Ormsby v. State, 57537

Decision Date09 May 1979
Docket NumberNo. 1,No. 57537,57537,1
Citation600 S.W.2d 782
PartiesRobert Kyle ORMSBY, Appellant, v. The STATE of Texas, Appellee
CourtTexas Court of Criminal Appeals

Keith Woodley, Comanche, for appellant.

Gary R. Price, Dist. Atty. and W. Stephen Ellis, Asst. Dist. Atty., Brownwood, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and CLINTON, JJ.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction of involuntary manslaughter. The jury assessed punishment at two (2) years, probated, and a $2,500 fine.

Although the sufficiency of the evidence is not challenged, a brief recital of the facts will put our disposition of the case in better perspective. The record reflects that the appellant was indicted and tried pursuant to V.T.C.A., Penal Code, § 19.05, for an accident which occurred when he fell asleep while at the wheel of a motor vehicle during the late evening hours of November 24, 1976. According to the testimony of the investigating officers, appellant's vehicle crossed the center line into the lane of oncoming traffic and struck the vehicle in which Deborah Stitt was a passenger. Stitt died as a result of injuries received in the accident. Testimony from several witnesses revealed that the appellant had a strong odor of beer on his breath, that his speech was slurred, and that in the opinion of these witnesses he was intoxicated.

Appellant challenges the trial court's failure to include in its charge to the jury, over timely objection, an instruction on criminal negligence, asserting that the same is a lesser included offense of involuntary manslaughter. The State counters this contention by urging that "the culpable mental state required in such an instruction would be of a higher degree or greater than that provided in the statute and under the indictment for which the defendant was tried and convicted." Therefore, the issue in the instant case is whether criminal negligence is a lesser culpable mental state than recklessness so as to make criminally negligent homicide a lesser included offense of involuntary manslaughter.

Involuntary manslaughter is defined by V.T.C.A., Penal Code, § 19.05(a) as follows:

"(a) A person commits an offense if he:

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

"(2) by accident or mistake when operating a motor vehicle while intoxicated and, by reason of such intoxication, causes the death of an individual."

In reference to this definition, the Practice Commentary which follows the section reads in pertinent part:

"Section 19.05 defines involuntary manslaughter as a reckless killing, with Subsection (a)(2) defining driving while intoxicated as recklessness per se." V.T.C.A., Penal Code, § 19.05, Practice Commentary, p. 149.

To this extent, recklessness is defined by V.T.C.A., Penal Code, § 6.03(c):

"A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when his is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint."

Criminally negligent homicide is defined in V.T.C.A., Penal Code, § 19.07(a):

"A person commits an offense if he causes the death of an individual by criminal negligence."

In addition, V.T.C.A., Penal Code, § 6.03(d) provides the following definition for criminal negligence:

"A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint."

Finally, and perhaps most enlightening, is the classification of culpable mental states which is set out in V.T.C.A., Penal Code, § 6.02. Subsections (d) and (e) of that provision read as follows:

"(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:

"(1) intentional;

"(2) knowing;

"(3) reckless;

"(4) criminal negligence.

"(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged."

Also instructive in the resolution of this question is the court's language in Lewis v. State, 529 S.W.2d 550 (Tex.Cr.App.1975):

"We agree that the offenses of involuntary manslaughter and criminally negligent homicide differ in the culpable mental state which suffices to establish the commission of each offense. Reckless conduct as defined by V.T.C.A. Penal Code, Section 6.03(c) (footnote omitted) involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards that risk. Criminal negligence as defined by V.T.C.A. Penal Code, Section 6.03(d) (footnote omitted) involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the results thereof. At the heart of reckless conduct is conscious disregard of the risk created by the actor's conduct; the key to criminal negligence is found in the failure of the actor to perceive the risk. As defined, criminal negligence is a lesser culpable mental state than recklessness; mere proof of criminal negligence would not suffice to support a conviction for the offense of involuntary manslaughter. . . ." (Emphasis added.)

Moreover, it was expressly held in Moore v. State, 574 S.W.2d 122 (Tex.Cr.App.1978), that where a conviction is had on involuntary manslaughter and the evidence is sufficient to raise the issue of criminal negligence, the defendant is entitled to a charge on the lesser included offense of criminally negligent homicide.

It remains to be determined, therefore, whether the evidence adduced at trial in the case at bar is sufficient to raise "an issue of a reasonable doubt whether the appellant was aware but consciously disregarded a substantial and unjustified risk" that his conduct "would result in the death of the deceased." Moore v. State, supra, at p. 124.

The record reflects that the appellant undertook the operation of a motor vehicle while in a state of exhaustion. Moreover, it is clear from the record that the appellant had driven the road on which the accident occurred before, and that he was familiar with its shoulderless narrow surface and many hills. We conclude that this, coupled with appellant's admission that he had consumed about three beers on an empty stomach prior to his driving the car, was sufficient to raise the issue of criminal negligence as defined, supra, in § 6.03(d).

This court has consistently held that when the evidence from any source raises an issue that a lesser included offense may have been committed and that a jury charge on the issue is properly requested, the issue must be submitted to the jury. Moore v. State, supra; Esparza v. State, 520 S.W.2d 891 (Tex.Cr.App.1975).

We conclude that it was error for the trial court to refuse appellant's requested charge on criminal negligent homicide, leaving the jury no alternative but to convict for involuntary manslaughter or to acquit.

The judgment is reversed and the cause is remanded.

Before the court en banc.

STATE'S MOTION FOR REHEARING

DOUGLAS, Judge, dissenting.

The majority overrules the State's motion for rehearing without written opinion.

False premises lead inexorably to false conclusions.

The panel opinion adopted part of the Practice Commentary to V.T.C.A., Penal Code, Section 19.05: "Section 19.05 defines involuntary manslaughter as a reckless killing, with Subsection (a)(2) defining driving while intoxicated as recklessness per se."

Practice commentaries, like obiter dicta, may prove persuasive, but are not binding authority. Faced with a choice between the Practice Commentary to Section 19.05 and dictum from his own well-reasoned opinion in Ex parte Ross, 522 S.W.2d 214 (Tex.Cr.App.1975), the author of the panel opinion has chosen to follow the Practice Commentary. That the choice was the wrong one is demonstrated by the plain language of Section 19.05, by the rulings of this Court and the strictures of the Legislature upon the predecessors to Section 19.05, and by the sound reasoning of Ex parte Ross.

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

"(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 19.05, provides that:

"(a) A person commits an offense if he:

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

"(2) by accident or mistake when operating a motor vehicle while intoxicated and, by reason of such intoxication, causes the death of an individual.

"(b) For purposes of this section, 'intoxication' means that the actor does not have the normal use of his mental or physical faculties by reason of the voluntary introduction of any substance into his body.

"(c) An offense under this section is a felony of the third degree." (Emphasis supplied)

It cannot be gainsaid that the Legislature which codified Section 19.05 knew how to set up a presumption of recklessness when it wanted to. V.T.C.A., Penal Code, Section 22.05, provides that:

"(a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.

"(b) Recklessness and danger are presumed if the actor knowingly pointed a firearm at...

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