*1 he voir the jury dired on an information that stated there is almost no chance that in the instant Cause and at time he that Mel Bruder have would missed the error waiver, would have searched for a proper alleged by Petitioner. Jan Potts testified additionally noting that the word infor- Bruder, opinion that her neither Mel mation had been twice in the mentioned Helft, Barry Terry nor Diggs will let the pre-trial Cause, conference in the instant alleged go error without raising it. providing opportunities additional for the “This testimony, Court holds Jan Potts’ subject of waiver of indictment it does Judge Zimmermann’s testimo- mentioned. He many indicated that as to be ny, fully credible and worthy times as the word was men- ‘information’ belief. Cause, tioned in the instant such would summation, “In again, this be- Court have been ‘red flag’ to look for a waiv- proper lieves that a waiver of the right er. He added that if he not find indictment in accordance with 1.141 Art. one, proper waiver when he looked for been has shown.” would halt tell the proceedings and court, light findings the trial lawyers get Judge one. The noted are clearly supported by which the record that he is now and was at the time us, applicant before has failed to meet instant require- trial familiar with the his burden. This record dictates that relief ments of Art. 1.141 as require- be denied. To the failure of the majority ments for a proper waiver of indictment grant the State’s Motion for Leave to File that the waiver he was interested in I Rehearing, Motion for dissent. finding a proper was written waiver which both the defendant and defense signed.
counsel had MILLER, JJ., G. join TOM DAVIS and “This Court does not that Judge believe this dissent.
Zimmermann made any kind of mistake CAMPBELL, J., not participating. for, find, respect failing to look and ensure proper right waiver of the
to indictment. Potts,
“Jan prosecutor the lead
trial, that strongly stated she believed proper there was a waiver written
and that there is no chance she over- having proper
looked waiver in written case, that she overlook would not LUGO-LUGO, Appellant, David ensuring such a constitu- fundamental tional right of the defendant. stated She of waiver she type Texas, Appellee. The STATE of talking Petitioner, about was one that Helft, and all Barry Terry Diggs signed. No. 60018. She did not state that specifically she Texas, Appeals of Criminal Court waiver, yet
remembered a written her En Banc. practice strong. custom and testimony type She noted that of waiver April talking she about is one Petitioner, Helft, Barry Terry Diggs signed.
all
“Additionally, would Trial Court
note that Mel Bruder was one No. F77-
appellate attorneys Cause Zimmermann, Judge who has
7325-J.
appointed appeals, Mr. Bruder on many *2 Cove, for Thompson, Copperas
James R. appellant. Eads, Atty., Ralph Petty Dist.
Arthur C. Russell, Attys., T. Asst. Dist. and James Belton, Huttash, Atty. Robert State’s Austin, Walker, Atty., Alfred Asst. State’s for the State. MOTION
OPINION ON STATE’S REHEARING FOR CAMPBELL, Judge. murder un- was indicated for
Appellant 19.02(a)(2). Sec. der V.T.C.A. trial, right jury to a Appellant waived guilty example, and was found the trial For court. Penal Code Art. punishment mischief, trial court assessed at life proscribed malicious provided imprisonment. person that ‘it shall for any be unlawful willfully injure or destroy, attempt submission, On original panel of this injure destroy, any property ... conviction, Court reversed appellant’s va- ’ *3 without the consent of the owner .... court, judgment cated the of the trial culpable Did the ‘willfully’ mental state prosecution ordered the dismissed. The modify only ‘injury destroy’ or or did it cause, sitting Court now considers this en modify ‘without consent of the owner’ banc, panel opinion and the is withdrawn. well, as so State to convict had We note at the outset on panel to prove the he actor knew didn’t have original submission found that fundamental the owner’s consent? 6.06 Sec. answered error existed in the indictment and there- this question, when the term describing fore did not grounds consider two the culpable syntac- mental state did not error appellant raised brief conduct, tically modify the circumstances appeal. panel The found that the indict- conduct, surrounding the or result ment was there was an wanting offense, conduct the definition of the culpable absence of a state under mental by providing culpable mental Code, 6.02, preceding V.T.C.A. Penal Sec. each applied types state of these phrase clearly danger- “commit an act elements of the offense definition. Its life, ous to human to-wit: did then and deletion will missed syn- because the there kick said Taelia Dana Ris Pinero tax of several sections in this code leaves her thereby abdomen the death causing ambiguous relationship between the of the said individual.” The indictment in required culpable mental and vari- cause, this omitting parts, the formal is set elements, ous offense definition e.g., Sec- out as follows: 30.05, 42.02, 43.23, tions 47.05.” “. .. intending did then and there statutory provisions to our relevant bodily cause serious to an injury individu- examination are as follows: al, Pinero, Taelia Dana Ris commit an act Code, 6.02(a): V.T.C.A. Penal Section life, clearly dangerous to human to-wit: provided (b) as “Except Subsection then there kick the said Taelia person this section a does not commit an Dana thereby Ris Pinero in her abdomen intentionally, unless knowing- offense causing the death of said individual ly, recklessly, or with criminal negligence engages in conduct the definition of Code, 19.02(a)(2), V.T.C.A. Penal Sec. requires.” offense supra. Code, 6.02(b): V.T.C.A. Penal Section The problem before us was succintly “If the definition of an offense does not properly identified in Practice Commen- prescribe state, a culpable culpa- mental Code, tary V.T.C.A. Penal su- Sec. required ble mental state is nevertheless pra: unless the definition plainly dispenses “The 1970 proposed code contained a with any mental element.” providing section 6.06 ‘if the defini- Code, 6.02(c): V.T.C.A. Penal Section prescribes of an culpable offense “If the definition of an offense does not does specify state but prescribe state, a culpable one but conduct, circumstances surrounding the is nevertheless under Subsection conduct, or result of the conduct to which section, (b) intent, knowledge, of this it applies, culpable ap- mental state recklessness suffices to establish criminal plies to each element of the offense.’ responsibility.” The section would have resolved the am- Code, 19.01(a): V.T.C.A. Penal Section biguity, frequently encountered in crimi- statutes, nal as which of an “A person elements commits criminal homicide if applies. offense the mental state he intentionally, recklessly, knowingly, negligence with criminal the death allege necessary causes state1 it fails to ele- of an individual.” ment of the offense.” 19.01(b): V.T.C.A. issue, resolving this Court is not murder, homicide capital “Criminal situa- analogous stare decisis in without murder, voluntary invol- manslaughter, In Teniente v. tions. S.W.2d manslaughter, untary criminally negli- then Dal- (Tex.Cr.App.1976), Commissioner gent homicide.” Court, opinion approved ly, in an 19.02(a): V.T.C.A. Penal held: “A if he: person commits an offense of- gist “The conduct that “(1) intentionally causes knowingly entry burglary fense of this case is the individual; of an death requisite in- into the habitation with the “(2) intends to in- cause serious indictment alleges tent. The
jury
clearly
dan-
commits an act
mental state
which the
*4
to human
causes the
gerous
life that
habitation;
alleges
he en-
entered
it
individual;
of an
death
intent
the habitation ‘with the
tered
”
a
“(3)
attempts
commits
to commit
commit theft.’
other
invol-
felony,
voluntary
than
Teniente,
omit-
supra,
The indictment
manslaughter,
course
untary
and in the
following:
parts, alleged
the formal
ting
of and
furtherance of the commis-
then and there with intent
“...
attempt,
flight
sion or
or an immediate
theft,
a
enter
habitation without
commit
attempt,
from the commission or
consent
Reyna,
the effective
of Carlos
commits or
an act
attempts to commit
owner.”
clearly dangerous
life that
to human
Code,
Penal
30.-
See V.T.C.A.
Section
causes the
individual.”
death of an
02(a)(1).
answering
posed
State,
806
Bermudez v.
533 S.W.2d
Commentary
Practice
to V.T.C.A. Penal
Court,
this
in an en banc
(Tex.Cr.App.1976),
Code,
pertains
supra,
Section
as
Morrison,
Teniente
by Judge
citing
opinion
required culpable
state in Sec-
mental
cases,
State,
expounded
and other
v.
19.02(a)(2), panel
a
held:
of this Court
upon
allegation of cul-
great length
at
Code,
“Similarly here in
Penal
V.T.C.A.
proof required
states and the
pable mental
19.02(a)(2)
has re-
Legislature
Section
thereof:
quired two mental
One is
states.
other-
position is that an act
“Appellant’s
intent
in-
specific
cause serious
will
a crime
wise sufficient
constitute
jury;
voluntary
it must be
with a
coupled
voluntari-
a crime unless the act is
not be
that the
intended or
defendant either
of volun-
engaged in
the element
clearly
ly
knew was
to human
dangerous
always
Appellant
pled.
life because of the
criminal
tariness must
be
definition of
penal
specifically
itself
19.-
new
homicide
contained in Section
code
contends
‘culpa-
01(a), supra.”
voluntary
‘a
act’ and
requires both
alleged in
indictment.”
bility’ be
panel opinion
further concludes:
require-
has held that
“This Court
reviewing
“After
definitions of these
is man-
culpable
ment of a
mental
states, we
conclude that
mental
further
language to
in the absence of clear
datory
Code,
19.02(a)(2)
Penal
V.T.C.A.
Section
State, 528
v.
contrary. See Braxton
specific
intent
to cause
requires
]; Ex
(Tex.Cr.App.1975)
844
with one
S.W.2d
bodily injury
coupled
[
serious
Ross,
(Tex.Cr.App.
76
suit mandated provisions sufficiently charge statute an of Code, V.T.C.A. 6.02(b) Penal Only Section as fense? if it does not is indict follows: fundamentally ment Standley defective. “ State, (Tex.Cr.App. v. 538 S.W.2d ‘(b) If the definition of an offense 1975); Corp. Plant American Food v. not prescribe does State, (Tex.Cr.App.1974). S.W.2d
state,
mental state is never-
reading
“A
theless
the statute reveals that
required unless
definition
single
it unequivocally prescribes
culpa-
plainly dispenses with any mental ele-
ble mental
forgery:
state for
this is the
ment.’
harm,
intent
to defraud or
which is re-
“Since
6.01
Section
does not contain a
(b)
quired by subsection
of Section 32.21.
provision,
similar
voluntariness need not
State,
Teniente
v.
77
State,
(Tex.Cr.
v.
passing the
instrument with
intent to
weapon,
deadly
V.T.C.A. Penal
another;
defraud
harm
Jones v.
29.02(a)(2), 29.03(a)(2); cf.
79 In may teachings. tation be drawn from its adequately alleged offense can be with- Easter, However, alleged the indictment supra, out it. we find that the con- explained petitioner: struction statute prin-
above more consistent with sound unlawfully “did and there commit then ciples of The statutory interpretation. namely, a attempt felony, and commit word a guiding every standard is that child, of and and in the course to a injury statute to have been presumed must and of the commission the furtherance Legisla- for purpose, used and that commit and the defendant did attempt, ture must be have intended presumed to clearly dangerous to commit acts attempt question the entire statute in to be effec- cause death life which did to human State, 715, tive. Morter v. 551 S.W.2d Easter, hereafter Kimberly styled 5429b-2, (Tex.Cr.App.1977); 718 Article striking com- complainant, namely, 3.01(2), accept To Sec. V.A.C.S. infant, his and an with hands plainant, argument reject would State’s be to this fists, choking complainant long-standing body sound and of law. hands, throwing dropping and and decline do so. We using complainant floor and means Teniente, against other instruments and “The results of ' grand jury.” Clark, complainant unknown supra, are consistent this tellana, supra: view. unlike V.T.C.A. ment, that tack on the indictment was that V.T.C.A. express statute to commit a tion sons ments to the indictment in iente, 02(a)(1), intent element stated instant case ments Presiding Judge Onion concluded in San- tention was or reckless 02(a)(2), element statute “The already V.T.C.A. in Teniente and The to be verbatim, defect clearly elements of proof there is no additional contains entry, properly statute stated.” felony burglary Teniente, pled entry in the indictment required by Penal Penal that, an thus in addition to be made ‘with intent intentional, rejected specific burglary. unlike the indict- Code, statute. proven.” Code, alleged Clark, theft.’ the statute. Section Section 29.- tracked the it omits an intent ele- applicable all of the However, knowing The in Ten- general allega- con- rea- The ele- 30.- at- App.1977). V.T.C.A. Penal pra. Reynolds approved by upon driguez v. parte Bailey, App.1980). See also Garrett nying the supplies ing state. mentally defective so conviction writ of Rodriguez bodied in S.W.2d The then “The also challenge Easter, supra, At felony —here court, inquiry was had Commissioner case authored [543] The indictment pages felony murder homicide itself. The approved by for into the mens at 600 present penal State, necessary Rodriguez, 28 and Easter, upon Court, S.W.2d in an [ habeas first time in a (Tex.Cr.App.1978) as to be Quentin Keith injury by Commissioner reliance was rule as now em indictment under S.W.2d opinion culpable mental 331, this Court. Ro supra, prosecu 19.02(a)(3),su code rea accompa corpus. v. 332 susceptible concluded: State, at dispenses Court authored underly (Tex.Cr. (Tex.Cr. child— funda p. post- 28.” had 573 Ex ]; *8 Rodriguez, supra, stated: authority the case devel- In addition to to fourth given is the it is to com- “Initial attention point, to this instructive oped 19.- claiming error that Section ground this Court’s authorities with these pare vagueness for 02(a)(3) is unconstitutional Easter, 615 holding parte in Ex S.W.2d is con- infirmity The Easter, and supra, indefiniteness. Although (Tex.Cr.App.1981). the that the theory Section tended for with an indictment under V.T.C.A. dealt of mind culpable what state Code, so-called fails to show 19.02(a)(3),the Section Penal the ‘act in the commission of rule, required is analogous interpre- an felony murder dangerous clearly to human appellant Bowen, life that The in supra, challenged causes the death of an individual.’ The the indictment as being fundamentally de- fective, novel although appellant contention has not heretofore been not chal- and, it, lenge decided grounds resolve said indictment on enactment similar to must be the case panel considered with other at bar. A of this sections of Court code, Bowen, the penal supra, concluded: rule of strict construction does not apply. Section 1.05 “Here, pleader alleged all elements of the offense charged more. That —and ... ‘beating with his hands and is fists’ “From the consideration of these Sec- necessarily dangerous not ‘clearly to hu- together, tions it logically follows that man does life’ not render the indictment to, because 19.02(a)(3) Section is silent as fundamentally defective.” and dispense with, does plainly appear It culpable required mental would state for the indictment Bowen, supra, bar, and in case at underlying inso- felony attempt- committed alleging far as ed, an offense under 6.02(b) Section Section mandates that the cul- 19.02(a)(2), supra, are The pable shall, panel identical. specified mental state Bowen, supra, found no fundamental 6.02(c) intent, de- Section be one of knowl- fect in said indictment. edge or Upon recklessness. establish- ment of underlying committed or at- Bearing teachings mind the of Ten- tempted felony embracing the requisite iente, Jones, Bermudez, supra, supra, supra, state, mental 19.02(a)(3) Section then de- Clark, Jason, Martinez, supra, supra, supra, clares that act which is committed in Santellana, Prophet, supra, supra, parte Ex of, the course and furtherance or in im- Easter, supra, Rodriguez, and Bow- from, flight mediate underlying com- en, supra, we turn to the indictment in the attempted felony mitted or and which is case us. before The dangerous clearly to human life and caus- 6.02, supra, required by supplied Section Thus, death, es shall constitute murder. in the at bar indictment case culpable mental state the act of phrase: to cause intending “... serious supplied murder the mental state bodily injury.” Murder under Section 19.- accompanying underlying committed 02(a)(1), supra, type is a “result” of a crime. felony giving rise to the act. attempted objec- It is conscious committed when the of the mental element transference tive or of the whs to perpetrator desire establishing criminal responsibility for perpetrator cause death where the act to original resulting con- aware cer- reasonably conduct was forms preserves traditional tain to death. V.T.C.A. cause Penal requirement mens rea of the criminal Code, 6.03(a) (b). When Section law.” intentionally states of knowingly are attached to result of The most recent case that this author death, possesses criminal homicide then prosecution could which a find in was had family required basic characteristics of its under 19.- V.T.C.A. 19.01(a) by V.T.C.A. Penal 02(a)(2), panel decision (b). Court in Bowen v. Bowen, (Tex.Cr.App.1982). It is an individual axiomatic that when alleged indictment did: is intended to upon embarks conduct that “then and there intend cause serious cause the result of death he achieves Harless, death, committing an act bodily injury Timothy hereaf- he does so by Noting ter and did cause life. styled complainant, clearly dangerous human however, that, clearly danger- commit- complainant by the death while an act occurs, it is not ting clearly dangerous an act to human ous to human life usually life, ... under Section namely, by beating prove up him with his murder *9 19.02(a)(1), supra. fists.” hands and death, Thus, state, prosecution element of under the intent to cause focuses first 19.02(a)(2) upon impose any the result and does not is satisfied. Section by limitation on the manner means prosecution element of The second Ergo, which the death is achieved. if showing 19.02(a)(2)requires a under Section death, the intent to cause an individual clearly commits act that individual an throws a small stone at an individual life, i.e., requires it dangerous to human him, guilty kills is mur- perpetrator bodily to cause that the intended serious act resulting der not act withstanding that the to clearly dangerous injury objectively be clearly dangerous in the death not to was of seri human life. Because definition human life. It sufficient that the perpe- perma injury ous includes serious bodily trator intended and achieved to cause death protracted or nent loss disfigurement objective that stone or with a small a hand it bodily organ, member or impairment of a grenade. act that necessarily not follow that an does 19.02(a)(1), supra, Murder under Section bodily injury was intended to cause serious death, by knowingly causing contemplates to clearly dangerous be also intended to both the act dan- clearly commission of an an act was intended human life. Since gerous to human life and an awareness of injury not have bodily may to cause serious the nature of Applying that act. the defi- to clearly dangerous been to be intended of “knowingly,” person knowingly nition a life, requires human statute causes death aware his “when he is an by act be measured character of the conduct is reasonably certain cause Thus, objective while an individ standard. 6.03(b), supra. prose- result.” Section of murder under may ual be convicted Sec 19.02(a)(1), surely cution under Section intending to cause 19.02(a)(1),supra, by tion cannot be was inferred that the individual notwithstanding that the act result death reasonably certain his conduct would result clearly ing objectively was death causing in death unless conduct in death life, individual dangerous to human Thus, clearly was to human life. dangerous under could not be convicted murder under respect to a murder Section 19.02(a)(2), supra, by intending Section act, 19.02(a)(1), supra, by necessity, injury the act bodily cause unless serious clearly dangerous must be objectively clearly resulting objectively in death individual, definition, by human life and the Ergo, by life. autho dangerous to human must be aware that the act subjectively intending rizing for murder conviction resulting clearly danger- death act, of its regardless an to cause death human ous to life. intending to cause serious magnitude, clearly dangerous bodily injury, by also murder We note that under Sec life, has determined 19.02(a)(2), legislature “result” of human type is a are func (a)(2), supra, (1) 19.02(a)(1) It when a crime. is committed Thus, requirement bodily tionally equivalent. serious individual intends to cause state under Section (2) clearly dangerous of a injury, commits an act is estab 19.01(a), when it is satisfied (3) to human life that causes death individual, the intent apply we the definitions lished that the an individual. If an act bodily injury, commits 6.02(a) seri cause serious of “intent” under Section results to human life that clearly dangerous under Y.T.C.A. injury ous panel opinion in death. The effect 1.07(a)(34)we conclude that state of culpable mental 19.02(a)(2),supra, requiring that a under prosecution knowingly” applied individual, acting “intentionally or first show that the must clearly dangerous objective desire to the conduct with the conscious death, life, change the character human was to serious create a substantial risk 19.02(a)(2), supra, protracted loss murder under Section disfigurement, permanent a crime to a “result” type bodily member or from “result” impairment any of a crime. Section type and “conduct” of an individual. organ, caused the death *10 19.02(a)(2), terms, supra, clearly by its fo- unless it is shown on the face of the cuses the mental of state the individual on statement that: particular result and not on conduct “(a) accused, prior making that causes death. statement, mag- either received from a warning provided istrate the in Article apparent It is of reading from Ten- 15.17 of this code received from the iente, supra, Jones, supra, Bermudez, supra, person from whom the statement Clark, Martinez, Jason, supra, supra, supra, warning made a that: parte Prophet, Ex supra, parte Ex Santella- na, Easter, Ex supra, parte “(1) Rodri- right he has to remain silent guez, supra cases, any and a of other and not at legion that make statement all and and Appeals any may Court the various Court statement he makes be of trial; have against dealt with the of whether an used at him his sufficiently prescribes indictment the re- “(2) any may statement he makes states, quired culpable on mental state or court; against used as evidence him basis, i.e., case-by-case by an indictment “(3) the right he has to have a law- indictment basis a statute-by-statute and yer present prior to advise him to and been, This approach basis. has by mandated during any questioning; 6.06, proposed fact Section “(4) if he unable to a law- employ supra, was not by legislature,3 enacted yer, right he a lawyer has the to have and this Court declines to do that which is appointed to advise him to and prior prohibited by Constitution. State during any questioning; and II, 1, Article Texas Constitution.4 “(5) right he has the terminate We hold that the indictment in the case time; at any interview at was not fundamentally bar defective and accused, “(b) the prior during to and requisite culpable it contained the statement, making knowing- of 6.02, required by as ly, intelligently, voluntarily waived 19.02(a)(2), supra. and Section warning out rights pre- set in the by (a) We scribed this sec- now turn to the two Subsection grounds tion.” error raised in the but not appellant’s brief by heretofore addressed Court. Appellant correctly asserts that his con- ground error number one as appellant by fession introduced its State admitting serts the trial court erred objection; in chief appellant’s case over considering appellant’s confession because that at 9:50 on the 21st of Novem- day a.m. appellant was not warned person ber, Tony warned whom the was made statement 38.22, of his under rights Barrio Article by Article Y.A.C.C.P. statement; supra, prior making any to our are inquiry following that, Pertinent “They, Mr. [ap- Barrio testified statutory provisions contained Article Mrs. went pellant, Mrs. Hilbert and Ybarra] 38.22, V.A.C.C.P.: another and I don’t know what into room later back happened. made Mrs. Hilbert came
“Section No written statement me, said, gave told ‘Thank us you, an accused as result of custodial ” interrogation A thorough is admissible as evidence full confession.’ review record, however, him in criminal Mr. against any proceeding reveals that Bar- legislation separate body magistracy, of medi- 3. The science of is like that those to-wit: respect: easy one; Legislative cine in one it is far more which are those are another, point harm will out what will do than what do and those which are Judi- Executive Colton, (1825) good. another; person, Charles Lacón Caleb cial to and no or collection of 1.529. departments, persons, being one of those any properly power shall exercise attached powers others, State of except 4. The of the any Government here- instances de- Texas shall be divided into three distinct expressly permitted. partments, each shall be confided to a of which *11 rio, Hilbert, Mrs. Barrio further that at conclu- Mrs. Ybarra were all testified present appellant the same giving warnings required by room with sion of appellant rights (in when was advised of his presence ap- Article of Spanish language) pursuant to Article Hilbert, Mrs. Mrs. Ybarra and pellant and 38.22, supra. examination room. Tony Barrio exited the testimony Ybarra offered further Grace Appellant’s ap- confession handwritten surrounding concerning the circumstances pears the record as State’s Exhibit No. evi- taking appellant’s of confession as 11. This signed by appel- confession No. 11: dence in Exhibit State’s Lugo-Lugo lant David and was witnessed at November, 10:25 a.m. the 21st of day “Q. Okay. on And [PROSECUTOR]: 1977, Hilbert, by and Grace Ybarra. Mary where was statement taken? follows: taking of “Q. All “Q. “A. case, especially the been marked as State’s Exhibit No. ment its ing and will ask present testimony conclusion, [PROSECUTOR]: Yes, sir, I he was David right. ... polygraph when statement of Lugo-Lugo, he did. At the police? willing top portion I will you Tony same examination, the defendant to look at that and hand to make Barrio was anyAt indicate of State’s Ex- you as to whom taken, completion as to time what has in this state- after is as dur- you “Q. “Q. “A. “A. you tell the court rights to this case? you warnings No. 11 were ry warnings lice Exhibit No. State’s [*] All All I was.” In the CID area Department. if right. right. Exhibit No. 11 contains statuto- you [*] at the him 11? were given Now, Now, [*] through top present who if of the Killeen Po- of [*] you State’s top 5, top explained defendant and I’ll ask when these [*] will, portion of Exhibit State’s would [*] you explained hibit 11 and if can “A. Mr. Barrio to him.” you No. ask identify that? ****** Yes, document, “A. This and espe- sir. “Q. Now, you ask what right. All I’ll document, cially portion top do you or what did in refer- happened, portion of the document was top this statement once Mr. Barrio ence to writing filled my out hand Mr. gave the form and released you this was Lugo-Lugo’s presence and you and Mrs. Hilbert? defendant completion immediately made after the the written “A. translated it to—from I adja- of the examination the room I it.” Spanish English, typed into cent the polygraph examination testimony room. It is from the offered obvious Ybarra, Hilbert, Barrio, and from “Q. present All Who was when right. (ap- Exhibit No. 11 reading State’s top part was filled out? Hilbert, confession) appellant, pellant’s Myself, “A. the officer that was in present during Ybarra, and Barrio were all case, Hilbert, charge Mary who appellant pursu- was warned the time that is the officer there. juvenile 38.22, supra. It is of no ant to Article sorry, “THE I’m who? COURT: Mr. Barrio left the interview moment that Hilbert, juve- Mary “THE WITNESS: warned appellant room after Depart- for Police nile officer Killeen proceeded Ybarra Mrs. Hilbert and Mrs. ment. find appellant. We take the statement Ybarra. I be- “A. And also Mrs. Grace error be without merit. ground proper don’t know her ti- lieve her —I ground of error Appellant in his second tle, employee she is a full-time but erred in admit- the trial court asserts that Department.” the Killeen Police ting and considering appellant’s gave confession a written This statement. Court in appellant’s because confession was illegally Fernandez, supra, distinguished Prince, su- obtained coercion of a pra, use polygraph ground on the appellant was not examination and photographs of the de- taken to the crime scene. This Court held Appellant ceased. cites as authority that giving the a lie detector test ground of error number two the following did not render confession inadmissible. authorities: Prince v. 155 Tex.Cr.R. This Court further held that under the facts *12 108, 231 (Tex.Cr.App.1950); S.W.2d 419 shown, appellant’s Da- the confession was not State, vis 456, v. 165 Tex.Cr.R. as a inadmissible matter of law. The facts 880 (Tex.Cr.App.1958), and Fernandez v. of the case at bar are distinguishable from State, 68, Prince, 172 Tex.Cr.R. 353 Davis, S.W.2d 434 the facts supra, supra, and (Tex.Cr.App.1962). Fernandez, supra. In the at bar appel- case lant was under placed arrest nor State, In Prince v. appellant the custody until after he had his given state- was shown to subjected have been to (See page 162.) ment. of Statement Facts lengthy interrogation by police at intervals record, reading From a of the cold officers prosecuting attorneys and from the any Court cannot determine specificity of May afternoon early morning to the pictures appellant which asserts were used hours May appellant of 28. The did not to coerce appellant making the into a con- confess until he had been returned to his brief, fession. In his appellant refers us to home, scene of the This crime. Court page 123 of Statement of Facts. The appellant’s held that confession under those following colloquy appellant’s between facts was involuntary. counsel and the witness comprises Barrio Davis appellant concerning testimony entire the show- 23; interrogated was January on taken into ing of any photographs. 24; custody January subjected and to “Q. Mr. [APPELLANT’S COUNSEL]: persistent questioning until he confessed on Barrio, you strap in fact him up did to January During 28. the appellant this time machine and talk polygraph jail was moved from jail held incom- him? from municado friends and relatives. Dur- Yes, sir, give “A. I did a polygraph him ing interrogation, appellant had examination. a picture been shown of the bloody deceased “Q. Okay. During, immediately af- and required twenty-five to hold it for min- ter immediately prior you that — utes. This Court held that under these of period you have a time when discuss appellant’s facts the confession was invol- defendant, things kind of law, so, a matter untary doing as of and in him for the exami- prepping polygraph importance stressed the of the prolonged nation, you not? do questioning holding appellant and the Yes, “A. The pre-test portion sir. incommunicado. examination. State, supra, In Fernandez v. “Q. at that time him you any Did show evidence showed that the deceased was photographs the deceased’s child? fight p.m. killed in about a 11:00 on March fact, photo- “A. I have. may appellant was about The arrested 1:30 Yes, sir, I graphs were available. 13. The appellant ques a.m. on March was some, show sir.” yes, him placed jail tioned sheriff completely of what record is devoid about a.m. The morning, 3:00 next appellant’s was refer- photographs counsel appellant again questioned by the sher ring photographs Barrio testi- what Mr. appellant gave iff at which time informa Therefore, appellant. fied he showed leading of a knife. recovery On nothing preserved for review. appellant of March afternoon for a lie test. that appellant’s taken detector After As to assertion his con- test, about p.m., appellant illegally 5:00 fession was coercion obtained CLINTON, Judge, concurring. through the use of a examination polygraph the record reveals that: filed in rehearing The motion adoption nearly years after the case— Barrio that on No Tony testified difficulty Penal Code—and the the 1974 21,1977, appellant vember he advised resolution, spectre by the of its presented rights his read Spanish; appellant necessity us press upon serve rights Spanish; did not appellant and rational reconsideration studied request signed lawyer; appellant how this Court presented: are issue Tony document in presence Barrio’s courts and deter- analyze lower criminal he proceed; indicated that wanted state” “culpable mine whether Tony gave polygraph Barrio appellant superimposed conceptually both must be examination; that after the examination express upon the otherwise literally appellant advised the law of a criminal offense? requisites indi the results of the examination all that it is painfully apparent nowBy cated that the had not told *13 case, any given in analyzing in truth; verbally complete appellant the advert only it is not sufficient one participation confessed his in the crime to Code, 6.02,1 pro- Penal V.T.C.A. § Barrio; Mr. Mr. Barrio contacted Offi part: vides in Ybarra; cers Hilbert and that Mr. Barrio offense does “(b) If the definition of an Miran appellant Spanish read to the in the state, culpable mental prescribe warnings top da contained at State’s re- mental state is nevertheless culpable confession); 11 (Appellant’s Exhibit No. plainly dis- unless definition quired regard the appellant questions had no any with mental element.”2 penses ing rights requests; no made Barrio, Ybarra neither witnesses Hilbert or Is a “culpable state?” What is a mental or or any any used force made threats is thing? What “mental element” same in order to it a promises get Is “accompanying mental state?”3 statement. court entered make a The trial or “culpable element” “mental of fact and of law that findings state,” both, conclusions What is the neither? voluntarily and the confession was obtained “conduct” between criminal relationship state,” compliance any? the Constitution if “culpable mental and a laws of this the United States. an in- State have culpability” the “required Does McDonald v. 237 society nexus with “results” dispensable Appellant’s ground second (Tex.App.1982). through penal prohibitions? condemns of error is overruled. cul- sum, “required is the function of what the criminal law? pability” rehearing grant- motion is
The State’s others, remain judgment questions, among court is ed and the of the trial These that a to date.4 unanswered Convinced affirmed. statutory opinion questions these is that after are to reason for 1. All citations in this 4.One penal Legislature enact the failed to be cited the 62nd 1974 Penal Code and will hereafter proposed the revised and before code only section number. finally adopted by Legisla- 63rd was code ture in original throughout “Ele- emphasis supplied definitions 2. All transition,” “garbled opinion indi- of this unless otherwise ment Offense” writer Thus, Commentary following 1.07. § Practice cated. conduct, surrounding “(A) circumstances 1.07(a)(8) conduct, as “an “conduct” described defines or result of the conduct “(A) accompanying mental of the became or omission its definition offense” “(B) culpable conduct” and the forbidden state.” “(B) required” turned mental state culpability.” turn, 1.07(a)(13) “element of includes as § ibid, 1.07(a)(13). Compare §with offense,” alia: inter Culpable conduct; Similarly, “Requirement of “(A) forbidden initially pro- State;” 6.04(a) in the (B) required culpability; § Mental posed provided: any required code (C) result.. reading of Chapter pro- as a whole must types elements: the nature [conduct] answers, vide the we proceed conduct, a de novo the circumstances sur- analysis of the rounding conduct, intent and substance of the and the result of provisions contained there. Although the conduct. the definitions of prescribe most offenses same
A. ELEMENTS OF CONDUCT element, for each type of not, 6.03, some entitled “Definitions of do and it is necessary Cul- to distin- pable States,” guish adopted types Mental of elements sub- to avoid con- Legislature fusing proof requirements stance without modifica- for these tion from 6.05 of the offenses.”5 Texas § Revision, Proposed A Bar State Committee 1. Nature of Conduct (Final Revision of the Penal Draft 1970). In the Committee to pro- Comment With legislative history to our aid posed it was observed: § mind, analysis apparent upon it is read-
“One analysis ing additional aid to incorpo- 6.036 that the “nature of conduct” § rated in the new code should be men- must objective either be “the conscious tioned discussing before (intended), definitions of desire” of the actor or be some- mental states set out in this thing of which the actor is “aware” section. The code distinguishes (known). three A person cannot be reckless or “Except provided (b), “(a) person intentionally, in Subsection A acts or with person intent, respect does not commit an offense unless he to the nature of his con- intentionally, knowingly, recklessly, acts duct or to a result his conduct when it *14 negligence, with criminal objective as the definition engage of his conscious or desire to requires the offense . .. conduct cause result. provision changed But the new code 6.02 (b) § person knowingly, A acts with the “unless” clause to read: knowledge, respect to with the nature of his intentionally, knowingly, “unless he reckless- surrounding conduct or to circumstances his ly, negligence engages with criminal when of of conduct he is aware the nature conduct as the definition of offense re- conduct or that the circumstances exist. A quires.” person knowledge, knowingly, or acts with of introduction “conduct” had the unfore- respect with of to a result his conduct when consequence implicating seen of reasonably he is aware that his conduct is 1.07(a)(8) definition of § that term: “an act or certain to cause result. state,” accompanying omission and its (c) person reckless, recklessly, A acts or is an commit offense one must have a respect surrounding to circumstances “culpable mental state” and also must act with of his conduct or the result his conduct when “accompanying an mental state.” consciously disregards he a is aware of but Considering changes such to be matters of unjustifiable substantial and risk that the cir- form rather than obviate substance will some the result will occur. cumstances exist or questions. degree The risk must be of a nature and such disregard gross devia- its constitutes passage This 5. from the Committee Comment an of care that ordi- from standard following continues with the ples: instructive exam- nary person the cir- would exercise under all from the actor’s stand- cumstances point. viewed trespass “... 30.03 defines criminal [SJection entering knowing property as entry another’s (d) person negligence, A criminal acts with (circum- is without the owner’s consent respect criminally negligent, or is surrounding conduct) stances and reckless surrounding circumstances his conduct or entry frighten about whether (result will another ought of to be the result his conduct when he conduct). example Another is false unjustifiable of a risk aware substantial imprisonment, Section 20.02: intentional exist or the will that the circumstances result (nature knowing conduct) detention be- The risk must be such a nature occur. recklessly exposes felony comes a if it perceive degree that it consti- the failure bodily victim to a substantial risk of serious injury gross from the standard (result conduct).” tutes deviation [Origi- or death person ordinary exercise care that an would emphasis] nal from under all the circumstances as viewed ready 6. For the reader’s convenience and refer- standpoint.” the actor’s ence, out here in §' the text of 6.03 is set its entirety. to each apply read to applies, which it to be negligent with to the “nature of respect it— conduct.” which follows the conduct element of beginning when used at particularly Surrounding Circumstances Conduct (or alleged at the be- penal proscription person Nor can a “intend” “circumstances instrument).7 ginning charging of a conduct;” may he surrounding his at most (know) be “aware of” of such existence may
circumstances. And be certainly C. THIS CASE disregard” “aware of but consciously 1. The Statute (reckless), existence of such circumstances case, the instant analysis to Applying this substantial, as well as “fail to perceive” a in is- begin we statute risk, naturally unjustifiable ought of which he aware, (crimi- that the circumstances exist sue: negligent).
nally if he: commits an offense “(a) person A * * * * * *
3. Result Of Conduct mental states Any of the four inju- (2) cause serious intends to defined in 6.03 to “result of may apply § clearly dangerous and commits an ry consciously desire person may: conduct:” a death of an human life that causes the (intend); that his con- the result be aware *” * * individual; to cause the re- reasonably duct is certain 19.02. (know); consciously sult be aware of but unjustifiable disregard a substantial and Elements 2. The Conduct (reckless); or risk that the result will occur determining the step involves The second unjustifia- perceive fail to a substantial and of the offense in terms conduct elements aware, risk, ought ble of which he to be conduct,” “circumstances sur- “nature of negli- (criminally the result will occur and “result of conduct.” rounding conduct” gent). helpful this it is to visualize doing B. INTENT OF CHAPTER 6 chart: provi- perspective Viewed from this these that, intended Legislature sions indicate *15 re- genre culpability some is
generally, element of conduct dis- for each
quired of, (the
cussed nature the circumstances conduct)
surrounding, and the result of the however, plain wording to of a
—subject, context, indicates an statute, which read (an act and its nature of conduct a. re- culpability with a dispense intent to state) mental accompanying any or all of the conduct quirement there. elements contained act is the proscribed with the Coupled result in serious the act will intent Furthermore, that the rules of we believe Notwithstanding fact the bodily injury. will ordinarily sense and common grammar includes bodily injury” “serious state, that does mental require say the “death,” 1.07(34), it is safe conduct, sur- § circumstances specify not “result” an intended statute addresses or result of conduct conduct rounding Thus, signifi- specific conduct. give legal elements of states to we no this conclusion virtually always ap- Legislature will failed to the rule we announce fact that the to the cance “knowing- “intentionally” pro- only ply proposed which to use of adopt code 6.06 of the § stated, ly.” our deter- rationale. As a similar vided Finally, grammar some elements and common we observe that is founded on mination way that it is in such a are set out conduct sense. a mental state context that obvious from the that, proscriptions generally, note We also apply to those ele- previously set out does “negligence” employ “recklessness” which ments. application of those mental do confine may than, which be less “clearly dangerous serious and differ- c. to human life:” from, ent the actual “result.” nature of the conduct or circumstances surrounding conduct? We believe that this is what the code contemplates to “accompanying be an men- question presented most difficult tal state.” case description this is whether the statute’s Anytime the result intended actor “clearly danger- “act” as one which is is unnecessary to commission offense of the part to human is ous life” of the “nature of charged, or is from actual different conduct” or refers “circumstances sur- result, it “accompanying is an state” mental rounding conduct.” provides requisite which culpability Obviously, surrounding circumstances conduct,” the “conduct” or “nature conduct could make an benign otherwise act so and we hold. Another it is way to view Thus, dangerous. the “conduct” is the means actor if we were determine employs effect the “result” he intends. phrase in issue is a “circumstance sur- “conduct” Conceptualized way, this conduct,” rounding culpa- an additional are, and the mental state” “accompanying ble state to that “conduct ele- inseparable. literally, ment” required.9 would be Thus, case, the “intent cause However, upon analysis careful of the “act” bodily injury” applies serious we question, statute are convinced that committed: acts intent person “clearly life” dangerous part to human is respect to the nature of his conduct parcel “nature conduct” pro- objective it is because his conscious de- scribed there. engage sire to in conduct that will result in 6.03(a). bodily serious Re- injury. See § primarily We for two conclude rea- stated, he cause intends to serious Grammatically, phrase unques- sons. injury through culpa- his commission of the tionably adjectival and modifies and de- ble “act.” Further, scribes the noun “act.” the word sum, provides the statute itself cul- objective “clearly” recognition indicates pable mental state for the “nature actor)10 (including all proscribed conduct” therein. a resulting committed threatens risks b. result death;11 accordingly, “danger” contem- is inherent plated by statute provide specifically The statute does not dependent upon unique for the “act” and not “cir- separate “death.” “result” this offense may cumstances” of which the actor not be plainly dispense Does the statute aware. requirement actor intend re- 3. Are Additional Mental States sulting death? We believe it does. This is Required? *16 distinction be- significant obvious Having phrase “clearly determined 19.02(a)(2) 19.02(a)(1), tween § § dangerous part statute.8 life” is “intentional” murder human question requires obscurity, ambiguity, the “result” from or undue 8. The whether com- plexity of a state less addition ... evident.” post Collegiate Dictionary discussed at 89. Webster’s Seventh New “intentional” than (1969). however, demonstrated, been “cir- 9. As has surrounding statutory conduct” cannot be cumstances definition “serious 11.The 6.03(a). injury” support “intended.” lends additional conclu- sion: “clear;” “Clearly” 10. is the adverbial form of “ bodily injury’ bodily injury ‘Serious means latter, synonyms of the some definitions and death risk substantial creates a alia, inter are: death, permanent disfig- causes serious capable sharp discern- “unmistakable ... urement, impairment protracted loss or unquali- ... free ment from doubt: sure ... any bodily organ.” the function of member fied, implies absolute ‘clear’ freedom ... “nature of conduct” proscribed by opinion 19.- the essence of that and with the § 02(a)(2), we return to the completion judgment of our of the Court.
chart:
ODOM, MILLER, JJ., join TEAGUE and opinion as well as the majority opinion. a.nature of conduct KALISH, Appellant, Steven With the completed chart we are prepar- ed to proceed to the step third and final Texas, Appellee. STATE of required by our analysis. We first observe the “intent” No. “accompany- contained C14-81-693CR.
ing mental applies state” to the entire “na- Court of Appeals Texas, ture of conduct:” “an clearly dangerous (14th Houston Dist.). to human life.” 10, Nov. 1982.
b.circumstances surrounding conduct Rehearing Denied Nov. we Since have no “circumstances sur- rounding offense, the conduct” in this we Review Discretionary Granted need not address culpability for that “ele- 1, 1983. March ment of conduct.”
c.result of conduct
Returning of whether the
“result of (death) conduct” requires an ad- ditional mental state less than “in-
tended,” we hold it does not. In reading whole, statute as a apparent
the risk of death is inherent in the actor’s
intentional though conduct. And he may
not necessarily result, intend that death
intends a result in which death is a possibili-
ty. We are convinced that this is all the
Legislature meant require for commis-
sion of the instant offense. reasons,
For the above we would hold the
indictment underlying appellant’s convic- alleged
tion —which is language 19.02(a)(2) fundamentally sufficient § —is support conviction. Since as we under- *17 it, majority opinion applies
stand
analysis provisions focuses more in Chapter
of criminal homicide sections result,
to reach the same we concur with (death), open ante at 88 and n. where we deter- his conduct but left 12. See plainly dispenses mined the statute with the of whether a lesser mental state is necessity required. the actor “intend” the result of