Hill v. State

reviewing court venireperson, mg judgment by the trial court’s

bound Id.; Perillo v.

matter. see also (when (Tex.Crim.App.1988) vacillating showing truly record

faced with

venireperson, reviewing court must afford discretion).

great to trial court’s deference agree might inclined to we

While Appeals that the record reviewed

Court proba- portrays venireperson who

a whole person- set aside her

bly not be able to would law, we are nevertheless against

al biases court ruling of the trial

bound to defer to The circumstances. Id. Court these failing to so defer.2 Ac-

Appeals erred Ap- judgment of the

cordingly, the Court judgment

peals is reversed and

trial court reinstated.

OVERSTREET, J., participating. and,

Jay HILL Linda Maria Mahlon Hill, Appellants,

Lembo Texas, Appellee. STATE 1179-94 1180-94.

Nos. & Texas, Appeals of of Criminal

Court

En Banc. 10, 1996.

Jan. correcting Accordingly, Court we are view. By failing court in the case to defer to the trial law, Appeals not on the facts. Arcila Appeals on the vacillating venireperson Court of (Tex.Crim.App.1992). appellate improper re- applied an standard of PE- ON APPELLANTS’

OPINION TITIONS FOR DISCRETION- ARY REVIEW MANSFIELD, Judge. wife, were

Appellants, husband with the charged by separate indictments injury to a child. Tex.Penal Code offense of specifically, they were 22.04. More “intentionally knowingly, omission, [causing] disfigurement and de- by bodily injury formity, and serious serious deficiency impair- physical and mental son, Hill, Stephen youn- a child ment to their years age, failure to ger than fifteen care_” provide and medical food intent to The filed notice of its seek that a an affirmative Stephen’s that caused was used a manner chains, The belts and locks that were death. Stephen obtaining food prevent from used starvation) identified (Stephen died of were deadly weapon(s). Testi- by the State as the Stephen chained mony at trial showed eighteen prior approximately the months for to his death. injury appellants guilty of found jury also found a child omission. The offense, and assessed

commission of years’ punishment at 99 confinement Department of Criminal Justice —In Texas appeals af Division. The court stitutional appellants’ and sentences. firmed convictions (Tex.App. Hill v. —FortWorth 1.07(a)(17) defines a Texas Penal Code deadly weapon as: (A) manifestly anything de- a firearm or adapted pur- for the signed, made or inflicting serious bodi- pose of death or injury; ly (B) use anything that in the manner its capable causing or intended use is bodily injury. death or serious chains, and locks It is clear that belts Richards, Ford, L. Fort David Robert designed, adapted for the are not made Worth, appellants. inflicting purpose of death or serious deadly weapons per injury, so are not se Atty., Fort Dohoney, Asst. Dist. Tanya S. 1.07(a)(17)(A). However, Huttash, Atty., as defined under Worth, A. State’s Robert deadly weapons per se items that are not Austin, for State. 1.07(a)(17)(A) jury’s finding Appellants do contest the under have been found to be charge guilt predicate weapons by nature of their use 1.07(a)(17)(B). Appellants are cor- to a child omission. intended use under Thom stating (Tex.Cr.App. rect as v. prove to deadly requires the State or intended use be The use must appellants used a

capable bodily beyond a doubt causing death or serious reasonable weapon. Code injury. deadly See Tex.Penal (1990). 1.07(a)(ll) 1.07(a)(34) §§ and knives, knives, utility straight ra- “Kitchen eating manifestly zors utensils are de- and Patterson v. and, signed purposes made for other and held, affirming in Cr.App.1989), this Court qualify deadly do not consequently, as appeals, judgment court of that “ weapons actually used or unless intended weapon] during the commis deadly ‘used [a way to be used in such a as to cause death certainly a refers to felony sion of offense’ bodily injury meaning or serious within the effect, wielding of firearm with but it a 1.07(a)(ll)(B).” §of deadly any employment extends to if weapon, simple possession, even such its (Note: Thomas, 1.07(a)(ll)(B) § 620. is felony.” possession facilitates the associated 1.07(a)(17)(B)). now Patterson, at 941. introduced that evidence chains, Appellants and used the belts locks prevent Stephen the restraints used to from deprive him of Stephen to restrain to food. obtaining in a food were used manner so as using objects, appellants In so these commit- bodily injury to cause serious or death— affirmative, ted conscious and intentional namely, his starvation.1 This evidence was goes beyond act. The conduct here far Pat- constitutionally support sufficient to a ration terson, where found that the defendant’s we jury’s al finding deadly that a used possession employment mere actual weapon in the commission of the offense —no —of firearm, narcotics, along possession a with injury to a child. v. Virginia, Jackson deadly weapon. a constituted the use of U.S. 99 S.Ct. L.Ed.2d Here, use, which we actual without (1979). predicate likely would not have been offense Appellants ground assert in their fourth possible.2 finding that an affirmative review as deadly weapon may opinion use of a not made Our is consistent with Patter predicate prove, where in it requires an act of son that the State to doubt, Appellants beyond charged omission. are correct in their a that the reasonable that, definition, employed assertion an act of omis- individual or used a case, present sion is In the a failure act. so as to facilitate the associated before required prove beyond deadly State was a as to use of a Thus, weapon may reasonable doubt failed to be made. State must provide present prove Additionally, food and medical “use.” attention to Ste- case, chains, phen legal duty in violation of their so. as the locks and associated to do combination, individually 1. The stated: was a instruction or in Special weapon, you then will answer the Issue weapon” anything "Deadly means that in the believe, you you If if "Yes.” do not so or have a capable or intended use is manner of its use thereof, you reasonable will answer the doubt causing bodily injury. or serious death Special Issue "No.” Now, you beyond if find from the evidence Special Issue defendant(s) doubt that the reasonable you beyond Do a reasonable doubt find chain, locks, rod, individually belts or either Defendants) deadly weapon? used a Answer combination, you in chain, further find that the "No." "Yes” or rod, locks, individually either belts or previ- combination was as defined; defendant(s) any authority Appellants support ously you do not cite or if find proposition their that Patterson's "facilitation of party to the offense and knew that the chain, rod, locks, only felony” language applies individually an associated either belts or combination, used, involving deadly weapons per you cases se defined would be further rod, locks, 1.07(a)(17)(A). find that the chain belts or either phase, if, during deadly weapons per se as made items were not 1.07(a)(ll)(A), responds presented Penal defined Texas Code regarding the prove beyond special a reasonable to a issue the State had to affirmative deadly weapons be- use or exhibition doubt that were defendant’s cause, in manner of their use or intended commission use, they capable causing death or were offense. (as bodily injury in Texas serious defined Polk, however, give any guidance does not 1.07(a)(34)), Penal per Texas Penal Code what, any, specific language must be toas 1.07(a)(ll)(B). Appellants do Code regarding a dead- special in a contained proof burden of demonstrate that the State’s Indeed, finding. ly weapon affirmative as to on the even have to be sub- special issue does not way any is in affected whether finding to be en- mitted for an affirmative felony is an act of omission the associated presented in the properly if is tered the issue Appellants’ ground for commission. fourth present the indictment the indictment. As review is overruled. deadly weapon, allege case does not use argue, in first and second Appellants their charge required. Polk special issue was review, wording of the grounds for that the however, not, support appellants’ asser- does paragraph fatally defective special issue is “during phrase com- that omission of the tion phrase “dur it does not contain the charged offense” means “the mission of the charged ing the commission of the offense.” special issue jury’s answer to the phrase is mandated Appellants assert this legal no effect what- present case has the Procedure, article of Texas Code Criminal soever.” 42.12, Alternatively, ap 3(g)(a)(2). section State, v. held Nickerson This Court charge pellants claim the is erroneous “a (Tex.Crim.App.1990), that 782 S.W.2d 887 Almanza egregious error under constituted entirety in its charge must be treated State, (Tex.Crim.App. 167 v. 686 S.W.2d interdepen regard the connection and Nickerson, parts.” at of its several dence State, 391 In Polk v. case, jury instruc present In the the the methods Crim.App.1985), we described applica contain an special tions on the issue finding may be by which an affirmative paragraph application paragraph. tion The by allegation “If indictment made. the actually during occurred acts which describes (i.e. places the trier of fact the issue before and constitute the commission of the offense knife, by stabbing “... him with a The had to gestae of the offense. res ”) then appel beyond a reasonable doubt find is found made when the defendant de facto using items these acts the lant committed ” Polk, charged in the indictment.’ guilty ‘as deadly weapons in alleged by the to be State Ruben v. at 394. See also charge in special issue to answer the order present In the (Tex.Crim.App.1983). effect, specific lan In the affirmative. case, indictment is silent on the increased application paragraph guage of the gave proper no weapon issue and State proof beyond what the State’s burden find to seek an affirmative tice of its intent generic created under have been would ing. “during commission of phrase if finding may also be made An affirmative Increasing the State’s charged offense.” responds special to a of fact the trier only appellants’ proof inured burden phase of during submitted error, much and cannot be said be benefit however, note, that article do the trial. We Kinsey, v. less reversible error. See State 1(a) that the 37.07, not mandate section does (Tex.Crim.App.1993) and punishment phase at the issue be submitted (Tex.Crim. Garcia, State during submitted the trial and could be App.1993). Polk, 394, fn. phase. guilt-innocence Assuming, arguendo, that omission of purposes of article section

3. For the phrase “during commission finding may be 3(g)(a)(2), an affirmative appel- only time error, charge The record shows it is error. offense” alleged by the object lants used the items to omission of this Appellants did during the commis- deadly weapons was phrase proceedings at the time of the when injury to a court, underlying pursuant provided to Article sion There no evidence by omission. appellants copy proposed of its child with written Stephen hit used to special issue. that the items were charge deadly weapons on the only purpose. The any other alleged to have been made in a were used for Errors from the one could draw subject logical stan conclusion charge are to review under the issue, special as submit- by this Court in Almanza jury’s to the answer dards established ted, items appellants used the (Tex.Crim.App. is that Furthermore, 1984) rehearing) the commission of the offense. (opinion on controls. ap- contest the court do not subject charge “If the error their conviction of peals’ affirmance as to court, timely objection in then the trial suffered underlying offense. is ‘calculated required reversal is the error of the omitted egregious no harm as a result defendant,’ injure rights which on the language submitted phrase from the no more than there must be some means appellants’ overrule special issue. We harm to the accused from the error. and two. grounds review numbers one words, proper- other an error which has been appel- number three ground In for review objection ly preserved by call for rever- will court, improper for the trial it lants aver was long sal as as the error is not harmless. On trial, to punishment phase of the the hand, objection proper other if no was the parole. give jury charges on One the two at trial and the must claim made accused if governing parole charge described law ‘fundamental,’ that the error was he will ob- jury special “no” to the issue as answered egre- only tain reversal if the is so error deadly weapon; finding of a to an affirmative gious harm ‘has not and created such that he charge parole law the other described short, impartial had a fair and trial’ —in if apply which would ‘egregious harm.’ weapons special in issue answered degree of effect, In both situations the actual in- negative. assayed light harm must of the evi- “yes” answer or formed as to the effect dence, including the contested issues and special issue on the “no” answer to the evidence, argument weight probative appellants would have to amount of time any of counsel and other relevant information eligible for appellants would be serve before by the record of the trial as a revealed parole. Almanza, whole.” Procedure, article Texas of Criminal Code 4, (1992), provid- then in effect section object Appellants concede did not parole instructions. Sec- ed for two different phrase “during omission of the the commis- 4(a), applicable tion to a defendant convicted special sion of the offense” from the in article sec- of an offense described instruction submitted on use of a dead- issue judgment if contained a 3(g)(a)(l) tion Therefore, ly weapon.3 we must determine deadly weapon affirmative under sec- appeals correctly concluded un- the court of part: 3(g)(a)(2), tion read relevant der Almanza that not suffer did case, if applicable in this egregious of the omission of Under the law harm as result impris- is sentenced to a term of phrase “during the commission of defendant onment, eligible not become for charge on the he will charged offense” from the equals parole until the actual time served special find that the court of issue. We imposed or 15 harm of the sentence appeals correctly egregious found no one-fourth less, years, without consider- whichever resulted. disposition ground legal appellant for review object propriety of in our Appellants did to the deadly weapon special wording object issue Appellants submission of four. did not omission, charged offense is one of but where the we decided this charge, special however. matter in a manner adverse to negative special issue in the he answered any good conduct time ation of Ap special submitted. to a issue was If the defendant is sentenced when the earn. authority support years, any serve pellants less that six he must do not cite term of eligible years he is for trial court erred at least two before contention the of their Eligibility parole does not parole. parole law instructions. submitting two granted. parole will be guarantee assumed, arguendo, that was Even if it is error, it and cannot com appellants invited (1992), 4(b), which then effect Section State, 771 appeal. Tucker v. plain of it on of an applicable to a defendant convicted 523, (Tex.Crim.App.1988); cert. 42.12, section in article offense not described 109 S.Ct. denied 492 U.S. no 3(g)(a)(l) or where there was (1989). L.Ed.2d 578 finding under section weapon affirmative part: 3(g)(a)(2), read in relevant appeals is the court of judgment ease, in this if the applicable the law Under affirmed. term, of im- is sentenced to a eligible for prisonment not become he will MALONEY, JJ., OVERSTREET plus any time served parole until the actual in the result. concur equals one- earned good conduct time CLINTON, J., dissents. years, imposed or 15 fourth of the sentence parole Eligibility of is less. whichever MEYERS, concurring. Judge, guarantee parole will be does not the dissent that omission agree I granted. consti- duty imposed law never perform a objected pro to the State’s Appellants deadly weapon. It does the use tutes deadly weapons spe of the posed submission however, follow, that a guilt-innocence phase cial issue at the during com- be used or exhibited can never appellants agreed with trial. The trial court has as an essen- of an offense which mission pun at the special the issue and submitted duty perform a to tial element the omission phase, though this Court has ishment even Moreover, we to even were imposed law. the improper it is to submit never held that weapon is not used or deadly hold that guilt- special issue at the deadly weapons an of- during commission of the exhibited State, 780 S.W.2d phase. Luken v. innocence or exhibition somehow unless its use fense also (Tex.Crim.App.1989). See offense, it commission of that facilitates 753, 771 McIntosh v. that a still not follow would d.) As the court App. pet. ref' — Dallas facilitate an offense never used to can be states, wording of sec appeals below perfect is a instant cause omission. The 4(a) 4(b) “implicitly of article 37.07 tions example. weapon to be sub deadly issue requires the stage one of guilt-innocence so that in this case starved appellants at the The mitted They slowly parole law did it know which to death. the trial court will their children year by pre- during pun than a give jury period of more over a instruction first, Hill, obtaining At food. phase.” venting him from ishment eat, practice to submit him not to but when they simply the better ordered agree that We reprisal, charge at his fear of deadly weapons special hunger issue at last overcame Ap- from the kitchen. phase secretly of the trial. stole food guilt/innocence he scheme, his howev- discovered pellants soon on the dead There was no submission er, up until he thereafter chained and he was guilt- during the special issue ly weapons finally died. lapsed into a coma a result of the trial as phase innocence society case in our so often the As is objection. The trial court was appellant’s laws, violat- appellants’ conduct complex jury two give given alternative but no The State penal statutes. a number ed parole instructions violating for section prosecute them chose to event the phase applicable —one Code, a crime known of the Penal 22.04 in the affirmative special answered This statute Injury to a Child. popularly as applicable the event the other reading of the statute this is an attractive physical to cause serious makes it a example, appel- For had deficiency impairment, disfigure- some situations. mental friends ment, bodily injury hatching plot with their deformity, or serious to a lants been while younger years age. illegal drugs than fifteen It is to school children child to sell chains, lay son, it is starv- wrapped a crime to cause such whether their own corner, strange byor The difference be a little ing done act omission. it would movement, whether is that an act is “a suggest

voluntary involuntary, conspiracy and includes the criminal during commission of speech” were, an omission is a “failure to “during” while merely appellants because (34). 1.07(a)(1), In the time, act.” Penal Code committing a different period of same context, present it is the difference between deadly weapon. involving use of feeding. keeping from food and not hand, But, never re- the other we have on deadly weapon be the actual quired Clearly, could have been charged of- by which the manner or means injuring son charged and convicted for their Thus, example, we fense committed. theory (perhaps even both theo- under either upheld jury’s finding that a ries), easily since the evidence is sufficient during commission of a was used they give him food prove both that did not offense, though drug possession even it was they actively prevented him from and that possession, or means of be- not the manner indictment, getting food for himself. posses- cause “facilitated” the defendant’s it however, charged only they injured him drugs. Patterson v. sion of the “by provide in that “fail[ed omission” (Tex.Crim.App.1989). It seems food.” The dissent intimates [him with] deadly weapon to be connected we want a that, strongly appellants instead rather had fortuitously, just with the offense more than charged injuring their child been willing to insist that it be the but are tying up, proof him act of would have crime, up- very instrumentality of the before been sufficient to show that “used.” holding a that was was used commission of the offense. But were not someday confronted suppose I we will son, starving with the “act” of their the dis- my hypothetical, where two with a case like jury’s finding of sent maintains that crimes, only one of which actu- unconnected deadly weapon use was irrational. ally involves the use or exhibition simultaneously by the weapon, are committed agree. in I do not must mind We bear decide person. same will then have to We jurors in that the this case were instructed deadly weapon finding be whether accurately meaning both as to the of involving in ease not use entered “deadly weapon” and as to the condi- term merely it of the because exhibition they might appel- tions under which find that “during” commission used or exhibited was deadly weapon dur- lants used or exhibited Frankly, I am uncertain how of the offense. ing upon commission of the offense. Based Fortunately, question. how- to answer that these instructions and the evidence adduced ever, question presented here. it is not the trial, jurors unanimously at found as “chain, rod, belts, or matter of fact that the cause, appellants’ use of a In the instant appellants re- by means of which locks” from prevent chain to their son lock and obtaining from food was strained their son actually intend- getting food for himself was of its use or intended use “in the manner fact, facilitate, facilitate in ed to and did causing capable death or serious plan to food from success of their withhold were, course, injury.” They right. sense, In a it the commission him. was act, crime, injury by help an to accom- they wrong, how- one The dissent thinks were (if, another, in- injury by an ever, likely plish me that this omission it seems to and all). deed, I crimes at strong that use these are different from a intuition belief comes an no doubt under these circumstances deadly weapon “during commission of actually that a was used offense” means omission, just hap- not because it I admit that offense to commit the offense. pened appellants’ they to home discovered contemporaneously, but because it was where integral part appellants’ strategy victim, son, appellants’ pediatric an oldest Accordingly, I starve their son. concur with full arrest.1 The victim was transferred to opinion of the Court. he comatose hospital where remained At the hospital, until his death. BAIRD, concurring dissenting. and Judge, he they stated restrained victim because up night and their home. get would at leave truly gruesome itWere not for the and appellants, they first used a According to review, upon cases called horrible we are him, failed, sheet but that to secure when easy job be this would and law would using padlock to a chain and easy to resorted apply. But when one reads a case, or ankle. record such around his wrist as the one instant only legal is difficult to on the issues focus Appellants charged by separate in- were depravity moral ignore raised ato child omission. dictments with present A every page. on case such as this §Ann. The indict- Tex.Penal Code 22.04.2 majority where a is unable to maintain its appellants charged ments them with against impartiality objectivity resolving by intentionally committing proves adage “bad the old facts make failing provide knowingly food and medical said, I bad law.” to the With this dissent care to the victim which resulted his permits conclusion that the law an affirma- subsequently death.3 The State filed notice tive for an offense deadly weapon finding, of an intent to seek a However, committed omission. chain, rod, and locks alleging “that the belts jury charge at invited the error victim] that used to restrain were [the were trial, I able phase am that the death of used in a manner caused that to concur the conclusion the error [the victim].” punishment hearing. does not warrant a new trial,

At submitted evidence that the State I. died of starvation. Medical ex- victim perts the victim from testified suffered necessary. A recitation of the facts is On which, the time of chronic malnutrition 3,1991, Po- November the White Settlement death, body had reached such state that his Department hang-up a 911 call. lice received deteriorating by “eating Al- itself.” dispatcher the call and learned returned withholding though appellants Hill, admitted to appellant, had called 911 but Linda to four food from the victim three dispatcher hung up. Hill informed the concluded, months, experts the medical good her had not she and husband been growth because, upon based the victim’s as measured parents discipline, they as a form against growth patterns chil- feeding their children. Emer- established had been dren, period of gency dispatched were occurred over a Medical Technicians the starvation (1) legal statutory duty “pediatric has a 1. At trial full arrest” was described as the actor act; breathing, pulse, pressure blood or “[n]ot no or respirations.” (2) care, custody, or the actor has assumed control of a child.... provides pertinent 2. Tex.Penal Code 22.04 part: 3.Specifically, alleged appellants: the indictments (a) person A an offense he intention- commits omission, intentionally knowingly, by neg- and ally, knowingly, recklessly, or with criminal intentionally, ligence, by recklessly, by knowingly, disfigurement deformity, and serious cause[ed] act or omission, to ...: bodily causes a child injury, physical mental and serious and (1) bodily injury; victim], serious impairment deficiency a [the (2) deficiency physical or mental serious years age, by younger failure child than fifteen of impairment; provide when food and medical care at a time (3) disfigurement deformity; or care, custody had defendants] assumed (4) bodily injury. legal duty to of said child and had a control (b) de- causes a condition An omission that shelter, food, protection, and med- provide act to (a)(4) (a)(1) through scribed Subsections ical care for said child constituting an offense this section is conduct under this section if: by appel- deadly weapons were used years. younger tial The victim’s brother several sons, that, goal depriving punishment their their testified as lants to “facilitate” withholding ap- appellants had been food of food....” victim] [the times, proximately years. five to At six Hill, boys go for three or four would without food eat, usually days, it was and when did namely, impression, of first This is an issue Moreover, bologna and cheese sandwiches. finding of the use of a affirmative an whether appellants fed their on the occasions which pred- deadly weapon may be made where children, they would often alter the food Ap- committed omission. icate offense is give it a bad taste. law, that, as a matter pellants contend finding an affirmative State not obtain ap- The victim’s brother further testified theory predicated prosecution initially a rule that if the because the pellants established provide food and failure boys hungry they upon to ask for failure to were would have complainant, subsequently changed, for the food. This rule was seek medical attention however, boys punished so that the would an while affirmative Although they requested food. an weapon requires when a defendant to commit hungry Brief, pg. victim’s brother remain Appellants’ would affirmative act. times, attempt the victim to take these would prevent

food from the kitchen. order to II. own, getting the victim from food on his employed restraining appellants number of A. rod, devices, chain, including a metal locks ap- The and belts. victim’s brother testified through legal theory, expressed Modern pellants approximate- used the restraints for Code, the Model Penal and reflected ly years. one and a half found Code, Searcy, Forward Texas Penal Seth S. appellants guilty omis- to child and, Code, xxv, (1974); to the Texas Penal sion. The also found that Pruitt, 782, 783 parte Ex the commission (Clinton, J., concurring), recog Cr.App.1981) the offense.4 an conceptual nizes a distinction between Wayne R. “act” and an “omission.” LeFave appeal, appellants On contended the State Law, Scott, Jr., Criminal and Austin W. precluded seeking from (West 1972). also, at 177-178 See Je their Hall, Principles of rome General Criminal predicated upon convictions were an omission 1960). (“Whatever (2nd Law, ed. reli rather than an act. Hill v. teach, gion prevailing attitudes (Tex.App. Re and ethics Worth — Fort lying upon sharp distinctions between overt action Patterson v. 769 S.W.2d 938 draw provides (Tex.Cr.App.1989), Appeals passivity.”). Our Penal Code Court held only if findings: person could seek the commits an offense he an act or an omission. Tex.Penal commits against appel- “... [the victim] When went 6.01(a). An “act” is defined as Code Ann. sought lants’ method and out movement, voluntary or own, “a whether steps to food on his took involuntary, speech.” Tex.Pe and includes by chaining him to a [the victim] restrain 1.07(a)(1). contrast, chain, rod, By nal Ann. cabinet with a a metal some Code Thus, is defined as a “failure to act.” poten- and some locks. these “omission” belts defined; ously you or if find that the Defendant Specifically, the instruction stated: 4. party was a to the offense and knew that weapon” anything "Deadly means that in the chain, rod, belts, locks, individually either or or capable of manner of its use or intended use is combination, used, you further would be causing bodily injury. death or serious chain, rod, belts, locks, Now, either find that the or you beyond a find from the evidence combination, individually was a or in doubt the Defendant used a reasonable chain, rod, belts, Special locks, weapon, you individually then will answer the Issue or either or believe, combination, you you do not or if have a you "Yes”. If so further find that the in chain, rod, belts, thereof, locks, you individually will or reasonable doubt answer or either previ- Special Issue "No”. in combination was a as 590 (When of a 1.07(a)(34). interpreting the intent Clearly, App.1991) §Ann.

Tex.Penal Code fair, statute, attempt courts to discern concepts: an antithetical while the two are the time of meaning of the text at objective action on encompasses an affirmative “act” enactment). encompass- person, an omission the statute’s part of a Typically, an of action. es a forbearance “use,” meaning of According general to the a omission involves offense committed act. object an affirmative an entails the use of an affir- perform failure of the defendant actively object by employ- an person A uses legal duty a to do action when he has mative example, For one ing in some manner. State, Billingslea v. 780 generally, so. See nail, or uses water a hammer to drive uses 271, (Tex.Cr.App.1989). 271-277 S.W.2d necessity activity extinguish a fire. The is inherent within part person on the B. object. In- “using” an linguistic concept of Procedure article Texas Code of Criminal of circum- deed, of a set I cannot conceive 42.12, § an affirmative 3g(a)(2) provides for an person “use” in which stances deadly weapon finding of the use of a act.6 object an affirmative absent ... when it is shown that consistently em analysis has been This 1.07, Penal Code was as defined Section authority. In Thom ployed in our decisional during the commission used or exhibited State, (Tex.Cr.App. 616 821 S.W.2d as v. flight during immediate statutory 1991), addressing re while therefrom, used or and that the defendant deadly weapon for to constitute a quirements party or was a exhibited finding, we affirmative purposes of an offense and knew that to the classifications of distinct recognized two .5 or exhibited... weapon would be used Ann. Code deadly weapons. Tex.Penal 42.12, § an 3g(a)(2) permits art. Whether 1.07(a)(17) ei deadly weapon as § defines a deadly weap the use of ther: upon an omis the offense is based ons where (A) manifestly anything de- a firearm requires an examina sion purpose of adapted for the signed, made or in the context of a the verb “use” tion of bodily injury; or inflicting death or serious State, v. 769 “deadly weapon.” In Patterson (B) of its use anything that in the manner (Tex.Cr.App.1989), we addressed S.W.2d 938 causing death capable of intended use is deadly weapon” for meaning of “use bodily injury. or serious finding under purposes of an affirmative 1.07(a)(17)(A),7objects which are explained the verb Under 3g(a)(2). We art. or serious causing death deadly weap capable “using a in the context of “use” design, such of their virtue and construed ‘read in context on” must “be ” firearms, deadly weap- to be are considered usage.’ according grammar to rules Thomas, 821 S.W.2d per Ann. ons se. Id., Code (quoting Tex.Gov’t at 940-941 Therefore, finding, State, 311.011(a). also, to reach Tyra v. See object is “manifest- and, prove the must 796, (Tex.Cr.App.1995); S.W.2d purpose (Tex.Cr. adapted for the made or ly designed, Walker bodily injury[.]” inflicting or serious Therefore, death any construction App.1995). Id., additionally noted that ob- at 620. We 3g(a)(2) should com under art. “use” inherently dangerous jects are not which application of a reasonable port with deadly weapons 797; to be may also be found Tyra, language. English 1.07(a)(17)(B). However, also, whether Walker, (cid:127)under and; at 814. See (Tex.Cr. inherently dangerous consti- object an Boykin allega- basis of the were not the affirmative acts indi- supplied unless otherwise emphasis is 5. All contrary, appellants were To the tions. cated. legal duty, i.e. to fulfill a with the failure appellants en- omission. plurality agree I with the vic- restrain the gaged acts to in the affirmative trial, 1.07(a)(17) § However, time of Thomas' inconsequential to 7.At this is tim. 1.07(a)(ll). § legal found at These present issue. our resolution

591 1986) (de (Tex.App. Dist.] deadly weapon meaning [14th tutes a witMn the — Houston 1.07(a)(ll)(B) deadly weapon depends upon whether the as fendant used board State, it); capable is 695 striking manner of its use or intended use with Garza v. victim 1985) bodily injury. (by plac causing death or serious (Tex.App. 726 S.W.2d — Dallas Id., example, telephone For at 620. while in his hand ing metal belt buckle broken normally pillow officer, a feather are not cord or used the striking at when deadly weapons, they man- become so deadly weapon); Terry v. buckle as belt 1983) use or strangle State, ner of their was to smother (Tex.App. 672 236 S.W.2d — Waco See, id. (defendant victim. plastic bag weapon by as used her), head, suffocating it victim’s placing over recog case law Consequently, established part grounds, 692 on other S.W.2d rev’d necessity an nizes the affirmative act (Tex.Cr.App.1985). 496 deadly weapon causality between the use of a injury. prin or potential and the actual This 3g(a)(2) Accordingly, when art. ciple exemplified is in a number of cases 1.07(a)(17)(B) Ann. and Tex.Penal Code appeals which this Court and courts subject together, object an are considered upheld findings of the use of deadly weapon finding of a to an affirmative (de See, Walker, weapon. supra, deadly “actually used ... in such a only when it is fendant used automobile as bodily way as cause or serious death victim); (same); Tyra, supra by colliding with Thomas, at 620. injury_” 821 S.W.2d State, (Tex.App.— Stanul v. 870 S.W.2d 829 also, Walker, 814; Tyra, 897 S.W.2d at See 1994) (defendant deadly as Austin used floor words, object In other an 897 S.W.2d at 798. it); weapon by against striking victim’s head 1.07(a)(17)(B) weapon deadly under is a State, (Tex.App.— Lozano v. 860 S.W.2d 152 actually it in a manner which when used 1993) (defendant lighter Austin used as dead- cause, causes, potential death or has fire); weapon ly by using it to Enri start injury. serious State, quez (Tex.App. v. 826 191 S.W.2d — El (defendant 1992) used Paso soft drink bottle III. it); weapon deadly by striking as victim with Judge Meyers plurality and in his Both the State, (Tex.App.— Escobar v. 799 S.W.2d 502 rely upon v. concurring opinion Patterson (baseball 1990) Corpus Christi bat used State, (Tex.Cr.App.1989). 769 S.W.2d 938 bludgeon deadly weapon); victim constituted argues “appellants committed plurality State, Cooper (Tex.App.— v. 773 S.W.2d 749 affirmative, act,” conscious and intentional 1989) (defendant Corpus Christi used hands use” of a proved and finds the State “actual deadly dropping as infant to Ante, 913 weapon. S.W.2d floor); State, v. 771 Rice S.W.2d 599 Judge Meyers authority cites other than no 1989) (defendant App. [14th Dist.] — Houston support art. 42.12 Patterson to his belief that gasoline by pouring as used require proof “weap- 3g(a)(2) does it); igniting victim and then v. over Johnson actually commit the offense.” on was used to State, (Tex.App. — Texarkana Ante, opinions 913 at 587. Those S.W.2d 1989) (defendant used and feet as hands argument that an affirmative follow State deadly weapons by beating kicking vic appropriate in the instant case death); State, tim Roberts because, Patterson, appellants used under (defendant 1989) (Tex.App. used — Austin restraining their devices “facilitate” car, colliding truck as complainant, goal keeping food from the injuring occupants); Harper v. killing thereby “facilitat[ing] felony of the associated State, (Tex.App. — Houston injury to a child omission.” State’s Brief 1988) (defendant rope cord [1st Dist.] Merits, pg. upon 41. The reliance on the deadly weapon by tying it around victims’s misplaced. Patterson is neck, restricting Shockley breathing); her (Tex.App. — Houston A. 1988) (defendant used fabric [1st Dist.] Patterson, we whether the weapon by strangling vic addressed hands as tim); possession mere of a firearm Cervantes v. defendant’s along possession with felony narcotics constituted commission of a offense’ refers cer- deadly weapon. tainly the use of a wielding Patterson to the of a was firearm with effect, in drug any arrested the course of a raid. but it extends as As the well to em- residence, police Patterson, ployment deadly weapon, entered the of a who even its sitting sofa, simple on a “I gun possession, possession stated: have a if such facili- here, right I’m going felony.” but to touch tates the associated it.” Id., police at 939. pistol The retrieved a upheld Id. Appeals’ We the Court of conclu- located leg between Patterson’s and the sofa. sion that a rational trier of fact could have They also retrieved from an end table a pistol during found that Patterson “used” the containing large wallet money, sum of felony pos- commission of the offense of bag containing methamphetamine, miscella Id., session of the contraband. at 942. drug paraphernalia neous and several rounds B. pistol. ammunition which fit the seized During Ibid. possession Patterson’s trial for plurality While the believes the instant methamphetamine, Patterson’s, sought the State ease fits within “facilitation of finding affirmative of the use of a framework, the offense” the “facilitation” lan- weapon, contending possession Patterson’s of guage must be examined under the factual pistol “use” in pistol constituted that the Patterson, context In of Patterson. “protect was used to drugs his and to facili sought of the use Id., possession.” tate their at 940. The pistol despite the fact Patterson neither found, judgment and the trial court’s re pistol fired police his nor threatened the flected, that a weapon was used dur it. Patterson pos- contended the mere ing the commission of the offense. more, pistol, session of a without could not Appeals Court affirmed. Patterson v. deadly weapon constitute the “use” of a in a State, 723 (Tex.App. S.W.2d 308 Id., prosecution drug possession. — Austin granted We review to determine noting S.W.2d at 940. After the intent be- Appeals whether the Court in erred defin 3g(a)(2) hind art. was to deter the ing “any employment “use” to mean weapons use of in the commission of an deadly weapon, simple possession, even offense, pistol we held Patterson “used” the possession such facilitates the associated fel possession to facilitate the of meth- Patterson, ony.” 769 S.W.2d at 939. amphetamine “in the sense that the firearm care, protected appellant’s initially We facilitated observed that “all felonies are custody management the contra- theoretically susceptible to an affirmative ” Id., band. Id., deadly weapon.” of the use of a Patterson n (Emphasis 769 S.W.2d at original). in Although analysis premised explained: We further proposition on the broad that all felonies are commonly employed susceptible “use” is to de- finding, to an affirmative we sub limited Patterson n object, sequently scribe conduct which the expansive verb’s lan again, weapon, guage this ease a in Narron v. purpose.

utilized order to achieve a (Tex.Cr.App.1992), parte Petty, and Ex words, deadly weapon other must be (Tex.Cr.App.1992), S.W.2d 145 where we ac utilized, employed, applied knowledged order to possession that mere of a fire achieve its intended result: necessarily “the commis- arm does not constitute its “use” felony during sion of a offense or immedi- as a purposes for the of art. flight See, ate 3g(a)(2). Tyra, therefrom.” (Baird, J., concurring). Consequent 800-801 Id., explain: at 941. We then went on to ly, it is clear that Patterson does not estab Thus, deadly weapon” “used ... a dur- lish a concerning universal rule ing the commission of the offense means findings in all offenses. employed purpose.... Similarly, necessary utilized order to achieve its I believe it is to re- evaluate the contention that Patterson n “fa- Therefore, appeals the court of was correct “ when it language stated that ‘used ... cilitation of an associated offense”

593 Bearing in anyone weapon.8 mind general a framework for all cases with the establishes 42.12, in which the seeks an affirmative find goal Legislative the behind art. ing. legislative history Because there is no weapons 3g(a)(2) § to the use of in deter Legislature by indicating the meant the what we ex- general, particular, and firearms in “use” in the of an word context a con- plained possession pistol the of mere Patterson, 940; and, finding, 769 S.W.2d at pistol possession of a its use because stituted 391, n. 1 Polk v. 698 S.W.2d 393 drugs. the In possession of “facilitated” the Legisla must Cr.App.1985), we examine the words, possession of a other Patterson’s fire- enacting 3g(a)(2). § goals in art. ture’s arm, particular in circum- its “use” the See, Appeals, v. Fourteenth Court Lanford of of fact drug of the virtue stances 581, (Tex.Cr.App.1993); 847 586-587 S.W.2d dangerous, pose a inherently that firearms, and, Patterson, 785; Boykin, at others, are and for that reason threat to opinion concurring 769 at In S.W.2d 940. his protect commonly drug trade to used Maloney in that Tyra, Judge observed “one See, id., at 942. the contraband. goals the primary behind enactment of 42.12, § 3g(a)(2) [art. ] was to deter offenders language in Patter- While our “facilitation” guns deadly using weapons or in from other adequately explained posses- son how mere encourage the commission of crimes —to “use,” sion a firearm constitute its Id., weapons at them to leave their home.” facili- is evident that Patterson’s nonetheless J., (Maloney, concurring). at 803 S.W.2d support affir- language tation would not an Thus, Legislature’s purpose enacting the in object not a mative where 42.12, § 3g(a)(2) art. use was to deter the deadly weapon per se.9 Tex.Penal Code Ann. firearms, particular, weapons, 1.07(a)(17)(A). § As we noted Tyra, commission of crimes. at II.B., object weapon deadly a supra, an is J., (Maloney, concurring). Judge 802-803 inherently dangerous, in other per if it is se Maloney Legislature, further observed made, words, adapted designed, if it is legisla largely may have “due to what been Thus, bodily injury. or serious cause death oversight,” incorporated tive both definitions Patterson, possession deadly mere a Id., deadly of a weapon under 1.07. weapon “use” per se constituted because of significant A has fact which been over- posed implicit threat to oth- subsequent upon looked reliance Patterson However, object possession of ers. mere an conceptual is that Patterson addressed dangerous actually as unless a possession tension between Patterson’s mere weapon, can never “facilitate the associated pistol, that and the affirmative he object possession of such an offense” because pistol in drug “used” the connection awith I pose does not a threat to others.10 would Thus, offense. the Court was confronted hold of an associated Patterson’s “facilitation finding of justifying with an affirmative language is limited cases involv- acknowledging offense” pistol “use” of the while that actively ing deadly weapons per se. Patterson never fired nor threatened per contrary pistol, deadly weapon 8. that a se under Penal Code It should noted Patterson is —U.S., U.S. -, 1.07(a)(17)(A), Bailey v. conceptual federal law. In and so it involved no (1995), L.Ed.2d 472 the United S.Ct. support finding. But stretch Supreme Court "use” a States held firearm where, “weapon” deadly at issue is not a 924(c)(1), a under 18 U.S.C. statute similar to se, comport per and its "use” does not showing § 3g(a)(2), requires a art. understanding deadly with our common how actively employed firearm used, application weapon is of Patterson's "facil- predicate and in relation to the crime. If, language is more itation" troublesome. instance, parent leaves an infant unattended in establishing general read Patterson To drowns, subsequently and the child has bathtub findings problemat- framework for affirmative bathtub, water, parent "used” ic Patterson's definition of endangering a facilitate the offense of "any employment weapon to mean child? Tex.Penal Code Ann. 22.041. weapon ... facilitates the associated felo- [it] id., ny” out- unworkable Judge Mey- plurality opinion nor 10.Neither side the context in which Patterson was decided. course, recognize weapon was ers address this distinction. Patterson Rather, prosecuted appellants IV. the State on theory committed the offense case, In the instant the indictments omission, is, through failed charged appellants to a child required to take affirmative acts of them theory omission. The State’s of the offense parents support law as in the care and upon appellants’ provide was based failure to their child. During food and medical care to their son. trial, presented the ap- State evidence that Moreover, by attempting ap- to construe pellants withheld food and medical attention pellants’ employment restraining devices years. over a number of As a result of weapons deadly pur- the use of for the appellants’ provide adequate failure to nour- poses finding, of an affirmative the State attention, ishment or medical the victim 42.12, 3g(a)(2) § art. stretches to the ex- growing gradually physically ceased de- Although appellants treme. clear it is “used” failed, teriorated until his functions son, various devises to it restrain their is resulting Consequently, guilt in his death. equally clear that those devices were not for the predicated solely offense was deadly weapons meaning used as within the upon appellants’ failure to take affirmative 42.12, § 3g(a)(2) of art. and Tex.Penal Code steps adequately to nourish and seek medical 1.07(a)(17)(B) § Ann. because the devices attention for their son. directly were not used in a manner which finding It is clear that an affirmative is at Using caused to the victim. this rea- odds with an by offense committed omission soning, merely appellants placed pad had prosecution because a for an offense based refrigerator, lock on the we would be forced upon predicated upon proof an omission is pad to conclude that the lock constituted a that a defendant failed to undertake an affir- However, deadly weapon. unwilling I am State, mative act. Smith deadly meaning weapon” extend the of “use a and, (Tex.Cr.App.1980); Tex.Penal Code Accordingly, to this extreme. I would hold 6.01(c) (“A § person per- Ann. omits to who that, law, as a matter of an affirmative find- form an act does not commit an offense ing deadly weapon may of the use of a not be by pro- unless a law as defined Section 1.07 predicate made where the offense is commit-

vides that the omission is an offense or other- by plurality ted omission. Because the does act.”) provides wise duty that he has a not, I dissent. also, Billingslea, See 780 S.W.2d at 274-275. appellants While the State demonstrated that V. employed physical various restraints on their son, review, question In their third for prosecute appellants the did not theory they judge on contend the trial the committed the offense action, through essentially, charging jury parole erred in the that the prevent by provided the devices the victim from ob- instructions Crim. Tex.Code 4(a)11 taining § his own food and medical attention. Proe.Ann. art. trial, behavior, good diligence carrying 11. At the time of art. exhibits 4(a) provided: prison assignments, attempts out work prisoner engages at rehabilitation. If a penalty phase In the of the trial aof misconduct, prison may authorities also take punishment the case which is to be assessed court, away part any good jury all or conduct time rather than the if the offense prisoner. earned jury of which the has found the defendant possible length guilty 3g(a)(l), "It is also of time for listed Section Article 42.12 imprisoned judgment which the defendant will be contains an might parole. 3g(a)(2), be reduced an award of under Section Article 42.12 ... case, applicable unless the defendant been "Under the law in this if the has convicted capital felony charge jury impris- court shall defendant is sentenced to a term of onment, writing eligible pa- as follows: he will not become for case, applicable equals "Under the law in this role until the actual time served one defendant, impris- years, if sentenced ato term of fourth of the sentence or 15 whichever onment, less, may period any good earn time off the without consideration of imposed through may award incarceration conduct time he earn. If the defendant good years, conduct time. Prison authorities is sentenced to a term of less than six good years prisoner award conduct time to who he must serve at least two before he is (b)12 eligibility on a sentence. parole defendant’s the submission of both instruc- lengths permitted jury compare (Tex.Cr. tions See, Oakley prior making an affirmative of sentences also, App.1992).13 Marks v. See deadly Ap- weapon. use (Tex.Cr.App.1992). Where Brief, pellants’ pg. Although appellants finding of jury has made proper to submit the contend was 4(a) informs weapon, the use of ap- phase, issue at the com time is not jury good conduct pellants argue judge trial should must puted time a serve into the first issue and submitted By parole parole. in- appropriate eligible then submitted an he becomes before 4(a) 4(b) either struction under contrast, affirmative find after there is no where upon decided 4(b) ing, good con informs the appropri- that the issue. State counters time a defen computed is into the duct time deadly weap- the ate time to have submitted eligible must serve before he becomes dant guilt-innocence phase on issue was at the and reading of plain for a art. parole. From by requesting the issue be 4, only 37.07, readily § one apparent that is punishment, at submitted Therefore, in is or instruction authorized. agree. I waived error. jury the charge appropriate der to the 37.07, § 4 at Art. mandates an instruction instruction, parole deadly weapon issue the phase informing jury punishment the the to, by, good submitted and resolved the about the effect of conduct time and must be good prisoner eligible parole. Eligibility parole time to who for for award conduct behavior, grant- guarantee parole diligence carrying good not will be in does that exhibits prison assignments, attempts ed. work and out accurately predicted engages "It be how the prisoner cannot in rehabilitation. If a at good might parole misconduct, law and conduct time be may prison also take authorities applied if he to this defendant is sentenced good away part any time all or of conduct imprisonment, ap- the term of by prisoner. earned the plication depend of these laws will on deci- length time possible is that the of for “It also by prison parole sions made and authorities. imprisoned defendant will be which the may pa- "You consider the the existence of parole. might by of be reduced an award However, good law role and conduct time. case, applicable in if “Under law this the the you are not to the extent to which consider impris- is sentenced to term of good may conduct time be awarded to or onment, eligible pa- will become for he not by particular forfeited this defendant. You plus any served role until actual time are not consider in which the the manner equals good conduct time earned one-fourth parole may applied particular law be to this imposed years, or 15 which- of sentence defendant.” Eligibility parole is for does not ever less. granted.” guarantee parole will be trial, 12. art. At time 4(b) provided pertinent part: in penally phase felony of the trial of punishment is case in which the to be assessed State, 529, 13. In Rose v. 752 S.W.2d 552-553 court, jury rather than the offense (Tex.Cr.App.1987) (Op. on Court’s Mtn. for degree, punishable felony as of the first if a 37.07, § Reh'g), we art. 4 violated both the held alleged prior has conviction been for enhance- II, 1,§ powers provision separation in art. punishment provided by ment of as Section I, provisions and the due course law art. 12.42(b), (c), (d), Code, Penal or if the 19 of the Texas Constitution. 13 felony designated capital is a Rose, Subsequent Legis our first, decision felony aor of the second or third ratified, proposed, and the voters lature degree imprison- term and the maximum Const, IV, § art. 11 which to Tex. amendment may imposed ment that for the offense is granted Legislature authority to authorize years, longer than 60 unless the offense of judges juries our trial to inform on the effect guilty which the has found the defendant See, 1989, good parole. Leg., time Acts 71st 3g(a)(l) judgment listed in Section ... or the 4, 1, 7, approved by voters on November S.J.R. Section contains an under constitutionality upheld the We 3g(a)(2), charge the court shall State, Oakley parole v. 830 S.W.2d writing instruction as follows: also, State, case, (Tex.Cr.App.1992). v. applicable See Bruno law in this 107 “Under the 910, defendant, (Tex.Cr.App.1993); impris- S.W.2d 913 French if sentenced to a term of State, 607, onment, (Tex.Cr.App.1992); may period earn time off the 113, State, through (Tex.Cr.App. imposed the award of Marks incarceration good time. Prison authorities conduct jury prior to the See, State, instruction 529, mandated art. tutional. Rose v. 37.07, § 4. (Tex.Cr.App.1987) (Op. 552-553 on Court’s Polk, Reh’g). Mtn. Although Murphy, Although 37.07, § art. 4 specifically man and Luken made clear that there was no parole dates a punishment instruction at the prohibition against the submission of a dead phase, our statutes are silent as to when a ly weapon guilt-innocence issue at the phase, deadly weapon issue is to be submitted. light 37.07, § of art. requirement 4’s Further, our discussion of this issue consists single parole punishment, instruction at it is of dicta. In Polk v. apparent now that the (Tex.Cr.App.1985), explained we in a footnote must guilt-innocence be submitted at mandating “[w]hile not [deadly phase in judge order for the trial to submit weapon] punish issue be submitted at the proper parole appel instruction. While trial, phase 1(a) ment Art. lants seek to punishment have the delibera seems to prac indicate that this is the better stages, tions divided into two in which the Id., also, tice.” n. 3. See Farm v. deadly weapon issue be submitted and re (Tex.Cr.App. 604-605 first, parole solved and then the instruction 1985) (“An (Op. on Reh’g) Mtn. for affirma sentence, this contention is belied tive can perhaps be and is more Legislature’s statutory creation of a bifurcat issue.”) suited to be a In Mur See, 87.07, and, 2;§ ed criminal trial. art. State, phy v. 777 S.W.2d 44 (Tex.Cr.App. State, (Tex.Cr. 234, Brown v. 617 S.W.2d 235 1988) (Op. Reh’g), however, on we stated that App.1981). enacting a bifurcated trial jury’s “where the verdict already does not system, Legislature provided only for constitute an affirmative of use or phases two of trial as accompany well as an deadly weapon exhibition of a ... and the ing stage for deliberation after each issue has not been otherwise submitted at the phase. Appellants’ argument subdividing for trial, guilt phase that fact must also be punishment phase into two distinct proven phase for the State stages supported for deliberation is not reap 3g(a)(2) benefit of Article art. Accordingly, 37.07. when an affirmative 42.18, 8(b), Id., or Article V.A.C.C.P.” 777 finding of the use of a 62, Finally, S.W.2d at n. 10. in Luken v. sought, appropriate time to submit the State, 780 (Tex.Cr.App.1989), S.W.2d 264 guilt-innocence issue is at phase. challenged defendant the trial court’s sub- deadly mission weapon guilt- issue at the Consequently, I would judge find the trial phase. declining innocence While to decide submitting erred in weapon the ultimate issue of whether it was error to punishment phase. However, at the the trial submit a guilt- issue at the judge appellants’ request. did so at phase, innocence we nevertheless stated: sought record indicates the State to submit ... We have never said the issue of guilt-inno- issue at the punish- must be resolved at the phase appellants objected, cence but contend- phase.... ment holding The Court’s in ing if the issue was to be submitted at Polk v. State ... viz that under certain all, it appropriately was most submitted at “guilty circumstances a verdict of punishment phase. By requesting the charged in the indictment” at the end of deadly weapon issue be submitted at the guilt stage of trial will constitute an punishment phase, appellants invited the er- finding, clearly militates explained ror. As we in Tucker v. 771 against that conclusion. (Tex.Cr.App.1988): 523 S.W.2d Luken, 780 S.W.2d at 268. It is well established that when a

Polk, Murphy and Luken requests were decided charge, and the court prior it, to the voter’s ratification of the consti- submits complain he cannot of that tutional authorizing charge amendment appeal.... art. on charge Even Thus, decided, erroneous, when those cases were is later found to be the accused parole punishment phase error, instruction at the can not first invite and then com- only necessary, plain was not appeal. was unconsti- about it on omitted). (citations Tucker, at 534 121, also, Capistran

See (Op. Mtn. for (Tex.Cr.App.1982) on Therefore, estopped

Reh’g). appellants are subsequently complaining of the

from Yount,

charge appeal. on and, (Tex.Cr.App.1993); State v.

Lee, (Tex.Cr.App.1991).

Consequently, I reached concur result concerning appellants’ third plurality review.

question for MEYERS, JJ., join only

MALONEY

part opinion. V of this III, appel- Kelly, Canyon, E. for

William lant. Owen, Atty., Canyon, Dist.

John L. Asst. Horn, Attorney, L. Asst. State’s Jeffrey Van Huttash, Austin, Atty., A. State’s Robert the State. Harry SPAKES, Appellant, Jack PETITION ON FOR Texas, OPINION STATE’S Appellee.

The STATE of REVIEW DISCRETIONARY No. 0087-95. PER CURIAM. Texas, Appeals Court of Criminal escape Appellant A convicted En Bane. sixty years im punishment at assessed his prisonment after that he was habit Jan. conviction was reversed ual offender. This submit a the trial court failed to requested on the defense ne instruction cessity. Spakes v.

App. — Amarillo granted to petition was deter- The State’s predicate mine to the defense whether applicable to of es- necessity, as the offense attempt to cape, surrender once includes escape justifying threat the immediate that numerous has State notes ceased. imposed require- this jurisdictions other analysis in Peo- ment on an conducted based Cal.App.3d ple Lovercamp, (1975). Cal.Rptr. adopted penal the current code

Texas 1973,incorporating common within several defenses, including necessity and duress. law Code, (Necessity) pro- § 9.22 Penal V.T.C.A. justified conduct is if: vides that

Case Details

Case Name: Hill v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 10, 1996

Citation: 913 S.W.2d 581

Docket Number: 1179-94 & 1180-94

Court Abbreviation: Tex. Crim. App.