Heathington v. StateHeathington v. State
- Reporters:
- ,
- Before:
- Reynolds
Appellant Estelene R. Heathington was charged by a three-count indictment with the offense of involuntary manslaughter. The first two counts are allegations that she recklessly caused the death of an individual by the manner of her driving a motor vehicle; the third count is an allegation that by accident or mistake, she caused the death when operating a motor vehicle while intoxicated. She entered a plea of guilty and applied for probation. By a general verdict, a jury found her guilty of the offense charged as instructed, and then, declining to recommend probation, fixed her punishment at confinement in the Texas Department of Corrections for two (2) years and six (6) months. The court rendered judgment and imposed sentence in accordance with the verdict.
In charging the jury on punishment and probation, the court first instructed, in conformity with the statutes, that the punishment for involuntary manslaughter is confinement in the Texas Department of Corrections for a period of not less than two (2) years nor more than ten (10) years and, in the jury’s discretion, a fine in any amount not to exceed $5,000. See
Appellant objected to the charge and requested‘the court to give two additional charges on punishment upon conviction for the offense of involuntary manslaughter. First, she objected to absence of, and requested, a charge that the law provides the court granting probation shall require as a condition of probation that the defendant submit to a period of detention in a penal institution to serve a term of confinement of not less than 120 days. Tex.Code Crim. Proe.Ann. art. 42.12, § 6b(c) (Vernon Supp. 1986). Second, she objected to the absence of, and requested, a charge that the law provides for a mandatory suspension of the defendant’s driver’s license for 180 days to two years. Tex.Rev.Civ.Stat.Ann. art. 6687b, § 24(e) (Vernon Supp.1986). The court overruled the objections and denied the requests, which, so appellant contends by a single ground of error, was reversible error. Disagreeing, we affirm.
At the outset, it is to be noticed that the offense of involuntary manslaughter is committed if a person
recklessly causes the death of an individual;
by accident or mistake when operating a motor vehicle while intoxicated and, by reason of such intoxication, causes the death of an individual.
In this regard, as previously mentioned, appellant was charged by indictment with one offense of involuntary manslaughter alleged to have been committed in three different manners, only one of which was a
There being sufficient evidence to support a finding by the jury that appellant committed a
In charging the jury on punishment for the offense of involuntary manslaughter, a felony in the third degree, the court instructed accurately on the punishment fixed by statute for the offense. See Tex. Penal Code Ann. art. 12.34, supra. Notwithstanding, appellant contends that the aforementioned mandatory institutional detention of the defendant as a condition of probation and the automatic suspension of the defendant’s driver’s license, as provided by statutes, is a part of the range of punishment for the
Next, we observe that, at least since Schultz v. State, 134 Tex.Cr.R. 251, 115 S.W.2d 417 (1938), the jury, in assessing punishment, has no legal authority to suspend or not suspend the driver’s license, *329Rowland v. State, 523 S.W.2d 676 (Tex.Cr. App.1975), because the law determines a suspension is automatic upon conviction. Beach v. State, 150 Tex.Cr.R. 193, 199 S.W.2d 1020 (1947). Therefore, the matter of suspension of the license is not for the jury’s consideration, Harward v. State, 398 S.W.2d 127, 128 (Tex.Cr.App.1965), and shall not be included in the court’s charge. Davison v. State, 166 Tex.Cr.R. 376, 313 S.W.2d 883, 886 (1958). See, also, Leslie v. State, 408 S.W.2d 116 (Tex.Cr.App.1966). Consequently, the court correctly omitted from the charge an instruction on the automatic suspension of the driver’s license.
And now, we notice that the court, in instructing on probation, stated the fourteen conditions of probation as absolutes, not as the optional conditions which, among others, the court may impose. See article 42.12, § 6(a), supra. Given the posture of the stated conditions in the charge, which instructed the return of a general verdict of guilty, and the mandatory operation of article 42.12, § 6b(c), supra, to a
Beyond that, the charge, when considered with the remaining record on appeal, otherwise adequately protected appellant’s rights. During the trial, it was made known to the jury, through the testimony of appellant and her husband, not only that she was going to lose her driver’s license for six months to two years, but that if she were placed on probation, the judge was going to place her in a penal institution for a period of time not less than four months. Then, in its charge, the court stated, as the twelfth condition of probation, that the probationer shall:
Remain under custodial supervision in a community-based facility, obey all rules and regulations of such facility, and pay a percentage of her income to the facility for room and board.
See
The judgment is affirmed.