Smith v. State
| Decision Date | 05 May 2010 |
| Docket Number | No. PD-1805-08.,PD-1805-08. |
| Citation | 309 SW 3d 10 |
| Parties | Joseph Denver SMITH, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Melissa Martin, Houston, for Appellant.
Alan Curry, Asst. District Attorney, Houston, Jeffrey L. Van Horn, State's Attorney, Austin, for State.
A jury found Joseph Denver Smith guilty of indecent exposure. Before trial, the judge denied Smith's motion to quash, which alleged that the information was fundamentally defective for failing to allege the act or acts relied on to constitute recklessness. We hold that the First Court of Appeals erred in affirming the trial judge's denial1 and conclude that the defect in the information was a substance defect. We therefore reverse and remand the case to the court of appeals to determine what, if any, harm analysis applies.
Houston Police Department Officer Shannon Farquhar testified that on August 12, 2007, he was working in an undercover capacity in Houston's Memorial Park. He was conducting a sting operation in response to "reports of individuals engaging in sexual behavior, masturbation and stuff." A particular area of the park was "very well known" for this type of behavior, according to Farquhar.
While Farquhar was sitting in his unmarked city vehicle in a parking lot, Smith pulled into the lot. Initially, the two engaged in Farquhar testified that this went on for two to three minutes. The two exchanged glances and head nods, which Farquhar stated is a signal that "the individual is open or engaged in taking part in what's going on in that area of the bathroom or the wooded area portions of the park."
Farquhar exited his vehicle and walked down a path toward a bathroom building about thirty to forty yards away. Smith also exited his vehicle, following Farquhar down the path. When Smith arrived outside the bathroom, Farquhar began touching himself in a "mock masturbation;" he had his fly unzipped and his hand inside his pants. The two were standing "very, very close." Smith reacted by staring at Farquhar and looking around the area to make sure that they were alone. Smith then began to "gratify himself" from the outside of his pants and proceeded to unzip his fly and place his hands in his shorts. Farquhar stated that Smith removed his penis from his shorts for thirty to forty-five seconds. In doing so, Smith exposed the shaft area of his penis while masturbating.
Once Smith had exposed himself, Farquhar displayed his badge and identified himself as a police officer and told Smith that he was under arrest for indecent exposure. Smith became "very startled" and tried to walk away from him. Farquhar pulled his gun on Smith, directed him to comply, handcuffed him, and placed him into custody.
Smith was charged by information with indecent exposure under Texas Penal Code Section 21.08,2 which provides in relevant part:
(a) A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.
The information charging Smith alleged:
JOSEPH DENVER SMITH, hereafter styled the Defendant, heretofore on or about APRIL 12, 2007, did then and there unlawfully expose his GENITALS to S. FARQUHAR with intent to arouse and gratify the sexual desire of THE DEFENDANT, and the Defendant was reckless about whether another person was present who would be offended and alarmed by the act, to-wit: THE DEFENDANT EXPOSED HIS PENIS AND MASTURBATED.
Smith moved to quash the information because the State failed to allege what act or acts constituted recklessness as required by Article 21.15 of the Texas Code of Criminal Procedure.3 Article 21.15 provides:
Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.
In his motion, Smith argued that the information was fundamentally defective because it was insufficient under Article 21.15, Section 6.03(c) of the Penal Code, and our caselaw. Smith cited our 1988 decision in Gengnagel v. State4 in which we recognized that the State must allege "the circumstances of the act which indicate that the defendant acted in a reckless manner."5 The trial judge overruled Smith's motion without a hearing. The jury later found Smith guilty, and the judge sentenced Smith to 180 days' confinement in the Harris County Jail, probated for eighteen months. Smith appealed the denial of his pretrial motion to quash.
On appeal, Smith relied on our opinion in Gengnagel and argued that the information was fundamentally defective for failing to allege with reasonable certainty the acts relied upon to constitute recklessness, an element of the offense.6
The court of appeals held that the information sufficiently described the acts relied upon to constitute recklessness.7 The court determined that Gengnagel's requirement that the State allege "the circumstances of the act which indicate that the defendant acted in a reckless manner" was "met by the assertion that appellant `exposed his penis and masturbated' while he was `reckless about whether another person was present who would be offended and alarmed by the act.'"8
We granted Smith's petition for discretionary review to address whether the court of appeals erred in concluding that the information alleged with reasonable certainty the act or acts relied upon to constitute recklessness as required by Article 21.15.
It should first be noted that the court of appeals, relying on its own decision in State v. Goldsberry,9 erroneously applied an abuse-of-discretion standard. The sufficiency of a charging instrument presents a question of law.10 An appellate court therefore reviews a trial judge's ruling on a motion to quash a charging instrument de novo.11
In State v. Mays, we stated that "subject to rare exceptions, an indictment tracking the language of the statute will satisfy constitutional and statutory requirements."12 "The State need not allege facts that are merely evidentiary in nature."13 Notwithstanding Mays, whenever recklessness "enters into or is a part or element of any offense, or it is charged that the accused acted recklessly ... in the commission of an offense," Article 21.15 establishes an additional requirement: "in order to be sufficient the charging instrument in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness."14 Indecent exposure, the crime with which Smith was charged, is such a crime.15 Thus, the information must allege the act or acts relied on to constitute recklessness.
Professors Dix and Dawson have commented that the terms of Article 21.15 present "some conceptual difficulty."16 The problem arises from the 1974 Penal Code's distinction between culpable mental states and acts.17 Section 1.07(a)(10) of the Penal Code defines "conduct" as "an act or omission and its accompanying mental state."18 An "act" is defined as "a bodily movement, whether voluntary or involuntary."19 And Section 6.03(c) of the Penal Code states, "A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur."20 The language of Article 21.15 assumes that the culpable mental state of recklessness can be "constituted" by some "act."21 However, the definition of "act," added in 1974, made this a "conceptual impossibility."22
As part of the enacting legislation of the 1974 Penal Code, the Legislature amended Article 21.15 to accommodate the Penal Code's inclusion of the culpable mental state of recklessness.23 Since the Legislature modified Article 21.15 as part of the same legislation that enacted the 1974 Penal Code, it must have been aware of the terms of Section 6.03(c) of the Penal Code and intended for Article 21.15 to be given effect.24
Since an "act," as defined by the Penal Code, cannot logically "constitute recklessness," in Gengnagel we interpreted the provision in Article 21.15 to mean that "the State must allege circumstances which indicate that appellant was aware of the risk that another person was present who would be offended by his act of exposing himself and ... acted in conscious disregard of that risk."25 In reaching this conclusion, we relied on our holding in Townsley v. State.26 Townsley was convicted of involuntary manslaughter.27 On appeal, he complained that the trial judge erred in overruling his motion to quash the indictment, arguing that it did not comply with the requirements of Article 21.15.28 The indictment alleged that Townsley:
did then and there recklessly cause the death of Luther Eugene Stark by driving a motor vehicle at an excessive rate of speed while attempting to elude a police officer and recklessly causing said vehicle to run off the roadway and roll over, thereby fatally injuring the said Luther Eugene Stark, who was a passenger in said vehicle....29
We concluded that the indictment "sufficiently alleged with reasonable certainty the act or acts relied upon to constitute recklessness," and affirmed the conviction.30 The indictment alleging that the offense was committed "by driving a...
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