Perkins v. State

¶1OPINION

¶2In a unitary trial before a jury, the appellant was convicted, under Article 1149 of our former Penal Code, of aggravated assault with a motor vehicle done “in the performance of an unlawful act . such as would give justification for civil action for damages.” Punishment was assessed at $50.00 and ninety days, probated.

¶3The record reflects that the complainant Cynthia Redman was riding a motorbike on Highway 16 near Bandera. She was passed by two cars and continued on her way, staying approximately five car lengths behind the second car. Presently, the first car, driven by appellant, pulled onto the shoulder of the road and was passed by the second car. As the complainant started to pass appellant’s car, the appellant turned his car off the shoulder and across the highway directly into the path of the complainant, who crashed into the car.

¶4In his fifth ground of error appellant contends that the court erred in failing to grant his objection to the court’s charge. Specifically, appellant argues that the charge omitted an essential element of the State’s case as alleged in the information.

¶5The information alleges:

“ . . .an aggravated assault with a motor vehicle upon the person of Cynthia *600Redman; and the said Defendant did then and there drive and operate said motor vehicle, to-wit, an automobile, upon a public highway, to-wit, Highway 16 and did then and there commit an aggravated assault with said motor vehicle upon the person of said Cynthia Red-man with negligence while being then and there in the performance of an unlawful act, to-wit, making an unlawful turn in said Highway when it was unsafe to do so, such as would give justification for civil action for damages, in that the said Defendant did then and there operate and drive said motor vehicle upon said Highway without then and there exercising proper care and caution in guiding said motor vehicle, that is, such a degree of care and caution in guiding said motor vehicle as a man of ordinary prudence would use under like circumstances, and Defendant did then and there cause said automobile to collide with and cause injury to the person of the said Cynthia Redman and cause injuries less than death to said Cynthia Redman who was then and there on said Highway.”

¶6Appellant contends that the main charge of the court failed to require that the jury find that the acts alleged were “such as would give justification for civil action for damages.”

¶7The record reflects that the main charge of the court contains no instruction on this issue.1 The record also reflects that appellant presented for inclusion in the charge six timely requested instructions; all of these were granted by the court. However, these requested charges were not incorporated in the body of the main charge. In sustaining objections to the record, see Art. 40.09(7), Vernon’s Ann.C.C.P., the trial court certified that the requested instructions “were attached to said Charge as a part thereof.” The record reflects that the court attached them in precisely the form in which they were presented.2

¶8The appellant then presented four timely objections to the charge, three of which properly presented the contention now urged; all four objections were denied.

¶9Article 36.15 of our Code of Criminal Procedure provides in part:

“Any special requested charge which is granted shall be incorporated in the main charge and shall be treated as a part thereof, and the jury shall not be advised that it is a special requested charge of either party.” (Emphasis added)

¶10In Seefurth v. State, 422 S.W.2d 931, 935 (Tex.Cr.App.1968), this Court held:

“These articles [Arts. 36.14 and 36.15, V.A.C.C.P.] are ones the Legislature had a right to enact, and are statutes which the Courts can neither ignore or emasculate. See Vinson v. State, 77 Tex.Cr.R. 546, 179 S.W. 574.

“These articles are mandatory and there must be strict compliance with their provisions.” (Citations omitted)

¶11We hold that Article 36.15 is mandatory in all respects; it follows that the trial court in this case erred by failing to incorporate the requested charges and, second, by advising the jury that the charges were the requested charges of the appellant. We also hold that the attachments cannot be considered on appeal as part of the court’s charge. Art. 36.15, supra; compare Harris v. State, 453 S.W.2d 838, 839 (Tex.Cr.App.1970); Booth v. State, 499 S.W.2d 129, 135 (Tex.Cr.App.1973).

¶12Therefore, we turn to an examination of the ground of error to determine whether the error was calculated to injure the rights of appellant so as to deprive him of a fair and impartial trial. Art. 36.19, V.A.C.C.P.

¶13*601Appellant was charged under Article 1149 of our former Penal Code. It provides:

“If any driver or operator of a motor vehicle or motorcycle shall wilfully or with negligence, as is defined in the Penal Code of this State in the title and chapter on negligent homicide, collide with or cause injury less than death to any other person he shall be held guilty of aggravated assault . . .

¶14In the “title and chapter on negligent homicide” of our former Code (Title 15, Chapter 14), Article 1230 provides:

“Homicide by negligence is of two kinds:

1. Such as happens in the performance of a lawful act; and

2. That which occurs in the performance of an unlawful act.”

¶15Article 1231 defines “lawful acts” which constitute negligence for purposes of the chapter as follows:

“Whoever in the performance of a lawful act shall by negligence and carelessness cause the death of another is guilty of negligent homicide of the first degree. A lawful act is one not forbidden by the penal law and which would give no just occasion for a civil action.”

¶16Article 1240 then describes the two kinds of “unlawful acts” which can constitute negligence within the meaning of the chapter. The first are “[s]uch acts as by the penal law are called misdemeanors.” The second are those acts, “not being penal offenses, as would give just occasion for a civil action.”3

¶17Since there was more than one possible statutory definition of negligence, it was necessary for the State to specify in the information which it would rely upon. Compare Nichols v. State, 136 Tex.Cr.R. 41, 44, 123 S.W.2d 672, 673 (1939); Seiffert v. State, 501 S.W.2d 124, 126 (Tex.Cr.App.1973). The appellant was entitled to notice of the “exact nature of the accusation against him so that he might know what the state would attempt to prove and what he would be required to meet upon the trial.” Nichols v. State, supra. This was especially true in this narrow area of statutorily-defined negligence of our former Code, with its close and difficult distinctions between “lawful” negligence on the one hand and “unlawful-civil action” negligence on the other.

¶18These definitional problems can best be understood by comparing the information in this case with the lengthy information approved in Kirksey v. State, 136 Tex.Cr.R. 97, 123 S.W.2d 905 (1939), a negligent homicide case.4

¶19A comparison of these two informations reflects that the factual averments which were held to allege negligence done by a lawful act in Kirkseywere virtually identical to those used to allege the “unlawful” negligence in this case. If we omit the allegations in each information which describe the extent of the injury to the complainant,5 it is obvious that the allegations of the two informations are interchangeable, except for the qualifying phrases which allege that the acts were lawful (in Kirksey) and that they were unlawful and would give justification for a civil action (in this case).

¶20Thus, these qualifying phrases are obviously necessary to inform the defendant *602what proof he will have to meet upon trial. Nichols v. State, supra. Clearly, the information in this case properly alleged that the negligent acts were “such as would give justification for civil action for damages,” since this was a necessary element of the State’s case.

¶21Our Code of Criminal Procedure provides that the State must prove the accused’s guilt beyond a reasonable doubt to the jury, which sits as the exclusive judge of the facts proved and the weight to be given to the testimony. Arts. 38.03, 38.04, Vernon’s Ann.C.C.P. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Accordingly, this Court has held that it is fundamentally erroneous for the trial court to instruct the jury to find an accused guilty when he has pleaded not guilty. Castoria v. State, 119 Tex.Cr.R. 193, 47 S.W.2d 325 (1932); Manning v. State, 66 Tex.Cr.R. 180, 145 S.W. 938 (1912).

¶22More recently, in Mullaney v. Wilbur, - U.S. -, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Supreme Court held unconstitutional Maine’s requirement that a defendant charged with murder go forward and “establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter.” - U.S., at -, 95 S.Ct., at 1892. Relying heavily on In re Winship, supra, the Court held:

“[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.” - U.S., at -, 95 S.Ct., at 1892.

¶23The holding in Mullaney v. Wilbur, like that in In re Winship, supra, stands for the same proposition as do Articles 38.03 and 38.04 of our Code of Criminal Procedure: The State must be required to prove every element of its case beyond a reasonable doubt or stand in violation of the Due Process Clause. Yet under the court’s charge in this case, the State was not required to prove to the jury the necessary justification for a civil action. What this means is that the appellant was required to go forward on this basic element of the State’s case and show, by some unstated standard of proof, that the facts did not in fact give justification for a civil action. Mulaney v. Wilbur, supra, is clear authority to the contrary.

¶24Our own case law anticipated the holding in Mullaney. In Moore v. State, 140 Tex.Cr.R. 482, 145 S.W.2d 887 (1940), this Court held that the court’s charge in a criminal case may not place a greater burden upon the defendant than do the pleadings. Cf. Turner v. State, 462 S.W.2d 9, 22 (Tex.Cr.App.1970), dissenting opinion by Judge Onion.

¶25In Moore, the appellant was charged with failing to stop and render aid. Specifically, the indictment alleged that the appellant did not render:

“all necessary assistance to the said Polly in this, to-wit: that the said Andrew Moore did then and there fail to stop and to carry the said Orvelle Polly to a physician and surgeon for medical and surgical treatment required by the said Orvelle Polly by reason of the said injury received as aforesaid . . . ”

¶26However, the charge only required that the jury find that the appellant “did then and there unlawfully fail and refuse to stop and render all necessary assistance to the said Orvelle Polly.” None of the specific descriptive averments were included in the charge. This Court reversed, holding that the charge enlarged upon the indictment.6

¶27Similarly, under the charge in this case7 the jurors were permitted to find appellant *603guilty whether they found evidence of “lawful” negligence, as defined in Art. 1231, supra, or “unlawful” negligence, as charged in the information and defined in Art. 1240, supra, since no distinction was made in the charge between the two types of negligence. This was a clear enlargement upon the language of the information.

¶28We conclude that the error was prejudicial and deprived the appellant of a fair and impartial trial. This conclusion is given further support by a record which reveals that after the verdict was announced in open court counsel for appellant examined several of the jurors, at least one of whom stated that she did not find that civil liability had been proved. Clearly, harm was shown.

¶29The judgment is reversed and the cause remanded.