*1 suрpress to evidence is entitled to object timely have the in a manner to what it finds judge trial objectionable. articulate the basis for his rul ing. But judge Cullen did not hold that a I respectfully concur. duty has a to issue if findings request no that, contrary, made. To the it held if the
losing party failed request findings, control,
Ross3 would and the evidence
would be light viewed most favor
able to the trial court’s ruling.4 STATE Texas
The Court concludes that judge, the trial by issuing findings of fact sponte, sua un- v. duty
dertook the all findings issue RODRIGUEZ, Appellee. Roman Court now deems to be relevant No. PD-0463-08. I think case. is asking Court for trouble. Appeals Court of Criminal of Texas. The rule the sets forth requires Court Aрril judge that a trial anticipate what issues appellate decide, courts in hind- sight, are dispositive. Under Cullen and
Ross, request a failure to findings results
in the absolute forfeiture of the right to
have them. It is a Marin forfeitable
right.5 Under the opinion, Court’s it be-
comes a right non-forfeitable if the trial any
court findings makes of fact at all.
The Court’s rule delay final disposi- worse,
tion of cases. But the remand for
further findings could come so late that it
would threaten to pro- unravel the entire instance,
cess—for if the judge trial has replaced by
been judge a new who wants
to decide the differently. motion
There is a remedy that avoids these
dangers and also follows Cullen. It is to
require the losing party object
trial court and to ask for further find-
ings of fact it necessary. believes If no made,
such request is apply we should presumption.
Ross nothing There is un-
fair or unusual about requiring party Ross, State v. (Tex. 5.Marin (Tex.Crim.App. S.W.3d 853 851 S.W.2d Crim.App.1993). 2000). Cullen, supra at 699.
681 alleged State’s information that Mr. Rodri- guez recklessly discharged a “by firearm pulling trigger on a firearm which contained ammunition operable.” and was The trial judge granted the defendant’s Motion to Set Aside the Information which claimed that the State to allege “any failed act or circumstance whiсh would show” that his discharge of a firearm “was done in a reckless manner.” The appeal- State ed, and the appeals court of affirmed the judge’s ruling.2 trial granted We petition3 State’s to review whether court of appeals correctly held that information was defective it because failed to apprise the defendant of “the circum- stances indicate Rodriguez] [Mr. pulled trigger of a loaded firearm in a reckless manner.”4 agree We with the court appeals. I. Ritenour, Jr., Antonio,
John J. San for Appellant. The State’s information that Mr. D.A., Yeary,
Kevin P. Asst. Crim. San Rodriguez recklessly discharged a firearm Antonio, McMinn, Lisa State’s C. Attor- the corporate city inside limits of a munici- Austin, ney, for State. pality 100,000 more, population with a Antonio, namely San “by pulling the trig-
OPINION ger on a firearm which contained ammuni- COCHRAN, J., opinion delivered the Well, operable.” tion and was he course KELLER, P.J., the Court in which and Everyone did. discharges who a firearm MEYERS, PRICE, JOHNSON, pulls the trigger, every firearm that is HERVEY, JJ., KEASLER joined. discharged contains аmmunition and is op- has, discharges.
Roman
erable if it
The
Rodriguez
charged
was
State
essence,
recklessly discharging a firearm.1
pled
a tautology: The defendant
42.12(a) (“A
1. Tex
appeals
com-
The court of
erred when it conclud-
person recklessly
mits an
if
offense
dis-
allegation
ed that an
that a defendant:
charges
corporate
a firearm inside the
limits
"recklessly discharged
a firearm ...
100,-
municipality having population
pulling
on a firearm which con-
more.”)
000 or
operable”
tained ammunition and was
satisfy
requirement
insufficient to
6-CR,
Rodriguez,
2. State v.
No. 04-07-0043
"allege
the information
with reasonable
Antonio,
(Tex.App.-San
2008 WL Feb-
certainty
upon
the act or acts relied
(not
2008)
ruary
designated
publica-
for
constitute recklessness.”
tion).
*
4. Rodriguez,
WL
506273 at 1.
ground
3. The State’s sole
for review reads as
follows:
oper-
ammunition and was
he which contained
recklessly discharged a firearm because
able,” may
prosecuted for a Class A
he
discharged a firearm.
Surely that is not the law.
misdemeanor.
of recklessness
allegation
The State’s
*3
necessarily
reckless acts.
These are
nothing
the
more
this case tells
defendant
law-
They
entirely appropriate
and
may
gun
city
within the
than that he fired
circum-
particular
ful acts under
the
But,
Antonio.
as the defen-
limits of San
only
It is
when the defendant
stances.
not one
argues,
penal
offense is
dant
circumstances
in the manner or
reckless
every act
liability
of strict
that criminalizes
“pull[s]
trigger
he
on a
under which
city
within
limits.
discharging
firearm
which contained ammunition and
firearm
however, any
pleading,
the State’s
Under
criminally
that he is
liable.7
operable”
was
a firearm
“pulling
trigger
oper-
contained ammunition and was
which
II.
large city
city
able” within the
limits of
The
in this case is not “how” did
issue
per
se and
subject
be recklessness
would
(by pull-
a firearm
discharge
the defendant
42.12(a).5
prosecution
under Section
but how did he act “reck-
ing
trigger),
Thus,
if a
shoots at
robber
lessly”
in
the firearm. When
window,
climbing into his bedroom
rapist
reck-
it is
the accused acted
prosеcuted
under the State’s
he could
lessly, Article 21.15 of the Texas
If
shoots at a rattlesnake
pleading.6
he
requires
additional
Criminal Procedure
home,
lying in the bushes beside his
he
language
charging
instrument.8
informa-
prosecuted
liable to be
under this
set out “the act or acts
language
must
judge hypothe-
the trial
tion.
If —as
upon
recklessness[.]”
relied
constitute
goes
municipal shooting But,
recently
sized —he
as we
noted
our unani-
State,9
on a firearm mous decision in Smith v.
there is
range
“pulls
and
332,
Vasquez,
consciously disrеgards
and un-
v.
34 S.W.3d
a substantial
5. See State
(reject
(Tex.App.-San
pet.)
no
justifiable
Antonio
risk that the circumstances exist or
argument
discharge
ing
State's
the result will occur. The risk must be of
per
firearm is
se reckless under section
degree
disregard
a nature and
that its
such
42.12(a) and therefore State did not have to
gross
constitutes a
deviation from
stan-
by alleging
comply with art. 21.15
circum
ordinary person
dard of care that an
reck
stances that showed that
less;
was
exercise under all
the circumstances
as
legislature
“If the
had intended the dis
standpoint.”).
viewed from the actor's
city
per
charge
a firearm within
limits to be
reckless,
have included the
se
it need not
8. Tex.Code Crim. Proc. art. 21.15. That article
statute.”);
'recklessly'
word
see also
reads as follows:
(Tex.
564 n. 1
50 S.W.3d
Garza
(fol
pet.)
App.-Houston
negli-
no
[1st Dist.]
Whenever recklessness or criminal
lowing Vasquez
noting
that "the State’s
gence
part
enters into or is a
or element of
interpretation would lead to absurd results—
offense,
any
charged that the аc-
or it is
making shooting
shooting
example,
at
for
recklessly
neg-
cused acted
or with criminal
State)
(even
ranges
city
those owned
offense,
ligence
an
in the commission of
city
perse illegal.”).
within
limits
information,
complaint,
or indictment in or-
der
sufficient in
such case must
instance,
course, the defendant
In this
certainty,
allege,
the act or
with reasonable
trial,
plead-
but the
could raise self-defense
upon
acts relied
to constitute recklessness
ing
charge an
would suffice to
offеnse
negligence,
or criminal
and in no event
42.12(a).
Section
allege merely
it be sufficient to
shall
accused,
offense,
6.03(c)
committing
act-
recklessly,
negligence.
criminal
ed
or with
surrounding
circumstances
his conduct or
(Tex.Crim.App.2010).
conduct when he is aware of but
9. 309 S.W.3d
result of his
difficulty
specif-
really
about the
ele 21.15 are
those
conceptual
some
“circumstances”
in Article 21.15:
ic terms used
the criminal act from which
the trier of fact
infer that the accused
Professors Dix and Dawson have сom-
required
acted with the
recklessness.11
that the terms of Article 21.15
mented
Thus,
Smith,
an
exposure
indecent
conceptual difficulty.”
present
“some
we held that
the State
required
arises from the 1974 Penal
problem
plead the circumstances under which the
distinction between
Code’s
exposed
defendant
himself—such
“in
as
states
acts.
1.07(a)(10)
public place”
why
indicate
his other-
of the Penal Code defines
—to
wise lawful act was reckless.12
*4
“conduct” as “an act or omission and its
accomрanying mental state.” An “act”
As this Court stated in Gengnagel v.
movement,
bodily
“a
is defined as
State,13when recklessness is an element of
voluntary
involuntary.”
whether
or
And
offense,
the
charging
instrument must
6.03(c)
states,
of the Penal Code
“allege the circumstances of the act which
recklessly,
“A
acts
indicate that
the defendant acted in a
to circumstances surround-
Therefore,
reckless manner.”14
in this
or the
ing his conduct
result of his con-
statute,
“reckless discharge”
the State
consciously
duct when he is aware оf but
allege something
must
about the setting or
disregards
unjustifia-
a substantial and
circumstances of discharging a firearm
that the circumstances
ble risk
exist or
city
within
limits that demonstrates disre-
language
the result will occur.” The
of gard
unjustifiable
of a known and
risk.
Article 21.15 assumes that the
For example,
might allege “by
the State
recklessness can be
shooting
ground
into the
in a crowd of
However,
by some
“constituted”
“act.”
people,”15 or
a
in
“by shooting gun
the air
“act,”
1974,
the definition of
added in
district,”16
“by shooting
a residential
or
“conceptual
made
a
impossibility.”10
this
backyard
at beer bottles in his
in a resi-
Smith,
that,
district,”
explained
“by
In
dential
shooting
gun
we
because of
or
a
grounds
school,”
“conceptual impossibility,”
elementary
this
the “act or
of an
or
constituting
“by shooting
Stop sign
recklessness” under Arti-
at a
in a business
(footnotes
Watkins,
498,
omitted) (citing
People
Ill.App.3d
10. Id. at 14
41
16.See
v.
361
George
492,
943,
(2005)
E.
& Robert O.
297 Ill.Dec.
837 N.E.2d
946
Dawson,
Dix
Criminal
20.171,
(Tex.
at 624
(reckless discharge of a firearm in a munici
Practice
and Procedure
ed.2001)).
Prac.2d
pality proven
stiрulated
when
evidence
gun
repeatedly
showed that defendant
fired a
11. Id. at 15.
neighborhood);
into the air in a residential
Collins,
206,
People
see also
v.
214 Ill.2d
291
12. Id. at 16.
262,
(2005) (suf
Ill.Dec.
824 N.E.2d
268
(Tex.Crim.App.1988),
13.
I
separately
only
explain
write
not
to
why
ments, a person
intentionally
can act
Court,
I ultimately agree with the
but
knowingly.2
also
or
register my
to
dismay
peculiar
with the
2.
respect
With
to result-of-conduct ele-
confusing way
Legisla-
which the
ments,
person
intentionally,
can act
ture has chosen to effectuate
its intent
knowingly, recklessly, or with criminal
particular statutory provision.
this
negligence.3
Id.
his conduct
... when he is aware
conduct").
nature оf his
Rodriguez,
3. With all, elements, notwithstanding a firearm” at charges rounding-conduct recklessness, directly antecedent adverb knowledge, can act with that it is the Instead, statutory perhaps text. negligence.4 or criminal “recklessly” intended for Legislature 42.12(a), that the conduct must In Section circumstance-surrounding- modify оnly the city limits densely populated within occur statute; an actor conduct element circumstances-surrounding- plainly only guilty need type of conduct element. Such conduct whether his provision, this a recklessness conduct element take firearm occurred discharging act of it, But in this culpable mental state. does densely city limits. The populated within And, puzzling, even more what statute?5 only a firearm need Leg- element does the category of conduct or, alternatively, perhaрs a voluntary;6 regard “discharge a firearm” islature intentionally knowingly mental state of me, at least— fall under? answer—to should be read into the statute for entirely is not clear. nature-of-conduct element.7 face, discharging On its a firearm would hand, it perhaps On the other type to be a nature-of-conduct seem to con- beyond plausibility the realm rather than a result-of-conduet element a result- “discharges strue a firearm” to be ele- circumstanees-surrounding-conduct element. In that it would so, of-conduct why ment. But if that is culpable take a mental state of reckless- Legislature purport assign of the Penal ness under the overall scheme of recklessness to it—one “recklessly” Given that immediate- which nature-of-conduct elements ordinari- Code. scheme, ly precedes “discharges a firearm” in the ly, the Penal do according to 42.12(a), Legislature did not structure of Section and therefore Perhaps not take? 42.12(a) "recklessly” in Section respect to ... the result of his conduct when 5. The adverb modify "discharge consciously disregards directly a fire- seems to he is aware of but *7 modify corpo- arm.” Does it also "inside the unjustifiable ... substantial and risk that municipality having popula- occur”) (d) ("A rate limits of a person with result will & acts not, 100,000 tion or more"? If should we of negli- negligence, criminally criminal or is read the statute as if it did? See nevertheless gent, respect with to ... the result of his 7, post. note ought when he to have been aware of conduct unjustifiable risk that ... a substantial and 6.01(a) ("A person § 6. See Penal Code occur”). the result will only voluntarily en- commits an offense if he conduct, act, gages including in an an omis- 6.02(b) § Tex. Penal Code sion, possession.”). knowingly, knowledge, or with with re- acts surrounding spect ... his to circumstances ("If 6.02(b) § the defini- 7. See Tex. Penal cir- conduct when he is aware ... that the prescribe culpa- tion of an offense does not (c) ("A exist”), person acts reck- state, cumstances culpable ble mental mental state is lessly, respect with to circum- or is requirеd nevertheless unless definition surrounding element."); his conduct ... when he stances plainly dispenses with mental disregards Dawson, consciously aware of George but E. Dix & Robert O. 41 Texas unjustifiable that the cir- substantial risk Criminal Practice and Procedure Practice: exist”) (d) ("A (2d & with Supp.2009-2010), cumstances 20.146a ed. 156— 6.02(b) negligence, criminally negli- (noting possibility criminal gent, respect applicable penal with to circumstances surround- in context of a statute that ing ought culpable respect provides his conduct ... when he mental state with some, all, unjustifiable not of the conduct elements of aware of a substantial and risk but offense). exist”). that the circumstances I directly park. difficulty have been intended While have no believing seems to it,8 this is the most natural modify perhaps intent, that this was the actual legislative it If that is the reading of the statute. plausible seems the least construction of I would be inclined to think that what statutory language, the actual since it adds of the of Pro- Article 21.15 Code Criminal (or indeed, a conduct elеment elements— way requires by particularized cedure of a elements) any number of appearing in of recklessness in the indictment allegation itself, language of the statute and thus simply allegation appellant an might expose us to charge legislat- was aware that the firearm was loaded and ing from the bench if we wrong. are that it could be that he operable,9 such said Still, paramount duty our in construing consciously disregarded aware of but statutory language is to effectuate thе in- unjustifiable the substantial and risk that tent of the Legislature. we When insist voluntary putting pressure act of on implementing on plain statutory language, trigger would result the firearm’s sake, we do so not for its own but because discharge.10 regard we that as the best evidence of the however, today, ascribes a Court legislative intent. When we encounter a significance to the completely different impossibly statute that is as problematic as Legislature’s culpable use of the mental respect this onе is with to the appropriate 42.12(a). in Section recklessness assignment state, I that an actor must The Court holds believe it permissible is useful and to con- simply respect reckless not sult extra-textual sources. Section 42.12 simple pulling of the was enacted in 1995 via Senate Bill 68.11 itself, rather, firearm but In a analysis prepared by bill the House some circumstance the con- Organization, Research it is noted that duct of the firearm —some cir- supporters of Bill Senate 68 endorsed its only cumstance оther than the circum- passage: expressly stance listed in the statute. because the Penal current Code offenses Thus, the Court holds that in order to public firearm comply require- with Article 21.15’s notice 42.01(a)(7)] place deadly [Section ment, allege the State must that the fire- 22.05(b)] always conduct do not [Section was, e.g., discharged ground arm into the firing guns private cover the sky people, amidst a crowd of or in the places. backyard neighborhood, of a residential school, Every yeаr there are grounds elementary of an numerous cases of *8 a sign, public people being by
the direction of traffic struck indiscriminate offense, Perhaps "recklessly” modify any charged was meant to or element of or it is element, both the result-of-conduct "dis- the accused acted ... in the com- firearm,” charges offense, and the circumstance- complaint, mission of an informa- element, surrounding-conduct "inside the tion, or indictment in order to be sufficient in corporate municipality having limits of a allege, with certain- case must reasonable 100,000 population more.” See ty, upon the act or acts relied to constitute 6.02(b). ..., recklessness and in no event shall it be accused, allege merely sufficient to simply 9. Not that the firearm was loaded and offense, committing recklessly”). acted operable, as the State in its indictment appellant in this but also that the 1995, 663, 1, Leg., p. 11. Acts 74th ch. operable. aware that it was loaded and Sept. eff. ("When- Tex.Code Crim. Proc. art. 21.15 part ever ... recklessness enters into or is gunfire. straight up Even a bullet fired air can private property cause injury People are
severe when it lands.
being shot fired bullets as randomly
they stroll watch televi- down a street or in their Bill living [Senate
sion rooms. would decrease the likelihood of such
68] prosecutors shootings give
senseless precise charge they occur. to use when suggests Legisla- to me that what passing
ture had mind in
42.12(a) was to assign a reckless discharging-a- state to the
firearm-within-a-densely-populated-city-
limits, requiring that the conduct occur (al- such additional circumstances spelled face of the
beit out on the
statute) as to create a substantial and un- person, risk of
justifiable injury to another consciously actor aware of but
disregarding agree that risk. I therefore Court that construe the we should requirement
notice of Article 21.15 to dic- allegation
tate some of that recklessness
sort. observations, I join
With these added opinion. Court’s CANTU, Appellant,
Manuel Texas,
The STATE of State.
No. 02-10-00041-CR. Texas,
Court of Appeals
Fort Worth.
Feb.
Rehearing Overruled March