           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                      NO. PD-366-07



                              MICHAEL REED, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE TENTH COURT OF APPEALS
                           BRAZOS COUNTY

       C OCHRAN, J., filed a concurring opinion in which W OMACK, J., joined.

                                       OPINION

       Didn’t Richard III cry out, while he was at, on, or in Bosworth Field, “My kingdom

for a proper preposition!” Well, perhaps it was a horse, but in this case the State’s

prosecution fails for want of a proper preposition. And it must, given both the vagaries of

the English language and the sense of the penal statute.

       The issue is: Can you shoot “at” a house from inside of it?

       First, let us set the whole scene. The pertinent portion of the deadly conduct statute,
                                                              Reed     Concurring Opinion       Page 2

Section 22.05(b) of the Penal Code, states:

       A person commits an offense if he knowingly discharges a firearm at or in the
       direction of:
       (1)    one or more individuals; or
       (2)    a habitation, building, or vehicle and is reckless as to whether the habitation,
              building, or vehicle is occupied.

The two prepositions–“at” and “in the direction of” 1 –introduce several different prepositional

nouns: “individuals,” “habitation,” “building,” or “vehicle.” Therefore, the word “at” must

have the same spatial relationship to “individual” in subsection (1) as it does to “habitation”

in subsection (2). The State argues that the word “at” in this statute is large enough,

powerful enough, or vague enough to include the preposition “inside.” Test that proposition:

It does not make sense that the legislature would enact a statute saying, “A person commits

an offense if he knowingly discharges a firearm inside one or more individuals.” 2 This is an

absurd interpretation, unless the victim is Jack the Giant.

       Second, let us focus on ordinary usage. The word “at” is a tiny word that can carry

a lot of freight and bear many different meanings, depending upon the context. When used

in the deadly conduct statute, however, it refers to a positional place or spatial direction. The

three common prepositions of place are “at,” “on,” and “in.” “At” normally refers to a point,


       1
          In truth, “in the direction” is one prepositional phrase, and “of” is the preposition that
starts the second prepositional phrase, describing which direction.
       2
         If the statute had criminalized the act of shooting at whales, then Chief Justice Gray’s
analogy to Jonah shooting the whale while he was inside that leviathan would be entirely apt.
Reed v. State, 214 S.W.3d 626, 630 (Tex. App.–Waco 2007) (Gray, C.J., dissenting on motion
for rehearing) (“if Jonah had a weapon, he probably would have shot ‘at’ the ‘big fish’ that
swallowed him too.”).
                                                           Reed    Concurring Opinion     Page 3

“on” refers to a surface, and “in” refers to an enclosed space.3 Thus, “shooting at the house”

normally means shooting at a point called a house from some other point outside the house;

“shooting on the house” means shooting from the house while located somewhere on its

surface (perhaps the roof); and “shooting in the house” means a shooting that occurs inside

the area of the house.4 And, of course, shooting “at an individual” in subsection (b)(1) means

shooting at a point called an individual from some other point outside that individual. The




       3
        See, e.g., Prepositions of Location: At, In, On, Purdue University Online Writing Lab.
Available at: http://owl.english.purdue.edu/handouts/esl/eslprep2.html (Last visited on October
16, 2008). The Purdue Writing Lab explains the distinctions thus:
       Prepositions differ according to the number of dimensions they refer to. We can
       group them into three classes using concepts from geometry: point, surface, and
       area or volume.
       Point
                Prepositions in this group indicate that the noun that follows them
                is treated as a point in relation to which another object is
                positioned.
      Surface
                Prepositions in this group indicate that the position of an object is
                defined with respect to a surface on which it rests.
      Area/Volume
                Prepositions in this group indicate that an object lies within the
                boundaries of an area or within the confines of a volume.
      In light of these descriptions, at, on, and in can be classified as follows:
      at . . . point
      on . . . surface
      in . . . area/volume
The Writing Lab then gives examples:
      1. My car is at the house.
      2. There is a new roof on the house.
      3. The house is in Tippecanoe County.
      4. There are five rooms in the house, which has a lovely fireplace in the living room.
       4
         “Shooting into the house” means someone outside the house is shooting into it from that
outside point.
                                                         Reed    Concurring Opinion     Page 4

common usage interpretation makes good sense in the context of the deadly conduct statute.

       Third, if, in fact, the word “at” is ambiguous in this statute, one may appropriately

look to the legislative history. Unfortunately, Section 22.05(b)(2) was added to the Penal

Code as part of the large-scale Penal Code Revision of 1993, and I am unable to find a

specific bill analysis for this particular statutory amendment. However, Texas prosecutors

apparently assume that the purpose of this provision is to provide increased punishment for

drive-by shootings. The annotated version of the TDCAA Penal Code states, “Drive-by

shooting at houses, buildings, or cars is made a third degree felony by this statute.” 5 Indeed

it is. And rightfully so. The danger to human life posed by gang members driving through

an enemy gang’s territory and “shooting up the place” is extravagantly high. Even when a

“drive-by” shooting does not result in any actual deaths, that conduct poses a high risk of

physical danger and creates an atmosphere of civic panic, fear, and mayhem. It is such risky

conduct that, even in the absence of any physical injury, the legislature has appropriately

increased the punishment for it to a third-degree felony.

       Finally, appellant could have been prosecuted for the offense of deadly conduct, just

not under the enhanced-punishment provision. He could have been charged with deadly

conduct under Section 22.05(a) which provides, “A person commits an offense if he

recklessly engages in conduct that places another in imminent danger of serious bodily

injury.” Under this provision, it does not matter whether appellant discharged his gun “at”



       5
       D IANE BURCH BECKHAM , CRIMINAL LAWS OF TEXAS 2005-2007, 55 (TDCAA 2005).
                                                       Reed    Concurring Opinion   Page 5

the house, “on” the house, or “in” the house. This penal provision appropriately addresses

the risk that appellant posed to his brother. Like the assault for which appellant was also

convicted, it is a Class A misdemeanor and carries a possible punishment of up to one year

in jail, rather than a third-degree punishment of between two and ten years in prison for a

conviction under Section 22.05(b)(2), the commonly called “drive-by shooting” provision.

       With these comments, I join the majority opinion.

Filed: October 29, 2008

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