Angelica Murillo v. State ( 2011 )

Affirmed and Memorandum Opinion filed August 4, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-01067-CR

Angelica Murillo, Appellant

v.

The State of Texas, Appellee

On Appeal from the County Criminal Court at Law No. 15

Harris County, Texas

Trial Court Cause No. 1667020

MEMORANDUM OPINION

Appellant Angelica Murillo appeals her conviction for interference with public duties, asserting the trial court erred in denying her motion to quash because the charging instrument did not reflect the peace officer’s duty.  We affirm.

Factual and Procedural Background

Appellant was charged by information with the misdemeanor offense of interference with public duties.  The State alleged that appellant committed the following acts:

with criminal negligence, namely PULLING D. SECAIDA AWAY FROM OFFICERS, interrupt, disrupt, impede, and interfere with OFFICER R. EDWARDS, A PEACE OFFICER, WHILE R. EDWARDS WAS PERFORMING A DUTY AND EXERCISING AUTHORITY IMPOSED AND GRANTED BY LAW.

Appellant filed a motion to quash, claiming the information was insufficient because the State failed to allege an essential element of the offense—namely, the specific duty or authority imposed or granted by law as performed by Officer Edwards when appellant committed the alleged conduct.  According to appellant, the charging instrument failed to fairly inform her of the charge against which she had to defend.

After a hearing on the motion, the trial court denied appellant’s motion to quash.  Appellant entered a plea of nolo contendere.  The trial court deferred adjudication of appellant’s guilt and placed appellant on community supervision for six months.

Analysis

In a single issue, appellant contends the trial court erred in overruling her motion to quash in violation of her rights under article 21.15 of the Texas Code of Criminal Procedure.  According to appellant, she was not fairly informed of the charge against which she was required to defend because the information failed to allege an essential element of the offense—the specific duty the officer was performing at the time of the alleged unlawful conduct. 

The sufficiency of a charging instrument is a question of law.  State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).  When resolution of a question of law does not turn on an evaluation of witnesses’ credibility and demeanor, a trial court’s ruling on a motion to quash is reviewed de novo.  Id.

A person commits the offense of interference with public duties if that person “with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.”  See Tex. Penal Code Ann. § 38.15(a)(1) (West 2011).  Criminal negligence is defined as follows:

A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Tex. Penal Code Ann. § 6.03(d) (West 2011).  When criminal negligence is an element of an offense, for a charging instrument to be sufficient, the State must identify with reasonable certainty the act alleged to constitute criminal negligence.  See Tex. Code Crim. Proc. Ann. art. 21.15 (West 2009).  

Appellant had sufficient notice of the alleged unlawful conduct from the allegations in the information.  See Boyd v. State, 217 S.W.3d 37, 40 (Tex. App.—Eastland 2006, pet. ref’d) (op. on reh’g) (reviewing sufficiency of information in which the State alleged an accused impeded a police investigation by pulling away from officers).  Along with stating the date of the offense, the State alleged that appellant committed the negligent act of “pulling D. Secaida away from officers.”  The alleged act of impeding or interfering by “pulling away from officers” gave notice of the condemned conduct—that pulling away impeded and interfered with officers’ duties—and also gave notice of the act that constituted criminal negligence.  Id. at 42. 

To provide adequate notice to enable the accused to prepare a defense, the State need not allege the specific acts of the peace officers as an element of an offense; rather, the State should allege the accused’s unlawful conduct.  See Moreno v. State, 721 S.W.2d 295, 300–01 (Tex. Crim. App. 1986); Aranda v. State, 640 S.W.2d 766, 770 (Tex. App.—San Antonio 1982, no pet.) (overruling argument that motion to quash indictment should have been granted because an element of the offense of capital murder—that the peace officer complainant was acting in the lawful discharge of official duty—was not correctly alleged).  In the case under review, the language in the information tracked the precise text of article 21.15 by setting forth the act alleged to constitute criminal negligence.  See Boyd, 217 S.W.3d at 40–41.  An indictment or information that tracks the statutory language of the charged offense is generally sufficient to withstand a motion to quash.  Moreno, 721 S.W.2d at 300.  No error is committed if the information requested in a motion to quash is essentially evidentiary in nature rather than being required for purposes of notice and bar.  Id.  We find no merit in appellant’s argument and overrule appellant’s sole issue.

The trial court’s judgment is affirmed.

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Panel consists of Justices Frost, Jamison, and McCally.

Do Not Publish — Tex. R. App. P. 47.2(b).