State of Texas v. Manuel Joson, III--Appeal from County Court at Law No. 2 of Collin County

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State: Texas

Court: Texas Northern District Court

Docket No: 11-05-00252-CR

Case Date: 12/21/2006

Plaintiff: State of Texas

Defendant: Manuel Joson, III--Appeal from County Court at Law No. 2 of Collin County

Preview:State of Texas v. Manuel Joson, III--Appeal from
County Court at Law No. 2 of Collin County
Opinion filed December 21, 2006
Opinion filed December 21, 2006
In The
Eleventh Court of Appeals
No. 11-05-00251-CR
STATE OF TEXAS, Appellant
V.
BRENT THOMAS RODGERS, Appellee
On Appeal from the County Court at Law Number Two
Collin County, Texas
Trial Court Cause No. 002-84202-04
No. 11-05-00252-CR
STATE OF TEXAS, Appellant
V.
MANUEL JOSON, III, Appellee
On Appeal from the County Court at Law Number Two
Collin County, Texas
Trial Court Cause No. 002-84585-03
No. 11-05-00253-CR
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STATE OF TEXAS, Appellant
V.
CHRISTOPHER G. HILL, Appellee
On Appeal from the County Court at Law Number Two
Collin County, Texas
Trial Court Cause No. 002-81541-04
O P I N I O N
In these three causes, the State charged Brent Thomas Rodgers, Manuel Joson, III, and Christopher G. Hill with assault
under Tex. Pen. Code Ann. ' 22.01(a)(1) (Vernon Supp. 2006). The State appeals from the trial court=s orders quashing
the informations in these causes. The issue in each of these causes is whether the State=s allegations of reckless
conduct in the information complied with the pleading requirements of Article 21.15 of the Texas Code of Criminal
Procedure. Tex. Code Crim. Proc. Ann. art. 21.15 (Vernon 1989). Because the State=s allegations of reckless conduct
complied with Article 21.15, we reverse the trial court=s orders and remand these causes for further proceedings.
Background Facts
Section 22.01(a)(1) of the Texas Penal Code provides that a person commits the offense of assault by intentionally,
knowingly, or recklessly causing bodily injury to another, including the person=s spouse. Section 6.03(c) of the Penal
Code defines recklessly:
A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his
conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist
or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation
from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the
actor=s standpoint.
Tex. Pen. Code Ann. ' 6.03(c) (Vernon 2003).
In the information in Cause No. 11-05-00251-CR, the State alleged that Rodgers intentionally, knowingly, and
recklessly caused bodily injury to Ashley Guillory (1) Aby pushing the body of Ashley Guillory with [his] hand@ and
(2) Aby kicking the body of Ashley Guillory with [his] foot.@ In the information in Cause No. 11-05-00252-CR, the
State alleged that Joson intentionally, knowingly, and recklessly caused bodily injury to Doris Gentz Aby pushing the
body of Doris Gentz with [his] hand.@ In the information in Cause No. 11-05-00253-CR, the State alleged that Hill
intentionally, knowingly, and recklessly caused bodily injury to Starna Hill (1) Aby striking the head of Starna Hill
with a picture frame,@ (2) Aby choking Starna Hill with [his] hand,@ and (3) Aby squeezing the neck of Starna Hill
with [his] hand.@
Appellees moved to quash the informations. They asserted that the informations were insufficient because the State
Aha[d] failed to allege the manner and means, which make this offense reckless.@ Hill=s motion to quash specifically
referred to Article 21.15 of the Texas Code of Criminal Procedure. At the hearings on the motions to quash, appellees
argued that the State=s allegations of reckless conduct did not comply with Article 21.15. By docket entries dated April
13, 2005, the trial court indicated that the motions to quash would be granted unless the State amended the informations
by May 6, 2005. The State did not amend the informations. On May 6, 2005, the trial court conducted a final hearing
on the motions to quash. Because the State had not amended the informations nor abandoned the allegations of
recklessness, the trial court entered an order quashing the informations. In the order, the trial court found that Athe
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State ha[d] not sufficiently alleged the acts relied upon to constitute recklessness.@
Issue Presented
In a sole issue, the State argues that the trial court erred in entering the orders quashing the informations because the
allegations of reckless conduct in the informations complied with Article 21.15.
Standard of Review
The rules with respect to the certainty required in an indictment also apply to an information. Tex. Code Crim. Proc.
Ann. art. 21.23 (Vernon 1989); see also Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). The sufficiency
of an indictment or information is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
When the resolution of a question of law does not depend on an evaluation of the credibility and demeanor of a
witness, as in these causes, the trial court=s ruling is subject to a de novo review. Id.
Sufficiency of the Informations
Appellees argue that the State=s allegations of reckless conduct failed to provide sufficient notice to allow them to
prepare a proper defense to the charges. The right to notice is set forth in both the United States and Texas
Constitutions. See U.S. Const. amend VI; Tex. Const. art. I, ' 10; Moff, 154 S.W.3d at 601. A charging instrument
must be specific enough to inform the accused of the nature of the accusation against him so that he may prepare a
defense. Moff, 154 S.W.3d at 601. Article 21.15 sets forth a special pleading requirement when the prosecution relies
on recklessness or criminal negligence:
Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that
the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information,
or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied
upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the
accused, in committing the offense, acted recklessly or with criminal negligence (emphasis added).
The allegations of reckless conduct in these causes are similar to the allegations in State v. Emanuel, 873 S.W.2d 108
(Tex. App.CDallas 1994, no pet.). In Emanuel, the State alleged that the defendant recklessly caused bodily injury to
the complainant Aby striking said complainant with a belt.@ Id. The defendant argued that the indictment failed to
comply with Article 21.15 because it did not state with reasonable certainty the act the State relied upon to constitute
recklessness. The trial court granted the defendant=s motion to quash. On appeal, the State argued that the indictment
complied with Article 21.15 because the State had alleged the precise act relied upon to constitute recklessness B
striking the complainant with the belt. The defendant argued that the information did not provide sufficient notice of
the unlawful conduct charged because the State had failed to allege how the striking with the belt was done in a
reckless manner. Id. at 109.
In Emanuel, the Dallas court explained that an indictment is insufficient under Article 21.15 if it merely alleges that the
accused acted recklessly in committing the offense. Id. However, the court further explained that, as long as an
indictment alleges the act relied upon to constitute recklessness with reasonable certainty so that it informs the accused
of the nature of the reckless act of which he or she is accused, the State need not plead additional evidentiary facts. Id.
In Emanuel, the State=s allegations in the indictment specified the defendant=s reckless act as hitting the complainant
with a belt. The court held that the indictment complied with Article 21.15 because it adequately informed the
defendant Aof the act the State relied upon to constitute recklessness, namely striking the complainant with a belt.@
Id. at 110.
Other courts have reached the same conclusion. In Cruz v. State, 838 S.W.2d 682 (Tex. App.CHouston [14th Dist.]
1992, pet. ref=d), the State alleged in the indictment that the defendant knowingly, intentionally, and recklessly caused
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bodily injury to the complainant Aby striking her with his body and causing her to fall to the floor.@ Id. at 684. The
Houston Fourteenth court held that the indictment adequately informed the defendant of the acts constituting
recklessness. Id. In Cross v. State, No. 11-96-00120-CR, 1998 WL 34200500 (Tex. App.CEastland Feb. 26, 1998, pet.
ref=d) (not designated for publication), the State alleged in the indictment that the defendant recklessly caused the
death of the complainant Aby shooting him with a firearm.@ In Cross, we cited Emanuel and Cruz in holding that the
indictment complied with Article 21.15 by alleging the act relied upon to constitute recklessness. In Boyd v. State, No.
11-04-00292-CR, 2006 WL 2506976 (Tex. App.CEastland Aug. 31, 2006, pet. filed), the State alleged in the
information that the defendant, with criminal negligence, interfered with a police officer=s investigation Aby . . . trying
to pull away from the officer.@ Id. at *4. We held that the information complied with Article 21.15 by alleging the act
relied upon to constitute criminal negligence B trying to pull away from the officer. Id.
The Dallas court followed Emanuel in a recent case. State v. Leavitt, No. 05-06-00341-CR, 2006 WL 2053487 (Tex.
App.CDallas July 25, 2006, pet. filed) (not designated for publication). In Leavitt, the State alleged in the information
that the defendant Aintentionally, knowingly, and recklessly cause[d] bodily injury to [the complainant] by hitting [the
complainant] in the face with the hand of the [defendant].@ Id. at *1. The defendant argued that the information did
not comply with Article 21.15 because the State had Afailed to >allege,= with reasonable certainty, the act or acts
relied upon to constitute recklessness or criminal negligence.@ Id. However, the court held that the information
complied with Article 21.15 because A[it] adequately informed [the defendant] of the act upon which the State
intended to rely.@ Id.
We agree with the reasoning of the Emanuel court and these other courts. The indictment in Emanuel met the precise
text of Article 21.15 by alleging the act the State relied upon to constitute recklessness B striking the complainant with
a belt. Similarly, the informations in these causes alleged the acts the State relied upon to constitute recklessness: (1)
Apushing the body of Ashley Guillory with [his] hand@ and Akicking the body of Ashley Guillory with [his] foot@
in Rodgers=s case; (2) Apushing the body of Doris Gentz with [his] hand@ in Joson=s case; and (3) Astriking the
head of Starna Hill with a picture frame,@ Achoking Starna Hill with [his] hand,@ and Asqueezing the neck of Starna
Hill with [his] hand@ in Hill=s case. Therefore, the informations in these causes are sufficient under Article 21.15
because they adequately informed appellees of the acts the State relied upon to constitute recklessness. Boyd, 2006 WL
2506976, at *4; Emanuel, 873 S.W.2d at 110; Cruz, 838 S.W.2d at 684.
Appellees rely on State v. McCoy, 64 S.W.3d 90 (Tex. App.CAustin 2001, no pet.). In McCoy, the Austin court
affirmed the trial court=s dismissal of an indictment based on the defendant=s motion to quash. The McCoy court
stated that Article 21.15 imposes two requirements on an indictment alleging reckless misconduct:
First, the indictment must allege with reasonable certainty the act or acts relied on to constitute the forbidden conduct
committed with recklessness. Graham v. State, 657 S.W.2d 99, 104 (Tex. Crim. App. 1983). Second, the indictment
must allege with reasonable certainty the acts or circumstances relied on to demonstrate that the forbidden conduct was
committed in a reckless manner. Gengnagel v. State, 748 S.W.2d 227, 228-30 (Tex. Crim. App. 1988).
McCoy, 64 S.W.3d at 92. We decline to follow McCoy for the reasons that we stated in Boyd. See Boyd, 2006 WL
2506976, at *3-4. However, as we stated in Boyd, even assuming that McCoy has correctly stated that there are two
requirements, we believe the same act or acts can satisfy both requirements B the act or acts relied on to constitute the
forbidden conduct and the act or acts relied on to demonstrate that the forbidden conduct was committed in a reckless
manner. Id. at *3. For example, in Rodgers=s case, the State alleged that Rodgers kicked Ashley Guillory with his foot.
The act of kicking Ashley Guillory allegedly caused bodily injury to her (forbidden conduct), but one can also infer
that kicking Ashley Guillory was reckless (a reasonable person would be aware of the risk of harming another person if
he kicks the other person). The acts alleged in the informations in these causes satisfy both requirements stated in
McCoy.
Appellees also rely on Moff. In Moff, the State charged the defendant with intentional, knowing, and reckless
misapplication of fiduciary property. Moff, 154 S.W.3d at 600. The defendant served as the chief appraiser for Nueces
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County for twenty years. As the chief appraiser, the defendant was responsible for making various purchases of
equipment and supplies for the county. Id. at 600, 603. He used money and credit cards to make numerous purchases
for the county. Id. at 603. The State charged the defendant with misapplication of fiduciary property over a period
covering seven years. The State alleged in the indictment that, during the seven-year period, the defendant
intentionally, knowingly, and recklessly misapplied property B money and credit cards B of the value of $20,000 or
more but less than $100,000. Id. at 600. However, the indictment failed to specify the transaction or transactions
involved. Id.
In Moff, the defendant sought to quash the indictment on the ground that it failed to specify the purchases that he
allegedly made without the authorization of the Nueces County Appraisal District=s Board of Directors. Id. at 600.
The trial court entered an order quashing the indictment and requiring the State to refile the indictment. The order
directed the State to specify which purchases were allegedly unauthorized. The court of appeals reversed the trial
court=s order quashing the indictment, and the Court of Criminal Appeals granted review on the following issue:
AWhether a trial court abuses its discretion when it requires more specificity in an indictment alleging recklessness
and spanning seven years which fails to identify which of the countless transactions during that time span the State
may rely on for conviction.@ Id.
In Moff, the Court of Criminal Appeals began its analysis of the issue by stating that the indictment covered a seven-
year time period. The Court of Criminal Appeals explained:
[I]n his capacity as Chief Appraiser of the Nueces County Appraisal District, [the defendant] used money and credit
cards to make numerous purchases of equipment and supplies during the time period alleged in the indictment.
Although the indictment correctly tracks the language of the statute, in this type of case, that alone is not sufficient to
fulfill the constitutional and statutory requirements of specificity. It is unreasonable to require the defendant to gather
evidence and prepare a defense for each of the credit card and cash transactions he made during the seven-year time
frame in the indictment. Thus, additional information that is reasonably necessary for the defense to prepare its case
must be provided. This is not to say that the State must lay out its case in the indictment, only that the defendant must
be informed of the specific transactions that allegedly violate the statute.
Id. at 603. The Court of Criminal Appeals held that the State=s allegations in the indictment Afailed to provide
sufficient notice to inform [the defendant] of the specific acts for which he was charged@ and that, therefore, the trial
court had not erred in quashing the indictment. Id. at 604.
These causes are distinguishable from Moff for a number of reasons. Moff did not involve the heightened pleading
requirements for reckless conduct under Article 21.15. The Court of Criminal Appeals did not address Article 21.15 in
Moff. Rather, the Court of Criminal Appeals addressed the State=s failure to specify transactions that had occurred
over a seven-year period. While Moff involved Acountless transactions@ occurring over a seven-year period, each of
these causes involve isolated acts occurring on a single day. In these causes, the State alleged specific acts in the
informations. Thus, unlike the indictment in Moff, the informations in these causes provided sufficient notice to inform
appellees of the specific acts for which they are charged.
The trial court erred in quashing the informations in these causes. Therefore, we sustain the State=s issue in these
causes.
This Court=s Ruling
We reverse the trial court=s orders granting the appellees= motions to quash, and we remand these causes to the trial
court.
TERRY McCALL
JUSTICE
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December 21, 2006
Publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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