Rodriquez v. State

• Decision Date: 09 March 1977
• Docket Number: No. 52322,52322
• Citation: 548 S.W.2d 26
• Parties: Jose Gutierrez RODRIQUEZ and Luis Mani, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 26

548 S.W.2d 26

Jose Gutierrez RODRIQUEZ and Luis Mani, Appellants, v. The STATE of Texas, Appellee.

No. 52322.

Court of Criminal Appeals of Texas.

March 9, 1977.

Rehearing Denied March 30, 1977.

Oscar J. Pena, Laredo, for Rodriquez.

Ruben Garcia, Laredo, for Mani.

Charles R. Borchers, Dist. Atty., Donato D. Ramos, Stephen A. Whitworth and Sharon S. Trigo, Asst. Dist. Attys., Laredo, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

REYNOLDS, Commissioner.

Indicted and prosecuted for murder, appellants were convicted of the offense of voluntary manslaughter. The punishment of each was fixed by the jury at confinement for twelve years.

The prosecution was under V.T.C.A., Penal Code § 19.02(a)(3), ^* which reads:

" § 19.02. Murder

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

"(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 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."

Omitting its formal parts, the indictment charges that appellants

". . . did, then and there commit a felony, to-wit: did then and there intentionally and knowingly carry on and about their persons a handgun while on certain premises licensed and issued a permit by the State of Texas for the sale and service of alcoholic beverages, to-wit: El Dandy Club Bar, 2619 Guatemozin, situated in Laredo, Webb County, Texas, and while in immediate flight from the commission of said offense the said JOSE GUTIERREZ RODRIQUEZ and LUIS MANI, then and there acting together, did commit an act clearly dangerous to human life, to-wit: did then and there discharge a handgun into the said El Dandy Club Bar, a business establishment at the time of the shooting, and did thereby cause the death of Jose T. Ramos by shooting him with the said handgun, . . ."

An evidential summary is that appellants entered the El Dandy Club Bar owned by Jose Trinidad Ramos, the deceased, and ordered beer. Sixteen or seventeen persons, including Ramos, were present. Appellant Rodriquez displayed a pistol, pointing it out the door and clicking it. Appellants were told to leave. They left and, once outside, called for Ramos to come out and talk with them. When Ramos started toward the door, the barmaid and a customer caused him to remain inside. Sounds of shots were heard. A bullet penetrated the bar building, striking Ramos in the head and killing him instantly. The pistol from which the fatal shot was fired was found under the front seat of a pickup truck appellant Rodriquez drove to a nearby bar owned by Mani. In a statement given by appellant Rodriquez after his arrest and introduced by him in evidence, he reported that the shot was fired by appellant Mani. Neither appellant testified during the guilt-innocence stage of the trial.

Initial attention is given to the fourth ground of error claiming that § 19.02(a)(3) is unconstitutional for vagueness and indefiniteness. The infirmity is contended for on the theory that the section fails to show what culpable state of mind is required in the commission of the "act clearly dangerous to human life that causes the death of an individual." The novel contention has not heretofore been decided and, to resolve it, the enactment must be considered with other sections of the Penal Code, to which the rule of strict construction does not apply. § 1.05.

Section 6.02 of the Penal Code provides, in part, that

"(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.

"(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.

"(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."

From a consideration of these sections together, it logically follows that because § 19.02(a)(3) is silent as to, and does not plainly dispense with, the culpable mental state required for the underlying felony committed or attempted, § 6.02(b) mandates that the culpable mental state shall, as specified in § 6.02(c), be one of intent, knowledge or recklessness. Upon the establishment of the underlying committed or attempted felony embracing the requisite mental element, § 19.02(a)(3) then declares that an act which is committed in the course and furtherance of, or in immediate flight from, the underlying committed or attempted felony and which is clearly dangerous to human life and causes death shall constitute murder. Thus, the culpable mental state for the act of murder is supplied by the mental state accompanying the underlying committed or attempted felony giving rise to the act. The transference of the mental element establishing criminal responsibility for the original act to the resulting act conforms to and preserves the traditional mens rea requirement of the criminal law. See, e. g., Hilliard v. State, 513 S.W.2d 28 (Tex.Cr.App.1974).

Consequently, § 19.02(a)(3) is not unconstitutional for its failure to specify the culpable mental state required for the act of murder. The fourth ground is overruled.

Consistent with this rationale, appellants' third ground, by which they say that the indictment was fatally defective because it failed to inform them of the culpable mental state with which they were charged in committing the act resulting in death to Ramos, is overruled. In view of what we have written, it is sufficient if the indictment alleges the culpable mental state attending the underlying felony committed or attempted. Here, the indictment alleged that appellants "intentionally and knowingly"...