ACCEPTED 13-15-00235-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 8/3/2015 2:44:35 PM CECILE FOY GSANGER CLERK
NO. 13-15-00235-CR
IN THE COURT OF APPEALS FILED IN 13th COURT OF APPEALS FOR THE THIRTEENTH DISTRICT CORPUSOFCHRISTI/EDINBURG, TEXAS TEXAS 8/3/2015 2:44:35 PM AT CORPUS CHRISTI CECILE FOY GSANGER Clerk
THE STATE OF TEXAS, Appellant, v.
HECTOR GARCIA, Appellee.
On Appeal from the th 24 Judicial District Court Of Victoria County, Texas Cause No. 14-05-27962-A
BRIEF FOR THE STATE OF TEXAS
STEPHEN B. TYLER Criminal District Attorney Victoria County, Texas
BRENDAN WYATT GUY Assistant Criminal District Attorney Victoria County, Texas 205 N. Bridge St. Ste. 301, Victoria, Texas 77901-6576 bguy@vctx.org (361) 575-0468 (361) 570-1041 (fax) State Bar No. 24034895
Attorneys for the State of Texas
ORAL ARGUMENT NOT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 38.1(a) (2003), the parties to the suit are as follows:
APPELLANT The State of Texas
APPELLEE Hector Garcia
TRIAL JUDGE The Honorable Elí Elmo Garza 377th Judicial District Court Victoria, Texas
TRIAL PROSECUTOR Brendan Wyatt Guy State Bar No. 24034895 Assistant Criminal District Attorney 205 N. Bridge St. Ste 301 Victoria, Texas 77901-6576
TRIAL DEFENSE ATTORNEY Micah Wayne Hatley State Bar No. 24053260 The Hatley Law Firm P. O. Box 2113 Victoria, Texas 77902
APPELLATE STATE’S Brendan Wyatt Guy ATTORNEY State Bar No. 24034895 Assistant Criminal District Attorney 205 N. Bridge St. Ste 301 Victoria, Texas 77901-6576
APPELLATE DEFENSE Luis Adrian Martinez ATTORNEY State Bar No. 24010213 P.O. Box 410 Victoria, Texas 77902-0410
Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR i TABLE OF CONTENTS
PAGE (S)
IDENTITY OF PARTIES AND COUNSEL........................................... i
TABLE OF CONTENTS ......................................................................... ii
INDEX OF AUTHORITIES ...............................................................iii-iv
STATEMENT OF THE CASE............................................................. 1-2
ISSUES PRESENTED.............................................................................. 2
STATEMENT OF THE FACTS .......................................................... 3-7
SUMMARY OF ARGUMENT ............................................................. 7-9
ARGUMENT ........................................................................................ 9-26
I. Appellee’s Motion to Quash was untimely and thus the trial court committed reversible error by ruling upon that motion ..................................................... 9-14
II. The trial court committed reversible error in granting Appellee’s motion to quash Count 2 of the indictment because that count was legally sufficient .................................................................................. 14-24
III. The indictment, when considered as a whole, alleged that Count 2 occurred in a public place ................. 24-26
PRAYER .................................................................................................. 27
SIGNATURE ........................................................................................... 27
CERTIFICATE OF COMPLIANCE ................................................... 28
CERTIFICATE OF SERVICE ............................................................. 29 Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR ii INDEX OF AUTHORITIES
Texas Cases
Alba v. State, 905 S.W.2d 581 (Tex.Crim.App.1995) ........................... 18
Hammett v. State, 578 S.W. 2d 699 (Tex. Crim. App. 1979) .......... 18, 22
Harrison v. State, 76 S.W. 3d 537 (Tex. App.-Corpus Christi 2002, no pet) ........................................ 23, 25
Hinojosa v. State, 875 S.W. 2d 339 (Tex. App.-Corpus Christi 1994, no pet) .............................................. 21
Jarnigan v. State, 57 S.W. 3d 76 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) ................................ 18
Lehman v. State, 792 S.W. 2d 82 (Tex. Crim. App. 1990) ................... 23
Neal v. State, 150 S.W. 3d 169 (Tex. Crim. App. 2004) ............. 9, 11-13, .............................................................................................................. 20-21
Oliver v. State, 692 S.W. 2d 712 (Tex. Crim. App. 1985) ............... 23, 25
Pryor v. State, 651 S.W. 2d 22 (Tex. App.-Dallas 1983, pet. ref’d) ................................................... 16-17
Sanchez v. State, 138 S.W. 3d 324 (Tex. Crim. App. 2004) ................. 13
Smith v. State, 309 S.W. 3d 10 (Tex. Crim. App. 2010) ....................... 14
State v. Rivera, 42 S.W. 3d 323 (Tex.App.-El Paso 2001, pet. ref'd) ....................................................... 18
State v. Rousseau, 396 S.W. 3d 550 (Tex. Crim. App. 2013) ............... 16
State v. Zuniga, 2015 WL 4381064, 13-14-00316-CR (Tex. App.-Corpus Christi July 16, 2015) (mem. op. not designated for publication) ............................................ 15 Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR iii Steen v. State, 640 S.W. 2d 912 (Tex. Crim. App. 1982) ................. 15-16
Texas Statutes
TEX. CODE CRIM. PROC. art 28.01 (West 2006) ............................ 20
TEX. CODE CRIM. PROC. art 45.019 (West 2006) .......................... 13
TEX. TRANSP. CODE §550.001 (West 2011) ...................5-9, 16, 24-26
TEX. TRANSP. CODE ANN §550.021 (West 2014) ..........2, 6-9, 15-19, .............................................................................................................. 21-26
TEX. TRANSP. CODE §550.023 (West 2011) .................... 2, 6, 8, 16-23
VERNON’s ANN. CIV. ST. art. 6701d, §§ 38 ................................ 15, 17
Texas Rules
TEX. R. APP. 9.4..................................................................................... 28
TEX. R. APP. 38.1...................................................................................... i
Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR iv NO. 13-15-00235-CR
IN THE COURT OF APPEALS FOR THE THIRTEEN DISTRICT OF TEXAS AT CORPUS CHRISTI
THE STATE OF TEXAS,…...….…………………………………..Appelant
v.
HECTOR GARCIA,……………….………………………...……...Appellee
* * * * *
STATE’S BRIEF ON THE MERITS
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS, by and through her Criminal
District Attorney, Stephen B. Tyler, and as Appellant in the above numbered
and entitled cause, and files this the Appellant’s brief showing:
STATEMENT OF THE CASE
Appellee was charged by indictment with one count of Intoxication
Manslaughter (Count 1), one count of Accident Involving Personal Injury or
Death (Count 2), and one count of Criminally Negligent Homicide (Count
3). [CR-I-6-8]. On May 4, 2015, Appellee filed a motion to quash Count 2
of the indictment. [CR-I-64-66]. The Appellant submitted a response to that
Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 1 motion on May 5, 2015. [CR-I-70-72]. On May 5, 2015, the Honorable Elí
Garza presiding, verbally granted Appellee’s motion to quash. [RR-V-6].
On May 12, 2015, the Appellant requested the trial court memorialize its
order granting the motion to quash in writing. [CR-I-95-96]. On May 13,
2015, the trial court signed a written order granting the motion to quash on
the grounds that the indictment for Count 2 did not track the statutory
language set forth in Sections 550.021 and 550.023 of the Texas
Transportation Code. [CR-I-101]. The State timely filed its notice of appeal
on May 20, 2015. [CR-I-102-105].
ISSUES PRESENTED
1) Is a motion to quash untimely when it is filed after a party has announced ready for trial?
2) Did the trial court err in hearing a motion to quash that was untimely filed?
3) Is that an offense occurred in one of the locations listed in Section 550.001 of the Texas Transportation Code an element of an offense alleged under Section 550.021 of the Texas Transportation Code?
4) Did Count 2 of the indictment fully allege an offense under Texas law?
5) Did the trial court fail to properly considering the whole of the indictment when evaluating if Count 2 of the indictment included an accusation that the offense occurred in a public place.
Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 2 STATEMENT OF THE FACTS
On May 2, 2014, Appellee was indicted for one count of Intoxication
Manslaughter (Count 1), one count of Accident Involving Personal Injury or
Death (Count 2), and one count of Criminally Negligent Homicide (Count
3). [CR-I-6-7]. All three counts included a deadly weapon allegation and
were enhanced due to three prior non-State Jail felony convictions. [CR-I-7-
8]. All three counts alleged the offenses occurred on February 8, 2014 in
Victoria County, Texas. [CR-I-6]. Count 1 specifically alleged that the
Appellee was operating a motor vehicle in a public place when he caused the
death of Ms. Natalie Nicole Luna by running over her. [CR-I-6]. Count 2
specifically alleged that the Appellee operated a vehicle that struck a
pedestrian and caused the death of that pedestrian, Natalie Nicole Luna.
[CR-I-6].
Appellee’s trial counsel, Mr. Micah Hatley, was appointed on May 14,
2014. [CR-I-14]. The case was set for motion’s hearings on August 5, 2014
and again on October 28, 2014. [CR-I-116]. Appellee did not file any
motion to quash in advance of these hearings. [CR-I].
On January 6, 2015, another pre-trial motions docket was held for this
case. [RR-II-1]. Appellee did not file any sort of motion to quash in
advance of that hearing. [CR-I]. Appellee did not request a hearing on a Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 3 motion to quash at the January 6, 2015 pre-trial hearing. [RR-II].
Appellee’s only motion that was addressed at this hearing was a motion to
suppress. [RR-II-4-5].
On February 4, 2015, that motion to suppress hearing was conducted
for this case. [RR-III-1]. The trial court established at the end of that
hearing that the case would be set for jury docket announcements on
February 25, 2015 for trial beginning on March 2, 2015. [RR-III-143]. At
no point in this hearing did Appellee indicate he intended to file a motion to
quash or request a hearing for such a motion. [RR-III].
On February 25, 2015, the case was set for jury announcements. [RR-
IV-1]. At that hearing both the State and the Appellee announced ready for
trial. [RR-IV-6]. The trial court then indicated the case would be set for
trial on March 23, 2015. [RR-IV-6]. At no time during this hearing did
Appellee indicate he intended to file a motion to quash or request a hearing
for such a motion. [RR-IV].
The March 23, 2015 trial setting was cancelled and the case was
instead set for trial on May 4, 2015. [CR-I-117-118]. On May 4, 2015, the
Appellee filed a motion to quash Count 2 of the indictment. [CR-I-64-66].
Amongst other things, this motion alleged that Count 2 of the indictment
was defective because it failed to allege that the offense had occurred in one Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 4 of the locations listed under Section 550.001 of the Texas Transportation
Code. [CR-I-64-65]. Appellee’s motion did not provide any justification for
why it was filed the day trial was scheduled to begin. [CR-I-64-66]. This
motion to quash was filed on May 4, 2015, the same day the jury panel that
would hear Appellee’s case was sworn and qualified. [CR-I-118;
Supplemental CR-I-1]. The case had been scheduled to begin on May 4,
2015 but was reset to the next day due to “scheduling issues with some of
the individuals involved in the trial.” [Supplemental CR-I-4].
The State filed a response to the Appellee’s motion to quash the next
day, May 5, 2015, asserting that Appellee’s motion was untimely and that
the charging language in Count 2 was legally sufficient. [CR-I-70-72].
On May 5, 2015, prior to bringing in the venire panel to begin jury
selection in this case, the trial court took up Appellee’s motion to quash.
[RR-V-6]. The trial court did not permit any argument at this hearing but
instead ruled solely upon the written submissions of the parties. RR-V-6].
The trial court granted Appellee’s motion to quash without explanation.
[RR-V-6]. Appellee did not present any justification for why he had only
submitted his motion to quash the day before this hearing, and the trial court
did not articulate any finding of good cause for why it was allowing the
Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 5 motion to be heard despite its late filing and without giving the State seven
days to respond to the motion. [RR-V-6].
The State then sought confirmation from the trial court that the
court’s ruling would not bar the State from proceeding with the accusations
contained within Count 2 at some future date. [RR-V-7]. The trial court
agreed that jeopardy had not attached as to Count 2. [RR-V-6-7]. The case
then proceeded to trial under Counts 1 and 3. [CR-I-117-118].
On May 12, 2015, the State filed a motion requesting the trial court
put its order granting the motion to quash Count 2 in writing. [CR-I-95-96].
The trial court submitted a written order on May 13, 2015. [CR-I-101]. The
trial court’s written order indicated that the court’s reason for granting the
motion was that the language in the indictment did not track the statutory
language of Articles 550.021 and 550.023. [CR-I-101]. The trial court’s
order did not specify how the language in the indictment failed to track those
statutory provisions. [CR-I-101]. The trial court’s order did not state if the
court was treating it as an element of the offense of Article 550.021 that the
State allege the offense occurred in one of the locations described in Article
550.001. The trial court’s order did not make any finding of good cause for
why the Appellee had filed his motion the day before trial began that
Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 6 justified proceeding to a ruling on the motion without giving the State seven
days to respond to the motion. [CR-I-101].
SUMMARY OF THE ARGUMENT
Appellee’s motion to quash was untimely. Texas law requires
motions to quash to be presented at the first opportunity and prohibits
permitting them to be heard after the defense has announced ready for trial.
Appellee did not present his motion to quash at the first opportunity, and he
submitted it after he had already announced ready for trial. As such the trial
court committed reversible error in granting the Appellee a hearing on his
motion to quash, and the trial court’s ruling granting said motion should
therefore be reversed.
In the alternative, even if the trial court did not error in granting
Appellee a hearing on his motion to quash, the trial court still erred in
granting that motion because the indictment as to Count 2 was legally
sufficient to be a proper charging instrument. The indictment for Count 2
included all the elements of the offense under Section 550.021 of the Texas
Transportation Code (Accident Involving Personal Injury or Death). The
locations listed in Section 550.001 of the Texas Transportation Code are not
elements of the offense of Section 550.021 and thus do not have to be
alleged in the indictment. Nor was the indictment as to Count 2 vague in Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 7 regards to how the Appellee violated Section 550.023 of the Texas
Transportation Code; the allegations concerning Section 550.023 were a
constituent offense of the greater alleged offense of violating Section
550.021 and therefore the State was not required to allege specifics as to
how Section 550.023 was violated as part of an indictment alleging a
violation of Section 550.021. And while there was a scrivener’s error
contained within Count 2 of the indictment, that error did not invalidate the
count as even with the scrivener’s error, Count 2 still fully alleged a
violation of Section 550.021, and was so titled by code section and name
within the charging language in the indictment. Furthermore, Count 2, when
read in conjunction with the indictment as a whole, clearly alleged that the
alleged offense occurred within the State of Texas. As such there was no
legal basis to quash Count 2, and as such the trial court committed reversible
error by granting Appellee’s motion to quash.
Furthermore, even should it be held that the State must allege that an
offense under Section 550.021 occurred in one of the locations listed in
Section 550.001 to constitute a valid indictment, the indictment in this case
was still valid as to Count 2 because, when read as a whole, the indictment
established that all of the allegations contained within it occurred in a public
place. Therefore the indictment did allege that the offense in Count 2 Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 8 occurred in one of the locations listed with Section 550.001 and thus Count
2 would be legally sufficient to support a charge under Section 550.021.
ARGUMENT
I. Appellee’s Motion to Quash was untimely and thus the trial court committed reversible error by ruling upon that motion.
Texas law holds that a motion to quash should be made at the first
opportunity. See Neal v. State, 150 S.W. 3d 169, 176 (Tex. Crim. App.
2004). Furthermore, the motion to quash must be presented to the trial court
prior to an announcement by that party that it is ready for trial. Id.
Appellee’s motion to quash failed to meet either of these requirements, and
thus it was plain error for the trial court to even give that motion a hearing,
much less to grant the motion.
Pre-trial hearings were set in this case on August 5, 2014, October 28,
2014, and January 6, 2015. [CR-I-116]. Appellee did not file a motion to
quash in advance of any of those hearings. [CR-I]. Appellee’s pre-trial
motion to suppress was heard in another pre-trial hearing that was held in
this case on February 4, 2015. [RR-III-1]. Appellee did not raise any
motion to quash in advance of that hearing or indicate he intended to file
such a motion at that hearing. [CR-I; RR-III]. Jury announcements were
then made in this case on February 25, 2015. [RR-IV-1]. Appellee
announced ready for trial at that hearing [RR-IV-6], and again did not file Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 9 any motion to quash in advance of that hearing or indicate at the hearing that
he would be filing a motion to quash. [CR-I; RR-IV-6]. Appellee did not
actually file his motion to quash until May 4, 2015 [CR-I-64-66], the day the
venire panel that would make up the jury for this case was sworn and
qualified and the day for which trial was scheduled to begin. [CR-I-118;
Supplement CR-I-1]. The motion to quash was then not heard until the
following day, May 5, 2015; the day trial began in this case. [CR-I-119].
From that record it is clear Appellee failed to raise his motion to
quash at the first opportunity. Appellee’s defense counsel was appointed on
May 14, 2014. [CR-I-14]. Thus he had already been assigned to the case
for nearly three months by the time of the first pre-trial motion hearing in
this case which was held on August 5, 2014. [CR-I-116]. That hearing date
was the first opportunity for Appellee to present a motion to quash, and
Appellee let the hearing pass without even filing a motion to quash much
less arranging to have a hearing held on such a motion. [CR-I]. Nor did
Appellee present a motion to quash at the second pre-trial hearing
opportunity (October 28, 2014), or the third pre-trial hearing opportunity
(January 6, 2015), or the fourth pre-trial hearing opportunity (February 4,
2015) or even the fifth pre-trial hearing opportunity (February 25, 2015.)
Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 10 [CR-I-116-117]. Thus Appellee entirely failed to meet the Neal requirement
to have a motion to quash heard at the first opportunity.
But an even more serious Neal breach was that Appellee filed his
motion to quash long after he had already announced ready for trial.
Appellee announced ready for trial on February 25, 2015. [RR-IV-6]
Appellee filed his motion to quash more than two months later on May 4,
2015. [CR-I-64]. The Court of Criminal Appeals has established that
motions to quash “must be presented to the trial court prior to an
announcement by that party that it is ready for trial.” Neal, 150 S.W. 3d at
176 (emphasis added). Thus this requirement to present the motion to quash
before announcing ready for trial is a mandatory rule. It is not subject to any
kind of “for good cause” exception and the trial court is not vested with any
authority to throw out this requirement. Appellee had an absolute obligation
to present any motion to quash before he announced ready in this case, and
he certainly had ample opportunity to do so seeing as Appellee’s defense
counsel had been on the case for nearly nine months and had four previous
pre-trial settings prior to his announcement of ready for trial. Thus Appellee
clearly violated the requirements set down in Neal.
The requirement to submit a motion to quash prior to announcing
ready for trial is not an unreasonable rule. The logic behind such a straight Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 11 forward requirement is obvious. A party should not be required to prepare
for trial (which can involve extensive expenditures in time and money) and
the courts should not be required to bring in dozens (if not hundreds) of
citizens to serve as veniremen (at considerable disruption to those citizens’
own lives) just to have the trial cancelled at the last minute due to the filing
of a motion that could easily have been filed and ruled upon months
previously. Thus it is entirely sensible to require a party to present any
motion to quash prior to announcing ready for trial. Doing so is the best
way to promote judicial economy and the efficient administration of justice.
Likewise the consequence for failing to timely file such a motion must be
forfeiture of the right to have the motion heard. If there are not substantial
consequences for violating the Neal timeliness rule then the rule is rendering
meaningless.
Appellee failed to satisfy the requirement to present a motion to
quash before announcing ready for trial. He filed his motion the day trial
was scheduled to begin, and this date was over two months after he had
already announced ready for trial. [CR-I-64; RR-IV-6] His failure to
present this motion to quash before announcing ready for trial violated an
absolute requirement, and as such it should have barred him from getting a
hearing on his motion to quash. Texas law does not allow for such motions Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 12 to be submitted post-announcement of ready for trial on a showing of good
cause, and even if it did allow for a good cause exemption, Appellee can
hardly show good cause in this case, as he had ample opportunity to file this
motion prior to his announcing ready and did not articulate any reasons at all
to excuse his late filing of the motion. Thus there was no legal basis for
permitting Appellee’s motion to be heard, and the trial court erred by
granting the motion.
The Sanchez case cited in Appellee’s motion to quash does not
establish any justification for Appellee’s untimely filing in this case.
Sanchez turned on the interpretation of Article 45.019(f) of the Texas Code
of Criminal Procedure. See Sanchez v. State, 138 S.W. 3d 324, 325 (Tex.
Crim. App. 2004). Chapter 45 of the Texas Code of Criminal Procedure
deals exclusively with criminal actions in Justice and Municipal courts.
Sanchez, 138 S.W. 3d at 325 (emphasis added). Therefore Article 45.019(f)
(and by extension Sanchez itself) has nothing to do with matters in a District
Court case. Sanchez is about the rules for Class C misdemeanor cases and
those rules are and should be very different than the rules for felony
offenses. Neal not Sanchez is the controlling case for challenges to the
charging instrument in felony cases, and Neal clearly shows that Appellee’s
Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 13 motion was untimely since it was made after the Appellee had already
announced ready for trial.
Since Appellee had already announced ready for trial prior to
presenting his motion to quash, said motion was untimely, and therefore it
was reversible error for the trial court to rule on that motion. Accordingly,
the trial court’s order granting the motion to quash as to Count 2 in the
indictment should be reversed.
II. The trial court committed reversible error in granting Appellee’s motion to quash Count 2 of the indictment because that count was legally sufficient.
In the alternative, even if the trial court did not error by ruling on
Appellee’s untimely motion to quash, the trial court still committed
reversible error in granting Appellee’s motion to quash because Count 2 of
the indictment satisfied all of the requirements for a proper charging
instrument.
The sufficiency of a charging instrument is a question of law, so
appellate courts are to review the trial court’s ruling on a motion to quash de
novo. Smith v. State, 309 S.W. 3d 10, 13-14 (Tex. Crim. App. 2010).
Furthermore, in the context of a motion to quash, a reviewing court is to
look to whether the indictment facially alleges the elements of the offense.
Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 14 State v. Zuniga, 2015 WL 4381064, 13-14-00316-CR at 2 (Tex. App.-
Corpus Christi July 16, 2015)(mem. op., not designated for publication).
The Texas Court of Criminal Appeals previously held as to Vernon’s
Annotated Texas Civil Statute Article 6701d, Section 38, the predecessor
statute to the Section 550.021 of the Texas Transportation Code (the statute
at issue in Count 2 in this case), that the elements of failure to stop and
render aid are: 1) a driver of a vehicle, 2) involved in an accident, 3)
resulting in injury or death of any person, 4) intentionally and knowingly, 5)
fails to stop and render reasonable assistance. See Steen v. State, 640 S.W.
2d 912, 914 (Tex. Crim. App. 1982)(decided under former VTCS art. 6701d
§38). Section 550.021 of the Texas Transportation Code has essentially the
same elements. The only real difference between the current statute and its
predecessor is that Section 550.021 lists the specific actions that are
expected of a driver who has been in an accident involving injury or death to
another person rather than just requiring that they render “reasonable
assistance.
The indictment for Count 2 specifically alleged that the Appellant
was intentionally or knowingly operating a vehicle that was involved in an
accident, that the Appellant knew the accident had occurred, that the
accident resulted in death to another person, and that Appellant intentionally Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 15 and knowingly failed to render the aid required under Section 550.023 of the
Texas Transportation Code (which is one of the four actions required to
comply with the requirements Section 550.021(a)). [CR-I-6]. Thus the
indictment included all the elements of the offense of Accident Involving
Personal Injury or Death and precisely tracked the statutory language for that
offense. When an indictment tracks the language of a statute, that
indictment will generally satisfy constitutional notice requirements. See
State v. Rousseau, 396 S.W. 3d 550, 555 n.6 (Tex. Crim. App. 2013). This
indictment tracked the statutory language of Section 550.021 and alleged all
the elements of the charged offense and as such it was a sufficient
indictment and should not have been quashed.
Appellee alleged in his motion to quash that the indictment as to
Count 2 failed to include all the required elements because it did not allege
the violation occurred in any of the locations described in Section 550.001 of
the Texas Transportation Code. [CR-I-64-65]. This claim is without merit
as the locations described in Section 550.001 are not elements of the offense
of Section 550.021. See Steen, 640 S.W. 2d at 914; see also Pryor v. State,
651 S.W. 2d 22, 24 (Tex. App.-Dallas 1983, pet. ref’d)(holding that
designation of a particular location is not an element of the offense of failure
to stop and render aid and thus it does not have to be alleged in the Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 16 indictment.) As already discussed, Section 550.021 is functionally the same
offense as VTCS art. 6701d §38. Therefore if the accident occurring on a
public place was not an element of VTCS art. 6701d §38, then it stands to
reason it is also not an element of that offense’s successor statute, Section
550.021. And if the accident occurring on a public place is not an element
of Section 550.021, then it does not need to be alleged in the indictment for
such an offense, and accordingly the lack of such an allegation in the
indictment cannot justify the granting of a motion to quash. Therefore,
while the trial court’s ruling granting the motion to quash did not clearly
delineate exactly what the trial court believed was missing from Count 2,
[CR-I-101], if the trial court believed it was the lack of an allegation stating
that the offense occurred in one of the locations listed under Section 550.001
that rendered the indictment for Count 2 defective, then the trial court’s
ruling was in error and must be reversed.
Appellee also asserted in his motion to quash that the indictment was
vague as to how Appellee violated Section 550.023 of the Texas
Transportation Code and failed to state an offense due to listing four ways
that Appellee allegedly violated Section 550.023, none of which are
contained within the language of that statute. [CR-I-65-66]. These claims
Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 17 also are without legal merit and thus could not have formed a valid basis for
the trial court granting the motion to quash.
As to the vagueness challenge, it is long settled Texas law that when
the State alleges an offense that subsumes another offense, the State is not
required to allege the elements of the constituent offense in the charging
instrument for the greater offense. See Hammett v. State, 578 S.W. 2d 699,
708 (Tex. Crim. App. 1979)(holding that “an indictment charging one
offense during the commission of another crime need not allege the elements
of the later offense.”) See also Alba v. State, 905 S.W.2d 581, 585
(Tex.Crim.App.1995)(indictment need not allege constituent elements of
underlying offense which elevates murder to capital murder); Jarnigan v.
State, 57 S.W. 3d 76, 92 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd)(in
an organized crime case, the state need not allege the manner and means by
which the underlying theft was committed; State v. Rivera, 42 S.W.3d 323,
328–29 (Tex.App.-El Paso 2001, pet. ref'd)(state need not allege manner and
means by which underlying offense such as bribery was committed in
organized crime case.) Therefore since the alleged violation of Section
550.023 was a constituent part of the charged offense for Appellee’s alleged
violation of Section 550.021, the State was under no obligation to allege the
specifics of how Appellee violated Section 550.023 in the indictment, and if Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 18 the State is not required to allege something in the indictment then failing to
allege what is not required to be alleged cannot form the basis for a
vagueness challenge to the indictment.
As for Appellee’s contention that the indictment failed to state an
offense under Count 2, it should first be noted that the language in Count 2
which states “intentionally and knowingly failed to comply with the
requirements of Transportation Code Section 550.023; namely:” contains an
obvious scrivener’s error as the reference to “Section 550.023” in that
sentence was clearly meant to state “Section 550.021.” rather than “Section
550.023.” [CR-I-6]. That there was a clerical error here is manifest as the
count is titled by the code section number and nominal title (550.021) and
because all four of the violations listed underneath the erroneous language
track precisely with the four requirements imposed under Section
550.021(a). [CR-I-6]. Thus obviously the intent there was to allege that the
Appellee had violated Section 550.021 by failing to do those four actions.
Furthermore, the fourth manner in which Section 550.023 was allegedly
violated states that the Appellee failed to “Remain at the scene of the
accident until the defendant complied with the requirements of
Transportation Code Section 550.023.” [CR-I-6]. The State would hardly
deliberately allege that a defendant violated Section 550.023 by failing to Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 19 comply with the requirements of Section 550.023; such a statement would
be needlessly circular. As such it is clear this portion of the indictment
contained a scrivener’s error.
That this scrivener’s error is now an issue before the appellate courts
perfectly demonstrates the reason for the Neal rule requiring motions to
quash to be submitted at the first opportunity and before a party announces
ready for trial. Neal, 150 S.W. 3d at 176. If the Appellee had submitted his
motion to quash in a timely fashion at any of the five pre-trial hearings
before the trial date, and if the trial court had given the State the seven days
to respond to Appellee’s motion to quash which the State would normally be
entitled to under Article 28.01, Section 2 of the Texas Code of Criminal
Procedure (which the trial court presumably would have done if the
Appellee had filed his motion to quash in a timely manner), then this issue
could have easily been addressed by the State simply filing a motion to
amend the indictment so as to correct the scrivener’s error in Count 2. Such
a motion to amend would have resolved Appellee’s issue with the indictment
and could have been easily heard at any of the five pre-trial hearings held in
this case before the case proceeded to trial, all of which were more than ten
days before the start of the trial, and thus would have enabled the indictment
to be corrected without causing any delay in the scheduled court Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 20 proceedings. Instead though with the Appellee failing to timely file his
motion to quash and only finally filing said motion the day trial was
scheduled to begin [CR-I-64, 118], and with the trial court ruling on the
motion to quash the very next day, mere moments before jury selection
commenced, [CR-I-119, RR-V-6], the State could not legally submit a
motion to amend the indictment. See Hinojosa v. State, 875 S.W. 2d 339,
341-342 (Tex. App.-Corpus Christi 1994, no pet)(holding that the State
cannot amend the indictment on the day the jury will be impaneled and
sworn.) The best way to avoid such a sequence of events in future cases is
to rigorously enforce the Neal rule since requiring parties to raise their
challenges to indictments at the first opportunity and before announcing
ready for trial, insures the opportunity to correct any mistakes/deficiencies in
an indictment well before trial is to begin and thus best promotes judicial
efficiency and economy while respecting the rights of all parties.
At any rate, even taking into account the scrivener’s error, Count 2
still fully stated an offense and thus should not have been quashed. Failing
to comply with the requirements of Section 550.023 is one of the listed ways
a defendant can violate Section 550.021 of the Texas Transportation Code as
it constitutes a violation of Section 550.021(a)(4). The indictment for Count
2 alleged that Appellee failed to comply with the requirements of Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 21 Transportation Code Section 550.023 by, amongst other omissions, failing to
remain at the scene of the accident until the Appellee had complied with the
requirements of Section 550.023. [CR-I-6]. Accusing the defendant of
violating Section 550.023 by violating Section 550.023 may be a redundant
accusation, but it is still a legally valid accusation since it does state one of
the grounds by which a defendant can commit an offense under Section
550.021, and the State is not required to allege the specifics of how the
Appellee committed the constituent offense of Section 550.023 since that
offense was contained within the larger charged offense of Section 550.021.
See Hammett, 578 S.W. 2d at 708. Therefore since the State was not
required to allege how the Appellee failed to comply with the requirements
of Section 550.023 in the indictment; merely alleging that the Appellee
failed to comply with those requirements was all the indictment needed to
fully state an offense. The indictment did include that language and thus it
was still a legally valid charging instrument regardless of the scrivener’s
error. [CR-I-6].
Now the scrivener’s error, without correction or abandonment as
surplusage, may have foreclosed the State from being permitted to prove the
other three omissions alleged to have been committed by the Appellee,
(failing to immediately stop at or as close as possible to the scene of the Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 22 accident, failing to return to the scene if the accident if not stopped there,
and failing to immediately determine if a person was involved in the
accident, and if that person required aid) since those three omissions all
constitute violations of Section 550.021 rather than violations of Section
550.023. However, even if those three alleged violations are disregarded,
that still leaves the charging instrument with a valid manner of establishing a
violation of Section 550.021 as the State only has to be able to prove one of
the means of committing an offense to be able to obtain a conviction for that
offense. See Lehman v. State, 792 S.W. 2d 82, 84 (Tex. Crim. App. 1990).
Thus even with the scrivener’s error, Count 2 was legally sufficient and
should not have been quashed.
The Appellee also alleged in his motion to quash that the indictment
did not give adequate notice that the offense took place within the State of
Texas. [CR-I-65]. This argument too is without merit. The opening
paragraph of the indictment alleges that the charged offenses occurred in the
County of Victoria and State of Texas. [CR-I-6](emphasis added.) When
construing an indictment, the indictment is to be read as a whole, applying
practical rather than technical considerations. Harrison v. State, 76 S.W. 3d
537, 539 (Tex. App.-Corpus Christi 2002, no pet); Oliver v. State, 692 S.W.
2d 712, 714 (Tex. Crim. App. 1985). Reading the indictment as a whole, Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 23 there is simply no way to read the indictment and conclude anything other
than that it is alleging that all three of the charged offenses occurred within
the State of Texas. Thus this claim of error also provided no basis to justify
Therefore Count 2 of the indictment in this case was legally sufficient.
It fully listed all the elements of the offense of Accident Involving Personal
Injury or Death, was not vague as to how the charged offense was
committed, fully stated an offense, and, when read in conjunction with the
rest of the indictment, clearly established that the alleged offense occurred
within the State of Texas. It is true that Count 2 contained a scrivener’s
error, but even when that error is taken into account, the count still fully, if
unartfully, stated a charged offense. As such since Count 2 was legally
sufficient to support a criminal charge of the Appellee violating Section
550.021, it was a valid charging instrument and therefore it was reversible
error for the trial court to grant Appellee’s motion to quash.
III. The indictment, when considered as a whole, alleged that Count 2 occurred in a public place.
In the alternative again, even if it is concluded that the locations listed
under Section 550.001 of the Texas Transportation Code are an element of
the offense of Section 550.021 and must be alleged as part of the indictment
Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 24 for such a charge, Count 2 was still adequate on that point because when the
indictment is read as a whole, it clearly alleged that the offense listed in
Count 2 occurred in a public place and thus did include an accusation that
the offense occurred in a location listed within Section 550.001 of the Texas
Transportation Code.
As just discussed, when construing an indictment the indictment
must be read as a whole. Harrison, 76 S.W. 3d at 539; Oliver, 692 S.W. 2d
at 714. In this case the opening paragraph of the indictment establishes that
the charged offenses were alleged to have been committed by the Appellee
and all occurred on the same date, on or about the 8th day of February, 2014,
in the same county and state, Victoria County within the State of Texas.
[CR-I-6]. Count 1 of the indictment then alleged that the Appellee was
operating a vehicle in a public place and that while doing so he struck and
killed Ms. Natalie Luna. [CR-I-6]. Count 2 likewise alleged that the
Appellee violated Section 550.021 due to his actions related to his striking
Ms. Luna while operating a vehicle. [CR-I-6].
Taking all of this into account, it is obvious from reading the
indictment as a whole that Count 2 is part of the same incident as Count 1.
Both allegations involve the exact same incident involving a motor vehicle,
allegedly being driven by the Appellee, striking and killing the exact same Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 25 person, Ms. Nicole Luna. Accordingly, if Count 1 is alleged to have
occurred in a public place then it is obvious that Count 2 also would have to
have occurred in a public place. The roadway where Appellee allegedly
struck Ms. Luna cannot be a public place in regards to Count 1 and not a
public place in regards to Count 2. If it is a public place in one instance it
must be a public place in regards to the other. Therefore since the State
alleged the offense in Count 1 occurred in a public place, and since Count 2
manifestly occurred at the same location as Count 1, reading the indictment
as a whole clearly establishes an allegation that Count 2 also occurred in a
public place.
A public place is one of the enumerated grounds under Section
550.001(3). Therefore, since the indictment, when read as a whole, alleges
that Count 2 occurred in a public place; the indictment includes one of the
locations contained within Section 550.001 which in turn means that even if
an indictment under Section 552.021 is required to allege the offense
occurred at a location listed under Section 550.001, this indictment fully
satisfied that requirement. As such even if that additional element is
required the indictment when read as a whole established that element and as
such Count 2 was a legally sufficient charging instrument, and therefore it
should not have been quashed. Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 26 PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that this
Honorable Court reverse the judgment of the trial court.
.
Respectfully submitted,
STEPHEN B. TYLER CRIMINAL DISTRICT ATTORNEY
/s/ Brendan W. Guy Brendan W. Guy Assistant Criminal District Attorney SBN 24034895 205 North Bridge Street, Suite 301 Victoria, Texas 77902 E-mail: bguy@vctx.org Telephone: (361) 575-0468 Facsimile: (361) 576-4139
ATTORNEYS FOR THE APPELLANT, THE STATE OF TEXAS
Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 27 CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,
Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,
Texas, certify that the number of words in Appellant’s Brief submitted on
August 3, 2015, excluding those matters listed in Rule 9.4(i)(1) is 5,646.
/s/ Brendan W. Guy Brendan W. Guy Assistant Criminal District Attorney SBN 24034895 205 North Bridge Street, Suite 301 Victoria, Texas 77902 E-mail: bguy@vctx.org Telephone: (361) 575-0468 Facsimile: (361) 576-4139
Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 28 CERTIFICATE OF SERVICE
I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria
County, Texas, certify that a copy of the foregoing brief has been served on
Luis Martinez, P.O. Box 410, Victoria, Texas, 77902, Attorney for the
Appellee, Hector Garcia, by electronic mail on the day of August 3, 2015.
/s/ Brendan W. Guy Brendan W. Guy Assistant Criminal District Attorney SBN 24034895 205 North Bridge Street, Suite 301 Victoria, Texas 77902 E-mail: bguy@vctx.org Telephone: (361) 575-0468 Facsimile: (361) 576-4139
Brief of Appellant Victoria County Criminal District Attorney No. 13-15-00235-CR 29