Dockery v. State

542 S.W.2d 644

• Court: Court of Criminal Appeals of Texas
• Decided: October 20, 1976
• Docket: 49932
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

Appellant was convicted for the offense of negligent homicide in the first degree under the former Code. His punishment was assessed by the jury at confinement in jail for 180 days.

Appellant was tried in 1974. He contends that he should not have been tried because negligent homicide is not named as an offense under the present penal code.

The information alleges in substance that appellant on or about November 30, 1973, while in the performance of a lawful act, was handling a pistol without an apparent intention to kill Burnette Clyde George (the deceased); that there was an apparent danger causing the death of the deceased; that he discharged his pistol thereby killing the deceased; that the death was caused by the defendant’s acts of negligence and carelessness and failing to exercise that degree of care and caution as a person of ordinary prudence would have done under like circumstances; and that (1) he failed to use the care of an ordinary prudent person in the operation of a deadly weapon, (2) failed to aim the pistol away from the person of deceased, and (3) failed to exercise proper control over a loaded pistol. This was alleged under Article 1231 of the 1925 Penal Code.

The record reflects that appellant was sleeping on a mattress on the floor of an apartment. George entered, appellant pointed a pistol at George and was apparently attempting to uncock it when it discharged and hit George who evidently died at the hospital.

Appellant relies upon Section 6(b), V.T. C.A. Penal Code, which provides:

“Conduct constituting an offense under existing law that is repealed by this Act and that does not constitute an offense under this Act may not be prosecuted after the effective date of this Act. If, on the effective date of this Act, a criminal action is pending for conduct that was an offense under the laws repealed by this Act and that does not constitute an offense under this Act, the action is dismissed on the effective date of this Act.

Section 6(c), V.T.C.A. Penal Code, Chapter 399, Saving Provisions, provides:

“In a criminal action pending on or commenced on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court before the sentencing hearing begins.”

The specific statute under which appellant was prosecuted was repealed.

Appellant made no election to be sentenced under the present Penal Code.

The question is: Could the conduct of the appellant mentioned in Section 6(b), supra, be classified as an offense under the 1974 Penal Code?

Section 22.05, V.T.C.A. Penal Code, provides:

“(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 or in the direction of another whether or not the actor believed the firearm to be loaded.

“(c) An offense under this section is a Class B misdemeanor.”

Appellant, in oral argument, contended that an indictment or information must allege the elements' of the present Penal Code. If the elements of a crime under the present Code are different from the elements under the former Code, serious questions upon ex post facto or retroactive application of the present Code could be raised. This would be especially true in a case where an accused does not elect to be punished under the present Code.

We hold that it is not necessary for a pleading to allege all of the elements of the offense under the present Code.

Appellant did not elect to have his punishment assessed under the present Code. His conduct at the time it was committed was an offense. His conduct then, if committed after January 1, 1974, would be an offense under the present Code. If the accused elects to have the punishment assessed by the jury the trial court should instruct the jury using the range of punishment under the new Code, applying such law to the facts proved during both stages of the trial. See Ambers v. State, 527 S.W.2d 855 (Tex.Cr.App.1975).

Although not exactly in point, Jones v. State, 502 S.W.2d 771 (Tex.Cr.App.1973), is similar. In that case the offense was for possession of marihuana charged as a felony under Article 725b, Section 2(a), V.A.C.C.P., prior to the adoption of the Texas Controlled Substances Act, Vernon’s Annotated Civil Statutes, Article 4476-15. Jones, who possessed only two ounces of marihuana, elected to be punished under the newer Act which provided that the possession of less than four ounces of marihuana was a misdemeanor. Section 6.01(c) of the Texas Controlled Substances Act provides:

“In a criminal action pending, on appeal, or commenced on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court requesting that the court sentence him under the provisions of this Act.”

The rest of the savings clause under that Act is like the savings clause of the new Penal Code.

Jones contended that the district court in which the indictment was returned lost jurisdiction because the offense was a misdemeanor. This Court held that the district court retained jurisdiction under the indictment which alleged the felony offense. The Court also held that Jones could not be convicted as a felon because the amount of marihuana involved was less than four ounces.

In that case the proof and not the indictment controlled the punishment to be assessed.

Likewise, in the present case the indictment alleges an offense under the former Code and the proof shows an offense under that Code and conduct that is an offense under the new Code.

To hold as appellant contends would allow those who have committed crimes such as the one in this case to escape punishment because an offense under the present Code contains a different name or different element even though slight.

We conclude that the evidence is sufficient to support the conviction.

No error is shown.

The judgment is affirmed.

ROBERTS and ODOM, JJ., concur in the result.