Reed v. State

Anthony REED, Appellant, James

The STATE of Texas.

No. 1410-01. Appeals

Court of Criminal of Texas. 14,

May 2003. Dallas, Rogers, appellant.

Robert H. Drew, DA, Dallas, Katherine A. Assist. Paul, Attorney, Austin, Matthew State’s for state.

OPINION MEYERS, J., opinion delivered the Court, PRICE, JOHNSON, in which KEASLER, HOLCOMB, JJ., joined. Appellant convicted of 22.02(a)(2). § assault. Texas Penal Code years at 20 assessed $10,000 confinement and a fine. stating the conviction appealed jury by improperly charged trial court including the mental alleged only the men- when the indictment knowingly. tal states of affirmed the trial The Court of 261 He instructions. then he drafted the granted to while judgment. We review court’s stated: improp- the court whether trial determine by including the indictment

erly broadened something on get Let’s THE COURT: when “recklessly” the aggravated assault the In the record. and alleged “intentionally” case, the indictment reck- lesser state the aggravat- “knowingly.” put addition to lessly. going And I’m to subject charge knowingly is the of or intentionally, ed assault charge bodily injury. appellant was also caused appeal, in there. arising from the to be going convicted of murder That’s shooting Testimony indi- same incident.1 objected to the inclusion Allen, 20, 1999, June Sheree cates that on of reck- charge of the lesser Gaitlin, sister, Anita and her Corrina Gait- alleged in the indict- lessly that was not lin, down street with walking were ment. Robinson, friend, ap- when their Coartne object would We [APPELLANT]: fence pellant came from behind a and be- going charge that’s to be—to shooting. Robinson struck gan was being proposed charge submitted multiple wounds gunshot times and died aggravated on the assault sisters at the scene. Allen and the Gaitlin offense, it includes a ran, leg Anita but Gaitlin struck alleged by was not mental state that away. Ani- running bullet as she was instrument. charging State sure ta Gaitlin stated that she was not presented to the instructions were The meant shoot appellant whether or state of jury including lesser mental Testimony her. also indicated that Anita says: recklessly. portion The relevant relationship previous Gaitlin had a sexual Now, if find from the evidence be- you her appellant she and sister doubt that on or yond a reasonable recognize identify were him and able A.D., 1999, June, day of about the 20th him As result of the as shooter. defendant, Texas, County, in Dallas identification, appellant was arrested and REED, did JAMES then ANTHONY charged with the murder of Coartne Rob- intentionally knowingly and there of Anita aggravated inson and assault bodily injury to ANITA recklessly cause Omitting parts, Gaitlin. the formal GAITLIN, complain- hereinafter called aggravated indictment for the assault stat- by shooting complainant, and ant said “unlawfully ed defendant did then that the a dead- did use exhibit said defendant and there firearm, during ly weapon, to-wit: GAITLIN, cause to ANITA you then will commission shooting complainant, by called hereinafter guilty Aggravated find the defendant did complainant, said and said defendant deadly weapon as Assault with a deadly to-wit: a weapon use exhibit a charged. firearm, during of the as- the commission guilty of the of- found sault.” deadly awith trial, appealed arguing that phase weapon. Appellant of the guilt At the end of the improperly trial court judge briefly excused the the trial years’ punishment of 50 murder case. 1. The assessed $10,000 and a fine confinement by including Appellant argues the mental state of reckless- that the of Ap- Court peals erred in relying ness. Rocha because Rocha involved the submission of The Court of held that “because offense instruction to the ‘recklessly’ is included the mental states case, however, In this there were no lesser of ‘knowingly3 ‘intentionally,’ trial offenses, by included as determined Texas charge court could properly to Code of Criminal Procedure Article3 appellant convict of if aggravated assault it 87.09,4 jury charge and the did not contain found he acted intentionally, knowingly, or lesser a included offense instruction. State, recklessly.” Reed v. No. 05-00- Rather, instruction added to the 00472-CR, 7, Op. Slip at 2001 WL 533802 charged culpable offense a lesser mental 2001) (not 21, (Tex.App.-Dallas May desig- state than was what included the indict- publication). nated for The Court relied ment. contends that this case is State, 298, on Rocha v. 648 S.W.2d 302 State, by controlled Wilson v. 625 S.W.2d (Tex.Crim.App.1982), which held it that (Tex.Crim.App.1981), 331 instead because was not error charge to submit a authoriz- of Wilson addresses the issue errors ing conviction of the of- lesser included for charged offense of aggravated upon finding assault a rather than errors the lesser included of the lower culpable mental state of “reck- offense instructions covered Rocha. less” even though indictment argues The State of Ap- that Court higher “in- culpable mental states of did err peals by affirming not the trial “knowing” tentional” and for greater court’s inclusion of “reckless” attempted offense murder. The court recklessly instructions. Because ais less- State, 812, also cited Zuliani v. 903 S.W.2d culpable er mental than intentionally state refd), 1995, 816 (TexApp.-Austin pet. as knowingly, State contends it holding was authorized to analogous to a lesser included offense. convict the for recklessly causing post-submission In a amicus brief submit- bodily injury serious to a child when he Attorney, Prosecuting ted the State charged by was indictment intention- State contends that ally and knowingly causing serious a culpable committed with reckless mental to a injury child because “reckless” is a is a aggra- state lesser included offense of lesser than “inten- vated assault committed or Thus, or tionally” “knowingly.”2 knowingly.5 because the offense 6.02(d) (e) (3) 2. Texas Penal charged only Code Section it from the differs offense respect that a less specified, 3. all commission; Unless otherwise future refer- state suffices to establish its ences Articles refer to Code Texas of Crimi- or nal Procedure. (4) attempt it of an to commit consists charged or an otherwise included 4. An offense is a lesser included offense if: offense. (1) by proof it is established or the same Attorney Prosecuting 5.The State states that required less all the facts to establish mention, less Article 37.09 “makes no much charged; of the the commission (1) requires, (2) either lesser-included of- it charged differs from the offense designation or fense must differ in name respect injury in the that a less serious or (2) charged a lesser-included person, or property, risk same public subject range interest offense must be to a lesser suffices establish its commission; than the offense.” for robbery conviction allow impliedly in the fear victim in threatening placing if the evi- included cludes lesser death, that a committed imminent dence shows defendant of this then the instruc- under the laws included offense an offense lesser State). include the lesser tions to the can even if it was not included offense Second, a lesser the inclusion of The State listed indictment. allow conviction may mental state way charge in this case admits that the not al theory that was under a usual man- worded did not follow the Lampkin leged indictment. ner which the issue of State, (Tex.Crim.App. 607 S.W.2d charge A the offense is submitted to 1980), the defen charged the usually containing included offense a lesser knowingly intentionally and dant with says jury a lesser that the can consider bodily injury. causing serious if acquit- defendant is included offense the robbery a con authorized instructions also However, in charged ted of the offense. he they recklessly that viction if found case, this no lesser included offense bodily injury or threatened caused parties.6 by the requested structions were victim in fear of imminent bodi placed the that possible There are several results this was ly or death. We held that culpable can occur when a mental state error. in the that was not indictment is included Third, culpable the of a lower inclusion First, charge. the inclusion of may in the state culpable that lower mental state offense of the refer to a lesser included may listed the statute allow conviction In charged in the indictment. Lit prohibited by for that is not conduct (Tex.Crim. State, 425, 426 659 tle v. S.W.2d if example, requires law. For the statute we held that it was not error App.1983), “intentionally” culpable mental state of charge authorize conviction of for for “reck charge but allows conviction robbery upon lesser included then there if lessly” is error of the lower finding committing an the act does not constitute although indict State, In v. 912 offense. Alvarado S.W.2d aggra greater offense of alleged ment 199, (Tex.Crim.App.1995), 216 this Court intentionally robbery and know vated charge error in a held that there was causing bodily injury. See ingly serious find de which authorized the 301; Zuliani, Rocha, at also 648 S.W.2d if it guilty fendant found that he at 816. 903 S.W.2d during caused the victim’s death instruc- robbery although charged Finally, inclusion

course of he was murder, lower mental state capital requires that tions with lead in the indictment can intentionally charged caused the that the defendant possibility the defendant was con- robbery. See death while course State, that is allowed under v. 710 victed of an offense also Hutchins 590 S.W.2d State, alleged in the v. the statute but was not (Tex.Crim.App.1979); Hawkins v. This issue arose Wilson (Tex.Crim.App.1979); 923 indictment. 579 S.W.2d (Tex.Crim. State, 333, State, defen- S.W.2d at where the 537 S.W.2d 5 625 Dowden (error robbery for aggravated indicted jury charge dant was App.1976) appropri- However, opinion be available not resolve the instruction would 6. does ate case. a lesser issue of whether included with the culpable Wilson, mental states of inten- We noted that the defendant tionally knowingly. We found error was convicted of charged offense. Be- application because the paragraph of cause was instructed on a lesser jury charge allowed him to be convicted of mental state than those indictment, aggravated robbery Rocha, if found that found we error. however, he intentionally, acted knowingly, reck- we held it was not error to lessly. a charge authorizing submit conviction of upon lesser included offense a finding The issue in Wilson is identical to the of the lower culpable mental state of reck- case before us. Little, Thus, lessness. at S.W.2d 426. the indictment the difference between the two cases is knowingly causing bodily injury to Anita Wilson deals with the by shooting Gaitlin by using her and while Rocha deals with a lesser included exhibiting deadly weapon during the offense. Little Because dealt a lesser commission of the assault. consti- This offense, Rocha controlled in that tutes assault under Texas Pe- situation. Zuliani also covers a lesser 22.02(a)(2) nal Code Section which states: included offense the to injury because a (a) person A commits an if offense child provides statute different person commits assault as in defined ranges for each mental state. Section 22.01 and person: Therefore, although indictment (2) uses or deadly exhibits a weapon charged the defendant with intentionally during the commission of the assault. knowingly causing inju- bodily serious Section 22.01 refers to assault and states: child, ry to jury a instructions allowed (a) person A commits an if the jury to him of lesser guilty find person: recklessly causing included offense of seri- ous to a child. This lowered

(1) intentionally, knowingly, or reck- degree felony, the offense from a first as another, lessly bodily injury causes to charged indictment, in to a third de- including person’s spouse; Zuliani, gree felony. S.W.2d at 816. So, the statute allows conviction aggra- of if vated assault the person recklessly The argued State the Court caused to another and used of Appeals by relying did err on Rocha not deadly or exhibited a weapon during the and Zuliani because the current case However, assault. this was not charged could be lesser also treated as a included the indictment. The charged However, party offense. because neither appellant only with and know- requested a lesser included offense ingly causing bodily injury to another and instruction and the lesser included offense using exhibiting deadly weapon during trial, issue not at we not was raised will Thus, the assault. while the instruc- decide case issue that was this based tions authorized conviction of an offense pre presented not to the trial court or statute, is allowed under the it was appeal. request served for failure not an for which was in the lesser included offense instruction indicted. jury charge of precludes the State’s use 37.09(3) by The cases relied on bring Court of 37.08 now Articles Appeals can distinguished be from the case mental state recklessness Little, us. In recognized before this Court that was not in the indictment. the difference between Rocha. of- Wilson and Article 37.09 determines whether an offense, offense is no included lesser lesser offense. It fense is a included (as is in this case and an offense a lesser part states submitted to Wilson) the of- precludes if it differs from included offense then Article 21.15 only respect that a charged criminal the inclusion culpable mental state suffices to estab- less jury instructions for the negligence This must be read lish its commission. charged offense. says: conjunction with Article 37.08 Texas Penal Code 6.03 Section prosecution “In a for an offense lesser separately defines may find the

included each described states and the conduct offense, guilty greater not of the defendant conduct different is different. Reckless any guilty but lesser included offense.” conduct and from intentional knowing Thus, for a lesser included conviction conduct, and as as section 6.03 indicated requires a lesser included to the the instructions defined also an jury, instruction to but was Although appellant offense, neither for the acquittal Anita tentionally shooting present this case. Because which are Gaitlin, him jury instructions allowed presented issue was not to the trial recklessly disregarding to be convicted as Rocha court he fired at the risk that one of shots incorrectly upon by relied the Court of hit else. may have someone Robinson Instead, reasoning in Wilson Appeals. Therefore, expanded applies the case before us. It that the possible the indictment. Similarly, the State’s failure al recklessly guilty causing found in indictment and lege recklessness that bodily injury, which is conduct subsequent failure the act or acts allege to in the indictment. alleged was not pre upon to relied constitute clude inclusion of recklessness holding appellant was are not that We 21.15, jury charge. Under Article separate of- a different or charged with neg recklessness or criminal possibly Whenever he con- which was part into or or ele ligence enters is of, that either saying rather we are victed offense, any ment of or it accurately have list- the indictment should recklessly the accused acted or or the mental states applicable ed the commission in negligence criminal in- limited charge should have offense, information, complaint, an alleged structions to the mental states sufficient in or indictment in order to be the indictment. case reason any allege, such must improperly hold that the trial court We certainty, or able the act acts relied by including the indictment broadened crimi upon to constitute recklessness or when “recklessly” shall it negligence, nal and no event “intentionally” and alleged the indictment allege merely that sufficient to be judgment “knowingly.” Accordingly, the accused, committing acted is reversed and of the Court recklessly negligence. or with criminal Ap- to the Court of case is remanded parties keep 21.15 does not

Article to harm. peals determine submitting a lesser included mental state to with a reckless P.J., KELLER, and and WOMACK However, when recklessness HERVEY, JJ., judgment. concurred in of the indictment for the

left out JOHNSON, J., filed a concurring respect that a less mental opinion. state suffices to establish its commission ...,” say that a less mental J.,

COCHRAN, dissented. sufficient, itself, state is in and of leads to J., JOHNSON, absurd results. concurring. alleged The offense Code, by the indictment in

In the Penal there are a number case, assault, this Penal Code only offenses differ required 22.02(a),defines § the elements of that of- state, mental required and because of the fense as: state, have ranges pun- different E.g., ishment. murder under 1) section (“in- § an assault as defined 22.01 19.02(b)(1) (intentionally and knowingly tentionally, or knowingly, individual; causes the of an death 1st de- another, causes gree felony) manslaughter under sec- cluding person’s spouse”); tion 19.04 (recklessly causes the death of 2) bodily injury “causes serious to an- individual; 2nd degree felony); criminal other, including person’s mischief under section (intentionally 28.03 spouse....” knowingly damages destroys prop- case, erty consent; A, of another without Class knowingly, thereby re- B, misdemeanor, or C depending on stricting the elements of the offense to damage) amount of damage and reckless “intentionally and seri- knowingly causes (reck- or destruction under section 28.04 ous It another.” cannot lessly damages destroys property of bodily injuries be denied that which cause consent; another without Class misde- C death are If serious. we are determine regardless damage). meanor of amount of whether an is a one lesser-included Other required offenses have no solely requires based on whether it less (section state, such as intoxication offenses state, then, culpable mental under this in- 49.11). For other such as sexual dictment, Penal manslaughter, Code 22.021, 22.011 under sections (“A § an offense if person 19.04 commits “reckless” commission borders on the ab- he of an indi- recklessly causes the death surd. For other such as the one vidual.”) of ag- is a lesser-included here, mental state is more similar “man- gravated arguable assault. It is at least ner and than means” to “lesser-included that, here, under the at issue offense.” 19.02(b)(2)(“intends § murder under bodily commits an injury cause serious “lesser,”

By very use the word clearly dangerous act to human life that an term connotes act that is less blame- individual”) an causes the death of is also and, therefore, worthy subject to lesser aggravated lesser-included offense of as- If punishment. censure and a lesser sault. so, were not we would use “in- the term Legislature The has shown itself able to cluded offense” instead. Texas statutes shall explicitly delineate what behavior bear this out: misdemeanor theft involves what not. constitute an offense and shall than higher felony smaller loss here, legislature the statute at issue charge; misdemeanor involves recklessly causing injury is decreed that injury felony, than the threatening in- an while says assault. While the statute that “less- not. is er-included includes an offense” that “differs the offense Assault. Section 22.01 deed, by the is foreclosed that reliance (a) an if the person A commits specific comply with failure to state’s person: Proc. of Code of Crim. requirements notice (1) knowingly, or reck- intentionally, Art. 21.15. lessly another causes of the Court. join judgment I (2) knowingly threat- intentionally or ens with imminent another ...

(3) intentionally causes when contact another

physical reason- person knows or should regard

ably the other will believe that provoca- as offensive contact SIMS, Appellant, tive. Michael 22.02. Assault Aggravated Section (a) if the person A commits Texas. The STATE of

person commits assault as defined Section 22.01 and.... 1313-02. No. ranges prescribed punishment appear another, on harm to rather to be based of Texas. Court of Criminal An offense under mental state. 8, 2003. Oct. 22.01(a)(1) requires physical injury § misdemeanor, A punishable as a Class (a)(2) (a)(3) physi- do involve while not only.

cal and are fine punishable (a)(3) (a)(2)

Clearly, are lesser-includ- (a)(1), they because are

ed offenses

proved facts required less than all the (a)(1), specifically, injury. prove physical (a)(1) however, prescribes

Subsection

same for all three included states, indicating grava- (a)(1) injury,

men of assault under inflicted, it

the manner intentionally, knowingly, or reck-

whether

lessly. man- requirements

Notice mandate that plead and means be in the indictment

ner adequate defendant has an

so a de- prepare present

opportunity allege state cannot murder

fense. The

knife, prove poison, slow murder Here, the conviction.

still obtain a valid com- the manner of gave notice that intentionally.

mission was In- rely recklessly. may

It not now

Case Details

Case Name: Reed v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: May 14, 2003

Citation: 117 S.W.3d 260

Docket Number: 1410-01

Court Abbreviation: Tex. Crim. App.