
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-10-00305-CR


Ben Chambless, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. D-1-DC-09-904125, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING


O P I N I O N

A jury found appellant Ben Chambless guilty of criminally negligent homicide.
See Tex. Penal Code Ann. § 19.05(a) (West 2011).  Based on the jury's finding that Chambless
used a firearm in the commission of this homicide, the trial court instructed the jury that the
applicable term of imprisonment was that of a third-degree felony.  See id. § 12.35(c)(1) (West
2011).  The jury assessed punishment at eight years' confinement.  In his sole point of error,
Chambless claims that the trial court erred in instructing the jury that his punishment is
enhanced to that of a third-degree felony because section 12.35(c)(1) of the Texas Penal Code
does not apply to criminally negligent homicide.  We affirm the judgment.

BACKGROUND
		In the early morning of June 5, 2007, Chambless was woken by his wife and asked
to investigate a noise coming from their front yard. (1)  Chambless assumed that the sound was his
neighbor Bryan Berg's dog because the dog had previously wandered onto Chambless's property.
Chambless retrieved a semiautomatic rifle from his closet and proceeded to his front door.
Unbeknownst to Chambless, Berg was on the property.  Without turning on the outside lights or
providing any warning, Chambless fired between three and five shots into his yard in an attempt to
scare the dog away.  The shots hit Berg in the head, chest, shoulder, elbow, and leg.
		After firing the shots, Chambless heard a "gurgling noise" coming from the yard.
He went back inside his house, put the rifle away, and turned on the outside lights.  Chambless
discovered Berg lying face down in the yard.  Chambless's wife immediately called 9-1-1.  Berg
was pronounced dead at the scene.  Investigators with the Travis County Sheriff's Office were
immediately dispatched to the crime scene.  Chambless told the investigators that he had not seen
Berg prior to firing his rifle.  The lead investigator testified that, given the lighting around the crime
scene, Chambless may not have been able to see Berg from his front porch.  Furthermore, Chambless
told investigators that he did not fire his rifle in self-defense.
		Chambless was indicted for manslaughter.  See Tex. Penal Code Ann. § 19.04 (West
2011).  At trial, the jury charge contained instructions for both manslaughter and the lesser included
offense of criminally negligent homicide.  See id. §§ 19.04, 19.05.  The jury was given the following
charge with regard to criminally negligent homicide:
[If you believe that Chambless] did then and there with criminal
negligence cause the death of [Berg] by shooting him with a firearm,
and the defendant discharged multiple times in the dark without first
determining whether someone was in the line of fire, then you will
find the defendant guilty of Criminally Negligent Homicide and so
say by your verdict.

See id. § 19.05. (2)  The jury acquitted Chambless of manslaughter but convicted him of criminally
negligent homicide "as alleged in the indictment."  See id. §§ 19.04, 19.05.
Chambless elected to have the jury assess punishment.  The trial court instructed the
jury that, because Chambless had been convicted of criminally negligent homicide with a deadly
weapon, the authorized term of imprisonment the jury could impose was between two and ten years.
See id. § 12.35(c)(1) (requiring enhancement of punishment for state jail felony if defendant used
deadly weapon).  Chambless did not challenge this instruction, and the jury assessed punishment at
eight years' confinement.  Chambless now appeals his sentence.  He argues that, based on rules of
statutory construction, his punishment for criminally negligent homicide cannot be enhanced based
on his use of a deadly weapon.  Thus, Chambless claims that the trial court erred in instructing the
jury that his punishment was enhanced to that of a third-degree felony.
STANDARD OF REVIEW
Our review of an alleged error in a jury charge is based on a two-step inquiry.
First, we determine whether there was an error in the charge.  Barrios v. State, 283 S.W.3d 348, 350
(Tex. Crim. App. 2009) (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)).  Second,
assuming that error existed, we determine whether the defendant properly preserved the error at
trial.  Id. at 350 (citing Almanza v. State, 668 S.W.2d 157, 171 (Tex. Crim. App. 1985)).  If the error
was properly preserved, reversal is required if there is "some harm" to the defendant.  Almanza,
668 S.W.2d at 171.  However, if the error was not properly preserved, the error must be "fundamental,"
meaning that it was "so egregious and created such harm that the defendant 'has not had a fair and
impartial trial.'" Barrios, 283 S.W.3d at 350 (quoting Almanza, 668 S.W.2d at 171).

DISCUSSION

Criminally negligent homicide is a state jail felony.  Tex. Penal Code Ann. § 19.05(b).
Section 12.35 of the Texas Penal Code establishes the punishment for state jail felonies as confinement
in a state jail facility for not more than two years nor less than 180 days and a maximum fine of
$10,000.  Id. § 12.35(a)-(b).  However, section 12.35 also includes the following enhancement
provision:

(c) An individual adjudged guilty of a state jail felony shall be
punished for a third degree felony if it is shown on the trial for the
offense that:

(1) a deadly weapon as defined by Section 1.07 was used or exhibited
during the commission of the offense or during immediate flight
following the commission of the offense, and that the individual used
or exhibited the deadly weapon or was a party to the offense and
knew that a deadly weapon would be used or exhibited.


Id. § 12.35(c)(1) (emphasis added).  Thus, a deadly weapon finding in a criminally negligent homicide
conviction increases the punishment range to that of a third-degree felony.  The sentence for a third-degree felony is imprisonment for not more than ten years nor less than two years and a maximum
fine of $10,000.  See id. § 12.34.
In his sole issue on appeal, Chambless argues that the trial court erred in instructing
the jury that the applicable punishment for his conviction was that of a third-degree felony.
Chambless claims that, under the rules of statutory construction, criminally negligent homicide must
be construed as an exception to the enhancement provision in section 12.35.  See id. §§ 12.35(c)(1),
19.05.  Therefore, Chambless asserts, his punishment for criminally negligent homicide cannot be
enhanced based on his use of a deadly weapon.

Basis for statutory construction claim

Chambless argues that because "deadly weapon" is so broadly defined, all homicides
necessarily involve the use of deadly weapons.  See id. § 1.07(a)(17)(B) (West 2011).  A deadly
weapon is "anything that in the manner of its use is capable of causing death or serious bodily
injury." (3) Id.  Chambless explains that something "capable of causing death" must have been used in
every homicide, given that a death actually occurred.  Accordingly, Chambless argues that applying
the enhancement provision to criminally negligent homicide would result in all criminally negligent
homicides being automatically punished as third-degree felonies.  See id. § 12.35(c)(1).  He asserts
that this "automatic-punishment enhancement" for all criminally negligent homicides would
nullify the statutory definition of negligent homicide as a state jail felony.  See id. § 19.05(b).  Thus,
Chambless claims that the two statutory provisions conflict, and that this conflict is irreconcilable.
Furthermore, Chambless asserts that the criminally negligent homicide statute and
the enhancement provision are in pari materia.  See id. § 1.05(b) (applying Code Construction Act
to Penal Code); Tex. Gov't Code Ann. § 311.026 (West 2005).  Under the in pari materia rule
of statutory construction, when two statutes irreconcilably conflict, the more specific provision
operates as an exception to the more general provision.  See Tex. Gov't Code Ann. § 311.026(b).
Thus, Chambless claims that (1) the criminally negligent homicide statute conflicts with the
enhancement provision for state jail felonies, (2) that this conflict is irreconcilable, and thus
(3) criminally negligent homicide, as the more specific provision, operates as an exception to the
enhancement provision.  See id.  Therefore, Chambless asserts, the trial court erred in instructing the
jury that the enhancement provision applied to his conviction for criminally negligent homicide.
The issue raised in this case is not a simple one.  Courts have struggled to reconcile
the fact that criminally negligent homicide is classified as a state jail felony, but it appears to
be automatically punishable as a third-degree felony.  See Crumpton v. State, 301 S.W.3d 663,
664-65 (Tex. Crim. App. 2009); see also Overstreet v. State, No. 14-04-00875-CR, 2006 Tex. App.
LEXIS 2614, at *13 (Tex. App.--Houston [14th Dist.] Mar. 23, 2006, pet. ref'd) ("Section
12.35(c)(1) of the Penal Code seems to render Section 19.05(b) of that same code nugatory.")
(mem. op., not designated for publication).  Before deciding the case on other grounds, our sister
court of appeals in Fort Worth noted that "one wonders how criminally negligent homicide could
ever be punished as a state jail felony."  Dunn v. State, 176 S.W.3d 880, 884 (Tex. App.--Fort Worth
2005, no pet.).  Nonetheless, we find that these two sections do not irreconcilably conflict, and thus
criminally negligent homicide is not an exception to the enhancement provision.  See Tex. Gov't
Code Ann. § 311.026(a).
Does Crumpton v. State support Chambless's claim?

We first address the premise underlying Chambless's entire argument on appeal--that
all homicides necessarily involve the use of a deadly weapon.  Chambless relies heavily on the court
of criminal appeals's language in Crumpton v. State to support this argument.  301 S.W.3d at 664-65.
However, Chambless's reliance on Crumpton is misplaced.
In Crumpton, the court of criminal appeals affirmed the imposition of a ten-year
prison sentence for criminally negligent homicide with a deadly weapon.  Id.  The issue presented
in Crumpton was whether the jury's verdict of guilt "as included in the indictment" was sufficient
to constitute a deadly weapon finding.  Id. at 664.  The divided court held that it was, but based its
ruling on two separate rationales.  Id. at 664-65.  First, the court determined that the verdict included
a deadly weapon finding because it referenced the indictment, and the indictment alleged that the
offense was committed with a deadly weapon.  Id. at 664.  Second, the court concluded that "a
verdict of homicide necessarily is a finding that a deadly weapon was used" because something
used must have been "capable of causing--and did cause--death."  Id.  In this second rationale, the
court found that a guilty verdict for homicide is itself a sufficient basis to conclude that the jury made
an affirmative deadly weapon finding.  Id.  Furthermore, the court posed the following question:
"In the face of such statutory requirements for deadly-weapon findings, how could a jury convict a
defendant of homicide . . . without finding that a deadly weapon was used?"  Id. at 665.
Chambless asserts that the second rationale in Crumpton inevitably leads to the
conclusion that the enhancement provision of section 12.35 conflicts with the classification of
criminally negligent homicide as a state jail felony.  Crumpton did not address the potential conflict
between the enhancement provision and the negligent homicide statute.  See id. at 664-66.  However,
Crumpton clearly affirmed the application of the enhancement provision to negligent homicide.
Id. at 604.  We cannot ignore the result that the court reached in Crumpton, nor can we conclude
that the rationale in Crumpton supports the conclusion that this result was incorrect.  To conclude
otherwise would effectively create a paradox in which a precedent would overturn itself.
We are obliged to conform our opinions to those of the court of criminal appeals.  See
State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.--Austin 2006) ("As an intermediate court, we
lack the authority to overturn the court of criminal appeals"), aff'd sub. nom. State v. Colyandro,
233 S.W.3d 870 (Tex. Crim. App. 2007).  Therefore, even if we were to accept the proposition that
all homicides necessarily involve the use of a deadly weapon, we nonetheless are required to
conclude that the enhancement provision applies to criminally negligent homicide based on the
result in Crumpton.  301 S.W.3d at 664-65; see also DeLay, 208 S.W.3d at 607.

Do all negligent homicides include use of a deadly weapon?

Furthermore, despite the seemingly broad language in Crumpton, it is possible
for a defendant to commit criminally negligent homicide without the defendant using a deadly
weapon.  See 301 S.W.3d at 664-65; see also Tex. Penal Code Ann. § 12.35(c)(1).  While the court
in Crumpton stated that a "verdict [of homicide] is necessarily a finding that a deadly weapon was
used," it is clear from context that the court meant that every homicide necessarily involves a deadly
weapon, not that all defendants necessarily "use or exhibit" deadly weapons.  See  301 S.W.3d at
664-65.  However, the enhancement provision of section 12.35 only applies when the defendant
himself used a deadly weapon or had reason to know that a deadly weapon would be used.  See
Tex. Penal Code Ann. § 12.35(c)(1).  Therefore, if a defendant committed criminally negligent
homicide but did not himself "use or exhibit" a deadly weapon, then he would only be punished
for a state jail felony.  Id.
For example, a person who commits criminally negligent homicide through an
omission would not necessarily "use or exhibit" a deadly weapon. (4) See, e.g., Bustillos v. State,
No. 08-01-00467-CR, 2003 Tex. App. LEXIS 2364, at *1 (Tex. App.--El Paso Mar. 20, 2004)
(mem. op., not designated for publication), pet. dism'd, improvidently granted, No. PD-1189-03,
2004 WL 3092750, at *1 (Tex. Crim. App. Sept. 29, 2004). (5)  In Bustillos, a mother was convicted
of criminally negligent homicide for abandoning her child outdoors.  Id. at *5-6; see also Tex. Fam.
Code Ann. § 151.001(a)(2) (West 2008) (imposing duty on parent to care for and protect child).  The
child died of hypothermia as a result of exposure to the cold.  Id.  However, while the cold weather
could theoretically constitute a deadly weapon, under the facts presented, the mother could not have
been found to have "used or exhibited" the cold weather herself.  See id.; see also Patterson v. State,
769 S.W.2d 938, 940-41 (Tex. Crim. App. 1989) (defining "use" as putting into action or service,
etc.). But cf. Hill v. State, 913 S.W.2d 581, 583-84 (Tex. Crim. App. 1996) (holding that in crime
of omission, locks and chains were used as deadly weapons to prevent child from getting help).
Thus, the enhancement provision did not apply in Bustillos, and the negligent homicide was
punishable as a state jail felony.  See 2003 Tex. App. LEXIS 2364 at *10; see also Tex. Penal Code
Ann. §§ 12.35(c)(1), 19.05(b); Tex. Gov't Code Ann. § 311.026(a).
As the above example illustrates, not all homicides would support a deadly weapon
finding, and thus not all criminally negligent homicides implicate the enhancement provision.
See Tex. Penal Code Ann. § 12.35(c)(1).  Therefore, the enhancement provision and the criminally
negligent homicide statute do not conflict, given that the enhancement provision applies to some,
but not all, negligent homicide convictions. (6) Cf. Azeez v. State, 248 S.W.3d 182, 192 (Tex. Crim.
App. 2008) (citing Mills v. State, 722 S.W.2d 411, 414 (Tex. Crim. App. 1986)) (noting statutes
irreconcilably conflict if they impose different punishments).
Therefore, we conclude that the enhancement provision does apply to criminally
negligent homicide.  Tex. Penal Code Ann. §§ 12.35(c)(1), 19.05.  As we have explained, we are
bound to conform our opinion to the holding in Crumpton, and therefore must conclude that
the enhancement provision applies to negligent homicide. See 301 S.W.3d at 664-65; DeLay,
208 S.W.3d at 607.  Additionally, we find that the provision defining criminally negligent homicide
as a state jail felony does not necessarily conflict with the punishment enhancement for use of a
deadly weapon.  See Tex. Gov't Code Ann. § 311.012(a); Tex. Penal Code Ann. §§ 12.35(c)(1),
19.05(b).  Given that the two provisions can be harmonized, we find that negligent homicide is not
an exception to the enhancement provision.  See Tex. Gov't Code Ann. § 311.026.  Therefore, we
find that the trial court did not err in instructing the jury that Chambless's punishment was enhanced
in accordance with section 12.35(c)(1) of the Texas Penal Code.  Because the jury instruction was
not in error, we do not proceed to a harm analysis.  Chambless's sole point of error is overruled.
CONCLUSION

 We affirm the judgment.

						__________________________________________
						Diane M. Henson, Justice
Before Chief Justice Jones, Justices Henson and Goodwin
Affirmed
Filed:   May 10, 2012
Publish
1.   The facts recited herein are taken from the testimony and exhibits admitted at trial.
2.   The charge also defined "criminal negligence" and "deadly weapon" in accordance with
the statute.  See Tex. Penal Code Ann. §§ 1.07(a)(17)(A), 6.03(d) (West 2011).
3.   As the court of criminal appeals has acknowledged, "[o]ur cases make it clear that 'anything'
[capable of causing death] means anything."  Guzman v. State, 188 S.W.3d 185, 198 (Tex. Crim.
App. 2006) (noting that cars, fists, belts, chains, and hot water can be deadly weapons) (internal
citations omitted).
4.   A person is criminally liable for an omission if he had a duty to perform an act and his
failure to act caused the prohibited harm.  See Tex. Penal Code §§ 1.07(a)(34); 6.01(c); see also
State v. Guevara, 137 S.W.3d 55, 56-57 (Tex. Crim. App. 2004) (explaining criminal liability for
omissions when legal duty to act exists).
5.  The court in Bustillos was not presented with the issue of whether a deadly weapon
finding would have been appropriate.  See 2003 Tex. App. LEXIS 2364.  Accordingly, we do not
cite Bustillos for its legal analysis, but merely as a factual illustration of a criminally negligent
homicide in which a deadly weapon finding might not be appropriate.  See id.
6.   Because we find that these two statutes do not conflict, we do not reach the issue of
whether they are in pari materia.  See Azeez v. State, 248 S.W.3d 182, 191 (Tex. Crim. App. 2008)
(noting that court must first determine whether statutes generally touch on same persons, subject
matters, or purposes before applying in pari materia rule of statutory construction).
