Rocha v. State
| Decision Date | 16 June 1982 |
| Docket Number | No. 2,No. 62893,62893,2 |
| Citation | 648 S.W.2d 298 |
| Parties | Jesse Albert ROCHA, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Randolph Scott, Dallas, for appellant.
Henry Wade, Dist. Atty., Jeffrey B. Keck, C. Wayne Huff and Will Wilson, Jr., Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before ONION, P.J., and CLINTON and TEAGUE, JJ.
This is an appeal from a conviction for committing the offense of aggravated assault on an indictment charging the offense of attempted murder. Punishment was assessed by the jury at 10 years' confinement in the penitentiary but it recommended probation.
At the outset we note fundamental error which must be considered in the interest of justice. See Art. 40.09(13), V.A.C.C.P.
The indictment in this cause alleged that the appellant did:
then and there knowingly and intentionally attempt to cause the death of Victor Velasquez, an individual, by shooting the said Victor Velasquez with a handgun, said attempt amounting to more than mere preparation that tended but failed to effect the commission of the offense intended. (Emphasis Added).
In the court's submission of the lesser included offense of aggravated assault, in the paragraph under which appellant was convicted, applying the law to the facts, the court instructed the jury as follows:
Now if you find from the evidence beyond a reasonable doubt that the defendant, Jesse Albert Rocha, at the time and place alleged in the indictment, did then and there intentionally or knowingly or recklessly, by the use of a firearm, if any, cause bodily injury to Victor Velasquez, or if you find from the evidence beyond a reasonable doubt that the defendant, Jesse Albert Rocha, at the time and place alleged in the indictment, did then and there knowingly or intentionally or recklessly cause serious bodily injury to the said Victor Velasquez, then you will find the defendant guilty of the offense of aggravated assault and so say by your verdict. (Emphasis Added).
A person commits the offense of aggravated assault if he intentionally, knowingly or recklessly causes serious bodily injury to another, or if he commits an assault by using a deadly weapon. See V.T.C.A. Penal Code, Secs. 22.01(a)(1), 22.02(a)(4). A firearm is a deadly weapon. V.T.C.A. Penal Code, Sec. 1.07(11)(A).
It is fundamental error for a trial court to authorize a conviction on a theory not alleged in the charging instrument. Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977). A jury charge which authorizes conviction on the finding of a culpable mental state not alleged in the charging instrument is fundamentally defective. Hutchins v. State, 590 S.W.2d 710 (Tex.Cr.App.1979).
Though the appellant was charged with the primary offense of attempted murder, nevertheless, the trial court instructed the jury on the lesser included offense of aggravated assault. This it was permitted to do. However, it was not permitted to instruct the jury that a conviction was authorized on the finding of a culpable mental state not alleged in the indictment. Hutchins, Id. Recklessly was a culpable mental state not alleged in the charging instrument. When the trial court placed in the application paragraph the non-alleged culpable mental state of recklessly, it committed fundamental and reversible error. See also Young v. State, 605 S.W.2d 550 (Tex.Cr.App.1980); Colbert v. State, 615 S.W.2d 754 (Tex.Cr.App.1981); Deitch v. State, 617 S.W.2d 695 (Tex.Cr.App.1981); Garcia v. State, 574 S.W.2d 133 (Tex.Cr.App.1978); and Fella v. State, 573 S.W.2d 548 (Tex.Cr.App.1978). Reversal is therefore required. 1
The judgment is reversed and the cause remanded.
Well aware of the principle controlling a host of decisions rendered by the Court, finding fundamental error in a charge of the trial court, I cannot join this one.
Failure of the instant indictment charging attempted murder to include the culpable mental state of recklessness may be justified on two grounds: first, it is doubtful that recklessness is an appropriate culpable mental state for the specific intent crime of attempt, especially attempted murder; second, in any event the higher culpable mental states of intentionally and knowingly include the lesser culpable mental states of recklessly, at least for present purposes. See Article 37.09(3), V.A.C.C.P. Thus, there is no error, fundamental or otherwise.
Before the court en banc.
OPINION ON STATE'S MOTION FOR REHEARING
This appeal is from a conviction for aggravated assault obtained under an indictment for attempted murder. Punishment was assessed by the jury at ten (10) years' imprisonment, probated. 1
On original submission, a majority of a panel of this court reversed appellant's conviction based on unassigned error. 2 It was held that the court committed fundamental error when in its charge it authorized the conviction of appellant for aggravated assault upon the finding of a culpable mental state of recklessness, which culpable mental state was not alleged in the indictment. The appellant had requested the charge on aggravated assault and did not object to the charge on this ground.
The opinion made clear that aggravated assault was a lesser included offense of attempted murder and the appellant was entitled to a charge thereon since the evidence raised the same, and that if only the culpable mental states of intentionally and knowingly alleged in the attempted murder indictment had been used in the charge on aggravated assault no error would have been presented. It was the inclusion of the additional culpable mental state of recklessness that triggered the reversal on unassigned error.
The State in its rehearing motion asks an examination and reconsideration of the panel opinion. This we shall do.
The attempted murder indictment in this cause alleged that the appellant did:
"... then and there knowingly and intentionally attempt to cause the death of Victor Velasquez, an individual, by shooting the said Victor Velasquez with a handgun, said attempt amounting to more than mere preparation that tended but failed to effect the commission of the offense intended." (Emphasis supplied.)
Upon request by appellant's counsel, the trial court (applying the law to the facts) charged the jury on the offense of aggravated assault as follows:
"Now if you find from the evidence beyond a reasonable doubt that the defendant, Jesse Albert Rocha, at the time and place alleged in the indictment, did then and there intentionally and knowingly or recklessly, by the use of a firearm if any, cause bodily injury to Victor Velasquez, or if you find from the evidence beyond a reasonable doubt that the defendant, Jesse Albert Rocha, at the time and place alleged in the indictment, did then and there knowingly or intentionally or recklessly cause serious bodily injury to the said Victor Velasquez, then you will find the defendant guilty of the offense of aggravated assault and so say by your verdict." (Emphasis supplied.)
We turn initially to a reexamination of the question of whether aggravated assault is a lesser included offense of attempted murder.
Article 37.09, V.A.C.C.P., relates to lesser included offenses, and provides:
V.T.C.A., Penal Code, § 6.02(d) and (e), read as follows:
The elements of murder are defined by V.T.C.A., Penal Code, § 19.02. As relevant here they are as follows:
1) a person;
2) who intentionally or knowingly causes the death of an individual; or
3) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.
The elements of criminal attempt to commit murder are controlled by V.T.C.A., Penal Code, § 15.01. They are as follows:
1) a person;
2) who with the specific intent to commit murder;
3) does an act amounting to more than mere preparation, which;
4) tends but fails to effect the commission of murder.
The indictment in the instant case alleged attempted murder pursuant to V.T.C.A., Penal Code, §§ 15.01 and 19.02(a)(1).
V.T.C.A., Penal Code, § 22.01, provides in part:
V.T.C.A., Penal Code, § 22.02, provides in part:
The elements of aggravated assault relevant here under V.T.C.A., Penal Code, § 22.02, are (1) a person, who (2) intentionally, knowingly, or recklessly (3) commits an assault; which either (4) causes serious bodily injury, or (5) is effected by the use of a deadly weapon.
At least, and without further consideration, aggravated assault may be a lesser...
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