Huffman v. State

• Decision Date: 01 October 2008
• Docket Number: No. PD-1539-07.,PD-1539-07.
• Citation: 267 S.W.3d 902
• Parties: Robert HUFFMAN, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

267 S.W.3d 902

Robert HUFFMAN, Appellant, v. The STATE of Texas.

No. PD-1539-07.

Court of Criminal Appeals of Texas.

October 1, 2008.

Angela Moore and Hilary Sheard, Chief & Asst. Public Defender, San Antonio, for appellant.

Kevin P. Yeary, Asst. Crim. D.A., San Antonio, for State.

KELLER, P.J., delivered the opinion of the court in which PRICE, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

We must determine whether charging the jury in the disjunctive with respect to various statutory methods of committing the offense of "failure to stop and render aid" resulted in a violation of the constitutional requirement that the jury's verdict be unanimous. We conclude that these various statutory methods for committing the offense do not constitute separate offenses, but are merely alternate means of committing the same offense. Consequently, the trial judge correctly charged the jury with the different statutory methods in the disjunctive.

I. BACKGROUND

Appellant was involved in a motor vehicle accident that resulted in the death of Rafael Garcia. The accident was a "hit and run"—appellant was not present when officers arrived at the scene. Subsequently, appellant was charged with the offense of "failure to stop and render aid."¹

At trial, in accordance with the applicable statutes, the abstract portion of the jury charge summarized the requirements imposed upon a motorist who is involved in an accident resulting in injury or death:

Our law provides that the operator of a vehicle involved in an accident resulting in injury to or death of a person shall immediately stop the vehicle at the scene of the accident or as close to the scene as possible; immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident; and remain at the scene of the accident until the operator gives the operator's name and address, the registration number of the vehicle the operator was driving, and the name of the operator's motor vehicle liability insurer to any person injured or the operator or occupant of or person attending a vehicle involved in the collision; and provide any person injured in the accident reasonable assistance, including transporting the person to a physician or hospital for medical treatment if it is apparent that treatment is necessary.

The application paragraph charged three methods of violating the statute in the disjunctive:

Now, if you find from the evidence beyond a reasonable doubt that ... [Robert Huffman, operating a motor vehicle involved in an accident resulting in death and] ... knowing said accident had occurred failed to immediately stop, return to the scene of the accident, or remain at the scene of the accident [to give certain information] ... then you will find the defendant guilty of failure to stop and render aid as charged in the indictment.²

Appellant did not object to the application paragraph's disjunctive wording. The jury found appellant guilty and sentenced him to imprisonment for twenty years and a fine of $10,000.

On appeal, appellant claimed that the disjunctive wording violated his constitutional right to a unanimous verdict. The court of appeals agreed, but held that appellant was not egregiously harmed.³ Both the State and appellant have petitioned for discretionary review. The State complains about the court of appeals's holding that there was a jury unanimity violation, while appellant complains about the court of appeals's harm analysis.

II. ANALYSIS

Our jury unanimity opinions and several of our double jeopardy opinions address the same basic question: In a given situation, do different legal theories of criminal liability comprise different offenses, or do they comprise alternate methods of committing the same offense? These closely intertwined strands of our jurisprudence have addressed the basic question in four contexts: (1) homicide offenses, (2) injury to a child offenses, (3) credit card abuse offenses, and (4) sex offenses.

With respect to homicide offenses, we have held that different legal theories involving the same victim are simply alternate methods of committing the same offense. In Kitchens v. State, we approved a jury charge that disjunctively alleged two different capital murder theories with respect to the same victim: murder in the course of aggravated sexual assault and murder in the course of robbery.⁴ We characterized these as "alternate theories of committing the same offense."⁵ In Ex parte Ervin, we held that the Double Jeopardy Clause prohibited convictions for both manslaughter and intoxication manslaughter when only one person was killed.⁶ We found that the Blockburger⁷ "same elements" test was "not the sole test for determining whether offenses are the same under the multiple punishments aspect of the Double Jeopardy Clause."⁸ Other considerations included: "whether the offense provisions are contained within the same statutory section, whether the offenses are phrased in the alternative ... [and] whether the offenses have a common focus (i.e. whether the `gravamen' of the offense is the same) and whether that common focus tends to indicate a single instance of conduct."⁹

In the injury to a child context, whether separate legal theories comprise separate offenses depends upon whether the theories differ with respect to the result of the defendant's conduct. In Jefferson v. State, we held that a jury was not required to unanimously find which of three alleged acts or omissions resulted in the child victim's death.¹⁰ We found that "the essential element or focus" of the injury to a child statute was "the result of the defendant's conduct"—injury to child—"and not the possible combinations of conduct that cause the result."¹¹ Following Jefferson in Villanueva v. State, we held that the Double Jeopardy Clause prohibited the State from obtaining two injury to a child convictions for a death that resulted from both an act and an omission.¹² We rejected the State's claim that injury to a child was a "conduct-oriented" offense and concluded, based on Jefferson, that it was in fact a result-oriented offense.¹³

By contrast, Stuhler v. State involved legal theories of injury to a child that differed with respect to the type of injury inflicted.¹⁴ Emphasizing that injury to a child was a "result of conduct" offense, we held in that case that the different types of injuries (being results) were "elemental" and thus jury unanimity was required as to the type of injury.¹⁵ In doing so, we also applied an "eighth-grade grammar" approach suggested by Judge Cochran as "a general rule of thumb" for determining legislative intent:

In sum, we must return to eighth-grade grammar to determine what elements the jury must unanimously find beyond a reasonable doubt. At a minimum, these are: the subject (the defendant); the main verb; and the direct object if the main verb requires a direct object (i.e., the offense is a result-oriented crime).... Generally, adverbial phrases, introduced by the preposition "by," describe the manner and means of committing the offense. They are not the gravamen of the offense, nor elements on which the jury must be unanimous.¹⁶

Unlike homicide and injury to a child offenses, credit card abuse is a nature of conduct crime, which can be committed in a number of ways, including: (1) stealing a credit card, (2) receiving a credit card owned by another, knowing that it had been stolen, and acting with intent to use it, and (3) presenting a credit card with intent to obtain a benefit fraudulently, knowing that the use was without the effective consent of the cardholder.¹⁷ When confronted in Ngo v. State with a jury charge that disjunctively charged these three different types of conduct as a single offense, we held that the State had charged "three different criminal acts," and the defendant's constitutional right to a unanimous verdict required that the jurors "unanimously agree[] upon the commission of any one of these criminal acts."¹⁸ We noted in that case that a "handy, though not definitive, rule of thumb is to look at the statutory verb defining the criminal act. That verb ... is generally the criminal act upon which all jurors must unanimously agree."¹⁹

Sex offenses are also nature of conduct crimes, and we have uniformly required that different types of conduct specified in the various statutes be treated as separate offenses. In Vick v. State, a double jeopardy case, we observed that aggravated sexual assault is a "conduct-oriented offense in which the legislature criminalized very specific conduct of several different types."²⁰ We concluded that "separately described conduct constitutes a separate statutory offense" and could be separately prosecuted.²¹

In Francis v. State, we held that two different types of conduct described by the offense of indecency with a child occurring at two different times were separate offenses, so that the disjunctive submission of the two types of conduct in the jury charge violated the right to jury unanimity.²² This holding left open, however, whether the two different types of conduct were inherently different offenses or simply were different offenses on the facts of the case.

We resolved that issue in Pizzo v. State, another jury unanimity case, which held that the different types of conduct proscribed by the indecency with a child statute were different offenses, even if they occurred during the same transaction.²³ In Pizzo, we exhaustively analyzed the grammatical structure of the statute but found most persuasive the "focus" of the offense: "Unlike murder, injury to a child, and criminal mischief where the result is the focus, the conduct is the focus of the definition of sexual contact."²⁴ We further observed that treating each type of conduct as a separate offense comported with our decision in Vick.²⁵

The common thread in all of these cases seems to be "focus." We use grammar and we look to other factors bearing on whether...