Carlos Tijerina v. State ( 2010 )

NO.  07-09-0396-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 23, 2010

_____________________________

CARLOS TIJERINA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

______________________________

FROM THE 154^TH DISTRICT COURT OF LAMB COUNTY;

NO. 4162; HONORABLE FELIX KLEIN, JUDGE

______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ORDER

Appearing pro se, Carlos Tijerina filed a document with this court that we mistakenly treated as a notice of appeal.  Tijerina subsequently filed a document explaining his original filing was intended to place us on notice of a potential appeal if he received an unfavorable ruling on matters pending in the trial court. Questioning our jurisdiction, we offered Tijerina and the State an opportunity to address the issue further.  Neither responded. 

Our appellate jurisdiction in a criminal case extends to judgments and appealable orders.  See Tex. Code Crim. Proc. art. 44.02 (Vernon 2006) (“[a] defendant in any criminal action has the right of appeal under the rules hereinafter prescribed”); Tex. R. App. P. 25.2(a)(2) (a defendant “has the right of appeal under Code of Criminal Procedure article 44.02 and these rules” which the trial court shall certify each time it “enters a judgment of guilt or other appealable order”).  Otherwise, we lack appellate jurisdiction.  In some circumstances, a premature notice of appeal may be effective to invoke appellate jurisdiction.  See Tex. R. App. P. 27.1(b). However, this is not such a case. According to the correspondence Tijerina filed, the trial court has not yet ruled on matters he presented to that court for determination.

            Finding we lack jurisdiction of this appeal, it is dismissed.

            It is so ordered.

                                                                                    Per Curiam

Do not publish. 

>582 S.W.2d 782 (Tex.Crim.App. 1979). In Goss, the court considered a challenge to an indictment that alleged the defendant intentionally and knowingly operated a vehicle that was involved in a collision, but did not allege the defendant knew the accident had occurred. Id. at 783, 785. The court held knowledge an accident had occurred is an element of the offense of failure to stop and render aid, contrasting the treatment of the knowledge element under the revised penal code with prior law that treated the defendant's lack of knowledge as a defensive matter. Id. at 785. The court concluded that the culpable mental state required for the offense "is that the accused had knowledge of the circumstances surrounding his conduct (V.T.C.A., Penal Code Sec. 6.03(b)), i.e., had knowledge that an accident had occurred." Id.; accord, Baker v. State, 974 S.W.2d 750 (Tex. App.-San Antonio 1998, pet. ref'd) (Goss analysis applies to offense as codified in §§ 550.021 and 550.023, Texas Transportation Code). While Goss and cases following it clearly require that the State prove the defendant had knowledge of the circumstances, that is, knowledge an accident had occurred, we do not read such cases to hold that the only culpable mental state applicable to the offense proscribed by § 550.021 is the knowledge of circumstances surrounding the conduct.

Many cases, including Morales, 673 S.W.2d at 698, list the elements of the offense to include the driver's intentional and knowing failure to stop and take the statutorily required actions. See, e.g., Steen v. State, 640 S.W.2d 912, 915 (Tex.Crim.App. 1982); Allen v. State, 971 S.W.2d 715, 717 (Tex.App.-Houston [14^th Dist.] 1998 no pet.); Sheridan v. State, 950 S.W.2d 755, 759 (Tex.App.-Fort Worth 1997, no pet.). Such elements focus not on knowledge of circumstances but on the nature of the defendant's conduct. Cf. Sheridan, 950 S.W.2d at 759 (noting that "gravamen of the offense relates to the actor's failure to stop and render reasonable assistance"). Considering Goss and the cases following it in light of Steen and the other cases containing that listing of the elements, we conclude that § 550.021 encompasses elements that relate to both the circumstances surrounding conduct and the nature of conduct.

Appellant's indictment included the allegations that he intentionally and knowingly drove the vehicle involved in the accident, and that he intentionally and knowingly left the scene of the accident, knowing that the accident had occurred. We find the trial court did not err by defining, in its charge, intentional and knowing conduct with reference to the nature of appellant's conduct.

We agree with appellant, however, that the charge's definition of intentional conduct should not have contained the reference to a result of his conduct. See Garza v. State, 794 S.W.2d 497, 500-01 (Tex.App.-Corpus Christi 1992, pet. ref'd) (charge should contain only that portion of the statutory definition which corresponds to the culpable mental state proscribed by the offense). We next consider whether the error resulted in actual, as opposed to theoretical, harm to appellant. Patrick v. State, 906 S.W.2d 481, 492 (Tex.Crim.App. 1995).

Appellant did not raise the objections to the charge in the trial court that he now urges. When an appellant fails to preserve charge error through a timely and proper objection, then the appellate court must decide whether the error was so egregious that the appellant did not receive a fair and impartial trial. Almanza, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985); Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996). "Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory." Stuhler v. State, 218 S.W.3d 706, 719 (Tex.Crim.App. 2007). Our review for egregious harm requires consideration of the entire jury charge, the evidence including the contested issues and weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. Id. Review of those factors does not reveal that appellant suffered egregious harm from the inclusion of the reference to result of conduct in the charge's definition of the term intentionally.

We overrule appellant's third and fourth issues.

Conclusion

Having overruled appellant's four issues, we affirm the judgment of the trial court.

James T. Campbell

Justice

Publish.

1. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2.

Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005).