








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0519-07


ANTHONY WASYLINA, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TWELFTH COURT OF APPEALS

ANDERSON COUNTY



 Meyers, J., filed a dissenting opinion in which Keasler and Hervey,
JJ., joined.

DISSENTING OPINION 


	Appellant was charged with manslaughter.  The State asked for and received, over
Appellant's objection, a jury instruction on the lesser-included offense of criminally
negligent homicide.  The jury was properly instructed on manslaughter with a reckless
culpable mental state, and on criminally negligent homicide with a culpable mental state
of negligence.  The jury acquitted Appellant of the manslaughter charge but convicted
him of criminally negligent homicide.  He appealed, claiming that because there was no
evidence of criminal negligence presented at trial, the trial court improperly submitted to
the jury the lesser-included offense of criminally negligent homicide.  The court of
appeals agreed, and so do I.  
	Since the State didn't like the results of Appellant's appeal, it appealed to us and
raised the following issues: the court of appeals' failure to consider Penal Code section
6.02(e), the use of an improper standard of review, and prosecutorial discretion to submit
lesser-included offense instructions.  What the State doesn't want us to do is a sufficiency
analysis on the facts of this case-it wants us to just say that criminally negligent homicide
is always a lesser-included offense of manslaughter and therefore, since this jury was
properly charged on the culpable mental states for these offenses and it found Appellant
guilty of criminally negligent homicide, there must have been proof of criminal
negligence, even though evidence of only recklessness was presented. (1)  The majority
acquiesces to the State and declines to analyze the sufficiency of the evidence of criminal
negligence, instead holding that "proving the greater culpable mental state of recklessness
necessarily proves the lesser culpable mental state of criminal negligence. . . ."  In doing
so, the majority completely ignores the fact that the State did not prove the greater
culpable mental state of recklessness, which is why the jury acquitted Appellant of
manslaughter.  
	The majority's holding is based on Texas Penal Code section 6.02(e), which states
that "Proof of a higher degree of culpability than that charged constitutes proof of the
culpability charged."  I would like to emphasize the first word-Proof.  In criminal law,
that means beyond a reasonable doubt.  I would also like to point out that it says "Proof of
a higher degree of culpability than that charged. . . ."  So, if Appellant had been
originally indicted for criminally negligent homicide, but at trial the State proved
recklessness beyond a reasonable doubt, then section 6.02(e) may apply.  Instead, here,
Appellant was indicted for manslaughter.  And, while there was evidence regarding the
reckless mental state that goes along with the manslaughter charge listed in the
indictment, there was not proof beyond a reasonable doubt of recklessness, as indicated
by the jury's decision to acquit Appellant of that charge.  Thus, we have no proof of even
the culpable mental state for the charged offense, let alone proof of a higher degree of
culpability.  Penal Code section 6.02(e) simply does not apply in this case.
	I think we should go back to the real issue, starting with whether the lesser-included-offense instruction should have been given.  In Malik v. State, 953 S.W.2d 234
(Tex. Crim. App. 1997), we decided that "the sufficiency of the evidence should be
measured by the elements of the offense as defined by the hypothetically correct jury
charge for the case.  Such a charge would be one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State's burden of proof
or unnecessarily restrict the State's theories of liability, and adequately describes the
particular offense for which the defendant was tried."  Or, as we more recently stated in
Grissam v. State, 267 S.W.3d 39 (Tex. Crim. App. 2008), "The legal sufficiency of
evidence is measured against the requirements for conviction in a correct charge of the
court (as distinguished from the charge that actually was given)."  
	What is the hypothetically correct jury charge in this case?  Is it the charge that
actually was given with a lesser-included offense instruction, or should the jury have been
instructed on manslaughter only?  This consideration necessarily requires an analysis of
the sufficiency of the evidence presented at the trial.  In my opinion, in this case, the
Appellant wins either way.  To me, based on the evidence presented at trial, the lesser-included-offense instruction should not have been given (which is what the court of
appeals determined).  Criminal negligence requires proof that a reasonable person would
have recognized the substantial risk that the behavior posed.  The State would have had to
show not only that the defendant was not aware of the risk, but also that he should have
been aware of the risk of his behavior, neither of which was presented in this case. 
Therefore, the hypothetically correct jury charge should have included manslaughter only,
and the jury found Appellant not guilty of that offense.  However, even if the lesser-included-offense instruction was properly given, the evidence presented at trial of
criminally negligent homicide is not legally sufficient to support a guilty verdict.  (Of
course, this lack of sufficient evidence is the reason that the instruction should not have
been given in the first place). 
	In her dissenting opinion in Collier v. State, Presiding Judge Keller pointed out
that "Malik recognized that an offense should never be submitted to the factfinder when
there is legally insufficient evidence to support it.  From these observations it follows that
the hypothetically correct jury charge would not include an element of an offense that is
supported by legally insufficient evidence."  Collier, 999 S.W.2d 779, 787 (Tex. Crim.
App. 1999) (Keller, J., dissenting), citing Malik, 953 S.W.2d at 237.  I agree.  I also agree
with the court of appeals that there is no evidence in the record that would permit a
rational jury to find that Appellant is guilty of criminally negligent homicide.  Therefore,
the offense should never have been submitted to the factfinder. 
	Because the majority fails to analyze the sufficiency of the evidence and instead
improperly applies Penal Code section 6.02(e), I respectfully dissent.

								Meyers, J.

Filed: January 28, 2009
Publish	


1. Alternatively, the State would be happy if we said that the prosecutor has the discretion
to raise any lesser-included offense that is allowed by the indictment.

