      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-00-00623-CR




                                   The State of Texas, Appellant

                                                   v.

                                    Kathleen McCoy, Appellee



  FROM THE DISTRICT COURT OF CALDWELL COUNTY, 274TH JUDICIAL DISTRICT
         NO. 2000-095, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                A grand jury indicted appellee Kathleen McCoy for two counts of manslaughter. See

Tex. Penal Code Ann. § 19.04 (West 1994). The district court dismissed the indictment on appellee’s

motion and the State appeals. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (West Supp. 2001).

We will affirm the district court’s order.

                Each count of the indictment alleges that McCoy “recklessly cause[d] the death of an

individual, namely [named victim], to-wit: said Defendant did then and there drive a motor vehicle,

in which the said [victim] was a passenger, into the waters of a flood, thereby causing the said

[victim] to drown.” McCoy moved to quash the indictment on four grounds: (1) “the facts stated do

not constitute an offense”; (2) the indictment “does not have the requisites required by Chapter 21

of the Texas Code of Criminal Procedure”; (3) the indictment “is vague, indefinite, ambiguous and

uncertain and does not set forth [the alleged violation] in plain and intelligible language”; and (4) the

indictment “does not meet the requirements of Article 21.15 of the Texas Code of Criminal
Procedure.” In addition to the statutory references, the motion cited the Fourth, Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution and article I, section 10 of the Texas

Constitution. The order granting the motion does not state the ground or grounds on which it is

based, but in a letter to the parties announcing the ruling, the trial judge opined that the indictment

does not “allege[] an identifiable offense against the law.”

               The parties agree that the adequacy of the indictment is a question of law, and that the

district court’s ruling is subject to de novo review. See State v. Hoffman, 999 S.W.2d 573, 574

(Tex. App.—Austin 1999, no pet.) (whether indictment alleged offense was question of law subject

to de novo review); see also Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997) (purely

legal questions reviewed de novo); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)

(mixed questions of law and fact not turning on credibility may be reviewed de novo). But see

Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App. 1981) (op. on reh’g) (motion to quash on

notice grounds is committed to “sound discretion” of trial court); State v. Czaplinski, 956 S.W.2d

839, 841 (Tex. App.—Austin 1997, no pet.) (same); State v. Draper, 940 S.W.2d 824, 826 (Tex.

App.—Austin 1997, no pet.) (same).

               In its brief to this Court, the State addresses all of the contentions made in the motion

to quash and argues that none of them state a proper basis for dismissing the indictment. Because

we conclude that the indictment is substantively defective under article 21.15, we will confine our

discussion to that issue.




                                                  2
                  Article 21.15 provides:


                  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 complaint, information, or
          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.


Tex. Code Crim. Proc. Ann. art. 21.15 (West 1989). Article 21.15 imposes two requirements on an

indictment alleging reckless misconduct. First, the indictment must allege with reasonable certainty

the act or acts relied on to constitute the forbidden conduct committed with recklessness. Graham

v. State, 657 S.W.2d 99, 104 (Tex. Crim. App. 1983). Second, the indictment must allege with

reasonable certainty the acts or circumstances relied on to demonstrate that the forbidden conduct

was committed in a reckless manner. Gengnagel v. State, 748 S.W.2d 227, 228-30 (Tex. Crim. App.

1988).1

                  In Graham, a prosecution for criminally negligent homicide, the indictment alleged

that the defendant


          cause[d] the death of [the victim] . . . by criminal negligence, namely; by operating a
          motor vehicle on a public highway and causing his vehicle to collide with a motor
          vehicle occupied by the deceased, said collision being caused by the defendant’s
          engaging in a contest of speed, his failure to obey a traffic control signal . . . , his
          failure to keep a proper lookout . . . , his failure to maintain his vehicle under proper
          control by operating it at a greater rate of speed than was reasonable and prudent




    1
      Our discussion draws on the analysis found in 41 George E. Dix & Robert O. Dawson,
Criminal Practice and Procedure §§ 20.83, .122 (Texas Practice 1995).

                                                     3
          under conditions then existing, and his failure to guide his vehicle away from the
          vehicle he struck.


657 S.W.2d at 103. This indictment alleged the act constituting the forbidden conduct (“causing his

vehicle to collide with a motor vehicle occupied by the deceased”) and the acts demonstrating that

this conduct was committed with criminal negligence (“by the defendant’s engaging in a contest of

speed, his failure to obey a traffic control signal,” et cetera).

                 In Gengnagel, a prosecution for indecent exposure, the indictment alleged that the

defendant “expose[d] . . . his genitals . . . recklessly . . . to-wit: exposition of his genitals by the

defendant to complainant.” 748 S.W.2d at 228. This indictment alleged the act constituting the

forbidden conduct (“exposed . . . his genitals”), but it did not comply with article 21.15 because it did

not allege acts or circumstances which would show that this conduct was committed recklessly. Id.

at 230.

                 Cole v. State, 556 S.W.2d 343 (Tex. Crim. App. 1977), was a prosecution for what

the court termed “negligent collision.” Id. at 344. The indictment alleged that the defendant

“permitted or suffered a motor vehicle under his control to collide and be in collision with another

motor vehicle.” Id. As in Gengnagel, the indictment alleged the act constituting the forbidden

conduct, but it did not comply with article 21.15 because it failed to allege the act or acts relied on

to demonstrate negligence. Id.

                 We agree with the State that the indictment before us alleges with reasonable certainty

the act relied on to constitute the forbidden conduct committed recklessly: McCoy recklessly caused

the victims’ deaths by “driv[ing] a motor vehicle . . . into the waters of a flood, thereby causing the



                                                    4
[victims] to drown.” We also agree that as a general rule the State is not required to plead

evidentiary facts. See State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998); Beck v. State,

682 S.W.2d 550, 554 (Tex. Crim. App. 1985); Thomas, 621 S.W.2d at 161. But article 21.15

requires the State to plead with reasonable certainty the acts or circumstances on which it will rely

to prove that the forbidden conduct was committed recklessly. Gengnagel, 748 S.W.2d at 229-30;

Cole, 556 S.W.2d at 343. Like the indictments in Gengnagel and Cole, the indictment in this cause

does not allege, with reasonable certainty or otherwise, the acts or circumstances demonstrating that

McCoy’s conduct was committed recklessly.

                Other manslaughter cases cited by the State are distinguishable. In Townsley v. State,

538 S.W.2d 411 (Tex. Crim. App. 1976), the indictment alleged that the defendant recklessly caused

the victim’s death “by driving a motor vehicle at an excessive rate of speed while attempting to elude

a police officer and recklessly causing said vehicle to run off the roadway and roll over, thereby fatally

injuring the said [victim].” Id. This indictment, which was held to satisfy article 21.15, alleged both

the act constituting the forbidden conduct committed recklessly (“causing said vehicle to run off the

roadway and roll over, thereby fatally injuring the said [victim]”) and the act demonstrating

recklessness (“by driving a motor vehicle at an excessive rate of speed while attempting to elude a

police officer”).

                In Arredondo v. State, 582 S.W.2d 457 (Tex. Crim. App. 1979), the indictment

alleged that the defendant recklessly caused the victim’s death “by grabbing the steering wheel of a

motor vehicle and pulling said steering wheel to the right . . . thereby recklessly causing said motor

vehicle to veer to the right and strike the said [victim].” Id. at 458. Once again, the indictment



                                                    5
alleged the act constituting the forbidden conduct (“causing said motor vehicle to veer to the right

and strike the said [victim]”) and the act demonstrating recklessness (“grabbing the steering wheel

of a motor vehicle and pulling said steering wheel to the right”).

               In Crume v. State, 658 S.W.2d 607 (Tex. Crim. App. 1983), the indictment alleged

that the defendant “cause[d] his vehicle to collide with the Complainant recklessly causing the death

of the Complainant, by failing to guide his vehicle away from the Complainant and by failing to keep

a lookout for the Complainant.” Id. at 608. This indictment also alleged both the act constituting

the forbidden conduct committed recklessly (“cause his vehicle to collide with the Complainant”) and

the act or circumstance relied on to demonstrate recklessness (“failing to keep a lookout for the

Complainant”), and was deemed to comply with article 21.15. Id.2

               The allegation of the acts or circumstances on which the State relies to demonstrate

that the forbidden conduct was committed recklessly is necessary for a valid charging instrument




    2
       The State also refers us to several court of appeals opinions applying article 21.15. We will
not lengthen this opinion by discussing each in detail. In LaSalle v. State, 973 S.W.2d 467, 474-75
(Tex. App.—Beaumont 1998, pet. ref’d), the indictment alleged both the act committed recklessly
and the acts demonstrating recklessness. In Cruz v. State, 838 S.W.2d 682, 684 (Tex.
App.—Houston [14th Dist.] 1992, pet. ref’d), compliance with article 21.15 was not required under
the holding in Crawford v. State, 646 S.W.2d 936, 937 (Tex. Crim. App. 1983) (indictment alleging
that defendant acted intentionally, knowingly, and recklessly need not comply with article 21.15
requirements). To the extent State v. Flores, 878 S.W.2d 651, 653 (Tex. App.—Corpus Christi
1994), aff’d on other grounds, 896 S.W.2d 198 (Tex. Crim. App. 1995), and State v. Emanuel, 873
S.W.2d 108, 109-10 (Tex. App.—Dallas 1994, no pet.), suggest that article 21.15 does not require
an indictment to allege both the conduct committed recklessly and the acts or circumstances
demonstrating recklessness, they are contrary to Graham and Gengnagel.

                                                  6
under article 21.15. Gengnagel, 748 S.W.2d at 229. The absence of such an allegation is a

substantive defect. Id. The district court did not err by granting the motion to quash.3

               The order dismissing the indictment is affirmed.




                                              __________________________________________

                                              David Puryear, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: July 26, 2001

Publish




   3
     We have reviewed de novo the district court’s ruling, but would reach the same result under
an abuse of discretion standard of review. See Thomas, 621 S.W.2d at 163-64.

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