            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-1917-11



                               DAVID RAMOS, Appellant

                                              v.

                                 THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE EIGHTH COURT OF APPEALS
                         EL PASO COUNTY

       A LCALA, J., filed a concurring opinion.

                               CONCURRING OPINION

       I respectfully concur. This area of the law has become exceedingly complex, and it

is unclear to me what the holding of the opinion is. I, therefore, cannot join the majority

opinion. I do agree, however, that the evidence is legally sufficient to find appellant, David

Ramos, guilty of manslaughter.

       Appellant relies on Article 21.15 of the Texas Code of Criminal Procedure to argue

that the evidence is insufficient to sustain his conviction for manslaughter. See T EX. C ODE

C RIM. P ROC. art. 21.15. Article 21.15 provides that an offense involving recklessness “must
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allege” the act or acts relied upon to constitute recklessness. Id. It states,

       Whenever recklessness or criminal negligence enters into or is a part or
       element of any offense, or it is charged that the accused acted recklessly or
       with criminal negligence 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 or criminal
       negligence, and in no event shall it be sufficient to allege merely that the
       accused, in committing the offense, acted recklessly or with criminal
       negligence.

Id.; State v. Rodriguez, 339 S.W.3d 680, 682-83 (Tex. Crim. App. 2011). For offenses

alleging reckless acts, the pleading requirements for manner and means are thus more

demanding than for greater offenses that allege intentional or knowing acts. Id. Here,

appellant was indicted for capital murder and felony murder, offenses that do not trigger the

more demanding pleading requirements of Article 21.15, and was convicted of manslaughter

as a lesser-included offense.

       Appellant challenges the sufficiency of the evidence by pointing out that, under Malik

v. State, the evidence is measured against the essential elements of the offense as defined by

the hypothetically correct jury charge. 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

Because the essential elements of an offense are defined by the hypothetically correct jury

charge, appellant contends that the State’s failure to prove that appellant caused the

complainant’s death by “shaking” as alleged in the indictment would necessitate reversal of

his conviction.

       I agree with appellant that a hypothetically correct jury charge for manslaughter would

require the State to include in the instructions to the jury the precise acts that the State was
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alleging as reckless. See Rodriguez, 339 S.W.3d at 684-85 (holding that State “must allege

those particular acts or circumstances surrounding the act that, at least, suggest an

unjustifiable risk”). For this reason, I disagree with the determination reached in the majority

opinion that the present situation is one that involves “the pleading of unnecessary facts [that]

gives rise to an immaterial variance,” and that “a variance regarding a non-statutory

allegation describing the method of the offense of a result-of-conduct offense is immaterial.”

This description of the law fails to effectively distinguish between result-of-conduct offenses

involving reckless acts, which trigger the heightened pleading requirements of Article 21.15,

and those involving intentional or knowing acts, which do not.

       I conclude that a hypothetically correct jury charge for manslaughter would include

the particular acts relied upon to show recklessness. See id.; Smith v. State, 309 S.W.3d 10,

14 (Tex. Crim. App. 2010). I would hold that, under the hypothetically correct instructions,

appellant could be convicted of manslaughter if the evidence showed that he acted recklessly

by forcibly throwing the complainant, an infant, onto a surface and causing her head to strike

it. Because the evidence shows this, I would agree that the evidence is sufficient.

       I am concerned that the majority opinion takes too broad a view in this case. It seems

to hold that the State need never prove a specific reckless act, regardless of the requirement

in Article 21.15 that the State plead, “with reasonable certainty, the act or acts relied upon

to constitute recklessness.” See T EX. C ODE C RIM. P ROC. art. 21.15. If this Court’s holding is

that the State is never required to prove the specific acts constituting recklessness, then what
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is the point of Article 21.15? Is it rational to require the State to plead reckless acts and then

say that the State need not prove those acts? I would think that, if the State is required to

plead reckless acts under Article 21.15, then it would also be required to prove those acts at

trial for the evidence to be sufficient. This is essentially what this Court held in Geick v.

State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011). Geick involved an instance in which the

State had “unnecessarily” pled a definition narrowing “the manner and means in which [the]

offense” could be committed. Id. at 547. We held that, although it was not required to plead

that narrowed definition, the State, having pled it, was required to prove it. Id. It would make

little sense to say that when the State is required to plead reckless acts in accordance with

Article 21.15, it need not prove those acts to sustain a conviction. When an indictment

alleges reckless acts, I would hold that the State must prove those acts under a hypothetically

correct jury charge. Because this Court’s majority opinion appears to hold otherwise, I

respectfully disagree.

       Here, Article 21.15 was inapplicable because the indictment alleged greater mental

states than recklessness and did not allege any reckless acts. Because Article 21.15 was

inapplicable, the hypothetically correct jury instructions would permit the jury to find

appellant reckless under any theory supported by the evidence. The State alleged in the

indictment that appellant caused the death of the complainant in one of three ways, all of

which involved shaking. Similarly, the jury was instructed on manslaughter, and the

application paragraph alleging manslaughter included the same three acts, all involving
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shaking. The evidence adduced at trial indicated that the complainant died from head trauma

consistent with being thrown into a metal-framed bassinet. Considering the evidence in the

light most favorable to the jury’s verdict, I conclude that the evidence is sufficient. Because

I disagree with the rationale of the majority opinion, however, I concur only in the Court’s

judgment.


Filed: June 26, 2013

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