*1 Billy HONEYCUTT, Appellant, Jack Texas, Appellee.
The STATE of
No. 60506. Texas, Appeals
Court of Criminal
Panel No. 1.
Sept. 1981.
Rehearing Denied Jan. *2 Houston,
Frans Borup, O. South John K. (on George appeal only), Houston, appel- lant. Vance,
Carol Atty., S. Dist. W. Scott Car- penter Larry Thomas, and Asst. Dist. At- Houston, tys., Huttash, Robert State’s Austin, Atty., for the State. ROBERTS, and DALLY Before TEAGUE, JJ.
OPINION TEAGUE, Judge.
This is an from a conviction for the offense of negligent where the punishment by assessed the trial court was a fine of $125.00. record reflects that January against appel- filed
lant in Municipal the Pasadena alleg- Court ing the following: by Authority In the Name and of the State of Texas: solemnly believe, believe, I good do I swear have reason to and do Billy Honeycutt_hereinafter Defendant, heretofore, Jack called day on or making about the 16th A. D. December and before the and filing complaint, operate corporate did drive and a motor vehicle within the Pasadena, Texas, County
limits of the upon in the of Harris and State of Parkway Strawberry Road, public Fairmont at street _in City, the aforesaid did then and there Watson_ being by collide with a vehicle which was driven Tami Jean complainant, resulting damage hereinafter called there from said collision to an more, apparent damage being extent of said then and there caused $50.00 negligence following respects particulars: of said defendant in the and guide
1. The said Defendant did then and there fail to said motor vehicle driven vehicle, away person ordinary prudence him from said motor as a circumstances; would have done under like and keep proper 2. The said fail Defendant did lookout for said other motor vehicle, running which Defendant said could have seen time to avoid into and striking, looking had Defendant been in the direction in which he was said going; and vehicle, did not then and there have said motor which he 3. The said Defendant driving, proper control reason that said Defendant did then and under greater speed person rate of than a operate motor vehicle at there said circumstances; done under like ordinary prudence would have application of brakes make such and there fail to 4. The said Defendant did then ordinary prudence vehicle,, driving, person as a motor which he was on said (cid:127) would have done under like circumstances. Against peace dignity of the State.
rSiamaturel January. *3 day 1978. before me this 5th of Sworn and subscribed rSignaturel_ City Clerk Court Municipal Pasadena, of County, Texas Harris City City Council of the of Pasadena damage to any or collide with other vehi- 28, May 1974, enacted Ordinance No. whatsoever, any cle of kind or any with 74-119, complaint on which the predicat- other property, resulting in a total dam- provides ed. It as follows: age apparent fifty to an extent of dollars ($50.00) more, AN ORDINANCE or within the corpo- AMENDING ARTICLE said II, 36-76, SECTION CODE Pasadena, OF ORDI- rate City limits of the of he NANCES, PASADENA, CITY OF TEXAS guilty negligent shall be held of BY DEFINING THE TERM “NEGLI- upon conviction shall be fined not GENCE” WITHIN THE SECTION WITH- ($5.00) less than five dollars nor more OUT REFERENCE THE TO PENAL ($200.00). than two hundred dollars CODE OF THE STATE OF TEXAS. (b) Proof of no intent part any on the of BE IT ORDAINED BY operator any charged THE CITY of vehicle COUN- with an CIL OF THE CITY OF PASADENA: offense under this section to collide with any other vehicle or any prop- II, 1. That SECTION Article 36- Section erty shall any charge be no defense to Ordinances, 76 of the Code of City of Pasa- authority filed under the of such section. dena, shall Texas be amended so that shall hereafter read as follows: (c) Nothing contained in this section shall Negligent prosecution
“Sec. 36-76. authorize the any person collision. of for the violation of the (a)If same while such any operator driver or of a vehicle person street, operating any department fire upon any public highway, upon or any police department public city drive in a or vehicle of the in park upon any or privately owned ways parking performance duty, provided, access or the of his provided by areas business establish- necessary any that it shall not be in com- ments, charge, without the conve- plaint, proceeding action or under this customers, clients, nience of their pa- or negative any exception, section to the trons, but not upon privately owned resi- proved by by same shall be the defendant property dential or the property of way of defense. garage parking or charge lot for which a PASSED ON READING FIRST storage is made for or parking of motor Pasadena, Texas, City City Council of the of vehicles, corporate within the limits of regular meeting City in the Hall this the Pasadena, of negli- shall with D., day 28 A.May, 1974. gence, which term is hereby defined as D., day May, APPROVED this the 28 A. doing person of that which a of ordi- 1974. nary prudence would not have done un- circumstances, /s/ John Rav Harrison der the same or similar or HARRISON, JOHN RAY person failure to do that which a MAYOR PASADENA, ordinary prudence THE would have done under OF CITY OF circumstances, the same or similar cause TEXAS 420 9, 1978, January pursuant vehicles,
On to the permissible speed of motor we 1978, January appel pointed page filed on at out 613: appeared lant Municipal Court of XI, 5 Article Sec. of the Texas Consti- and, plea Pasadena after a bench trial on a tution, provides city that no not guilty, was and his guilty found may provision contain inconsistent punishment was fine assessed at a $25.00 gen- with the State Constitution or of the gave costs of timely court. He notice enacted Legislature. eral laws appeal to the County Criminal Court at ‘Accordingly, ordinances are void where No. 2 County. Subsequent Law of Harris they in conflict are he ly, Tex.Jur.2d, was accorded a novo in the trial de Constitution statutes.’ 40 court, latter again Municipal Corporations, where he waived trial Part jury, again but was after a guilty p. found
trial to the punishment court. His Deveraux, In Ex 672 parte 389 S.W.2d at a assessed fine in the of $125.00. amount Watson, (Tex.Cr.App.1965), parte and Ex given Notice of this Court on (1949), 154 Tex.Cr.R. S.W.2d *4 same day.1 the penalty provisions this court held that the they city of ordinances were void where error, ground appellant In his sole of a provided penalty different from that complains his conviction is void for failure provided in the statute. the complaint allege culpable of to mental a Code, state. See V.T.C.A. Penal Sec. 6.02. Also, parte Farley, Ex in 65 Tex.Cr.R. County cause was The tried in the Court 405, (1912), 144 530 this said: S.W. Court stipulations agreements between the state an If the denounces offense parties. it, punishment city fixes the and the pass or town undertakes to an ordinance Legislature first observe We that the has offense, the same the or- punishing then legislation making “negligent not enacted be the same as the dinance must state a collision” crime. We are not therefore pun- law as to definition and as to both applicability confronted with the of the rule words, In other proposition ishment. the Legislature that where the a has enacted may be concreted into this statement: If law, certain an ordinance will be declared is in the ordinance conflict with the state Legislative if it is in void conflict with the invalid, law, (citations be held it will However, edict. in Texas Trac Northern omitted) (emphasis added) Smith, (Tex.Civ.App. Co. v. tion 223 1013 S.W. Worth, 1920), it stated: however, See, Vol. Part Texas Juris- —F t. (1976 Edition), The attempted prudence, state has not to define 287. speed the maximum a street car at which However, may the state since authorize automobile the street of may run on corporations to make an an act Worth, province the Ft. and it is within police power the it though offense under legislative City the the of officials make the same of- does act a state not speed Ft. Worth to fix a on its fense, maximum necessarily a case it is not in such streets, providing speed such is maximum it objection to an ordinance that valid provided by in excess of the laws not that an an denounces act that is not made (1015). (47). the State. the Penal Code. offense State, where Legislature In Abrams v. this Although has not enacted making “negligent declared a speeding legislation Court collision” did, crime, Arlington by enacting because it Penal null and void it V.T.C.A. Code, 6.02,2make it contrary regulating mandatory to the that state statute trial, but, punishment only. Appellant’s appeal a sentence fine 1. record on contains State, “sentencing,” giving his and the v. of notice for reasons stated in Abrams 563 day, February all occurred on the nullity same (Tex.Cr.App. 1978), 610 is a S.W.2d cases, required in because sentences are not here, possible provides: where the maximum 2. Sec. 6.02 421 supports us pled charging in a before that culpable mental state be “unless the definition of of- unquestionably instrument fails in this cause conviction mental ele- plainly dispenses fense mental states allege any culpable Furthermore, 6.02(c) provides: ment.” 6.02, supra. found of an offense does “If the definition contends, however, The State one is culpable mental prescribe satisfies su- Pasadena ordinance (b) required nevertheless under Subdivision which recites: pra, caption, because of its section, intent, knowledge, or reck- ARTI- “AN ORDINANCE AMENDING to establish criminal re- lessness suffices II, 36-76, OF ORDI- CODE CLE SECTION sponsibility.” NANCES, PASADENA, TEXAS CITY OF State, 345 In Cole S.W.2d BY DEFINING THE TERM “NEGLI- remarked, (Tex.Cr.App.1977), Judge Dally WITH- WITHIN THE SECTION GENCE” “It would now by way of obiter dicta: THE PENAL REFERENCE TO OUT negligence but crim- appear simple that not THE OF TEXAS.” CODE OF STATE degree of negligence3 inal is the lowest added) (emphasis responsibili- imposing conduct for criminal State, ty.” Bocanegra v. 552 S.W.2d See construing apparent It is (Tex.Cr.App.1977). municipality’s to mean that if a legislative body, enacting a criminal ordi- Thus, by past decisions of this nance, “plainly dispense fit to sees Court, it should now be self-evident that element,” culpable mental mental then “where is an ele state offense, complaint, alleged ment this state need not be in a failure element renders the indictment i.e., here, body, municipality’s legislative [or *5 charging type fundamentally ordinance, enacting “plainly instrument] this dis- Winton, parte defective.” Ex 549 S.W.2d pensed, negli- for the offense of criminal (Tex.Cr.App.1977).4 752 gent culpable mental states of knowingly, recklessly or with
We, therefore, intentionally, restrict ourselves to the question negligence, 6.03 complaint of whether this is void criminal as defined to allege any culpable for failure state and of the Penal Code.” state; i.e., intentionally, mental knowingly, However, adopted if we this inter
recklessly negligence, or with criminal as Code, page at pretation, Bocanegra, defined V.T.C.A. Penal 6.03. see (a) Except provided (b) person negligence, as in Subsection of A acts with criminal or section, person criminally negligent, respect this a does not commit an to cir- with intentionally, knowingly, surrounding offense unless he or the cumstances his conduct recklessly, negligence ought or with en- to be criminal result of his conduct when he gages unjustifiable in conduct requires, of the of- risk as the definition aware of a substantial (b) or the result will fense If the definition of an that the circumstances exist prescribe culpable a offense does not a mental occur. The risk must be of such nature degree state, culpable perceive it consti- a mental state is nevertheless that the failure to dispens- required plainly gross deviation from the standard of unless the definition tutes a element, any ordinary person (c) would exercise es with mental If the defini- care that an prescribe culpa- as viewed from tion an offense a under all the circumstances of does not added.) state, standpoint. (Emphasis re- the actor’s ble mental but one is nevertheless section, quired (b) under Subsection to intimate this statement 4.We do not mean intent, knowledge, or recklessness suffices to require culpable a that all criminal offenses responsibility, (d) Culpa- criminal establish charging alleged in instru mental state be according ble mental states are classified to example, culpable a mental state ment. For lowest, degrees, highest to as relative from requisite charging offense of driv not a ing (1) (2) knowing; (3) follows: intentional intoxicated, Ex see an automobile while reckless; (4) (e) negligence, Proof criminal Ross, (Tex.Cr.App. parte 217 522 S.W.2d higher degree culpability than that of a charged State, 1975), speeding, 591 see Zulauf v. culpability proof constitutes (Tex.Cr.App.1980), nor for S.W.2d 872 charged. many type out traffic offenses set of the other 6701d, Code, 6.03(d) provides: V.A.C.S. Penal in Art. 3.V.T.C.A. Code, “much of the beneficial effect of Penal plain makes it that the [the term Legislature’s] creating ‘carefully four applies “statute” only to enactments of culpable mental Legislatures defined’ states be State and the Federal Con- [would Commentary gress; the Practice not to municipal See to Sec- ordinances or orders lost]. 6.03, Moreover, county supra. holding tion such a commissioner’scourt.5 There- fore, 1.03(b), explicit supra, precludes would be in direct conflict with the a munici- infra, pality of this language defining State from an of Section which of- fense to application 6.02, exclude the extends of Sections 6.02 and as this appears to do. 6.03 to the Penal offenses outside Code.” sum, interpretation In run would afoul Although the municipal Pasadena general rule that a ordi- prescribe ordinance does not an authorized nance must not conflict with a stat- State state, culpable mental one is nevertheless ute. required by supra. See Bocane- State, gra v. supra. complaint in this provision of the ordinance that allege appellant cause does not that acted damage establishes lack of intent to intent, recklessness, knowledge, property “plainly of another does not dis 6.02(c), negligence. supra. criminal See Sec. element,” pense (emphasis mental Therefore, fundamentally it is defective for added), dispenses only but with that of one failure culpable mental state. element, namely mental that of “intent.” State, State, Bocanegra supra; Tew v. Further, an in a law that assertion no cul 375 (Tex.Cr.App.1977). S.W.2d pable required mental state is would be negated required if that law Because it is showing necessary also to the decision reach, is, complaint we simple negligence, negligence is void named, allege culpable state, degree, is a for failure mental however standard of pretermit day we for another responsibility. discussion criminal whether the Pasadena Ordinance Additionally, the ordinance does not may be in conflict with law. state, “dispense with” a void, Finding complaint judgment its cul instead substitutes own version of a is reversed and the is ordered pable mental state. This mental sim dismissed. rejected ple negligence, explicitly is one Legislature. the Texas See the Practice *6 DALLY, J., dissents. 6.03(d), Commentary supra. to Sec. Before the en court banc. 1,
Finally, “the of Titles 2, apply and 3 of the Penal to Code offenses OPINION ON STATE’S MOTION laws, by defined unless the statute FOR REHEARING defining provides the offense otherwise.” ODOM,Judge. Code, 1.03(b). (empha Penal V.T.C.A. added) Legislature’s is an sis The manner of the This from a conviction under “statute,” throughout municipal negli- a Pasadena use of the term ordinance for Code, 1.03(a) prescribed by 5. See Subsections V.T.C.A.Penal of rules of action or conduct controlling authority. 1.07(a)(20). and See Black’s Law Dic- tionary (5th 1979). Ed. In each of the “Conduct” does not constitute an offense un- “law,” statute, above of “conduct” by definitions and less it is defined as an offense nicipal mu- “municipal ordinance, terms “statute” and ordinance” are county order of a commis- out, specially indicating Legis- court, each set that the sioner’s or rule authorized and lawful- separate ly adopted and dis- lature considered them to be under a statute. However, 1.03(b), types tinct of “laws.” “Law” means the constitution or a statute of States, supra, ordinances,” specifically “municipal this a written does not include state of the United record, municipal “statutes,” opinion nance, court, only of a court of ordi- to but refers county thereby resulting necessary an of a commissioner’s order in the inference lawfully “municipal and or a rule authorized were intended that ordinances” not adopted 1.03(b), under a statute. the ambit of Sec. to be included within “law,” defined, It is obvious that the word supra. is, sense, body generic is used in its that it is a gent collision. original On submission the The State concedes that “statute” as used complaint Court held that on which 1.03(a) in Sec. refers legislative enact- appellant brought to trial void for ments, as held original submission, on and allege failure to mental state. municipal does not include ordinances. In municipal and the contrast, the then argues State that “stat- opinion original are set out in full in the 1.03(b) ute” in Sec. does municipal include submission. ordinances, thereby and municipali- allows a prior opinion pointed in this case out ty escape the requirements 6.02, of Sec. that the ordinance defined the offense in supra. In essence the argument State’s using culpable terms neg- mental state of simply that if 1.03(b) “statute” in Sec. does ligence, culpability distinct from each of municipal ordinance, not include then “only the four established in 6.02 of the a ‘statute defining the offense’ can make Penal complaint alleged Code. The the of- 1, 2, Titles and 3 inapplicable to ‘an offense terms, fense in the omitting any same cul- defined as an by municipal offense ... pable 6.02, required by state ” This, State, ordinance.’ asserts the cre- supra. The expressly ordinance itself stat- ates an inconsistency in the statute. We ed its intent to deviate from the Penal perceive no such inconsistency. Code, by commencing, “AN ORDINANCE II, ARTICLE AMENDING SECTION 36.- We plain find the intent of Sec. ORDINANCES, CODE OF CITY OF 1.03(b) only to be that legisla an act of the PASADENA, BY TEXAS DEFINING may ture remove an offense gen from the THE TERM “NEGLIGENCE” WITHIN principles eral established in the first three THE SECTION WITHOUT REFERENCE titles of the code. The legislature used TO THE PENAL CODE OF THE STATE 1.03(b) “statute” in Sec. it because did not OF (Emphasis added.) TEXAS.” grant intend to municipalities, county com original On submission the court held courts, missioners making and rule authori 6.02, supra, does permit power ties the to remove whatever offenses an introduction of a new culpable mental they created from such code provisions as Code, state not created the Penal general requirements culpability V.T.C.A., 1.03(b) Penal Code Sec. does code, stated in chapter 6 of the the law of not authorize by municipal deviations ordi- parties of chapter chapter defenses of nance requirements from the of Sec. duress, insanity, such as age affect supra. held, Consequently, was the com- ing responsibility, justifi criminal and the plaint was void for failure to culpa- cations chapter public such as duty, ble mental prescribed state by the Penal necessity, protection and the law of per Code. property. sons and argument If the State’s On rehearing the challenges correct, were ordinance could construction of with the establishing create an offense criminal lia argument that “statute” includes municipal *7 bility irrespective of any the existence of 1.03(a) ordinance. (b), and in relevant legislatively general codified rules of part, provide: culpability, justifications. defenses A and “(a) Conduct does not constitute an of- municipality abrogate applica could even fense unless it is defined as an offense itself, preemption tion of the doctrine statute, ordinance, order of a V.T.C.A., 1.08, Penal Code adopt if we court, county commissioners or rule au- the 1.03(b), ed construction of supra, thorized lawfully adopted and under a proposed by reject the State. We the statute. 1.03(b) State’s construction of Sec. and hold “(b) provisions 1, 2, The of Titles and 3 that “statute” as used that section refers of this apply code to offenses defined by legislature, to enactments the laws, and was unless the defining statute otherwise; provides the legislature offense intended to reserve to the ...” added.) (Emphasis power abrogation to define offenses in Titles and 3 of the culpable mental state not created by the Code,1 culpable which include the mental Therefore, Penal Code. under Sec. 6.02, requirements supra. state of Sec. culpable required, mental state is 6.02(c), under See. required minimum argument rehearing In another culpability is allegation recklessness. An proposes that even if the ordinance simple negligence comply does not with the subject 6.02, requirements to the of Sec. requirements 6.02, supra. of Sec. supra, provision in the ordinance of a culpable mental simple negligence state of original decision on prop- submission compliance. agree. constitutes We do not erly concluded that in this case fundamentally defective for part provides: in relevant failure culpable mental state.
“(a) Except provided in Subsection (b) section, person of this does not com- rehearing The motion for is denied. mit an intentionally, offense unless he knowingly, recklessly, or with criminal ROBERTS, J., concurs the results. negligence engages in conduct as the def- requires. inition of offense
“(b) If the definition of an offense does state, prescribe culpable
not mental
culpable mental state is nevertheless re-
quired plainly unless the definition dis-
penses mental element.
“(c) If the definition of an offense does prescribe culpable mental Harvey ANGEL, Appellant, Dale required one is nevertheless under Sub- (b) section, intent,
section knowl- edge, or recklessness sufficies to establish Texas, Appellee. STATE of criminal responsibility.” No. 61664. 6.02(a) general states the rule: culpable one four mental states Texas, Court of Appeals Criminal defined in the Penal Code is an essential Panel No. 1. every element of offense. The exceptions Feb. general 6.02(b) to the rule are stated in Sec. (c): if the definition of the offense does culpable not include a mental state as re rule, intent,
quired by general then
knowledge, applicable or recklessness is the
mental state unless the definition of the clearly dispenses
offense
element, culpable so that no mental state is
required.
The ordinance does not include one four mental states in the negligent gen
definition of so the 6.02(a) rule
eral of Sec. is not satisfied and 6.02(b) must be consulted. The defini *8 negligent
tion of collision also does not
plainly any culpable dispense with attempt new apply since does case, 3, Punishment, special pro- quoted opinion
1. Title is a in this and not at issue in this portion closing vided in of Sec. case.