                                          COURT OF APPEALS
                                       EIGHTH DISTRICT OF TEXAS
                                            EL PASO, TEXAS


                                                           §
    THE STATE OF TEXAS,                                                       No. 08-13-00072-CR
                                                           §
                       Appellant,                                                Appeal from the
                                                           §
    v.                                                                    409th Judicial District Court
                                                           §
    ROCIO ROMERO,                                                           of El Paso County, Texas
                                                           §
                       Appellee.                                              (TC# 20120D01434)
                                                           §

                                                  OPINION

         The State of Texas seeks to reinstate language quashed from its manslaughter indictment

against Appellee Rocio Romero, contending that allegations Romero “load[ed] a firearm,”

“chamber[ed] a round into the firearm,” and “us[ed] marijuana” were essential acts necessary to

prove the charge’s recklessness element. We reverse the trial court’s order in part1 and remand.

                                                BACKGROUND

         The State indicted Romero on one count of manslaughter stemming from the shooting

death of Jose Salas. The indictment alleged as follows:


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  The trial court’s order granting the motion to quash also includes language prohibiting the State from introducing
evidence pertaining to “loading a firearm,” “chambering a round into the firearm,” and “using marijuana.” Although
the State contended in its notice of appeal that we have interlocutory jurisdiction over these evidentiary rulings since
they “suppress” evidence, the State does not challenge this aspect of the order in its brief. As such, we reverse the
trial court’s order only insofar as it struck language from the indictment. We do not pass on the propriety of the trial
court’s in limine rulings at this time as that issue has not been presented to us.
       [O]n or about the 2nd day of February, 2011 and anterior to the
       presentment of this indictment, in the County of El Paso and State
       of Texas, ROCIO ROMERO . . . did then and there recklessly
       cause the death of an individual, namely, JOSE SALAS, by
       committing one or more of the following acts:

       loading a firearm,

       chambering a round into the firearm,

       pointing a firearm in the direction of JOSE SALAS,

       using marijuana,

       handling a loaded firearm, pointed in the direction of JOSE
       SALAS, as the firearm discharged,

       And thereby shooting JOSE SALAS about the body with a firearm
       ....

       Romero moved to quash the indictment on the grounds that, inter alia, it contained

language that was both surplusage and prejudicial. The trial court granted Romero’s motion to

quash in part, striking references to “loading a firearm,” “chambering a round into the firearm,”

and “using marijuana” from the indictment. The State appealed.

                                        DISCUSSION

       We have interlocutory jurisdiction to review the trial court’s order striking surplus

language from the indictment. See TEX.CODE CRIM.PROC.ANN. art. 44.01(a)(1)(West Supp.

2014); State v. Richardson, 383 S.W.3d 544, 547 (Tex.Crim.App. 2012).

       The trial court may strike surplus language “which is not descriptive of what is legally

essential to the validity of the indictment.”       Eastep v. State, 941 S.W.2d 130, 134

(Tex.Crim.App. 1997), overruled on other grounds by Riney v. State, 28 S.W.3d 561

(Tex.Crim.App. 2000)(explaining surplusage in context of a prosecutorial pretrial indictment

alteration); see also Thompson v. State, 152 S.W. 893, 894 (Tex.Crim.App. 1913)(stating that



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“allegations which are in no manner necessary to the description of an offense[] and which are

not essential to constitute the offense . . . may be entirely disregarded”). We review the

sufficiency of an indictment and what constitutes surplusage de novo. State v. McCoy, 64

S.W.3d 90, 92 (Tex.App.--Austin 2001, no pet.).

       Whether language is surplusage necessarily hinges on the nature of the alleged acts in

relation to the charge. Here, Romero was charged with manslaughter. A person commits the

offense of manslaughter if he or she “recklessly causes the death of an individual.” TEX.PENAL

CODE ANN. § 19.04(a)(West 2011). A person acts recklessly “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.” TEX.PENAL CODE ANN. § 6.03(c)(West 2011). “[W]hen recklessness is an element of

the offense, the charging instrument must allege the circumstances of the act which indicate that

the defendant acted in a reckless manner.”          State v. Rodriguez, 339 S.W.3d 680, 683

(Tex.Crim.App. 2011)[Internal citation and emphasis omitted]; see also TEX.CODE

CRIM.PROC.ANN. art. 21.15 (West 2009).

       Here, the acts of loading a firearm, chambering a round, and using marijuana, when read

conjunctively in the context of the indictment, can all be fairly said to be factors that created a

substantial and unjustifiable risk of death to Jose Salas. As such, they constituted circumstances

necessary to the essential proof of recklessness element. Further, there is authority supporting

the State’s argument that drug use may be properly alleged as an act showing recklessness in a

manslaughter indictment even if the person may not have been legally intoxicated at the time of

the charged conduct.    See Buie v. State, No. 03-02-00280-CR, 2003 WL 21189757, at *2

(Tex.App.--Austin May 22, 2003, no pet.)(mem. op., not designated for publication)(marijuana



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use related to manslaughter charge evidence of recklessness); Rubio v. State, 203 S.W.3d 448,

452 (Tex.App.--El Paso 2006, pet. ref’d)(driving after consuming alcohol can constitute reckless

behavior in manslaughter indictment). Because the alleged acts pertained to recklessness, the

omitted language was not surplusage, and the trial court erred by striking it.

       Romero’s argument that the trial court nevertheless retained residual authority to strike

non-surplus language from the indictment on that basis that it was unfairly prejudicial is belied

by authority from our sister court, which rejected a defendant’s similar claim where the

indictment was facially valid and returned by a legally constituted grand jury, and where the drug

use constituted evidence of recklessness in a manslaughter case. See Turner v. State, 435 S.W.3d

280, 286-87 (Tex.App.--Waco 2014, pet. ref’d). The State’s sole appellate point is meritorious.

       Issue One is sustained.     We reverse the trial court’s order quashing the indictment

language and remand for trial.



January 14, 2015
                                              YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, J., and Barajas, Senior Judge
Barajas, Senior Judge, Sitting by Assignment

(Do Not Publish)




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