Bartholomew v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

After a jury convicted appellant of the misdemeanor offense of reckless driving under Tex.Rev.Civ.StatAnn. art. 6701d, § 51(a), the trial judge imposed the maximum punishment of thirty days in the county jail and a $200 fine. Id. § 51(b). Upon direct appeal, the Fourteenth Court of Appeals affirmed. Bartholomew v. State, 834 S.W.2d 475 (Tex.App. — Houston [14th Dist.] 1992). We granted appellant’s petition for discretionary review to determine whether the Court of Appeals erred in holding that speeding and racing were not lesser included offenses of reckless driving.¹ We will reverse the judgment of the Court of Appeals.

About 8:45 a.m. on February 14, 1991, Linda Smith drove in the left lane of a four lane road in Houston, Texas. Behind her was a black Porsche driven by appellant; behind appellant was a red Pontiac Firebird. The Porsche and the Firebird were traveling at speeds in excess of the posted speed limit. The Porsche moved to the right lane to pass Smith and then moved back in the left lane after passing her. Smith then moved to the right lane to allow the Firebird to pass. The Firebird passed her and then maneuvered into the right lane. The Firebird and the Porsche continued at excessive speeds, and shortly after passing Smith, the cars encountered a curve which neither could manage. The Firebird drove into the oncoming traffic, hitting the passenger side of an oncoming car, before hitting a tree on the other side of the road and turning over. The driver of the Firebird was killed. The Porsche hit the curb on the right side of the road. At trial, Smith testified that it appeared that the Firebird and Porsche were racing, but appellant denied racing and claimed he only exceeded the speed limit to get out of the Firebird’s way.

The information charged that on or about February 14, 1991 in Harris County, Texas, appellant:

in wilful [sic] and wanton disregard for the safety of persons and property, recklessly dr[o]ve an automobile upon a public highway by EXCEEDING THE POSTED SPEED LIMIT AND ENGAGING IN A RACE WITH ANOTHER VEHICLE.

Appellant’s requested charges on speeding and racing as lesser included offenses were denied.

On direct appeal, appellant argued that the trial court erred in not charging the jury on speeding and racing as lesser included offenses. The Fourteenth Court of Appeals held that speeding and racing were not lesser included offenses of reckless driving because they differ with respect to the elements of the offense in more ways than just the culpable mental state, and speeding and racing do not always require proof of the same or less than all the facts necessary to establish the offense of reckless driving. Bartholomew, 834 S.W.2d at 479 (citing Tex.Code CRiM. PROC-Ann. arts. 37.09(1) & (3)). The court further wrote: “Just because speeding and racing were the evidentiary means by which the State chose to prove recklessness does not mean they were lesser included offenses of the charged offense.” Id.

Appellant contends that the Court of Appeals erred in its determination that he was not entitled to a charge on speeding and racing as lesser included offenses. Specifically, appellant contends the Court of Appeals failed to apply the proper standard in its determination of the existence of lesser included offenses. Appellant relies upon Broussard v. State, 642 S.W.2d 171, 173 (Tex.Crim.App.1982) and argues that a lesser included offense depends upon the facts proved in the charged offense. The State contends that speeding and racing are not lesser included offenses of reckless driving, and that even if speeding and racing were lesser in-eluded offenses of reckless driving, appellant was not entitled to a lesser included offense charge because the record does not show that appellant is guilty of only speeding and racing. Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985); Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981) (op. on reh’g).

Article 37.08 of the Texas Code of Criminal Procedure provides: “In a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense.” Tex.Code Crim.PROC.Ann. art. 37.08. We have held that whether a defendant is entitled to a charge on a lesser included offense depends on a two-prong test:

[Fjirst, the lesser included offense must be included "within the proof necessary to establish the offense charged, and, second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense.

Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App.) (quoting Royster, 622 S.W.2d at 446) (emphasis in Rousseau on portion added to Royster test), cert. denied, — U.S.-, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993). Thus, our first step is to determine whether speeding and racing are lesser included offenses of reckless driving.

Article 37.09 provides:

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 the 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.

Tex.Code Crim.Proc.Ann. art. 37.09.

We have consistently stated that whether an offense is a lesser included offense of the charged offense requires a case-by-case determination. Livingston v. State, 739 S.W.2d 311, 336 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988); Broussard, 642 S.W.2d at 173; Ex parte McClelland, 588 S.W.2d 957, 959 (Tex.Crim.App.1979); Hazel v. State, 534 S.W.2d 698, 700 (Tex.Crim.App.1976); Day v. State, 532 S.W.2d 302, 315-16 (Tex.Crim.App.1976) (op. on reh’g).

In Day, this Court explained:

[Wjhether one offense bears such a relationship to the offense charged [so as to be considered a lesser included offense] is an issue which must await a case by case determination, both because the statute defines lesser included offenses in terms of the offense charged and because it defines lesser included offenses in terms of the facts of the case.

Day, 532 S.W.2d at 315-16. In Broussard, this Court rejected the defendant’s argument that robbery was not a lesser included offense of capital murder based on the facts of that ease, and wrote:

It is not a question of whether or not the offense charged is capable of being established on some theory that does not show the lesser included offense. Rather the issue is whether or not the State, in each case, when presenting its case to prove the offense charged, also includes the lesser included offense.

Broussard, 642 S.W.2d at 173 (citations omitted); compare Livingston, 739 S.W.2d at 336-37 (felony murder was a lesser included offense of capital murder under the facts of that case) with Hernandez v. State, 819 S.W.2d 806, 813-14 (Tex.Crim.App.1991) (felony murder was not a lesser included offense of capital murder under the facts of that case), cert. denied, — U.S.-, 112 S.Ct. 2944, 119 L.Ed.2d 568 (1992). Thus, whether speeding and racing are lesser included offenses of reckless driving under article 37.09 depends upon the facts of this case and the proof at trial.

A person commits the offense of reckless driving by driving “any vehicle in willful or wanton disregard for the safety of persons or property[.]” Tex.Rev.Civ.Stat.Ann. art. 6701d, § 51(a).

A person commits the offense of speeding by driving “a vehicle on a highway at a speed greater than is reasonable and prudent under the circumstances then existing.” Id. § 166(a).

“Racing is defined as the use of one or more vehicles in an attempt to outgain, outdistance, or prevent another vehicle from passing, to arrive at a given destination ahead of another vehicle or vehicles, or to test the physical stamina or endurance of drivers over long distance driving routes.” Id. § 185(c).²

In the instant case, the State attempted to prove reckless driving by proving that appellant was speeding and racing with another vehicle. Although appellant denied that he committed the offenses of speeding³ or racing at trial, there was evidence introduced that appellant was speeding and racing, and the State relied upon that evidence of speeding and racing to establish that appellant committed the offense of reckless driving. While we cannot say that speeding and racing are always lesser included offenses of reckless driving, we hold that under the facts of this case the offenses of speeding and racing are lesser included offenses of reckless driving. Tex.Code CRIM.PROC.Ann. art. 87.09(1).

Although the facts and proof may establish that the offense is a lesser included offense of the charged offense, that does not mean that the defendant is entitled to the submission of a lesser included offense charge. Under the second prong of the Roy-ster test:

[S]ome evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense.

Rousseau, 855 S.W.2d at 673 (quoting Royster, 622 S.W.2d at 446) (emphasis in Rousseau on portion added to Royster test). The Court of Appeals erroneously held that neither speeding nor racing in this case were lesser included offenses of reckless driving; consequently, the court did not address the second prong of the Royster test, or whether the error, if any, was harmless under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g). See Saunders v. State, 840 S.W.2d 390, 393 (Tex.Crim.App.1992) (remanding case to court of appeals for a harmless error analysis under Almanza after holding that defendant was entitled to a lesser included offense charge).

Accordingly, the judgment of the Court of Appeals is REVERSED and this cause is REMANDED to that court for further proceedings consistent with this opinion.

WHITE, J., concurs in the result. McCORMICK, P.J., and CAMPBELL, J., dissent.

1 . See Tex.R.App.P. 200(c)(3). Appellant's two grounds for review as set forth in his petition for discretionary review are:

1. Whether the Court of Appeals failed to apply the proper standard for determining the existence of a lesser [included] offense, as explained in Broussard v. State, 642 S.W.2d 171, 173 (Tex.Crim.App.1982), in holding that "speeding” and "racing” were not lesser [included] offenses to a reckless driving charge when the acts of speeding and racing were alleged as the acts which constituted reckless driving?

2. Whether the Court of Appeals was correct in holding that "speeding” and “racing” were not lesser included offenses of reckless driving under [Tex.Code Crim.Proc.Ann. art.] 37.09, when the Information alleged that recklessness was shown by "racing" and "speeding”?

In appellant's brief to this Court, appellant changed the wording of his grounds for review so as to encompass three grounds for review. We will address appellant's grounds for review as they are stated in his petition as granted by this Court.

2 . The punishment for reckless driving is more severe than that for speeding or racing. The maximum punishment for a reckless driving conviction is thirty days in the county jail and a $200 fine. Tex.Rev.Civ.Stat.Ann. art. 6701d, § 51(b). The maximum punishment for speeding or racing is a $200 fine and does not include incarceration. Id. §§ 143, 166, 185. And, unlike reckless driving, speeding and racing offenses can be dismissed if the defendant successfully completes a driving safety course. Id. § 143A.

3 . Appellant admitted that he exceeded the speed limit, but claimed a necessity defense. See Tex Rev.Civ.Stat.Ann. art. 6701d, § 166(b). In its brief, the State concedes: "Under section 166(b), it is clear that a person is not guilty of the offense of speeding if he accelerates his vehicle when such action is necessary to avoid colliding with another vehicle [and is reasonable and prudent under the circumstances then existing].”

The fact that appellant raised a defensive theory to speeding does not affect whether the lesser included offense of speeding was raised by the evidence. See Day, 532 S.W.2d at 310 ("While it may be true that appellant, upon request, also would have been entitled to a charge on the defensive theories stated [Public Duty and Necessity], that would not alter the fact, as found on original submission, that the lesser included offense of criminal trespass [to burglary] was also raised by the evidence.”).