Heathington v. State

705 S.W.2d 326, 1986 Tex. App. LEXIS 12175
CourtCourt of Appeals of Texas
DecidedFebruary 10, 1986
DocketNo. 07-85-0003-CR
StatusPublished
Cited by2 cases

This text of 705 S.W.2d 326 (Heathington v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heathington v. State, 705 S.W.2d 326, 1986 Tex. App. LEXIS 12175 (Tex. Ct. App. 1986).

Opinion

REYNOLDS, Chief Justice.

Appellant Estelene R. Heathington was charged by a three-count indictment with the offense of involuntary manslaughter. The first two counts are allegations that she recklessly caused the death of an individual by the manner of her driving a motor vehicle; the third count is an allegation that by accident or mistake, she caused the death when operating a motor vehicle while intoxicated. She entered a plea of guilty and applied for probation. By a general verdict, a jury found her guilty of the offense charged as instructed, and then, declining to recommend probation, fixed her punishment at confinement in the Texas Department of Corrections for two (2) years and six (6) months. The court rendered judgment and imposed sentence in accordance with the verdict.

In charging the jury on punishment and probation, the court first instructed, in conformity with the statutes, that the punishment for involuntary manslaughter is confinement in the Texas Department of Corrections for a period of not less than two (2) years nor more than ten (10) years and, in the jury’s discretion, a fine in any amount not to exceed $5,000. See Tex.Penal Code Ann. §§ 19.05(c), 12.34 (Vernon 1974). Then, the court, in instructing on probation, enumerated the conditions of probation, if granted, which are the first fourteen conditions listed in the Adult Probation Law that the court may impose, but is not limited to imposing, as conditions of [328]*328probation. See Tex.Code Crim.Proc.Ann. art. 42.12, § 6(a) (Vernon Supp.1986).

Appellant objected to the charge and requested'the court to give two additional charges on punishment upon conviction for the offense of involuntary manslaughter. First, she objected to absence of, and requested, a charge that the law provides the court granting probation shall require as a condition of probation that the defendant submit to a period of detention in a penal institution to serve a term of confinement of not less than 120 days. Tex.Code Crim. Proe.Ann. art. 42.12, § 6b(c) (Vernon Supp. 1986). Second, she objected to the absence of, and requested, a charge that the law provides for a mandatory suspension of the defendant’s driver’s license for 180 days to two years. Tex.Rev.Civ.Stat.Ann. art. 6687b, § 24(e) (Vernon Supp.1986). The court overruled the objections and denied the requests, which, so appellant contends by a single ground of error, was reversible error. Disagreeing, we affirm.

At the outset, it is to be noticed that the offense of involuntary manslaughter is committed if a person

recklessly causes the death of an individual;

Tex.Penal Code Ann. § 19.05(a)(1) (Vernon 1974); or

by accident or mistake when operating a motor vehicle while intoxicated and, by reason of such intoxication, causes the death of an individual.

Tex.Penal Code Ann. § 19.05(a)(2) (Vernon 1974). It is only a conviction under section 19.05(a)(2), supra, that invokes the application of article 42.12, § 6b(c), supra, and article 6687b, § 24(e), supra, to a conviction for the offense of involuntary manslaughter.

In this regard, as previously mentioned, appellant was charged by indictment with one offense of involuntary manslaughter alleged to have been committed in three different manners, only one of which was a section 19.05(a)(2), supra, allegation. Since evidence bearing on each count was adduced to validate appellant’s general plea of guilty, and the jury returned a general verdict of guilty, the conviction is supportable, Bailey v. State, 532 S.W.2d 316, 323 (Tex.Cr.App.1975), but we cannot ascertain with certainty that the jury based its general verdict of guilty on a section 19.-05(a)(2), supra, commission, which is a necessary predicate for appellant’s ground of error.

There being sufficient evidence to support a finding by the jury that appellant committed a section 19.05(a)(1), supra, offense of involuntary manslaughter, as alleged in the first two counts of the indictment, it ordinarily would be unnecessary to pass on appellant’s ground, which is based only on a conviction under section 19.-05(a)(2), supra. Wright v. State, 364 S.W.2d 384, 387 (Tex.Cr.App.), cert. denied, 375 U.S. 870, 84 S.Ct. 96, 11 L.Ed.2d 96 (1963). However, since there is evidence to support a conviction of involuntary manslaughter committed under section 19.-05(a)(2), supra, the verdict is applicable to that phase of the offense, Wright v. State, supra, and appellant’s ground will be entertained and addressed.

In charging the jury on punishment for the offense of involuntary manslaughter, a felony in the third degree, the court instructed accurately on the punishment fixed by statute for the offense. See Tex. Penal Code Ann. art. 12.34, supra. Notwithstanding, appellant contends that the aforementioned mandatory institutional detention of the defendant as a condition of probation and the automatic suspension of the defendant’s driver’s license, as provided by statutes, is a part of the range of punishment for the section 19.05(a)(2), supra, offense, and the court had a duty to so instruct the jury. We do not agree, mentioning first that article 12.34, supra, which prescribes the punishment, does not include either the detention or the suspension as punishment for the offense.

Next, we observe that, at least since Schultz v. State, 134 Tex.Cr.R. 251, 115 S.W.2d 417 (1938), the jury, in assessing punishment, has no legal authority to suspend or not suspend the driver’s license, [329]*329Rowland v. State, 523 S.W.2d 676 (Tex.Cr. App.1975), because the law determines a suspension is automatic upon conviction. Beach v. State, 150 Tex.Cr.R. 193, 199 S.W.2d 1020 (1947). Therefore, the matter of suspension of the license is not for the jury’s consideration, Harward v. State, 398 S.W.2d 127, 128 (Tex.Cr.App.1965), and shall not be included in the court’s charge. Davison v. State, 166 Tex.Cr.R. 376, 313 S.W.2d 883, 886 (1958). See, also, Leslie v. State, 408 S.W.2d 116 (Tex.Cr.App.1966). Consequently, the court correctly omitted from the charge an instruction on the automatic suspension of the driver’s license.

And now, we notice that the court, in instructing on probation, stated the fourteen conditions of probation as absolutes, not as the optional conditions which, among others, the court may impose. See article 42.12, § 6(a), supra. Given the posture of the stated conditions in the charge, which instructed the return of a general verdict of guilty, and the mandatory operation of article 42.12, § 6b(c), supra, to a section 19.05(a)(2),

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Bluebook (online)
705 S.W.2d 326, 1986 Tex. App. LEXIS 12175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heathington-v-state-texapp-1986.