           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD-0769-12



                            BEN CHAMBLESS, Appellant

                                            v.

                               THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE THIRD COURT OF APPEALS
                         TRAVIS COUNTY

       K EASLER, J., delivered the opinion of the Court, in which K ELLER, P.J., M EYERS,
P RICE, J OHNSON, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. W OMACK, J., not
participating.

                                     OPINION

      Ben Chambless appeals from the court of appeals’ judgment affirming his jury-

assessed punishment of eight years’ confinement for committing criminally negligent

homicide. We affirm the court of appeals’ judgment that the jury instructions properly

defined the punishment range of a third-degree felony because there is no conflict between

the relevant statutes, the state-jail felony deadly-weapon punishment enhancement is
                                                                             CHAMBLESS—2

applicable to criminally negligent homicide, and its application is not contrary to legislative

intent.

                                              Trial

          The indictment charging Chambless with second-degree manslaughter alleged that he

“recklessly cause[d] the death of . . . Brian Berg, by shooting him with a firearm which

[Chambless] discharged multiple times in the dark without first determining whether

someone was in the line of fire.” The indictment also contained a separate deadly weapon

enhancement paragraph.

          On the night of the shooting, Chambless was awakened by his wife, who heard a noise

outside of their bedroom window. Chambless believed that the noise was coming from the

neighbor’s dog, Happy, who had a habit of getting loose at night and causing mischief around

Chambless’s house. Chambless retrieved his .22 caliber rifle with the intent of firing a few

rounds to scare off Happy. He stepped out of his house onto the dark porch and fired several

rounds towards the ground. Brian Berg was struck in the head, chest, shoulder, elbow, and

leg. Chambless heard a “gurgling noise.”

          Chambless went back into the house, put the rifle away, got dressed, and went outside

again. When he turned his porch light on, he discovered Berg lying face down in the yard.

Chambless’s wife immediately called 911. Berg was pronounced dead at the scene.

Chambless told investigators that he did not see Berg before firing the rifle.
                                                                               CHAMBLESS—3

       In addition to the second-degree felony manslaughter1 charge alleged in the

indictment, the trial judge’s jury instructions charged the jury on the lesser-included state-jail

felony offense of criminally negligent homicide:2

               [If you believe beyond a reasonable doubt 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.
       But if you do not so believe, or if you have a reasonable doubt thereof, you
       will acquit the defendant of the offense of Criminally Negligent Homicide and
       so say by your verdict not guilty. . . .

               And it is further presented in and to said Court that a deadly weapon,
       to wit: a firearm, was used of exhibited during the commission of the aforesaid
       offense, and that [Chambless] used or exhibited the said deadly weapon. . . .

The jury acquitted Chambless of manslaughter, but convicted him of criminally negligent

homicide “as alleged in the indictment.” The punishment-phase jury instructions did not

include the punishment range found in Texas Penal Code § 12.35(a)—a term of 180 days to

two years and a fine not to exceed $10,000.3 Pursuant to § 12.35(c)(1), the instructions

informed the jury that the punishment range for criminally negligent homicide with a deadly

weapon was a term of confinement between two and ten years, and a fine not to exceed




       1
           T EX. P ENAL C ODE § 19.04(b).
       2
           Id. § 19.05(b).
       3
           Id. § 12.35(a)-(b).
                                                                            CHAMBLESS—4

$10,000.4 The jury assessed an eight-year term of confinement.

                                     Court of Appeals

       In the court of appeals, Chambless claimed that the trial judge’s jury instructions on

punishment erroneously stated the applicable punishment range was that of a third-degree

felony instead of the non-enhanced state-jail felony punishment range.           The root of

Chambless’s argument is that, because the term “deadly weapon” is so broad and includes

anything capable of causing death, every criminally negligent homicide will always be

punished as a third-degree felony. Chambless argued that, under the rules of statutory

construction, criminally negligent homicide must be construed as an exception to the deadly-

weapon enhancement. Claiming a conflict exists between § 19.05(b) and § 12.35(c)(1),

Chambless maintained that the two sections cannot be reconciled and therefore, under the in

pari materia doctrine, § 19.05(b) should control because it is the more detailed and specific

provision. The court of appeals disagreed, finding that the two statutes did not conflict, §

12.35(c)(1) properly applied, and not all criminally negligent homicides implicate the deadly-

weapon enhancement provision.5

       We granted Chambless’s two intertwined grounds in his petition for discretionary



       4
          See id. § 12.35(c)(1) (providing, in relevant part, that if the defendant used or
exhibited a deadly weapon as defined by § 1.07 during the offense’s commission, a state-
jail felony shall be punished as a third-degree felony), § 12.34(a)-(b) (providing a
punishment range of a term of confinement of “not more than 10 years or less than 2
years,” and a fine not to exceed $10,000).
       5
           Chambless v. State, 368 S.W.3d 785, 790-92 (Tex. App.—Austin).
                                                                           CHAMBLESS—5

review: (1) whether the court of appeals erred in holding that the deadly-weapon

enhancement found in Texas Penal Code § 12.35(c)(1) applied to the offense of criminally

negligent homicide, and (2) whether the court of appeals erred in holding that not all

criminally negligent homicides include the use of a deadly weapon. In his petition for

discretionary review and brief to this Court, Chambless advances the same substantive

arguments asserted in the court below.

                                         Analysis

       We agree with the court of appeals that § 19.05(b) and § 12.35(c)(1) do not conflict.

Nor are the statutes in pari materia because they do not “deal with the same general subject,

have the same general purpose, or relate to the same person or thing or class of persons and

things.”6 Because the in pari materia doctrine is a rule of statutory construction seeking to

carry out the Legislature’s intent, we give the statutes’ purpose greater significance among

the factors in considering whether two statutes are in pari materia.7

       The statutes’ plain language and placement within the Penal Code is evidence of their

distinct purposes and subjects: one defines the offense, the other defines the offense’s

punishment       range.   Section   19.05—found      in   Chapter    19,   titled   “Criminal

Homicide”—defines criminally negligent homicide as “caus[ing] the death of an individual




       6
           See Jones v. State, 396 S.W.3d 558, 561 (Tex. Crim. App. 2013).
       7
           Id.
                                                                            CHAMBLESS—6

by criminal negligence.”8 Although classifying criminally negligent homicide as a state-jail

felony, it makes no mention of an applicable punishment range.9 Section 12.35—in Chapter

12, titled “Punishments”—defines how state-jail felonies shall be punished. Section 12.35(a)

provides that state-jail felonies carry a punishment range of confinement for a term of 180

days to two years and a fine not to exceed $10,000. However, in instances where (1) a deadly

weapon was used or exhibited during the commission of the state-jail felony offense or

during flight following the offense, and (2) the defendant used or exhibited the deadly

weapon or was a party to the state-jail felony offense and knew that a deadly weapon would

be used or exhibited, § 12.35(c)(1) states that the particular state-jail felony for which the

defendant was convicted shall be punished by confinement for two to ten years and a fine not

to exceed $10,000.10 Section 12.35(c)’s phrase “an individual adjudged guilty of a state jail

felony shall be punished for a third degree felony” means that, while the conviction is for a

state-jail felony, it is punishable as a third-degree felony. The elevated punishment does not

change the criminally negligent homicide’s classification as a state-jail felony to a third-

degree felony.11 Therefore, because the statutes do not have the same purpose or deal with

the same subjects, they are not in pari materia. Additionally, the statutes’ plain language


       8
               T EX. P ENAL C ODE § 19.05(a).
           9
               Id. § 19.05(b).
       10
               Id. §§ 12.35(c)(1), 12.34.
       11
               Goodrich v. State, 156 S.W.3d 141, 148-49 (Tex. App.—Dallas 2005, pet.
ref’d.).
                                                                            CHAMBLESS—7

does not reveal any conflict between the two statutes.

       Chambless argues that, because a homicide by its nature involves a death, a guilty

verdict of criminally negligent homicide naturally implicates the use of a deadly weapon.

And as a result, every criminally negligent homicide is automatically punishable as a third-

degree felony despite the Legislature’s intent that it be punished as a state-jail felony.

Chambless’s argument is unpersuasive. Chambless’s argument assumes that when the

Legislature defined criminally negligent homicide as a state-jail felony, it intended to punish

every incident of this homicide variant by confinement of 180 days to two years and a fine

not to exceed $10,000. But the mere existence of § 12.35(c)(1) is evidence to the contrary.

Further, to validate Chambless’s assumption would require reading § 12.35(c)(1) out of the

statute and hold that its enactment was a useless act as it relates to criminally negligent

homicide—a finding we are not inclined to make.12

       Chambless’s premise that every criminally negligent homicide necessarily implicates

the use of a deadly weapon is also flawed. In support, Chambless relies on language found

in our Crumpton v. State opinion.13 There, we stated “a verdict of homicide necessarily is

a finding that a deadly weapon was used. . . . Having found that the defendant was guilty of

homicide, the jury necessarily found that the defendant used something that in the manner

of its use was capable of causing—and did cause—death.” The issue in Crumpton was the



       12
            See Crabtree v. State, 389 S.W.3d 820, 825 (Tex. Crim. App. 2012).
       13
            Crumpton v. State, 301 S.W.3d 663, 664 (Tex. Crim. App. 2010).
                                                                              CHAMBLESS—8

propriety of the deadly-weapon finding in the judgment upon the jury finding Crumpton

guilty of criminally negligent homicide “as included in the indictment,” which specifically

alleged the use of a deadly weapon.14         We were not confronted with the arguments

Chambless presents in this case, nor did the Crumpton case present a situation in which an

indictment charged a defendant with criminally negligent homicide without specifically

including a deadly-weapon allegation within the elements describing the manner and means

of committing the homicide. As a result, the language on which Chambless relies was simply

an extension of the Court’s reasoning: the deadly-weapon finding was proper because (1)

Crumpton’s indictment specifically charged that he used a deadly weapon (a motor vehicle),

and (2) the jury’s verdict, which referred to the indictment, necessarily included a finding that

he used a deadly weapon.

       As the present case demonstrates, a person may use or exhibit a “deadly weapon” 15

in the course of committing criminally negligent homicide, but it is not necessarily so. The

three-judge concurrence joining the Crumpton majority recognized the distinction between

allegations of causing death by an act and by causing death from an omission.16 Chambless’s



       14
            Id.
       15
          T EX. P ENAL C ODE § 1.07(a)(17) (“‘Deadly weapon’ means: (A) a firearm or
anything manifestly designed, made, or adapted for the purpose of inflicting death or
serious bodily injury; or (B) anything that in the manner of its use or intended use is
capable of causing death or serious bodily injury.”).
       16
         Crumpton, 301 S.W.3d at 666 (Hervey, J., concurring, in which Keasler and
Cochran, JJ., joined).
                                                                              CHAMBLESS—9

argument overlooks the possibility of committing criminally negligent homicide by omission,

in which a deadly weapon may not be used at all.17 If found guilty of criminally negligent

homicide in such a scenario, a defendant may face the non-enhanced state-jail felony

punishment range found in § 12.35(a). Even if we accepted Chambless’s premise as valid—

that every criminally negligent homicide necessarily implicates the use of a deadly

weapon—it would be merely academic in this case because Chambless’s use of a firearm was

uncontested and clearly satisfied § 12.35(c)(1).

       We further understand Chambless’s legislative-intent argument to maintain that §

12.35(c)(1) should not apply to criminally negligent homicide because doing so is contrary

to the Legislature’s intended scheme in enacting § 12.35(c)(1).            Although candidly

acknowledging his inability to cite any authority supporting his interpretation of the

Legislature’s intent in enacting the provisions at issue, Chambless analogizes § 12.35(c)(1)

to Texas Code of Criminal Procedure Article 42.12, § 3g, which limits court-ordered

community supervision in cases in which there is an affirmative finding of a deadly weapon.

Chambless refers us to Judge Maloney’s concurrence in Tyra v. State, in which Judge

Maloney cited legislative materials relevant to the passage of Texas Code of Criminal

Procedure Article 42.12, § 3g, revealing the Article’s overall purpose was to deter the

intentional use of firearms during the commission of crime and to send a message to



       17
           See Tello v. State, 180 S.W.3d 150 (Tex. Crim. App. 2005) (holding that the
failure to properly attach a trailer to a vehicle or to properly load that vehicle will sustain
a conviction for criminally negligent homicide).
                                                                          CHAMBLESS—10

criminals to “leave the gun at home.” 18 Applying the deadly-weapon enhancement to

criminally negligent homicides is incongruous, Chambless maintains, because the requisite

mental state of this type of homicide is criminal negligence, which by its definition, means

that the defendant did not contemplate committing a crime nor perceived a substantial and

unjustified risk of the circumstances. Chambless would have us ignore § 12.35(c)(1) in

criminally negligent homicides; it is a request we may not indulge.19 The contested statutes

are not ambiguous nor contradictory, and applying § 12.35(c)(1) to criminally negligent

homicides does not lead to absurd results that the Legislature could not have possibly

intended.20 The best evidence of the Legislature’s intent is the plain language of the law it

passed.21 And we need to look no further in rejecting Chambless’s contention.

       We affirm the court of appeals’ judgment.




DELIVERED: October 23, 2013

PUBLISH




       18
         Tyra v. State, 897 S.W.2d 796, 802-803 (Tex. Crim. App. 1995) (Maloney, J.,
concurring).
       19
            See Crabtree, 389 S.W.3d at 825.
       20
            See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
       21
            Id. at 785-86.
