# Lugo-Lugo v. State

> Court of Criminal Appeals of Texas · April 27, 1983 · 650 S.W.2d 72

URL: https://www.frixlaw.com/law-library/cases/9642324

## Case

- **Full name:** David LUGO-LUGO, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 27, 1983
- **Citations:** 650 S.W.2d 72; 1983 Tex. Crim. App. LEXIS 1004
- **Precedential status:** Published
- **Opinion:** Concurrence by Clinton
- **Judges:** Campbell, Clinton, Odom, Teague, Miller
- **Cited by:** 169 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Disagreed with by Schultz v. State, 1996 Tex. Crim. App. LEXIS 44 (1996).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9642324

## How later opinions describe it (automated extraction)

- explaining that intentional murder under Sections 19.02(a)(1) is “result” based murder offense that focuses on defendant’s intent to cause death rather than only intending action that caused death
- explaining that, when "circumstances surrounding conduct could make an otherwise benign act dangerous . . . an additional culpable mental state as to that 'conduct element' would be required"
- explaining that, when "circumstances surrounding conduct could make an otherwise benign act dangerous ... an additional culpable mental state as to that 'conduct element' would be required”
- stating that the statute “focuses the mental state of the individual on the particular result and not on the conduct that causes death”
- holding that culpability is attached to the result of death under section 19.01(a)

## Opinion text

CLINTON, Judge,
concurring.
The motion for rehearing filed in this case — nearly 10 years after the adoption of the 1974 Penal Code — and the difficulty presented by the spectre of its resolution, serve to press upon us the necessity of a studied and rational reconsideration of the issue presented: how are this Court and lower criminal courts to analyze and determine whether a “culpable mental state” must be superimposed both conceptually and literally upon the otherwise express requisites of a criminal offense?
By now it is painfully apparent to all that in analyzing this question in any given case, it is not sufficient that one only advert to V.T.C.A. Penal Code, § 6.02, 1 which provides in part:
“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.” 2
What is a “culpable mental state?” Is a “mental element” the same thing? What is an “accompanying mental state?” 3 Is it a “mental element” or a “culpable mental state,” or both, or neither? What is the relationship between criminal “conduct” and a “culpable mental state,” if any? Does the “required culpability” have an indispensable nexus with “results” society condemns through penal prohibitions? In sum, what is the function of “required culpability” in the criminal law?
These questions, among others, remain unanswered to date. 4 Convinced that a *86 reading of Chapter 6 as a whole must provide the answers, we proceed to a de novo analysis of the intent and substance of the provisions contained there.
A. ELEMENTS OF CONDUCT
Section 6.03, entitled “Definitions of Culpable Mental States,” was adopted in substance by the Legislature without modification from § 6.05 of the Texas Penal Code, A Proposed Revision, State Bar Committee on Revision of the Penal Code, (Final Draft 1970). In the Committee Comment to proposed § 6.05, it was observed:
“One additional aid to analysis incorporated in the new code should be mentioned before discussing the definitions of the culpable mental states set out in this section. The code distinguishes three types of [conduct] elements: the nature of the conduct, the circumstances surrounding the conduct, and the result of the conduct. Although the definitions of most offenses prescribe the same culpable mental state for each type of element, some do not, and it is necessary to distinguish the types of elements to avoid confusing the proof requirements for these offenses.” 5
1. Nature of Conduct
With this legislative history aid to our analysis in mind, it is apparent upon reading § 6.03 6 that the “nature of conduct” must either be “the conscious objective or desire” of the actor (intended), or be something of which the actor is “aware” (known). A person cannot be reckless or *87 negligent with respect to the “nature of conduct.”
2. Circumstances Surrounding Conduct
Nor can a person “intend” “circumstances surrounding his conduct;” at most he may be “aware of” (know) the existence of such circumstances. And certainly he may be “aware of but consciously disregard” the existence of such circumstances (reckless), as well as “fail to perceive” a substantial, unjustifiable risk, of which he ought to be aware, that the circumstances exist (criminally negligent).
3. Result Of Conduct
Any of the four culpable mental states defined in § 6.03 may apply to “result of conduct:” a person may: consciously desire the result (intend); be aware that his conduct is reasonably certain to cause the result (know); be aware of but consciously disregard a substantial and unjustifiable risk that the result will occur (reckless); or fail to perceive a substantial and unjustifiable risk, of which he ought to be aware, that the result will occur (criminally negligent).
B. INTENT OF CHAPTER 6
Viewed from this perspective these provisions indicate the Legislature intended that, generally, some genre of culpability is required for each element of conduct discussed (the nature of, the circumstances surrounding, and the result of the conduct) —subject, however, to plain wording of a statute, read in context, which indicates an intent to dispense with a culpability requirement for any or all of the conduct elements contained there.
Furthermore, we believe that the rules of grammar and common sense ordinarily will require a culpable mental state, that does not specify conduct, circumstances surrounding conduct or result of conduct to which it applies, to be read to apply to each element of the conduct which follows it— particularly when used at the beginning of a penal proscription (or alleged at the beginning of a charging instrument). 7
C. THIS CASE
1. The Statute
Applying this analysis to the instant case, we naturally begin with the statute in issue:
“(a) A person commits an offense if he:
* * * * * *
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; * * *”
Section 19.02.
2. The Conduct Elements
The second step involves determining the conduct elements of the offense in terms of “nature of conduct,” “circumstances surrounding conduct” and “result of conduct.” In doing this it is helpful to visualize a chart:
a. nature of conduct (an act and its accompanying mental state)
Coupled with the proscribed act is the intent that the act will result in serious bodily injury. Notwithstanding the fact that “serious bodily injury” includes “death,” § 1.07(34), it is safe to say the statute addresses an intended “result” *88 which may be less serious than, and different from, the actual “result.”
We believe that this is what the code contemplates to be an “accompanying mental state.”
Anytime the result intended by the actor is unnecessary to commission of the offense charged, or is different from the actual result, it is an “accompanying mental state” which provides the requisite culpability to the “conduct” or “nature of the conduct,” and we so hold. Another way to view it is that the “conduct” is the means the actor employs to effect the “result” he intends. Conceptualized in this way, the “conduct” and the “accompanying mental state” are, literally, inseparable.
Thus, in this case, the “intent to cause serious bodily injury” applies to the “act” committed: the person acts with intent with respect to the nature of his conduct because it is his conscious objective or desire to engage in conduct that will result in serious bodily injury. See § 6.03(a). Restated, he intends to cause serious bodily injury through his commission of the culpable “act.”
In sum, the statute itself provides a culpable mental state for the “nature of the conduct” proscribed therein.
b. result
The statute does not specifically provide a separate culpable mental state for the “result” of this offense which is “death.” Does the statute plainly dispense with the requirement that the actor intend the resulting death? We believe it does. This is a significant and obvious distinction between § 19.02(a)(2) and § 19.02(a)(1), the “intentional” murder statute. 8
c. “clearly dangerous to human life:” nature of the conduct or circumstances surrounding conduct?
The most difficult question presented in this case is whether the statute’s description of the “act” as one which is “clearly dangerous to human life” is part of the “nature of conduct” or refers to “circumstances surrounding conduct.”
Obviously, circumstances surrounding conduct could make an otherwise benign act dangerous. Thus, if we were to determine the phrase in issue is a “circumstance surrounding the conduct,” an additional culpable mental state as to that “conduct element” would be required. 9
However, upon careful analysis of the statute in question, we are convinced that “clearly dangerous to human life” is part and parcel of the “nature of conduct” proscribed there.
We conclude this primarily for two reasons. Grammatically, the phrase unquestionably is adjectival and modifies and describes the noun “act.” Further, the word “clearly” indicates an objective recognition by all (including the actor) 10 that the act committed threatens or risks a resulting death; 11 accordingly, the “danger” contemplated by the statute is inherent in the “act” and not dependent upon unique “circumstances” of which the actor may not be aware.
3. Are Additional Mental States Required?
Having determined the phrase “clearly dangerous to human life” is a part of the *89 “nature of conduct” proscribed by § 19.-02(a)(2), we return to the completion of our chart:
a.nature of conduct
With the completed chart we are prepared to proceed to the third and final step required by our analysis. We first observe the “intent” contained in the “accompanying mental state” applies to the entire “nature of conduct:” “an act clearly dangerous to human life.”
b.circumstances surrounding conduct
Since we have no “circumstances surrounding the conduct” in this offense, we need not address culpability for that “element of conduct.”
c.result of conduct
Returning to the question of whether the “result of conduct” (death) requires an additional culpable mental state less than “intended,” 12 we hold it does not. In reading the statute as a whole, it is apparent that the risk of death is inherent in the actor’s intentional conduct. And though he may not necessarily intend that death result, he intends a result in which death is a possibility. We are convinced that this is all the Legislature meant to require for commission of the instant offense.
For the above reasons, we would hold the indictment underlying appellant’s conviction — which is alleged in the language of § 19.02(a)(2) — is fundamentally sufficient to support a conviction. Since as we understand it, the majority opinion applies an analysis which focuses more on provisions of criminal homicide sections in Chapter 19 to reach the same result, we concur with the essence of that opinion and with the judgment of the Court.
ODOM, TEAGUE and MILLER, JJ., join this opinion as well as the majority opinion.
. All statutory citations in this opinion are to the 1974 Penal Code and will hereafter be cited only by section number.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. Section 1.07(a)(8) defines “conduct” as “an act or omission and its accompanying mental state.”
In turn, § 1.07(a)(13) includes as “element of offense,” inter alia:
“(A) the forbidden conduct;
(B) the required culpability;
(C) any required result..
.One reason for these questions is that after the 62nd Legislature failed to enact the penal code proposed in 1970 and before the revised code was finally adopted by the 63rd Legislature in 1973, the original definitions of “Element of Offense” was “garbled in transition,” Practice Commentary following § 1.07. Thus, “(A) the conduct, circumstances surrounding the conduct, or result of the conduct described in the definition of the offense” became “(A) the forbidden conduct” and “(B) the culpable mental state required” turned “(B) the required culpability.” Compare ibid, with § 1.07(a)(13).
Similarly, with “Requirement of Culpable Mental State;” § 6.04(a) in the initially proposed code provided:
*86 “Except as provided in Subsection (b), a person does not commit an offense unless he acts intentionally, knowingly, recklessly, or with criminal negligence, as the definition of the offense requires . ..
But the new code provision in § 6.02 changed the “unless” clause to read:
“unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.”
The introduction of “conduct” had the unforeseen consequence of implicating the § 1.07(a)(8) definition of that term: “an act or omission and its accompanying mental state,” that to commit an offense one must have a “culpable mental state” and also must act with an “accompanying mental state.”
Considering such changes to be matters of form rather than substance will obviate some of the questions.
. This passage from the Committee Comment continues with the following instructive examples:
“... [SJection 30.03 defines criminal trespass as entering another’s property knowing the entry is without the owner’s consent (circumstances surrounding conduct) and reckless about whether the entry will frighten another (result of conduct). Another example is false imprisonment, Section 20.02: an intentional or knowing detention (nature of conduct) becomes a felony if it recklessly exposes the victim to a substantial risk of serious bodily injury or death (result of conduct).” [Original emphasis]
. For the reader’s convenience and ready reference, the text of §' 6.03 is set out here in its entirety.
“(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
(c) 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.
(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of 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 the failure to perceive it 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.”
. In this conclusion we give no legal significance to the fact that the Legislature failed to adopt § 6.06 of the proposed code which provided a similar rationale. As stated, our determination is founded on grammar and common sense.
We also note that, generally, proscriptions which employ “recklessness” or “negligence” do confine the application of those mental states to specific elements of conduct. Thus, the rule we announce will virtually always apply only to use of “intentionally” or “knowingly.”
Finally, we observe that some elements of conduct are set out in such a way that it is obvious from the context that a mental state previously set out does not apply to those elements.
. The question of whether the “result” requires the addition of a culpable mental state less than “intentional” is discussed post at 89.
. As has been demonstrated, however, “circumstances surrounding conduct” cannot be “intended.” Section 6.03(a).
. “Clearly” is the adverbial form of “clear;” some definitions and synonyms of the latter, inter alia, are:
“unmistakable ... capable of sharp discernment ... free from doubt: sure ... unqualified, absolute ... ‘clear’ implies freedom from obscurity, ambiguity, or undue complexity ... evident.”
Webster’s Seventh New Collegiate Dictionary (1969).
.The statutory definition of “serious bodily injury” lends additional support for this conclusion:
“ ‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
. See ante at 88 and n. 8, where we determined the statute plainly dispenses with the necessity that the actor “intend” the result of his conduct (death), but left open the question of whether a lesser culpable mental state is required.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9642324. Public record. Not legal advice.