Ex Parte Smith, No. PD-0262-05.

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtHervey, J.
Citation185 S.W.3d 887
PartiesEx Parte Cornelius S. SMITH, Jr., Appellant.
Docket NumberNo. PD-0262-05.
Decision Date01 February 2006
185 S.W.3d 887
Ex Parte Cornelius S. SMITH, Jr., Appellant.
No. PD-0262-05.
Court of Criminal Appeals of Texas.
February 1, 2006.

Page 888

Ladawn H. Conway, Dallas, for Appellant.

Karen R. Wise, Asst. District Atty., Dallas, Matthew Paul, State's Atty., Austin, for State.

OPINION

HERVEY, J., delivered the opinion for a unanimous Court.


Appellant was charged in a facially valid indictment with the felony offense of aggravated assault. This indictment alleged that appellant "intentionally, knowingly and recklessly" caused serious bodily injury to the victim "by causing [the victim] to ingest liquid."1 Apparently, the victim was seriously injured when appellant and

Page 889

several others forced him to drink large quantities of water as part of the victim's initiation into a college fraternity in which appellant and the others were members. The other participants in this incident were also indicted for aggravated assault.2

Appellant claimed in a motion to quash3 that he could be prosecuted only for the Class A misdemeanor offense of hazing4 under an application of a rule of statutory construction known as the in pari materia doctrine.5 Appellant's pleading asserted that the "alleged injuries to the [victim] in the case, according to the government's theory of the case, arose out of a hazing incident wherein the [victim] was forced to drink water by others in the fraternity." One of the other defendants filed a brief in support of this claim.6 This brief asserted:

This case arises out of a widely reported incident known as the "SMU Hazing Case." In general, the factual information has alleged that the defendant in concert with co-defendants hazed the complaining witness by forcing the complaining witness to consume water. It is alleged that the Defendant's were members of Alpha Phi Alpha Fraternity, Inc. It is further alleged that the complaining witness consumed water in his efforts to become a member of Alpha Phi Alpha, Fraternity Inc. It is alleged that the complaining witness suffered serious bodily injury as a result of his excessive consumption of water. It is alleged the complaining witness' was forced to by threat of injury to consume water.

To the extent, the State does not stipulate that these general factual allegations adequately represent the factual predicate of the State's case, the defendant request an in immediate hearing in order for the Court to ascertain the

Page 890

factual basis of the State's case. See Tex.Code Crim. Proc.[7] In addition, the defendant request that the Court take judicial notice of the contents of the Court's file including the probable cause affidavit.[8] The defendant has been indicted under 22.02 of the Texas Penal Code. [sic passim].

(Emphasis in bold in original).

The State's response did not address the factual claims made in these defense pleadings. The State's response addressed the legal issue of whether appellant could be prosecuted only for a Class A misdemeanor offense of hazing under the in pari materia rule of statutory construction.

The trial court held an evidentiary hearing. At this evidentiary hearing, appellant presented the testimony of Jones, a captain with the Criminal Investigation Division at SMU, who investigated the incident giving rise to the charge in this case. Jones was the only witness to testify at the evidentiary hearing.

Jones testified that the victim was injured from consuming a large amount of water during a hazing activity as part of an initiation into a fraternity.

Q. [DEFENSE]: Okay. Describe for me what was learned in the investigation of this case.

A. [JONES]: Well, we—we learned that an individual was involved in a hazing activity at—in an off-campus apartment that resulted in an individual being taken to the—well, [the victim] being taken to the hospital for consuming a large amount of water and it ultimately caused him to go into convulsions and to go in—wind up I intensive care.

Q. Okay. And so when you use the term "hazing activities", I understand you to mean an activity that is occurring as part of the initiation into a fraternal organization; is that correct?

A. Yes.

Jones also testified that, to the best of his knowledge, "the acts causing bodily injury or serious bodily injury in this case all occurred as a result of hazing."

Q. [DEFENSE]: Okay. So the acts causing bodily injury or serious bodily injury in this case all occurred as a result of hazing to the best of your knowledge, correct?

A. [JONES]: Yes.

Q. Okay. To your knowledge, have—to your knowledge, there were no activities that occurred outside of hazing, correct?

A. That's correct.

During the State's cross-examination, Jones testified that he and a detective with the Dallas Police department determined that "the defendants not only knowingly, intentionally or recklessly engaged in hazing, but that they also knowingly, intentionally or recklessly caused serious bodily injury." On redirect examination, Jones testified that the factual basis for this determination was the "same factual basis for the hazing."

Page 891

Q. [DEFENSE]: The—the same factual basis for the statement you just made is the exact same factual basis for the hazing; is that correct?

A. [JONES]: Re-ask me the question.

Q. Okay. She—she—you answered yes when she asked not only did they engage in hazing, but they also intentionally, knowingly and recklessly caused serious bodily injury to [the victim]. You answered, yes, to that question, right?

A. Yes.

Q. The acts which you're referring to in answering yes, are the same acts you referenced when I discussed hazing with you, correct?

A. Yes.

Jones also testified that he sought indictments against appellant and the others based on "the victim's statement" and "statements from other witnesses."

Q. [DEFENSE]: Were you aware of a statement being obtained from the victim?

A. [JONES]: I was made aware later, yes.

Q. Did the statement from the victim identify the alleged culprits who were involved in the assault?

A. He identified several individuals who were there. I don't remember all the specifics in what his statement was at this moment.

Q. Were there defendants who were not identified in the victim's statement who are charged in the crime today?

A. I can't recall.

Q. Other than the victim's statement, did you have statements from other witnesses that caused you to seek indictments against other defendants here today?

A. Yes.

Jones also testified that he believed that the incident in this case went beyond hazing because of "what the end result was" even though the hazing statute "not only covers serious bodily injury but death as well."9

Q. [DEFENSE]: When you said it went beyond hazing, are you familiar with the hazing statute?

A.[JONES]: Yes.

Q. Are you aware of the fact that the hazing statute not only covers serious bodily injury but death as well?

A. Yes.

Q. So when you made the statement that it went beyond hazing—in—in what effect did it go beyond hazing?

A. Well, just what the end result was.

Q. Well, if the hazing statute covers death, what end result could be greater than death?

A. None, I guess.

Jones also testified that he did not interview "all the witnesses involved in the case." Jones testified that the Dallas police interviewed these witnesses.

Q. [DEFENSE]: Well, you—you participated in the initial stage of the investigation; is that correct?

A...

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58 practice notes
  • Ex parte Perry, NO. PD–1067–15
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 24, 2016
    ...v. State, 205 S.W.3d 534, 536–37 (Tex.Crim.App.2006)(claim that statute was unconstitutionally vague as applied); Ex parte Smith, 185 S.W.3d 887, 893 (Tex.Crim.App.2006)(in pari materia claim).81 See Ex parte Coleman, 940 S.W.2d 96, 97–98 (Tex.Crim.App.1996); (considering testimony from pro......
  • Ex Parte Ellis, No. 03-05-00585-CR.
    • United States
    • Court of Appeals of Texas
    • August 22, 2008
    ...that can be resolved only by evidence adduced at trial. Flores v. State, 245 S.W.3d 432, 437 (Tex.Crim.App.2008); see Ex parte Smith, 185 S.W.3d 887, 893 (Tex.Crim.App.2006) (declining to decide in pari materia claim in advance of trial, without complete factual The supplemental opinion emp......
  • Ex parte Perry, No. 03–15–00063–CR
    • United States
    • Court of Appeals of Texas
    • July 24, 2015
    ...309 S.W.3d 71.40 Id. at 75.41 Id. at 76–77.42 Id. at 80–82.43 Id. at 79 (citing Weise, 55 S.W.3d at 620).44 Id. (citing Ex parte Smith, 185 S.W.3d 887, 893 (Tex.Crim.App.2006); Weise, 55 S.W.3d at 620–21).45 Id. (citing Weise, 55 S.W.3d at 620–21).46 Id. at 81.47 330 S.W.3d 904.48 Id. at 90......
  • Ex parte Lee, NO. 01-18-00969-CR
    • United States
    • Court of Appeals of Texas
    • December 29, 2020
    ...favor, it would deprive the trial court of the power to proceed and result in the appellant's immediate release. Ex parte Smith , 185 S.W.3d 887, 892 (Tex. Crim. App. 2006) (citing Ex Parte Weise , 55 S.W.3d 617, 619 (Tex. Crim. App. 2001) ). A claim that a statute is unconstitutional on it......
  • Request a trial to view additional results
57 cases
  • Ex parte Perry, NO. PD–1067–15
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 24, 2016
    ...v. State, 205 S.W.3d 534, 536–37 (Tex.Crim.App.2006)(claim that statute was unconstitutionally vague as applied); Ex parte Smith, 185 S.W.3d 887, 893 (Tex.Crim.App.2006)(in pari materia claim).81 See Ex parte Coleman, 940 S.W.2d 96, 97–98 (Tex.Crim.App.1996); (considering testimony from pro......
  • Ex Parte Ellis, No. 03-05-00585-CR.
    • United States
    • Court of Appeals of Texas
    • August 22, 2008
    ...that can be resolved only by evidence adduced at trial. Flores v. State, 245 S.W.3d 432, 437 (Tex.Crim.App.2008); see Ex parte Smith, 185 S.W.3d 887, 893 (Tex.Crim.App.2006) (declining to decide in pari materia claim in advance of trial, without complete factual The supplemental opinion emp......
  • Ex parte Perry, No. 03–15–00063–CR
    • United States
    • Court of Appeals of Texas
    • July 24, 2015
    ...309 S.W.3d 71.40 Id. at 75.41 Id. at 76–77.42 Id. at 80–82.43 Id. at 79 (citing Weise, 55 S.W.3d at 620).44 Id. (citing Ex parte Smith, 185 S.W.3d 887, 893 (Tex.Crim.App.2006); Weise, 55 S.W.3d at 620–21).45 Id. (citing Weise, 55 S.W.3d at 620–21).46 Id. at 81.47 330 S.W.3d 904.48 Id. at 90......
  • Ex parte Lee, NO. 01-18-00969-CR
    • United States
    • Court of Appeals of Texas
    • December 29, 2020
    ...favor, it would deprive the trial court of the power to proceed and result in the appellant's immediate release. Ex parte Smith , 185 S.W.3d 887, 892 (Tex. Crim. App. 2006) (citing Ex Parte Weise , 55 S.W.3d 617, 619 (Tex. Crim. App. 2001) ). A claim that a statute is unconstitutional on it......
  • Request a trial to view additional results

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