Wasylina v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Keller
• Citation: Wasylina v. State, 275 S.W.3d 908 (Tex. Crim. App. 2009)
• Decision Date: 28 January 2009
• Docket Number: No. PD-0519-07.,PD-0519-07.
• Parties: Anthony WASYLINA, Appellant v. The STATE of Texas.

275 S.W.3d 908

Anthony WASYLINA, Appellant v. The STATE of Texas.

No. PD-0519-07.

Court of Criminal Appeals of Texas.

January 28, 2009.

Steven R. Green, Athens, for Appellant.

Lisa C. McMinn, First Asst. State's Atty., Austin, for State.

KELLER, P.J., delivered the opinion of the Court in which PRICE, WOMACK, JOHNSON, HOLCOMB, and COCHRAN, JJ., joined.

The court of appeals held that the evidence was legally insufficient to support appellant's conviction for criminally negligent homicide because the evidence showed only that appellant acted recklessly. We hold that proving the greater culpable mental state of recklessness necessarily proves the lesser culpable mental state of criminal negligence, and we therefore reverse the judgment of the court of appeals.

I. BACKGROUND

Appellant was indicted for the offense of manslaughter. He pleaded "not guilty," and the case was tried to a jury. Over his objection, the trial judge submitted the lesser-included offense of criminally negligent homicide in the jury charge. The jury convicted appellant of criminally negligent homicide.

On appeal, appellant contended that the trial judge erred in submitting the lesser-included offense of criminally negligent homicide because there was no evidence that he acted with criminal negligence. The court of appeals agreed, holding that "there is no evidence of record that would permit a rational jury to find that Appellant is guilty of criminally negligent homicide, but not guilty of manslaughter."¹ Instead of reversing and remanding the case for a new trial on the basis of jury charge error, however, the court of appeals rendered a judgment of acquittal.² Though the court acknowledged that "the test for giving an instruction on a lesser included offense is different from the test for legal sufficiency of the evidence to support a conviction,"³ the court of appeals nevertheless found that the evidence was legally insufficient to show that appellant acted with criminal negligence because "the record does not reveal any evidence that Appellant failed to perceive the risk" of death.⁴

II. ANALYSIS

In Hampton v. State, we explained that the test for determining whether evidence is legally sufficient and the test for determining whether to submit a lesser-included-offense jury instruction are "quite different."⁵ The evidence could easily be legally sufficient to support a conviction for a lesser-included offense but not justify the submission of a lesser-included-offense instruction because the evidence does not show that the defendant is guilty only of the lesser-included offense.⁶ The Hampton case provides an excellent illustration: The defendant in that case was charged with aggravated sexual assault, with the aggravating element being the use of a deadly weapon.⁷ The defendant was not entitled to an instruction on the lesser-included offense of sexual assault because all the evidence showed that a deadly weapon was used during the encounter, so the defendant could not be guilty only of sexual assault.⁸ But the evidence was legally sufficient to convict him of sexual assault.⁹ Indeed, it would have to be, since the State's proof of an aggravated sexual assault necessarily included proof of a sexual assault.

An offense is denominated as "lesser-included" precisely because proof of the lesser offense is "included" in the offense described in the charging instrument. If the State proves the charged offense, it necessarily proves all lesser-included offenses. That is why the submission of a lesser-included offense does not violate the defendant's constitutional due-process right to notice of the crime of which he is accused.¹⁰

The Legislature has specifically designated an offense as "lesser included" if "it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission."¹¹ Furthermore, the Legislature has also prescribed that "[p]roof of a higher degree of culpability than that charged constitutes proof of the culpability charged."¹² Consistent with these statutes, we have held that criminally negligent homicide is a lesser-included offense of manslaughter.¹³ The court of appeals erred in holding that the State failed to prove criminal negligence because it proved only recklessness.¹⁴

The judgment of the court of appeals is reversed, and the case is remanded for that court to address appellant's claim in light of our opinion.

PRICE, J., filed a concurring opinion.

JOHNSON, J., filed a concurring opinion in which COCHRAN, J., joined.

MEYERS, J., filed a dissenting opinion in which KEASLER, and HERVEY, JJ., joined.

CONCURRING OPINION

PRICE, J., filed a concurring opinion.

The appellant was indicted for manslaughter. Over his objection, the trial court authorized the jury to convict him of the lesser-included offense of criminally negligent homicide should they acquit him of the manslaughter offense. The jury convicted him of criminally negligent homicide. On appeal, the appellant argued that the trial court erred to authorize the jury to convict him of the lesser-included offense because (notwithstanding the fact that the jury acquitted him of manslaughter) there was no evidence to show he was guilty only of criminally negligent homicide. The court of appeals agreed and found that the error was not harmless.¹ The court of appeals then turned to the question of what the proper remedy should be. Finding that there was no evidence to support a jury finding of what it called "inattentive risk creation," the court of appeals determined that the proper remedy was to acquit the appellant of criminally negligent homicide as well.² In the course of arriving at this holding, the court of appeals distinguished this Court's opinion in Hampton v. State, 165 S.W.3d 691 (Tex. Crim.App.2005).³ We granted discretionary review in order to determine whether this was the appropriate remedy in view of Hampton.⁴

In Hampton, the appellant was indicted for aggravated sexual assault. Against his wishes, the trial court submitted a lesser-included offense instruction for the offense of sexual assault, and the jury convicted him of this lesser-included offense. The court of appeals initially held that the jury instruction was justified,⁵ finding that there was evidence in the record to support a rational jury finding that the appellant committed the sexual assault without using a knife. This Court reversed, however, holding that the record in fact provided no rational basis for the jury to find a knife was not used, and that the evidence therefore failed to support the lesser-included offense instruction.⁶ On remand for a harm analysis, the court of appeals found harm and ordered a new trial on the lesser-included offense of sexual assault.⁷ We granted discretionary review a second time to examine the appropriateness of the remedy, and this time we affirmed the court of appeals's holding.⁸ We observed that the test for determining whether a lesser-included offense instruction should be submitted is different from the test for determining sufficiency of the evidence.⁹ Just because the evidence at Hampton's trial had not shown he was guilty only of the lesser-included offense of sexual assault, so as to justify submitting that instruction to the jury, did not mean that the evidence was legally insufficient to prove at least sexual assault.¹⁰ And because the evidence had been legally sufficient to support a conviction for sexual assault, we held, there was no jeopardy bar to prosecuting the appellant a second time for that offense.¹¹

Hampton is not on all fours with the instant case. Sexual assault is a lesser-included offense of aggravated sexual assault by virtue of Article 37.09(1) of the Code of Criminal Procedure.¹² Criminally negligent homicide is a lesser-included offense of manslaughter by virtue of Article 37.09(3).¹³ Still, proof of manslaughter should suffice to prove criminally negligent homicide, inasmuch as "[p]roof of a higher degree of culpability than that charged constitutes proof of the culpability charged[,]"¹⁴ and recklessness is statutorily defined as a higher degree of culpability than criminal negligence.¹⁵ Under these provisions, if the evidence is legally sufficient to prove recklessness, it will also suffice to prove criminal negligence, if only "artificially."¹⁶ Just because the appellant's jury acquitted him of a reckless homicide does not necessarily mean the evidence was legally insufficient to support such a verdict; it may only mean that the appellant's particular jury had a higher threshold of reasonable doubt than other, equally rational juries may have had.¹⁷ As the court of appeals's opinion illustrates, the evidence in this case was legally sufficient to justify a conviction for manslaughter.¹⁸ That the appellant's jury acquitted him of manslaughter means, of course, that he cannot be retried for that offense. But the court of appeals erred to conclude that he cannot be re-prosecuted for the lesser-included offense of criminally negligent homicide because of a lack of evidence to support such a conviction. The evidence is sufficient by virtue of Section 6.02(e) of the Penal Code. I therefore join the Court's opinion.

CONCURRING OPINION

JOHNSON, J., filed a concurring opinion in which COCHRAN, J., joined.

As we said in Hall v. State, 225 S.W.3d 524 (Tex.Crim.App.2007), lesser-included offenses must be ascertainable from the face of the indictment. The issue of whether a jury-charge instruction on a given lesser-included offense is appropriate is a separate matter and, unlike determination of what lesser offenses are included in the charged offense, that issue is dependent on the state of the evidence at the conclusion of the guilt phase.

By its verdict, the jury found that appellant ought to have been aware of a substantial and unjustifiable risk that Guthrie (or someone else) would be injured by his actions, but had failed to perceive it. Failure to...