



Torres v. SOT



NUMBER 13-00-209-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
____________________________________________________________________

JUAN TORRES, JR.,        Appellant,

v.

THE STATE OF TEXAS,       Appellee.
____________________________________________________________________

On appeal from the 357th District Court of Cameron County, Texas.
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O P I N I O N
Before Justices Dorsey, Hinojosa, and Rodriguez
Opinion by Justice Hinojosa

A jury found appellant, Juan Torres, Jr., guilty of the offenses of intoxication manslaughter and failure to stop and render
aid; found that he used a deadly weapon in the commission of these offenses; and assessed his punishment at ten years
imprisonment for the intoxication manslaughter and one year imprisonment for the failure to stop and render aid. Appellant
appeals only his conviction for intoxication manslaughter.  He does not appeal his conviction for failure to stop and render
aid.  In two issues, appellant contends the trial court erred by failing to charge the jury on the issue of concurrent causation
and by failing to include a lesser included offense in the charge.  We affirm.
On March 15, 1998, appellant was driving a motor vehicle on a public roadway in South Padre Island when his vehicle hit
the victim, causing her death.  It is undisputed that appellant was legally intoxicated at the time of the incident.  The record
shows that the victim was also legally intoxicated at the time she was hit by appellant's vehicle, and that she was walking
along Gulf Boulevard, a busy thoroughfare, during spring break.
At trial, appellant asserted that because some of the debris from the collision was in the roadway, the victim must have
been walking in the roadway at the time of the offense.  Appellant argued that the victim's location in the roadway was a
concurrent cause of the incident.
In his first issue, appellant contends the trial court erred by failing to charge the jury on the defensive issue of concurrent
causation.
The jury charge contained: (1) an abstract instruction on the law of concurrent causation, and (2) a paragraph which applied
the law to the facts (instructing the jury to acquit appellant if there was reasonable doubt that, concurrently with the
intoxication of the defendant, another cause also operated to cause the collision in question).  Because the trial court
charged the jury on the defensive issue of concurrent causation, we hold it did not commit error.  Appellant's first issue is
overruled.
In his second issue, appellant contends the trial court committed reversible error when it failed to charge the jury with the
lesser included offense of criminally negligent homicide.
We apply a two-prong test to determine whether the trial court must include a lesser included offense in a charge. 
SeeMoore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. App.
1981);Sanders v. State, 963 S.W.2d 184, 187 (Tex. App.-Corpus Christi 1998, pet. ref'd).  Under the first prong of the test,
we must determine whether the offense constitutes a lesser included offense as defined by statute.  See Tex. Code Crim.
Proc. Ann. art. 37.09 (Vernon 1981); Moore, 969 S.W.2d at 8. 
An offense is a lesser included offense if: (1) it is established by proof of the same or less than all the facts required to
establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less
serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it
differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.  Tex. Code Crim. Proc. Ann.
art. 37.09 (Vernon 1981).
A person commits the offense of criminally negligent homicide if he causes the death of an individual by criminal
negligence.  Tex. Pen. Code Ann. § 19.05(a) (Vernon 1994).  The Texas Penal Code classifies culpable mental states
according to relative degrees as follows: (1) intentional; (2) knowing; (3) reckless; and, (4) criminal negligence.  Tex. Pen.
Code Ann. § 6.02(d) (1)-(4) (Vernon 1994).  Unlike criminally negligent homicide, intoxication manslaughter does not
require proof of a culpable mental state, and pursuant to statute, is a strict liability offense.  See Tex. Pen. Code Ann. §§ 
49.08(a), 49.11 (Vernon Supp. 2001) (notwithstanding section 6.02(b), proof of culpable mental state not required for
conviction of offense under chapter 49); Reidweg v. State, 981 S.W.2d 399, 406 (Tex. App.-San Antonio 1998, no pet.). 
Because criminally negligent homicide requires proof of a culpable mental state to establish its commission and
intoxication manslaughter does not, we conclude that criminally negligent homicide cannot be a lesser included offense of
intoxication manslaughter. 
Appellant's reliance on Ormsby v. State, 600 S.W.2d 782 (Tex. Crim. App. 1979), is misplaced.  Ormsby held that
criminally negligent homicide is a lesser included offense of involuntary manslaughter under former Texas Penal Code
section 19.05(a)(2), the predecessor of the intoxication manslaughter statute.  Id. at 783-84.  Because the involuntary
manslaughter statute, at that time, did not clearly dispense with any mental element, proof of a culpable mental state was
required.  Thus, the Ormsby court concluded that the act of driving while intoxicated under section 19.05(a)(2) was
recklessness per se.  Ormsby, 600 S.W.2d at 783-84; seeGowans v. State, 995 S.W.2d 787, 792-93 (Tex. App.-Houston
[1st Dist.] 1999, pet. ref'd); Reidweg, 981 S.W.2d at 406; see also Tex. Pen. Code Ann. § 6.02(d) (Vernon 1994).  Because
criminally negligent homicide requires only a mental state of criminal negligence, the court held that it could be a lesser
included offense of involuntary manslaughter.  Ormsby, 600 S.W.2d at 784.
Today, however, with the modification of the offense of involuntary manslaughter and its placement in chapter 49 of the
penal code as an intoxication offense, the legislature has clearly dispensed with any mental state requirement for conviction
of intoxication manslaughter.  See Tex. Pen. Code Ann. §§ 49.08(a), 49.11 (Vernon Supp. 2001); Gowans, 995 S.W.2d at
793; Reidweg, 981 S.W.2d at 406.  Accordingly, we conclude the reason for the holding in Ormsby no longer applies.
Because we have concluded that criminally negligent homicide is not a lesser included offense of intoxication
manslaughter, it is unnecessary for us to reach the second prong of the test. (1)  We hold the trial court did not err in failing
to charge the jury on the offense of criminally negligent homicide.  We overrule appellant's second issue.

The judgment of the trial court is affirmed.


FEDERICO G. HINOJOSA
Justice




Publish.  Tex. R. App. P. 47.3.


Opinion delivered and filed this
the 28th day of June, 2001.
1.  Under the second prong of the test, a defendant must show some evidence from which a jury could rationally conclude
that the defendant is guilty only of the lesser included offense.  See Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim.
App. 1993).
