Brown, Coy, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. 0701-04

---

COY BROWN, JR., Appellant

v.

THE STATE OF TEXAS

---

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS EDWARDS COUNTY

---

   Keller, P.J., filed a dissenting opinion in which HOLCOMB and COCHRAN, JJ., joined.

The court of appeals concluded that the culpable mental state of "knowingly" describes an alternate theory of aggravated assault that may not be included in the jury charge unless included in the indictment. This conclusion conforms with this Court's pronouncements in a number of old robbery cases, ⁽¹⁾ and most recently with statements made in Reed v. State. ⁽²⁾ Nevertheless, there are two reasons we should address the issues upon which we granted review. First, the authority upon which the court of appeals relied is questionable. Second, the State has presented a novel theory not considered by these cases: that in spite of the fact that the punishment for each type of robbery is the same, "knowingly causing bodily injury" constitutes a lesser-included offense of "intentionally causing bodily injury," and therefore may be submitted to the jury pursuant to Articles 37.08 and 37.09. ⁽³⁾ Or, at the least, because "knowingly" is a lesser-included mental state, the defendant whose indictment alleges "intentionally" has notice of the "knowingly" allegation and it may be submitted if raised by the evidence.

I.

The line of cases in which the Court has reversed convictions for the inclusion of an additional "reckless" mental state in the jury charge began with Dowden. ⁽⁴⁾ In that case, the charge allowed the jury to find the defendant guilty of committing robbery by recklessly placing the victim in fear of imminent bodily injury or death. The problem with the charge, as the opinion explained, was that it allowed the jury to convict the defendant for conduct that did not constitute an offense. ⁽⁵⁾ "Recklessly" was not (and is not) a culpable mental state under §29.02(a)(2). That statute prohibits behavior that "intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Recklessly threatening another is simply not an offense under the robbery statute.

Several cases following Dowden involved the exact same scenario - the inclusion of "recklessly" in the jury charge for an offense under §29.02(a)(2). ⁽⁶⁾ These cases explicitly recognized the basis for the reversal:

The statutes do not authorize a conviction for robbery if the proof only shows that a person recklessly placed another in fear of imminent bodily injury or death, and yet the court's charge here authorized a finding of guilt upon precisely that finding. ⁽⁷⁾

In later cases, where the issues were not exactly the same as in the Dowden line of cases, the Court nevertheless cited to Dowden in reversing the convictions. In Walton, for example, the indictment alleged robbery by intentionally and knowingly causing bodily injury, but the jury charge allowed conviction for intentionally, knowingly or recklessly causing bodily injury or for intentionally or knowingly threatening bodily injury. ⁽⁸⁾ The Court said:

Since the charge in the instant case authorized a conviction if the appellant "recklessly" caused bodily injury not charged in the indictment and also authorized conviction under the second mode of robbery under V.T.C.A., Penal Code, s 29.02(a)(2), which was likewise not charged in the indictment, the charge was fundamentally defective. ⁽⁹⁾

So even though the Dowden problem (adding "recklessly" to the mental state for threatening) did not exist, the Court relied upon that case for the proposition that the addition of "recklessly" to the mental state for causing bodily injury was error. ⁽¹⁰⁾ Of course, the Court noted the second - correct - basis for reversing the conviction: the inclusion of the offense of threatening injury when that offense was not alleged in the indictment. The Court apparently did not recognize the critical difference between the offenses of causing bodily injury and threatening bodily injury, namely, that "recklessly" is a legitimate mental state for the former but not the latter.

The jury charge error in the Lampkin case was similar to that in Walton. The indictment alleged that the defendant intentionally and knowingly caused serious bodily injury, but the jury charge added "recklessly" to that offense, and also allowed conviction for the separate offense of intentionally or knowingly threatening bodily injury. ⁽¹¹⁾ The Court properly reversed the conviction for this latter reason, never mentioning Dowden. But unlike in Walton, there is nothing in the Lampkin opinion to suggest that the Court believed that the addition of "recklessly" to the "causing" allegation was error.

Nevertheless, in Wilson, the Court relied upon Lampkin to reverse a conviction where the jury charge added "recklessly" to the mental state for the offense of causing serious bodily injury. ⁽¹²⁾ This was an incorrect application of Lampkin. The Court also cited to Hutchins, Hawkins and Jackson without acknowledging the distinctions between the statutorily authorized mental states for causing injury on the one hand and for threatening injury on the other.

The most recent in the Dowden line of cases is Reed. When this Court said in Reed that the issue there was identical to the issue in Wilson, ⁽¹³⁾ the Court was to some extent right. Unfortunately, Wilson was wrongly decided. Still and all, the Court was correct to reverse the conviction in Reed, for a reason not articulated in any of the prior Dowden cases. The failure of the indictment in Reed to allege the culpable mental state of recklessness resulted in a violation of Texas Code of Criminal Procedure, Article 21.15, which imposes additional notice requirements when recklessness is alleged in the indictment:

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 the 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. ⁽¹⁴⁾

The culpable mental state at issue in the present case, however, is "knowingly," which is not subject to any statutory extra-notice requirements.

The convictions were properly reversed in all of these cases (with the possible exception of Wilson), but the reversal in each case was, or should have been, on a basis other than the addition of "recklessly" to the mental state for a §29.02(a)(2) robbery. I would address the merits of this petition because, as sometimes happens, we have wandered so far from the original justification for the early reversals that we have lost the road.

II.

The second reason that I would address the merits of the petition is that none of the Court's opinions have addressed the "lesser-included" argument presented here. ⁽¹⁵⁾ In a concurring opinion in another case that did not directly address this question, Judge W.C. Davis did notice one aspect of the issue, stating:

Unlike those included offenses which provide a lesser punishment, the offense alleged in the instant case would have been in no way mitigated by proof of the lesser culpability, see fn. 1 ante, and the State was thus bound by its charging instrument. The court would not have been authorized in charging upon the included offense, because it is not a lesser offense. Cf. Art.37.09, V.A.C.C.P. In the instant case, the offense charged and the offense requiring lesser culpability were the same offense. ⁽¹⁶⁾

Judge Davis cited no authority for his opinion that the punishment range could be used to distinguish between greater and lesser offenses except to cite Article 37.09.

But Article 37.09 does not cite punishment as a factor distinguishing greater and lesser offenses; greater and lesser-included offenses are distinguished solely by their elements:

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense. ⁽¹⁷⁾

Although this Court has never addressed whether an offense can be lesser-included if it carries the same punishment as the offense charged, several courts of appeals have answered that question in the affirmative, holding that the elements of the offenses, not their punishments, determine whether one offense is a lesser-included of another. ⁽¹⁸⁾

Unlike Reed, the present case raises an unencumbered opportunity to consider whether a lesser culpable mental state must be alleged in the indictment to merit inclusion in the jury charge.

I respectfully dissent to the Court's decision to dismiss the State's petition as improvidently granted.

Keller, Presiding Judge

Date filed: June 15, 2005

Do Not Publish

1. Wilson v. State, 625 S.W.2d 331, 332-333 (Tex. Crim. App. 1981); Lampkin v. State, 607 S.W.2d 550, 550-551 (Tex. Crim. App. 1980); Hutchins v. State, 590 S.W.2d 710, 711 (Tex. Crim. App. 1979); Hawkins v. State, 579 S.W.2d 923, 924-925 (Tex. Crim. App. 1979); Jackson v. State, 576 S.W.2d 89, 89-90 (Tex. Crim. App. 1979); Walton v. State, 575 S.W.2d 25, 25-27 (Tex. Crim. App. 1978); Dowden v. State, 537 S.W.2d 5, 6-7 (Tex. Crim. App. 1976).

2. 117 S.W.3d 260, 264-265 (Tex. Crim. App. 2003).

3. All references to articles refer to the Texas Code of Criminal Procedure.

4. Dowden v. State, supra.

5. Id. at p. 6.

6. Hutchins, 590 S.W.2d at 711; Hawkins, 579 S.W.2d at 925; Jackson, 576 S.W.2d at 90; Dowden, 537 S.W.2d at 6. See §29.02(a)(2).

7. Jackson, supra, at 90.

8. Walton, supra, at 26.

9. Id.

10. See Lampkin and Walton, passim.

11. Lampkin, 607 S.W.2d at 551.

12. Wilson v. State, 625 S.W.2d at 333.

13. Reed, 117 S.W.3d at 264.

14. Article 21.15.

15. See Wilson, Lampkin, and Walton, passim.

16. Johnson v. State, 673 S.W.2d 190, 197 n. 2 (Tex. Crim. App. 1984)(Davis, J. concurring)(emphasis in original).

17. Article 37.09 (emphasis added).

18. Johnson v. State, 828 S.W.2d 511, 515-516 (Tex. App.-Waco 1992, pet. ref'd); Mello v. State, 806 S.W.2d 875, 878 (Tex. App.-Eastland 1991, pet. ref'd); Stockton v. State, 756 S.W.2d 873, 876 (Tex. App.-Austin 1988, no pet.).