Flores v. State

• Decision Date: 20 March 2003
• Docket Number: No. 11-01-00307-CR.,11-01-00307-CR.
• Parties: Gabriel FLORES, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 328

102 S.W.3d 328

Gabriel FLORES, Appellant, v. STATE of Texas, Appellee.

No. 11-01-00307-CR.

Court of Appeals of Texas, Eastland.

March 20, 2003.

COPYRIGHT MATERIAL OMITTED

Erika Copeland, Abilene, for appellant.

Britt Thurman, District Attorney, Anson, for appellee.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.

Opinion

TERRY McCALL, Justice.

The jury convicted appellant of felony murder of a 13-month-old child and assessed his punishment at 40 years confinement. We affirm.

In his first and second issues on appeal, appellant argues that the trial court erred in denying his motion to quash the indictment. The indictment contained two counts which stated in part:

Count One

[Appellant] did then and there commit a felony, to-wit: injury to a child, and in the course of and furtherance of the commission, [appellant] committed an act clearly dangerous to human life that caused the death of an individual, to-wit: [the victim], an individual under six (6) years of age, by manner and means unknown to the Grand Jury.

Count Two

[Appellant] did then and there intentionally or knowingly cause serious bodily injury to [the victim], a person fourteen (14) years of age or younger, by manner and means unknown to the Grand Jury.

Appellant first argues that the trial court erred in overruling his motion to quash the indictment because the indictment failed to provide him with notice of the particular offense for which he was charged. See TEX. CODE CRIM. PRO. ANN. art. 27.08(1) (Vernon 1989). In his motion to quash the indictment, appellant complained that the indictment did not "set forth and allege any culpable mental state in any part of Count One."

Count One of the indictment tracked the felony murder statute. TEX. PENAL CODE ANN. § 19.02(b)(3) (Vernon 2003) provides that a person commits the offense of murder if he:

[C]ommits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

The felony murder rule dispenses with the necessity of proving mens rea accompanying the homicide itself; the underlying felony supplies the culpable mental state. Johnson v. State, 4 S.W.3d 254, 255 (Tex. Cr.App.1999); Ex parte Easter, 615 S.W.2d 719, 721 (Tex.Cr.App.), cert. den'd, 454 U.S. 943, 102 S.Ct. 481, 70 L.Ed.2d 252 (1981); Rodriquez v. State, 548 S.W.2d 26, 28-29 (Tex.Cr.App.1977). A person commits the offense of injury to a child if he intentionally, knowingly, recklessly, or with criminal negligence causes: (1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; or (3) bodily injury to a child. TEX PENAL CODE ANN. § 22.04(a) (Vernon 2003). While TEX. PENAL CODE ANN. § 22.04(e), (f), (g) (Vernon 2003) provides that the range of punishment for injury to a child is determined by the mental state in which the offense was committed, the offense of felony murder under Section 19.02(b)(3) is a first degree felony regardless of the culpable mental state for the underlying felony of injury to a child.

In general, an indictment must plead every element which must be proven at trial. Dinkins v. State, 894 S.W.2d 330, 338 (Tex.Cr.App.), cert. den'd, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995). An allegation of an essential culpable mental state is an element of the offense. Dinkins v. State, supra; Thompson v. State, 697 S.W.2d 413, 415 (Tex.Cr.App. 1985). Failure to include a culpable mental state usually is a defect of substance. Studer v. State, 799 S.W.2d 263 (Tex.Cr. App.1990); Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977). Normally, when there is a defect in substance, there is a failure to charge a purported offense. See Jackson v. State, 718 S.W.2d 724, 725 n. 1 (Tex.Cr.App.1986).

An indictment for felony murder, however, is not fundamentally defective if it does not charge all of the elements of the object felony. It is sufficient if the indictment alleges the underlying felony committed (or attempted) and the culpable mental state attending the underlying felony committed or attempted. Rodriquez v. State, supra at 29; Smith v. State, 540 S.W.2d 693, 697 (Tex.Cr.App.1976), cert. den'd, 430 U.S. 922, 97 S.Ct. 1341, 51 L.Ed.2d 601 (1977). TEX. CODE GRIM. PRO. ANN. art. 21.13 (Vernon 1989) also appears to require that an indictment for felony murder include the culpable mental state for the underlying felony:

An indictment for an act done with intent to commit some other offense may charge in general terms the commission of such act with intent to commit such other offense.

The trial court erred in overruling appellant's motion to quash the indictment. Appellant's first issue on appeal is sustained because of the omission of the culpable mental state, although the indictment did not "[fail] to give [appellant] notice of the particular offense for which he was charged."

Although the trial court erred, Cain v. State, 947 S.W.2d 262, 264 (Tex.Cr.App. 1997), admonished:

Except for certain federal constitutional errors labeled by the United States Supreme Court as "structural," no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis.

The court in Yandell v. State, 46 S.W.3d 357 (Tex.App.-Austin 2001, pet'n ref'd), held that failure of an indictment under Section 19.02(b)(3) to allege a culpable mental state for the underlying felony, if it was error, was an error of form that did not prejudice the defendant's substantial rights. The defendant in Yandell had engaged in deadly conduct, firing his weapon at a car in which the victim was sitting, and was convicted of murder under Section 19.02(b)(3). The defendant in Yandell moved to quash the felony murder indictment on the ground that it failed to allege that the defendant was "reckless" as to whether the vehicle was occupied. The trial court overruled his motion. On appeal, the court cited TEX. CODE GRIM. PRO. ANN. art. 21.19 (Vernon 1989) and then concluded that the omission of "reckless" in the indictment did not prejudice the substantial rights of the defendant.

We agree that, if the omission of a culpable mental state for the underlying felony was a matter of form, then Article 21.19 provides the test for harmless error. The question is whether the omission is one of substance or of form because the Code of Criminal Procedure categorizes errors in a charging instrument as either defects of substance or defects of form. TEX. CODE GRIM. PRO. ANN. art. 27.08 (Vernon 1989) provides that there is no exception to the substance of an indictment or information except for the four matters listed. In his motion to quash, appellant attempted to place Count One of his indictment within the first matter listed in Article 27.08:

1. That it does not appear therefrom that an offense against the law was committed by the defendant.

The defect was not one described by the quoted portion of Article 27.08. A written instrument is an indictment or information under the constitution if it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the instrument is otherwise defective. Duron v. State, 956 S.W.2d 547, 551 (Tex.Cr.App.1997). Ex parte Easter, supra and Ex parte Bailey, 600 S.W.2d 331 (Tex.Cr.App.1980), occurred before the Texas Constitution was amended in 1985 to provide that the presentment of an indictment or information invests the court with jurisdiction of the cause regardless of the number or nature of defects in the charging instrument (TEX. CONST. art. V, § 12(b)). These cases are instructive. Both involved an attempt to raise, by an application for writ of habeas corpus, a complaint that the indictment was fundamentally defective because the indictment for felony murder failed to allege a culpable mental state for the underlying felony of injury to a child. The indictments in both cases tracked the felony murder statute as did Count One in the indictment before us. Both cases held that the indictment was not fundamentally defective. The Bailey court stated:

The indictment sets forth all the elements of the statute. We have held, since Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975), that only those indictments which fail to set forth an offense will be considered fundamentally defective and susceptible to challenge for the first time in a post-conviction writ of habeas corpus.

Ex parte Bailey, supra at 332.

In the present case, it cannot be said "[t]hat it does not appear [from Count One] that an offense against the law was committed by the defendant" as contemplated by Paragraph No. 1 of Article 27.08. Count One identified Section 19.02(b)(3) as the penal statute under which the State intended to prosecute appellant with sufficient "clarity and specificity." Based on the rationale of Bailey and Easter, we agree with the Yandell court's conclusion that the omission of a culpable mental state for the underlying felony is a defect of form; and, therefore, Article 21.19 provides the harmless error test for our review:

An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant.

Under Article 21.19, determining whether the indictment's omission affected appellant's substantial rights turns on the question of whether appellant had notice adequate to prepare his defense. Adams v. State, 707 S.W.2d 900, 904 (Tex.Cr.App. 1986); Yandell v. State, supra at 362. The record reflects that appellant was fully aware of the crime for which he was accused. Count Two in the indictment charged appellant with intentionally or knowingly causing...