Lugo-Lugo v. State

• Decision Date: 27 April 1983
• Docket Number: LUGO-LUG,A,No. 60018,60018
• Parties: Davidppellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 72

650 S.W.2d 72

David LUGO-LUGO, Appellant, v. The STATE of Texas, Appellee.

No. 60018.

Court of Criminal Appeals of Texas En Banc.

April 27, 1983.

James R. Thompson, Copperas Cove, for appellant.

Arthur C. Eads, Dist. Atty., Ralph Petty and James T. Russell, Asst. Dist. Attys., Belton, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

CAMPBELL, Judge.

Appellant was indicated for murder under V.T.C.A. Penal Code, Sec. 19.02(a)(2). Appellant waived his right to a jury trial and was found guilty by the trial court. The trial court assessed punishment at life imprisonment.

On original submission, a panel of this Court reversed appellant's conviction, vacated the judgment of the trial court, and ordered the prosecution dismissed. The Court now considers this cause, sitting en banc, and the panel opinion is withdrawn.

We note at the outset that the panel on original submission found that fundamental error existed in the indictment and therefore did not consider the two grounds of error raised by the appellant in his brief on appeal. The panel found that the indictment was wanting in that there was an absence of a culpable mental state under V.T.C.A. Penal Code, Sec. 6.02, preceding the phrase "commit an act clearly dangerous to human life, to-wit: did then and there kick the said Taelia Dana Ris Pinero in her abdomen thereby causing the death of the said individual." The indictment in this cause, omitting the formal parts, is set out as follows:

"... did then and there intending to cause serious bodily injury to an individual, Taelia Dana Ris Pinero, commit an act clearly dangerous to human life, to-wit: did then and there kick the said Taelia Dana Ris Pinero in her abdomen thereby causing the death of the said individual ..."

See V.T.C.A. Penal Code, Sec. 19.02(a)(2), supra.

The problem before us was succintly and properly identified in the Practice Commentary to V.T.C.A. Penal Code, Sec. 6.02, supra:

"The 1970 proposed code contained a section 6.06 providing that 'if the definition of an offense prescribes a culpable mental state but does not specify the conduct, circumstances surrounding the conduct, or result of the conduct to which it applies, the culpable mental state applies to each element of the offense.' The section would have resolved the ambiguity, frequently encountered in criminal statutes, as to which elements of an offense the culpable mental state applies. For example, Penal Code Art. 1350, which proscribed malicious mischief, provided that 'it shall be unlawful for any person to willfully injure or destroy, or attempt to injure or destroy, any property ... without the consent of the owner ....' Did the culpable mental state 'willfully' modify only 'injury or destroy' or did it modify 'without the consent of the owner' as well, so that the State to convict had to prove the actor knew he didn't have the owner's consent? Sec. 6.06 answered this question, when the term describing the culpable mental state did not syntactically modify the conduct, circumstances surrounding the conduct, or result of the conduct in the definition of the offense, by providing that the culpable mental state applied to each of these types of elements of the offense definition. Its deletion will be missed because the syntax of several sections in this code leaves ambiguous the relationship between the required culpable mental state and various offense definition elements, e.g., Sections 30.05, 42.02, 43.23, 47.05."

The statutory provisions relevant to our examination are as follows:

V.T.C.A. Penal Code, Section 6.02(a):

"Except as provided in Subsection (b) of this section a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires."

V.T.C.A. Penal Code, Section 6.02(b):

"If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element."

V.T.C.A. Penal Code, Section 6.02(c):

"If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility."

V.T.C.A. Penal Code, Section 19.01(a):

"A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual."

V.T.C.A. Penal Code, Section 19.01(b):

"Criminal homicide is murder, capital murder, voluntary manslaughter, involuntary manslaughter, or criminally negligent homicide."

V.T.C.A. Penal Code, Section 19.02(a):

"A person commits an offense if he:

"(1) intentionally or knowingly causes the death of an individual;

"(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

"(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or an 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."

In answering the question posed in the Practice Commentary to V.T.C.A. Penal Code, Section 6.02, supra, as it pertains to the required culpable mental state in Section 19.02(a)(2), a panel of this Court held:

"Similarly here in V.T.C.A. Penal Code, Section 19.02(a)(2) the Legislature has required two mental states. One is the specific intent to cause serious bodily injury; it must be coupled with a voluntary act that the defendant either intended or knew was clearly dangerous to human life because of the definition of criminal homicide itself contained in Section 19.01(a), supra."

The panel opinion further concludes:

"After reviewing the definitions of these mental states, we further conclude that V.T.C.A. Penal Code, Section 19.02(a)(2) requires that the specific intent to cause serious bodily injury be coupled with one of the culpable mental states of intentionally or knowingly. Because this indictment fails to allege a culpable mental state ¹ it fails to allege a necessary element of the offense."

In resolving this issue, this Court is not without stare decisis in analogous situations. In Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976), then Commissioner Dally, in an opinion approved by this Court, held:

"The conduct that is the gist of the offense of burglary in this case is the entry into the habitation with the requisite intent. The indictment alleges the culpable mental state with which the appellant entered the habitation; it alleges he entered the habitation 'with the intent to commit theft.' "

The indictment in Teniente, supra, omitting the formal parts, alleged the following:

"... did then and there with intent to commit theft, enter a habitation without the effective consent of Carlos Reyna, the owner."

See V.T.C.A. Penal Code, Section 30.02(a)(1).

In Bermudez v. State, 533 S.W.2d 806 (Tex.Cr.App.1976), this Court, in an en banc opinion by Judge Morrison, citing Teniente v. State, supra, and other cases, expounded at great length upon the allegation of culpable mental states and the proof required thereof:

"Appellant's position is that an act otherwise sufficient to constitute a crime will not be a crime unless the act is voluntarily engaged in and the element of voluntariness must always be pled. Appellant contends the new penal code specifically requires both 'a voluntary act' and 'culpability' be alleged in the indictment."

"This Court has held that the requirement of a culpable mental state is mandatory in the absence of clear language to the contrary. See Braxton v. State, 528 S.W.2d 844 [ (Tex.Cr.App.1975) ]; Ex parte Ross, 522 S.W.2d 214 [ (Tex.Cr.App.1975) ]; Teniente v. State, 533 S.W.2d 805 [ (Tex.Cr.App.1976) ]. However, this result is mandated by the provisions of V.T.C.A. Penal Code, Section 6.02(b) as follows:

" '(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless a definition plainly dispenses with any mental element.'

"Since Section 6.01 does not contain a similar provision, voluntariness need not be pled unless it is an essential element of an offense [citations omitted.] 'Elements of offense' is defined in V.T.C.A. Penal Code, Section 1.07(a)(13) as the forbidden conduct, the required culpability, any required result, and the negation of any exception to the offense. The forbidden conduct in the case at bar as prescribed by V.T.C.A. Penal Code, Sections 29.02(a)(2) and 29.03(a)(2) ² does not contain a requirement of voluntariness. Voluntariness is separate and apart from the required culpability and from the required result. Absence of voluntariness cannot be construed as an exception to the offense since V.T.C.A. Penal Code, Section 2.02(a) provides that exceptions are so labeled."

"We hold that the issue of 'voluntariness' of the conduct is in the nature of a defense and need not be pled in the indictment. See V.T.C.A. Penal Code, Section 2.03(b). See also Harris v. State, 91 Tex.Cr.R. 446, 241 S.W. 175; Bradley v. State, 102 Tex.Cr.R. 41, 277 S.W. 147."

The pertinent part of the indictment in Jones v. State, 545 S.W.2d 771 (Tex.Cr.App.1977) provided as follows:

"... did then and there with the intent to defraud and harm, forge, by passing to Jerry Haile, a writing, as follows: ...."

In Jones v. State, supra, Judge Roberts, on State's Motion for Rehearing, opined:

"The question is, then does an indictment drafted under the strict language of this statute sufficiently charge an offense? Only if it does not is the indictment fundamentally defective. Standley v. State, 517 S.W.2d 538 (...