   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



                                        OPINION


               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:


        1
            The facts recited herein are taken from the testimony and exhibits admitted at trial.

                                                    2
               [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,


       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
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.

                                                  4
                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.




       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).

                                                   5
               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).

                                                 6
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



                                                    7
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

                                                  8
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).



        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.

                                                  9
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




       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).

                                                10
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

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