in Re the State of Texas Ex Rel. Jennifer A. Tharp

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-15-00223-CV

In re The State of Texas ex rel. Jennifer A. Tharp

ORIGINAL PROCEEDING FROM COMAL COUNTY

MEMORANDUM OPINION

In this original proceeding, the State of Texas, through Jennifer A. Tharp, the

Criminal District Attorney of Comal County, as Relator, seeks mandamus relief against the

Respondent, the Honorable Charles Stephens, II, Judge of the County Court at Law #2 sitting as a

juvenile court. It arises out of an ongoing jury trial in a delinquency proceeding against S.M., the

Real Party in Interest, wherein S.M. is charged by petition with delinquent conduct by committing

murder and manslaughter related to the death of L.D. See Tex. Penal Code §§ 19.02(b)(1), (2), (3),

19.04.1 The State’s petition relates to the charge that the juvenile court is preparing to submit to the

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Based on the record before us, the State charged S.M. with murder in four alternative
pleading paragraphs, encompassing all three statutory murder theories contained in section 19.02(b)
of the Penal Code, all based on the same conduct of S.M. “striking L.D. on the head with [S.M.’s]
hand or fist:”

(1) intentionally or knowingly causing the death of L.D., see Tex. Penal Code
§ 19.02(b)(1);
(2) with intent to cause serious bodily injury to L.D., committing an act clearly
dangerous to human life that caused the death of L.D., see id. § 19.02(b)(2);
(3) committing or attempting to commit an act clearly dangerous to human life that
caused the death of L.D. while in the course of committing aggravated assault
causing serious bodily injury, see id. § 19.02(b)(3); and
jury. Specifically, the State complains that the charge contains an improper lesser-included-offense

instruction on assault. See Tex. Penal Code 22.01. We will deny the petition for writ of mandamus.

DISCUSSION

Juvenile cases, while classified as civil proceedings, are quasi-criminal in nature. In

re L.D.C., 400 S.W.3d 572, 574 (Tex. 2013); In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998). The

Texas Supreme Court has concluded that it is “unwise and problematic” to apply different standards

in adult, criminal proceedings and another distinct standard in juvenile cases. See In re C.O.S.,

988 S.W.2d 760, 765 (Tex. 1999). In light of that cautionary warning, we will follow the criminal

mandamus standard to determine whether the State is entitled to mandamus relief here.

To be entitled to mandamus relief in a criminal case, the relator must show that:

(1) he has no adequate remedy at law to redress the harm that he alleges will ensue, and (2) what he

seeks to compel is a ministerial act. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim.

App. 2013) (orig. proceeding); see Simon v. Levario, 306 S.W.3d 318, 320 (Tex. Crim. App. 2009)

(orig. proceeding) (mandamus appropriate in criminal proceeding when relator establishes “that he

has no adequate remedy at law to redress the harm that he alleges will ensue” and “that the act he

seeks to compel or prohibit does not involve a discretionary or judicial decision.”). With respect to

(4) committing or attempting to commit an act clearly dangerous to human life that
caused the death of L.D. while in the course of committing aggravated assault with
a deadly weapon, see id. § 19.02(b)(3).

In an additional paragraph, the State charged S.M. with the lesser-included offense of manslaughter
(recklessly causing L.D.’s death) based on the same conduct. See id. § 19.04. All of these theories
have been incorporated into the juvenile court’s proposed charge.

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the ministerial-act requirement, the relator must show a clear right to the relief sought. In re State

ex rel. Tharp, 393 S.W.3d 751, 754 (Tex. Crim. App. 2012). A clear right to relief is shown when

the facts and circumstances dictate but one rational decision “under unequivocal, well-settled

(i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal

principles.” In re State ex rel. Weeks, 391 S.W.3d at 122; In re State ex rel. Tharp, 393 S.W.3d

at 754.

There is no real conflict in this case as to whether the State has an adequate remedy

at law; it does not. No one disputes that the State cannot appeal directly the alleged juvenile court

error and thus has no adequate remedy at law. See Tex. Fam. Code § 56.03 (setting forth State’s

limited right to appeal certain juvenile court orders in cases of offenses eligible for determinate

sentence). The dispute focuses on whether, under the facts and circumstances of this case, the

juvenile court has a ministerial duty to remove the lesser-included-offense instruction from the

jury charge.

Because juvenile cases are quasi-criminal, precedent from analogous adult criminal

proceedings may be instructive, and is often applied, in a juvenile delinquency proceeding. See

In re C.O.S., 988 S.W.2d at 767; Ex parte J.L.R., No. 05-12-01289-CV, 2013 WL 4041554, at *2

(Tex. App.—Dallas Aug. 9, 2013, no pet.); In re I.L., 389 S.W.3d 445, 452 (Tex. App.—El Paso

2012, no pet.). Accordingly, the State—and the dissent—rely on a case from the Court of Criminal

Appeals, In re State ex rel. Weeks, to support the contention that this Court should exercise its

mandamus authority to intervene in an ongoing criminal jury trial to correct alleged jury charge error.

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 In Weeks, a capital murder case, the State sought mandamus relief because (1) the trial

judge refused to submit a law-of-parties instruction in the court's charge, see Tex. Penal Code

§ 7.02(a)(2); and (2) the trial judge overruled the State’s objection to the charge’s application

paragraph for party conspiracy, see id. § 7.02(b), which required the State to prove that the defendant

anticipated the specific manner and means by which his co-conspirator killed the victim. See In re

State ex rel. Weeks, 392 S.W.3d 280, 282 (Tex. App.—Waco 2012), mandamus conditionally

granted, 391 S.W.3d 117 (Tex. Crim. App. 2013). The Court of Criminal Appeals determined that:

(1) the trial court’s failure to submit the parties instruction improperly restricted the State’s theory

of liability of the charged offense, and (2) that submitting the conspiracy theory with the

manner-and-means restriction erroneously increased the State’s burden of proof. In re State ex rel.

Weeks, 391 S.W.3d at 124–126.

We do not agree that Weeks stands for the categorical proposition that mandamus is

available to remedy potential jury charge error before it occurs. A reading of the Court of Criminal

Appeals’ discussion in context demonstrates that the trial court’s errors in Weeks did not merely

result in an erroneous jury charge but effectively deprived the State of its right to prosecute the

charged offense. As the court observed, “the State is entitled to pursue the charged offense and,

therefore, is entitled to receive a response from the jury on whether the defendant is guilty of

the charged offense.” In re State ex rel. Weeks, 391 S.W.3d at 123 (quoting Grey v. State,

298 S.W.3d 644, 649–50 (Tex. Crim. App. 2009)). The court explained that in a criminal

prosecution, the State’s charging choices—and consequent liability theories—become part of the law

applicable to the case, and affirmed the trial court’s duty to give the jury a written charge “setting

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forth the law applicable to the case.” Id. (citing Tex. Code Crim. Proc. art. 36.14). The harm that

the State sought to redress via mandamus in Weeks was not simply jury charge error. The State

sought to preserve its power to choose what offense to pursue and the right to proceed with the

prosecution it had initiated. Based on the analysis in Weeks, the State had a clear right to the relief

sought because the trial judge lacked the authority to submit a jury charge precluding the State from

pursuing the charged offense.2 Mandamus relief was warranted not merely because the trial court

erred in the jury charge to the detriment of the State, but because that jury charge error effectively

deprived the State of its right to prosecute. To construe Weeks any other way could mean that

ordinary trial error detrimental to the State (or perceived to be detrimental) would automatically

entitle the State to seek mandamus relief. This would transform mandamus relief from an

2
We note that the Court of Criminal Appeals’ granting of mandamus relief in Weeks is
consistent with the court’s practice of exercising its mandamus jurisdiction in situations where the
trial court error impedes or deprives the State of its right to prosecute as it chooses. See In re State
ex rel. Lykos v. Fine, 330 S.W.3d 904, 919 (Tex. Crim. App. 2011) (State had clear right to
mandamus relief because trial court “act[ed] beyond the scope of [its] lawful authority” in
conducting pretrial hearing to determine whether capital sentencing statute, particularly allowing the
State to seek the death penalty, could operate in constitutional manner as applied to capital defendant
in that case); In re State ex rel. Watkins v. Creuzot, 352 S.W.3d 493, 506 (Tex. Crim. App. 2011)
(Court of Criminal Appeals found that trial court “acted beyond the scope of [its] lawful authority”
because there is no basis under Texas law to conduct pretrial evidentiary hearing to determine
adequacy of mitigation case in capital-murder proceeding; thus trial judge did not have legal
authority to conduct such hearing, make declaratory judgment, or issue order precluding State from
seeking death penalty). We also note that limiting mandamus relief to these situations is consistent
with the legislature’s restriction on the State’s right to appeal, which is limited to trial court rulings
that significantly impact or adversely affect the State’s ability to proceed with its criminal
prosecution. See Tex. Code Crim. Proc. art. 44.01 (setting forth limited circumstances under which
State may appeal trial court’s ruling); Tex. Fam. Code § 56.03 (setting forth State’s limited right to
appeal certain juvenile court orders in cases of offenses eligible for determinate sentence).

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“extraordinary remedy”3 to an ordinary remedy available to the State during the course of any jury

trial, contrary to the Legislature’s clear intent to limit the State’s right to higher court review of trial

court error. See Tex. Code Crim. Proc. art. 44.01 (setting forth limited circumstances under which

State may appeal trial court’s ruling); Tex. Fam. Code § 56.03 (setting forth State’s limited right to

appeal certain juvenile court orders in cases of offenses eligible for determinate sentence).

In the present case, the alleged jury charge error, if it is error, does not affect the

State’s power to choose what offense to pursue or impede the State’s prosecution of the charged

offenses in any way. All of the State’s alleged alternative murder theories, as well as the State’s

manslaughter theory, are being presented to the jury for consideration in the jury charge. The

juvenile court’s instruction on the lesser-included offense does not limit the State’s liability theories

or increase the State’s burden of proof on any of the charged offenses. In short, this is not the sort

of situation Weeks addressed.

Instead, the situation here amounts to the attempted use of a petition for writ of

mandamus to achieve the effect of an interlocutory appeal to correct perceived jury charge error.

In this regard, the cautionary note of the dissent in Weeks is apt: “Granting mandamus relief under

these circumstances only serves to encourage prosecutors to seek what amounts to an interlocutory

appeal whenever a trial court’s ruling during the course of a trial displeases them. Interlocutory

appeals are generally disfavored; interlocutory appeals that allow the State to circumvent the

3
“[M]andamus is an ‘extraordinary remedy, not issued as a matter of right, but at the
discretion of the court.’” In re Reece, 341 S.W.3d 360, 374 (Tex. 2011) (quoting In re Prudential
Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding)); see De Leon v. Aguilar,
127 S.W.3d 1, 6 (Tex. Crim. App. 2004) (orig. proceeding).

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legislative will with respect to what judicial rulings the State should be able to challenge at all on

appeal are all the more objectionable.” In re State ex rel. Weeks, 391 S.W.3d at 130 (Price, J.

dissenting) (internal footnotes omitted). Further, such attempt by the State puts this Court in the

untenable position of conducting what amounts to a legal-sufficiency review of the evidence

regarding causation without the benefit of a conventional record of all the evidence admitted

at trial—and when the State would be statutorily precluded from obtaining such review on

direct appeal.

CONCLUSION

We cannot conclude, on the limited record available in this mandamus proceeding,

that the juvenile court’s inclusion of the lesser-included-offense instruction in the jury

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charge—assuming it would be error—warrants mandamus relief.4 Accordingly, the State’s petition

4
We note that “[i]t is possible, under the right set of circumstances, for the statutory
elements of assault to be included within a murder because the two offenses could have the same
culpable mental state and bodily injury can be a subset of serious bodily injury.” Hayward v. State,
158 S.W.3d 476, 479 (Tex. Crim. App. 2005). Depending on how the case is charged, “[h]itting
with fists could be a lesser-included offense of murder.” See id. In this case, in two of the
alternative murder theories alleged, the State charged appellant with felony murder. See Tex. Penal
Code § 19.02(b)(3); Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004) (“Felony
murder is an unintentional murder committed in the course of committing a felony.”). In the first
felony murder pleading, the underlying felony alleged is aggravated assault causing serious bodily
injury. See Tex. Penal Code § 22.02(a)(1) (providing that person commits offense of aggravated
assault if “the person commits assault as defined in § 22.01 and the person causes serious bodily
injury.”). In the second felony murder pleading, the underlying felony alleged is aggravated assault
with a deadly weapon. See Tex. Penal Code § 22.02(a)(2) (providing that person commits offense
of aggravated assault if “the person commits assault as defined in § 22.01 and the person uses or
exhibits a deadly weapon during the commission of the assault.”). Under this second felony murder
theory, the relevant key elements of the murder offense include that, with the requisite culpable
mental state, appellant: (1) committed an assault, (2) used a deadly weapon during the assault,
(3) committed or attempted to commit an act clearly dangerous to human life, (4) which caused the
death of the victim.
An act clearly dangerous to human life is one that objectively creates a substantial risk of
death. Depauw v. State, 658 S.W.2d 628, 634 (Tex. App.—Amarillo 1983, pet. ref’d); see
Lugo-Lugo v. State, 650 S.W.2d 72, 81–82 (Tex. Crim. App. 1983) (in analyzing meaning of “act
clearly dangerous to human life” as used in murder statute, court concluded that act committed by
defendant must objectively create substantial risk of death). Thus, we do not consider whether the
defendant subjectively knew that his acts were clearly dangerous to human life; rather, we focus on
whether the acts themselves were objectively clearly dangerous to human life. Rogers v. State, No.
05-92-00507-CR, 1994 WL 121055, at *3 (Tex. App.—Dallas Apr. 4, 1994, no pet.) (not designated
for publication); see also Buchanan v. State, No. 08-06-00203-CR, 2008 WL 3585900, at *2 (Tex.
App.—El Paso Aug. 14, 2008, no pet.) (not designated for publication); Compton v. State,
No. 02-06-281-CR, 2007 WL 4462575, at *6 (Tex. App.—Fort Worth Dec. 20, 2007, no pet.) (mem.
op., not designated for publication). A “deadly weapon” is defined as anything that in the manner
of its use or intended use is capable of causing death or serious bodily injury. Tex. Penal Code §
1.07(a)(17)(B); see McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (“[A]n object is
a deadly weapon if the actor intends a use of the object in which it would be capable of causing death
or serious bodily injury.”); see also Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005)
(“Capability is evaluated based on the circumstances that existed at the time of the offense.”).
“Objects that are not usually considered dangerous weapons may become so, depending on the
manner in which they are used during the commission of an offense.” Hernandez v. State, 332
S.W.3d 664, 667 (Tex. App.—Texarkana 2010, no pet.) (citing Thomas v. State, 821 S.W.2d 616,

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for writ of mandamus is denied.

__________________________________________

Cindy Olson Bourland, Justice

Before Justices Puryear, Pemberton, and Bourland;
Dissenting Opinion by Justice Puryear

Filed: April 24, 2015

620 (Tex. Crim. App. 1991)).
Thus, in this case, if, based on the evidence, the jury could conclude that: (1) punching
someone in the face twice is not an act that is inherently dangerous to human life, i.e, it is not an act
that objectively creates a substantial risk of death; and (2) as appellant used his fist in this case, it
does not constitute a deadly weapon, two elements of the greater offense of felony murder would be
negated—the commission of an act clearly dangerous to human life (negating murder) and the use
of a deadly weapon (negating the underlying felony of aggravated assault with a deadly
weapon)—leaving only the lesser offense of assault. Under those particular facts and circumstances,
including how the murder offense was charged, the juvenile court’s decision to submit an instruction
on the lesser-included offense of assault would not necessarily be erroneous.

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