State v. Cynthia Ann DeLuna ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-17-00312-CR
_________________
THE STATE OF TEXAS, Appellant
V.
CYNTHIA ANN DELUNA, Appellee
________________________________________________________________________
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CR32200
________________________________________________________________________
MEMORANDUM OPINION
Appellee, Cynthia Ann DeLuna, having been indicted by a grand jury for the
offenses of manslaughter and endangering a child, filed a motion to quash count one
of the State’s indictment with the trial court. The trial court granted the motion to
quash. The State of Texas appeals the trial court’s order granting the motion. See
Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (West Supp. 2017) (permitting the
1
State’s accelerated appeal from the trial court’s dismissal of an indictment). We
affirm the trial court’s ruling.
Background
In 2014, DeLuna’s daughter, a thirteen-year-old unlicensed driver, was
operating a motor vehicle on SH 321 in Liberty County, Texas. DeLuna’s daughter
crossed over SH 321 from PR 684 to the Silver Dollar Saloon owned by DeLuna to
purchase a soda. When DeLuna’s daughter left the Saloon and crossed back over SH
321 to PR 684, she collided with another vehicle on SH 321, causing it to leave the
roadway, roll over in a ditch, and come to rest on its roof. After the collision,
DeLuna’s daughter left the scene of the accident and drove to her residence on PR
684 and went inside. The other driver was pinned to the roof of his vehicle upside
down and died. The cause of death was listed as “[p]ositional asphyxia.”
Following the incident, DeLuna’s daughter was charged in Liberty County
with engaging in delinquent conduct and recklessly causing the death of the other
driver, which was amended to
did then and there recklessly engage in conduct that placed [the other
driver] in imminent danger of serious bodily injury by operating a
motor vehicle in violation of [Texas Transportation Code section
521.021] and failing to yield right of way and failing to keep a lookout
and causing a collision with the vehicle driven by [the other driver].
2
In October 2016, DeLuna’s daughter was adjudged to have engaged in delinquent
conduct by committing the offense of Deadly Conduct – a Class A misdemeanor,
placed on probation, and released to the custody of her parents.
In November 2015, the grand jury returned a two-count true bill of indictment
against DeLuna. Count one of the indictment alleged, in part, that DeLuna recklessly
caused the death of another “by reckless entrustment of a motor vehicle to her
juvenile daughter and specifically by providing the ignition key to her juvenile
daughter and encouraging her juvenile daughter to operate said motor
vehicle[.]”DeLuna filed a motion to quash count one of the indictment, arguing that
the indictment failed to allege a criminal offense or a cause of action for
manslaughter.
DeLuna’s argument focused on Texas Penal Code section 7.02(a)(2)
addressing third-party liability, which provides, “[a] person is criminally responsible
for the offense committed by the conduct of another if acting with the intent to
promote or assist the commission of the offense, if [s]he solicits, encourages, directs,
aids, or attempts to aid the other person to commit the offense[.]” See Tex. Penal
Code § 7.02(a)(2) (West 2011). The trial judge held two hearings on the motion to
quash and ultimately granted the motion. The State requested findings of fact and
conclusions of law, but the trial court did not issue any. The State then appealed.
3
Standard of Review
We apply a de novo standard of review when examining a trial court’s
decision on a motion to quash an indictment. See Lawrence v. State, 240 S.W.3d
912, 915 (Tex. Crim. App. 2007). “The sufficiency of an indictment is a question of
law.” State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
Analysis
The Texas Code of Criminal procedure sets out the requirements for an
indictment and provides that the “offense must be set forth in plain and intelligible
words.” Tex. Code Crim. Proc. Ann. art. 21.02(7) (West 2009). An indictment is
usually legally sufficient if it delineates the penal statute in question. Moff, 154
S.W.3d at 602. An indictment must allege that (1) a person (2) committed an offense.
Teal v. State, 230 S.W.3d 172, 179 (Tex. Crim. App. 2007) (quoting Cook v. State,
902 S.W.2d 471, 477 (Tex. Crim. App. 1995)). In order to determine if a charging
instrument alleges an offense, we must decide if the allegations are clear enough that
one can identify the offense alleged. See id. at 180. A trial court and the defendant
must be able to identify what penal code provision is alleged and whether it is one
that vests jurisdiction in the trial court. See id. An indictment that tracks the statutory
language generally satisfies constitutional and statutory requirements. State v. Mays,
967 S.W.2d 404, 406 (Tex. Crim. App. 1998).
4
A person commits manslaughter “if he recklessly causes the death of an
individual.” Tex. Penal Code Ann. § 19.04(a) (West 2011). When recklessness is an
element of the offense, as in this case with manslaughter, or “it is charged that the
accused acted recklessly . . . in the commission of an offense, . . . [the] indictment in
order to be sufficient in any such case must allege, with reasonable certainty, the act
or acts relied upon to constitute recklessness[.]” See Tex. Code Crim. Proc. Ann. art.
21.15 (West 2009).
In the present case, the State argues that due process does not require a
defendant’s culpability as a party to the offense to be pled in the charging instrument.
The Texas Penal Code allows for an individual to be criminally responsible for an
offense committed by another. Tex. Penal Code Ann. § 7.02(a)(1)–(3). This is
known as the law of the parties. See Garza v. State, 213 S.W.3d 338, 344–45 (Tex.
Crim. App. 2007). The law of the parties is applicable to manslaughter, which by
definition lacks specific intent. Clair v. State, No. 2-03-507-CR, 2006 WL 496035,
at *3 (Tex. App.—Fort Worth Mar. 2, 2006, no pet.) (mem. op., not designated for
publication) (citing Mendez v. State, 575 S.W.2d 36, 37–38 (Tex. Crim. App. 1979)).
The Penal Code states: “All traditional distinctions between accomplices and
principals are abolished by [section 7.01], and each party to an offense may be
charged and convicted without alleging that he acted as a principal or accomplice.”
5
Tex. Penal Code Ann. § 7.01(c) (West 2011). Section 7.01(c) allows a party to an
offense to be charged with the offense without alleging the facts which make the
defendant a party to the offense and criminally responsible for the conduct of
another. Pitts v. State, 569 S.W.2d 898, 900 (Tex. Crim. App. 1978). If the evidence
supports a charge on the law of the parties, the court may charge on the law of the
parties even though there is no such allegation in the indictment. Id.
This, however, does not eliminate the State’s responsibility to present an
indictment accusing a defendant of an act or omission which is declared by law to
be an offense. In the present case, the State is required to include in the indictment
the proper elements of manslaughter and delineate what conduct by DeLuna’s
daughter was alleged to have been reckless and led to the death of another. See Tex.
Code of Crim. Proc. Ann. arts. 21.01 (West 2009), 21.15; see also Tex. Penal Code
Ann § 19.04; cf. Carrasco v. State, No. 05-93-01515-CR, 1994 WL 416720, at *5
(Tex. App.—Dallas Aug. 10, 1994, pet. ref’d) (not designated for publication)
(upholding conviction when indictment included language that the appellant
recklessly caused the death of an individual by pointing a handgun at the decedent
without checking to see if it was loaded, even though one of his companions actually
pointed the gun and pulled the trigger, and appellant was found guilty under the law
of the parties).
6
Here, the State has simply alleged that DeLuna caused the death of another
“by reckless entrustment of a motor vehicle to her juvenile daughter and specifically
by providing the ignition key to her juvenile daughter and encouraging her juvenile
daughter to operate said motor vehicle[.]” While the State has alleged how DeLuna
was a party, which is not required under the law, the indictment fails to lay out the
underlying offense of manslaughter and the acts the State alleges constituted
recklessness by the daughter. See Tex. Penal Code Ann. § 7.01(c); Pitts, 569 S.W.2d
at 900. The indictment in its current form accuses DeLuna of giving keys to her
juvenile daughter and encouraging her to drive. Most drivers obtain licenses when
they are juveniles. Moreover, the indictment as worded essentially states that
DeLuna’s daughter operated a vehicle. There are no acts contained in the indictment
that allege the daughter operated the vehicle in a reckless manner that caused the
death of an individual. See Tex. Penal Code Ann § 19.04(a); see also Tex. Code
Crim. Proc. Ann. art. 21.15.
The State conflates what is required to be included in the indictment and what
is allowed by law to be omitted. How DeLuna is a party to the crime is not necessary;
however, language regarding the acts the State alleges constituted reckless behavior
on the part of her daughter to be charged with the underlying crime of manslaughter
must be included. See Pitts, 569 S.W.2d at 900; see also Tex. Code Crim. Proc. Ann.
7
art. 21.15; Tex. Penal Code Ann. § 19.04(a). In its brief, the State spends much time
discussing what it must prove under the law of the parties and how circumstantial
evidence may establish intent under that theory. What must be proven at trial under
the law of parties is distinct from the allegations that must be contained in an
indictment to put the accused on notice of the crimes for which they are being
charged.
Conclusion
We conclude count one of the indictment is insufficient as a matter of law to
invoke the subject-matter jurisdiction of the court and put DeLuna on notice of the
offense she allegedly committed. Therefore, we overrule the State’s issue, and we
affirm the trial court’s order dismissing count one of the indictment.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
Submitted on November 22, 2017
Opinion Delivered March 14, 2018
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
8