                                      In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                              _________________

                               NO. 09-17-00312-CR
                              _________________

                      THE STATE OF TEXAS, Appellant

                                         V.

                      CYNTHIA ANN DELUNA, Appellee
________________________________________________________________________

                    On Appeal from the 253rd District Court
                           Liberty County, Texas
                          Trial Cause No. CR32200
________________________________________________________________________

                          MEMORANDUM OPINION

      Appellee, Cynthia Ann DeLuna, having been indicted by a grand jury for the

offenses of manslaughter and endangering a child, filed a motion to quash count one

of the State’s indictment with the trial court. The trial court granted the motion to

quash. The State of Texas appeals the trial court’s order granting the motion. See

Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (West Supp. 2017) (permitting the



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State’s accelerated appeal from the trial court’s dismissal of an indictment). We

affirm the trial court’s ruling.

                                    Background

       In 2014, DeLuna’s daughter, a thirteen-year-old unlicensed driver, was

operating a motor vehicle on SH 321 in Liberty County, Texas. DeLuna’s daughter

crossed over SH 321 from PR 684 to the Silver Dollar Saloon owned by DeLuna to

purchase a soda. When DeLuna’s daughter left the Saloon and crossed back over SH

321 to PR 684, she collided with another vehicle on SH 321, causing it to leave the

roadway, roll over in a ditch, and come to rest on its roof. After the collision,

DeLuna’s daughter left the scene of the accident and drove to her residence on PR

684 and went inside. The other driver was pinned to the roof of his vehicle upside

down and died. The cause of death was listed as “[p]ositional asphyxia.”

       Following the incident, DeLuna’s daughter was charged in Liberty County

with engaging in delinquent conduct and recklessly causing the death of the other

driver, which was amended to

       did then and there recklessly engage in conduct that placed [the other
       driver] in imminent danger of serious bodily injury by operating a
       motor vehicle in violation of [Texas Transportation Code section
       521.021] and failing to yield right of way and failing to keep a lookout
       and causing a collision with the vehicle driven by [the other driver].



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In October 2016, DeLuna’s daughter was adjudged to have engaged in delinquent

conduct by committing the offense of Deadly Conduct – a Class A misdemeanor,

placed on probation, and released to the custody of her parents.

      In November 2015, the grand jury returned a two-count true bill of indictment

against DeLuna. Count one of the indictment alleged, in part, that DeLuna recklessly

caused the death of another “by reckless entrustment of a motor vehicle to her

juvenile daughter and specifically by providing the ignition key to her juvenile

daughter and encouraging her juvenile daughter to operate said motor

vehicle[.]”DeLuna filed a motion to quash count one of the indictment, arguing that

the indictment failed to allege a criminal offense or a cause of action for

manslaughter.

      DeLuna’s argument focused on Texas Penal Code section 7.02(a)(2)

addressing third-party liability, which provides, “[a] person is criminally responsible

for the offense committed by the conduct of another if acting with the intent to

promote or assist the commission of the offense, if [s]he solicits, encourages, directs,

aids, or attempts to aid the other person to commit the offense[.]” See Tex. Penal

Code § 7.02(a)(2) (West 2011). The trial judge held two hearings on the motion to

quash and ultimately granted the motion. The State requested findings of fact and

conclusions of law, but the trial court did not issue any. The State then appealed.

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                                  Standard of Review

       We apply a de novo standard of review when examining a trial court’s

decision on a motion to quash an indictment. See Lawrence v. State, 240 S.W.3d

912, 915 (Tex. Crim. App. 2007). “The sufficiency of an indictment is a question of

law.” State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

                                        Analysis

       The Texas Code of Criminal procedure sets out the requirements for an

indictment and provides that the “offense must be set forth in plain and intelligible

words.” Tex. Code Crim. Proc. Ann. art. 21.02(7) (West 2009). An indictment is

usually legally sufficient if it delineates the penal statute in question. Moff, 154

S.W.3d at 602. An indictment must allege that (1) a person (2) committed an offense.

Teal v. State, 230 S.W.3d 172, 179 (Tex. Crim. App. 2007) (quoting Cook v. State,

902 S.W.2d 471, 477 (Tex. Crim. App. 1995)). In order to determine if a charging

instrument alleges an offense, we must decide if the allegations are clear enough that

one can identify the offense alleged. See id. at 180. A trial court and the defendant

must be able to identify what penal code provision is alleged and whether it is one

that vests jurisdiction in the trial court. See id. An indictment that tracks the statutory

language generally satisfies constitutional and statutory requirements. State v. Mays,

967 S.W.2d 404, 406 (Tex. Crim. App. 1998).

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      A person commits manslaughter “if he recklessly causes the death of an

individual.” Tex. Penal Code Ann. § 19.04(a) (West 2011). When recklessness is an

element of the offense, as in this case with manslaughter, or “it is charged that the

accused acted recklessly . . . in the commission of an offense, . . . [the] indictment in

order to be sufficient in any such case must allege, with reasonable certainty, the act

or acts relied upon to constitute recklessness[.]” See Tex. Code Crim. Proc. Ann. art.

21.15 (West 2009).

      In the present case, the State argues that due process does not require a

defendant’s culpability as a party to the offense to be pled in the charging instrument.

The Texas Penal Code allows for an individual to be criminally responsible for an

offense committed by another. Tex. Penal Code Ann. § 7.02(a)(1)–(3). This is

known as the law of the parties. See Garza v. State, 213 S.W.3d 338, 344–45 (Tex.

Crim. App. 2007). The law of the parties is applicable to manslaughter, which by

definition lacks specific intent. Clair v. State, No. 2-03-507-CR, 2006 WL 496035,

at *3 (Tex. App.—Fort Worth Mar. 2, 2006, no pet.) (mem. op., not designated for

publication) (citing Mendez v. State, 575 S.W.2d 36, 37–38 (Tex. Crim. App. 1979)).

The Penal Code states: “All traditional distinctions between accomplices and

principals are abolished by [section 7.01], and each party to an offense may be

charged and convicted without alleging that he acted as a principal or accomplice.”

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Tex. Penal Code Ann. § 7.01(c) (West 2011). Section 7.01(c) allows a party to an

offense to be charged with the offense without alleging the facts which make the

defendant a party to the offense and criminally responsible for the conduct of

another. Pitts v. State, 569 S.W.2d 898, 900 (Tex. Crim. App. 1978). If the evidence

supports a charge on the law of the parties, the court may charge on the law of the

parties even though there is no such allegation in the indictment. Id.

       This, however, does not eliminate the State’s responsibility to present an

indictment accusing a defendant of an act or omission which is declared by law to

be an offense. In the present case, the State is required to include in the indictment

the proper elements of manslaughter and delineate what conduct by DeLuna’s

daughter was alleged to have been reckless and led to the death of another. See Tex.

Code of Crim. Proc. Ann. arts. 21.01 (West 2009), 21.15; see also Tex. Penal Code

Ann § 19.04; cf. Carrasco v. State, No. 05-93-01515-CR, 1994 WL 416720, at *5

(Tex. App.—Dallas Aug. 10, 1994, pet. ref’d) (not designated for publication)

(upholding conviction when indictment included language that the appellant

recklessly caused the death of an individual by pointing a handgun at the decedent

without checking to see if it was loaded, even though one of his companions actually

pointed the gun and pulled the trigger, and appellant was found guilty under the law

of the parties).

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      Here, the State has simply alleged that DeLuna caused the death of another

“by reckless entrustment of a motor vehicle to her juvenile daughter and specifically

by providing the ignition key to her juvenile daughter and encouraging her juvenile

daughter to operate said motor vehicle[.]” While the State has alleged how DeLuna

was a party, which is not required under the law, the indictment fails to lay out the

underlying offense of manslaughter and the acts the State alleges constituted

recklessness by the daughter. See Tex. Penal Code Ann. § 7.01(c); Pitts, 569 S.W.2d

at 900. The indictment in its current form accuses DeLuna of giving keys to her

juvenile daughter and encouraging her to drive. Most drivers obtain licenses when

they are juveniles. Moreover, the indictment as worded essentially states that

DeLuna’s daughter operated a vehicle. There are no acts contained in the indictment

that allege the daughter operated the vehicle in a reckless manner that caused the

death of an individual. See Tex. Penal Code Ann § 19.04(a); see also Tex. Code

Crim. Proc. Ann. art. 21.15.

      The State conflates what is required to be included in the indictment and what

is allowed by law to be omitted. How DeLuna is a party to the crime is not necessary;

however, language regarding the acts the State alleges constituted reckless behavior

on the part of her daughter to be charged with the underlying crime of manslaughter

must be included. See Pitts, 569 S.W.2d at 900; see also Tex. Code Crim. Proc. Ann.

                                         7
art. 21.15; Tex. Penal Code Ann. § 19.04(a). In its brief, the State spends much time

discussing what it must prove under the law of the parties and how circumstantial

evidence may establish intent under that theory. What must be proven at trial under

the law of parties is distinct from the allegations that must be contained in an

indictment to put the accused on notice of the crimes for which they are being

charged.

                                    Conclusion

      We conclude count one of the indictment is insufficient as a matter of law to

invoke the subject-matter jurisdiction of the court and put DeLuna on notice of the

offense she allegedly committed. Therefore, we overrule the State’s issue, and we

affirm the trial court’s order dismissing count one of the indictment.

      AFFIRMED.



                                              ________________________________
                                                      CHARLES KREGER
                                                            Justice

Submitted on November 22, 2017
Opinion Delivered March 14, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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