Tompkins v. State

*225 CLINTON, Judge,

dissenting.

This cause presents once again the conundrum of two lesser “culpable mental states:” recklessness and criminal negligence. Opinion, at 210-213. The majority ultimately finds no evidence raising either. However, there are problems in its determinations of law germane to making those findings. 1

This cause provides an opportunity to consider that interpretations and applications of § 6.03(c) and (d), in opinions primarily by Judge Odom, were accepted by the Court for several years, only to be suddenly rejected in a recent opinion crafted by Judge W.C. Davis, and to determine which view is correct. 2 Remember, strictures placed on rights of an accused in one case will also have an impact on the State in satisfying its burden of proof in another. See note 7, post.

Under § 6.03(c) and (d), “risk” is an essential condition; it is created by acts of accused, here with respect to result of his conduct. It must be both “substantial” and “unjustifiable.” Once he has created that kind of risk an actor is either aware of it or ought to be aware of it. The Court has characterized the former as “conscious risk creation,” the latter as “inattentive risk creation.” Lewis v. State, 529 S.W.2d 550, 553 (Tex.Cr.App.1975). Practice Commentary to § 6.03. 3

An awareness may be inferred from the facts, but that one ought to be aware is a judgmental factor, along with others, at work here. 4 A failure to comprehend that *226 concept is, in my view, revealed in two sentences written by Judge Davis in his panel opinion in Simpkins v. State, 590 S.W.2d 129 (Tex.Cr.App. 1979), viz:

“However, the evidence in this case did not raise the issue of [negligent homicide]. No evidence indicates that the appellant possessed the requisite culpable mental state for negligent homicide, i.e., that he ought to have been aware of a substantial and unjustifiable risk.”

Id., at 134 . (Second emphasis is by the Court.) That notion lay dormant for a while, only to be revitalized by Judge Davis in Thomas v. State, 699 S.W.2d 845 (Tex. Cr.App. 1985).

Following behind Thomas, Mendieta v. State, 706 S.W.2d 651, 653 (Tex.Cr.App. 1986), changed the formulation somewhat: “It is encumbent [sic] that the record contain evidence showing an unawareness of the risk before a charge on criminal negligent homicide is required. Thomas v. State, supra.” 5

That a person “ought to be aware” is not a matter of fact, readily susceptible to direct testimonial proof. 6 Whether under given facts and circumstances one “ought to be aware” of risk is a value judgment — a matter of ordinary care, caution and prudence. Illustrative is Dockery v. State, 542 5.W.2d 644 (Tex.Cr.App. 1976) (Opinion on Rehearing), viz:

“We conclude that the actions of appellant were sufficient to indicate that he ought to have been aware of the substantial and unjustifiable risk that his conduct might injure and kill the deceased, at whom the pistol was quite obviously pointed at the time it was fired. Clearly, the risk was of such a nature and degree that it constituted a gross deviation from the standard of care prescribed by Sec. 6.03(d).”

Id., at 648. 7

In Hunter v. State, 647 S.W.2d 657 (Tex. Cr.App. 1983), implicitly the Court went through a similar exercise. After reciting the facts and stating general propositions of law regarding charging of lesser of *227 fenses, the Court sets out verbatim § 6.03(d), underscoring the “ought to be aware” et cetera clause. Reprising salient testimony of appellant, the Court concluded, “This testimony raised an issue as to whether appellant was negligent in not perceiving the risk which his conduct created.” Hunter, supra, at 659 . Obviously, from its treatment of the issue the Court had first concluded a jury could reasonably hold that accused ought to have been aware of the risk and he failed to perceive it. 8

Unlike all homicide cases discussed ante, where death resulted from use of a deadly weapon, here the cause of death is suffocation caused by a gag inside and in the back of mouth of deceased. Appellant did not testify, and content of his written confession was not before the jury; he did not affirmatively present witnesses on his behalf. So basically the facts are appellant abducted deceased, gagged and tied her up and to a tree.

Following the Davis view, the plurality would have the Court find appellant was not entitled to instructions on criminally negligent homicide and “reckless” involuntary manslaughter. What of the Odom view?

That a risk was thus created cannot be disputed. “If it is not a risk of which one ought to be aware, then neither criminally negligent homicide nor involuntary manslaughter would [be] shown.” The risk created by appellant was death of his victim. “Upon consideration of recklessness versus criminal negligence, whether one is aware of a requisite risk or simply should be aware of it, is a conclusion to be drawn through inferences from all the circumstances by a trier of fact.” The jury was not given an opportunity to make any such conclusion. “Whether one ‘ought to be aware’ of the risk is a matter of the character of risk involved.” Under the circumstances a jury could have regarded a risk of death to be “substantial” and surely “unjustifiable.” “The issue [in involuntary manslaughter] is ... whether, given all the circumstances, it is reasonable to infer that the particular individual on trial was in fact aware of the risk.” The jury could just as well have made that inference. Nash v. State, 664 S.W.2d 343, 344 (Tex.Cr.App.1984); Lopez v. State, 630 S.W.2d 936, 941-942 (Tex.Cr.App. 1982), quoting approvingly from Dillon v. State, 574 S.W.2d 92, at 94 (Tex.Cr.App.1978), and “seeing also” Giles v. State, 617 S.W.2d 690 (Tex.Cr.App.1981). 9

Nash v. State, 651 S.W.2d 432 (Tex.App. —Dallas 1983), involved an automobile collision and accused was convicted of involuntary manslaughter; in support of his claim that evidence raised criminally negligent homicide and therefore the trial court erred in overruling his requested instruction thereon, appellant pointed to certain medical testimony in support of his insanity defense, to the effect that he had been rendered “unaware of the dangers that confronted [him.]” The Dallas Court of Appeals accepted that “the medical testimony is evidence that appellant was not aware of the risk because of mental disease;” however, it found that the standard is whether an accused “ought to be aware” —not “whether he was in fact unable to be aware.” The Dallas Court concluded that “the evidence relied on by appellant does not reach the question of whether appellant ‘ought to be aware’ of the risk,” and accordingly held that “the requisite evidence sufficient to raise the issue of criminally negligent homicide is not shown,” thus no *228 error in refusing the instruction. Id., at 433 .

Such is the Davis view. Just three years ago eight members of this Court rejected it.

On petition for discretionary review, writing for the Court with only Judge Miller dissenting, Judge Odom expressed agreement with the ultimate conclusion of the Dallas Court, but found “its reasoning incorrect.” Nash v. State, 664 S.W.2d 343 (Tex.Cr.App.1984), viz:

“The focus in that court’s opinion on the absence of evidence that appellant ‘ought to be aware’ of the risk is not correct. Whether one ‘ought to be aware’ of the risk is a matter of the character of risk involved. This conclusion is obvious from the statutory definition of criminal negligence in Sec. 6.3(d) ... which concludes with [a] statement about the character of the risk [quotation omitted]. The Court of Appeals erroneously relied on a finding that the evidence did not show appellant ought to have been aware of the risk. If it is not a risk of which one ought to be aware, then neither criminally negligence homicide nor involuntary manslaughter would have been shown.”

Id., at 344 .

In Lopez, supra, another automobile collision resulting in death, rather simple facts of the matter are that appellant, “while driving a speeding car on a city thoroughfare at 11:30 p.m., ran a red light, and collided with the car driven by [another], causing the death of [a passenger].” Id., at 941 . If there were any direct or even circumstantial evidence bearing on “awareness,” Judge McCormick does not allude to it. From Bubany, “The Texas Penal Code of 1974,” 28 S.L.J. 293 (1974), at 305, he extracted, inter alia, “The trier of fact must make an evaluative judgment whether the actor’s failure of perception constituted a gross deviation from acceptable standards of conduct.” For the panel, Judge McCormick concluded:

“[W]e find the evidence supports the jury finding that an ordinary or reasonably prudent person, in appellant’s position, OUGHT TO HAVE BEEN AWARE that a substantial and unjustifiable risk was created when he exceeded the speed limit and ran a red light on a city thoroughfare at 11:30 p.m. [quoting extensively from Dillon, supra, at 94 ].”

Id., at 941-942. Res ipsa loquitur, that is.

Exercising its collective judgment, a rational jury could have found appellant equally ought to have been aware that his acts created a substantial and unjustifiable risk of death, and that his failure to perceive that risk was a gross deviation from the proper standard of care.

When it appears an accused ought to be aware of a requisite risk, then also raised is the issue of whether he was in fact aware of the risk and consciously disregarded it. “Which of the two inferences regarding the accused’s awareness of the risk is correct is a matter to be drawn from the circumstances by the jury. Dillon v. State, [supra].” Giles, supra, at 691 . 10

In the Odom view it was therefore error to refuse to charge the jury on the lesser included offenses of involuntary manslaughter and negligent homicide so that the jury could decide whether to infer recklessness or negligence or intent to kill. Instead, the jury was permitted only to convict of capital murder or to acquit. See Giles, at 691. In the Davis view it was not error.

*229 Because the plurality opinion is internally contradictory and will not solve the conundrum we have created, I respectfully dissent.

.At the outset, in the course of discussing entitlement to a charge on a lesser included offense, on one page the opinion iterates usual rules about considering “all the evidence presented,” and if evidence "from any source raises the issue” an appropriate charge must be given, citing correct authorities for those propositions. Id., at 210. (All emphasis is mine throughout unless otherwise noted.) On the next page, however, the opinion says the fact that the State’s proof of the greater offense "also proved the lesser offense ... does not, standing alone, entitle appellant to a charge of the lesser included offense,” citing Cordova v. State, 698 S.W.2d 107 (Tex.Cr.App.1985) — which was earlier cited to support the first rule! Both cannot be right, and from our cases the second is wrong.

The only authority for the second is “See Aguilar [v. State, 682 S.W.2d 556 (Tex.Cr.App. 1985)], and seeing it makes abundantly clear that Augilar holds no such thing. Compare Aguilar, at 558: “Merely because a lesser offense is included within the proof of a greater offense, however, does not always warrant a jury charge on the lesser offense.” But that it is so included may warrant the charge. Bell v. State, 693 S.W.2d 434, at 442 (Tex.Cr.App.1985). Thus we may look to the proof adduced by the State, just as the majority does here. See Campbell v. State, 571 S.W.2d 161, 162 (Tex.Cr.App.1978).

First the majority says appellant’s conduct precludes an inference "that he was then unaware of the risk his conduct created,” and speculation that he did not intend the result "does not change his awareness or perception of the risk his conduct created,” and speculation that he did not intend the result "does not change his awareness or perception of the risk his conduct created.” Opinion, at 212. So much for criminally negligent homicide. Next it says, “Without evidence that appellant acted recklessly in causing the death of his victim [involuntary manslaughter was not raised].” Id., at 212 . But the majority had just found appellant was aware of the risk.

. The Odom view takes an analytical approach to the facts of the matter and a weighing of judgmental factors by a factfinder, rather than looking for evidence that directly and nicely fits either socalled "mental state.” In these two instances more than many others, the several judgment calls must be left to factfinders. See Giles v. State, 617 S.W.2d 690, 691 (Tex.Cr.App. 1981); Dillon v. State, 574 S.W.2d 92, 94 (Tex. Cr.App.1978) — both written by Judge Odom. See also Lopez v. State, 630 S.W.2d 936 (Tex.Cr. App.1982), by Judge McCormick, following Giles and Dillon . Compare post the Davis evidentiary view in, e.g., Simpkins v. State, 590 S.W.2d 129, 134 (Tex.Cr.App.1979), and Thomas v. State, 699 S.W.2d 845 (Tex.Cr.App.1985); see my dissenting opinion in the latter.

. “Criminal negligence ... does not require consciousness of risk. Rather the definition of criminal negligence in Subsection (d) inquires of the factfinder whether the actor ought to have been aware of the risk. As in recklessness, the risk must be substantial and the failure to perceive it an unjustifiable and gross deviation from the ordinary standard of care; however, the actor’s conduct is weighed against an objective standard, that of the ordinary prudent man." (emphasis in original).

. "The adjectives ‘substantial,’ ‘unjustifiable,’ and ‘gross’ in the definitions ... are admittedly vague and intended only to focus on the judgmental factors the fact finder must weigh.... As forthrightly stated by the Model Penal Code reporter:

‘Some principle must be articulated, however, to indicate what final judgment is de *226 manded after everything is weighed. There is no way to state this value-judgment that does not beg the question in the last analysis; the point is that the jury must evaluate the conduct and determine whether it should be condemned. * * * * The jury must find fault and find it was substantial ...”’

Practice Commentary following § 6.03.

.In Thomas , disdaining stare decisis, a majority did indeed criticize several prior opinions of the Court, viz:

"The attendant circumstances from which the defendant’s mental state can be inferred must be collectively examined in light of the definition of criminally negligent conduct. See V.T. C.A. Penal Code, Sec. 6.03(d). In this respect [two prior opinions] are overbroad because they rely only on the pointing of a loaded ’ weapon as being sufficient to raise criminally negligent homicide. Other evidence raising the issue of whether or not a defendant was aware of the risk must be presented before such charge is required."

Thomas, supra, at 850 ; in note 2, one of the two, Giles v. State, 617 S.W.2d 691 (Tex.Cr.App. 1981), is faulted for not providing "enough information from which to determine whether the defendant ought to have but did not perceive a substantial and unjustifiable risk in pointing a gun he knew was loaded at another.” That criticism demonstrates the author of Thomas did not understand the issue in Giles refusal to charge on "reckless” involuntary manslaughter, not criminally negligent homicide; full facts of the incident as claimed by accused are excerpted from his confession and reproduced in the opinion. See Giles, at 691. In context the issue is, after all, defensive in nature and the question is whether some evidence raised it, not general evidentiary sufficiency. Moore v. State, 574 S.W.2d 122, 124 (Tex.Cr.App. 1978).

. Are witnesses to be permitted to say that accused was or was not obliged to be aware of a substantial and unjustifiable risk? Neither is a statement of fact; each is nothing but an expression of pure opinion. The factual evidence before the factfinder remains the same, and the “ought" requirement is for the factfinder to impose. See ante, n. 3.

. Thomas speciously says, "The value of Dockery is limited because the rationale is not entirely clear as it focused on the distinction between voluntary action and intentional and unintentional acts." Id., at 850 . Clarity, like Beauty, is in the eye of the beholder. Accused was convicted of negligent homicide in the first degree under our former penal code; after setting out allegations and essential proof, the Court stated, “The issue then is whether the conduct alleged and proved is an offense under the new Code.” Dockery, at 647-648. The Court concluded it was, namely, criminally negligent homicide denounced by V.T.C.A. Penal Code, § 19.07(a). Id, at 650.

. In Mendieta v. State, 706 S.W.2d 651 (Tex.Cr.App. 1986), quoted and followed by Judge Teag-ue, the Court distinguished Hunter , saying certain testimony "showed that Harris [sic] was unaware of the risk his conduct was creating." 706 S.W.2d at 653 . That analysis of Hunter is too simplistic, however. The point is that the Court determined it was for the judgment of the jury whether he ought to have been aware of the risk and, if so, was negligent in failing to perceive it.

. Only Giles involves a deadly weapon. The issue in Nash is entitlement to a charge of criminally negligent homicide in a automobile collision situation; in Lopez sufficiency of evidence to support a verdict for criminally negligent homicide in a similar situation; in Dillon sufficiency for involuntary manslaughter in starving a child to death. Judge Odom wrote all except Lopez, but it relies on Dillon .

. Moore v. State, 574 S.W.2d 122 (Tex.Cr.App. 1978), demonstrates the converse. Accused was indicted for murder, convicted of involuntary manslaughter and on appeal asserted error in failing to charge on criminally negligent homicide.

Referring to certain testimony, Judge Dally wrote for a Court panel:

"This evidence is sufficient to raise an issue of reasonable doubt whether the appellant was aware of but consciously disregarded a substantial but unjustified risk that her conduct would result in the death of deceased [i.e., involuntary manslaughter]. The jury, if it believed this evidence, could have found that appellant ought to have been, but was not, aware that her conduct would create a substantial and unjustifiable risk resulting in the death of the deceased [i.e., criminally negligent homicide].”

Id., at 124 . Accord: Ormsby v. State, 600 S.W.2d 782 (Tex.Cr.App.1980).