.” fenses in bodily injury to an- ly, majority’s other rea- My disagreement with the determining soning in manner of lies doctrine of lesser The State relies on the 37.09, supra. In- applicability of Art. conviction. uphold included offenses to defining comparing the statutes stead of in majority point to the variance in- assertedly offense and the primary ble mental states offense, compare court should cluded V.T.C.A., Penal negligent homicide under plead- in the State’s under Code Sec. and for defining with the statute ing instrument that “assault 22.01(a)(1),supra, to conclude offense. In this assertedly included of crimi- cannot be a lesser included offense quoted test from added). application case (emphasis negligent homicide” discrepancy same Day, supra, reveals the assault is my opinion It is in this case states as observed the crimi- mental not a disposi- majority, and mandates the same

tion. reasons,

For these I concur. DOUGLAS, J., joins in this concurrence. Eheman, and Michael W. James A. Moore

Houston, Vance, Atty., Clyde Dist. F.

Carol S. DeWitt, Stripling, Hogan III and S. Houston, Attys., Dist. Austin, for the State. *4 DAUGHTREY, Appellant,

Patricia T. ONION, Presiding Judge. STATE arises out of a conviction for arrest, resisting misdemeanor, a Class V.T.C.A., provisions under the Criminal Texas. Following 38.03. a verdict of guilty, appellant’s pun- the court assessed 15, (30) thirty days’ ishment at confinement in $150.00, county jail and a fine of proba-

granted misdemeanor (1) year for one under the terms of Vernon’s Ann.C.C.P. ground her of error sole challenges sufficiency of the evidence to support the verdict. transcription reporter’s found in notes the record is entitled “Partial of Facts.” The Statement certification of reporter foregoing the court showsthe trans- testimony “all the adduced that cription of (Empha- upon the trial.” reported by me approval court’s of the supplied.) sis following excerpt “I, record the found: McKay, Judge of the Neil County, Court at Law No. of Harris Texas, hereby certify do that the foregoing portion of the true, pages comprise completo styled record in the above correct and num- cause.” bered just part It is not clear what missing. We do note there does record transcription to be a of the court appear penalty stage reporter’s notes at trial, despite grant- fact that the order