State v. Hector Garcia

ACCEPTED
13-15-00235-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
8/3/2015 2:44:35 PM
CECILE FOY GSANGER
CLERK

NO. 13-15-00235-CR

IN THE COURT OF APPEALS FILED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
CORPUSOFCHRISTI/EDINBURG, TEXAS
TEXAS 8/3/2015 2:44:35 PM
AT CORPUS CHRISTI CECILE FOY GSANGER
Clerk

THE STATE OF TEXAS,
Appellant,
v.

HECTOR GARCIA,
Appellee.

On Appeal from the
th
24 Judicial District Court
Of Victoria County, Texas
Cause No. 14-05-27962-A

BRIEF FOR THE STATE OF TEXAS

STEPHEN B. TYLER
Criminal District Attorney
Victoria County, Texas

BRENDAN WYATT GUY
Assistant Criminal District Attorney
Victoria County, Texas
205 N. Bridge St. Ste. 301,
Victoria, Texas 77901-6576
bguy@vctx.org
(361) 575-0468
(361) 570-1041 (fax)
State Bar No. 24034895

Attorneys for the State of Texas

ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 38.1(a) (2003), the parties to the suit are as
follows:

APPELLANT The State of Texas

APPELLEE Hector Garcia

TRIAL JUDGE The Honorable Elí Elmo Garza
377th Judicial District Court
Victoria, Texas

TRIAL PROSECUTOR Brendan Wyatt Guy
State Bar No. 24034895
Assistant Criminal District Attorney
205 N. Bridge St. Ste 301
Victoria, Texas 77901-6576

TRIAL DEFENSE ATTORNEY Micah Wayne Hatley
State Bar No. 24053260
The Hatley Law Firm
P. O. Box 2113
Victoria, Texas 77902

APPELLATE STATE’S Brendan Wyatt Guy
ATTORNEY State Bar No. 24034895
Assistant Criminal District Attorney
205 N. Bridge St. Ste 301
Victoria, Texas 77901-6576

APPELLATE DEFENSE Luis Adrian Martinez
ATTORNEY State Bar No. 24010213
P.O. Box 410
Victoria, Texas 77902-0410

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
i
TABLE OF CONTENTS

PAGE (S)

IDENTITY OF PARTIES AND COUNSEL........................................... i

TABLE OF CONTENTS ......................................................................... ii

INDEX OF AUTHORITIES ...............................................................iii-iv

STATEMENT OF THE CASE............................................................. 1-2

ISSUES PRESENTED.............................................................................. 2

STATEMENT OF THE FACTS .......................................................... 3-7

SUMMARY OF ARGUMENT ............................................................. 7-9

ARGUMENT ........................................................................................ 9-26

I. Appellee’s Motion to Quash was untimely and
thus the trial court committed reversible error
by ruling upon that motion ..................................................... 9-14

II. The trial court committed reversible error in
granting Appellee’s motion to quash Count 2 of
the indictment because that count was legally
sufficient .................................................................................. 14-24

III. The indictment, when considered as a whole,
alleged that Count 2 occurred in a public place ................. 24-26

PRAYER .................................................................................................. 27

SIGNATURE ........................................................................................... 27

CERTIFICATE OF COMPLIANCE ................................................... 28

CERTIFICATE OF SERVICE ............................................................. 29
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
ii
INDEX OF AUTHORITIES

Texas Cases

Alba v. State, 905 S.W.2d 581 (Tex.Crim.App.1995) ........................... 18

Hammett v. State, 578 S.W. 2d 699 (Tex. Crim. App. 1979) .......... 18, 22

Harrison v. State, 76 S.W. 3d 537
(Tex. App.-Corpus Christi 2002, no pet) ........................................ 23, 25

Hinojosa v. State, 875 S.W. 2d 339
(Tex. App.-Corpus Christi 1994, no pet) .............................................. 21

Jarnigan v. State, 57 S.W. 3d 76
(Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) ................................ 18

Lehman v. State, 792 S.W. 2d 82 (Tex. Crim. App. 1990) ................... 23

Neal v. State, 150 S.W. 3d 169 (Tex. Crim. App. 2004) ............. 9, 11-13,
.............................................................................................................. 20-21

Oliver v. State, 692 S.W. 2d 712 (Tex. Crim. App. 1985) ............... 23, 25

Pryor v. State, 651 S.W. 2d 22
(Tex. App.-Dallas 1983, pet. ref’d) ................................................... 16-17

Sanchez v. State, 138 S.W. 3d 324 (Tex. Crim. App. 2004) ................. 13

Smith v. State, 309 S.W. 3d 10 (Tex. Crim. App. 2010) ....................... 14

State v. Rivera, 42 S.W. 3d 323
(Tex.App.-El Paso 2001, pet. ref'd) ....................................................... 18

State v. Rousseau, 396 S.W. 3d 550 (Tex. Crim. App. 2013) ............... 16

State v. Zuniga, 2015 WL 4381064, 13-14-00316-CR
(Tex. App.-Corpus Christi July 16, 2015)
(mem. op. not designated for publication) ............................................ 15
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
iii
Steen v. State, 640 S.W. 2d 912 (Tex. Crim. App. 1982) ................. 15-16

Texas Statutes

TEX. CODE CRIM. PROC. art 28.01 (West 2006) ............................ 20

TEX. CODE CRIM. PROC. art 45.019 (West 2006) .......................... 13

TEX. TRANSP. CODE §550.001 (West 2011) ...................5-9, 16, 24-26

TEX. TRANSP. CODE ANN §550.021 (West 2014) ..........2, 6-9, 15-19,
.............................................................................................................. 21-26

TEX. TRANSP. CODE §550.023 (West 2011) .................... 2, 6, 8, 16-23

VERNON’s ANN. CIV. ST. art. 6701d, §§ 38 ................................ 15, 17

Texas Rules

TEX. R. APP. 9.4..................................................................................... 28

TEX. R. APP. 38.1...................................................................................... i

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
iv
NO. 13-15-00235-CR

IN THE COURT OF APPEALS
FOR THE THIRTEEN DISTRICT OF TEXAS
AT CORPUS CHRISTI

THE STATE OF TEXAS,…...….…………………………………..Appelant

HECTOR GARCIA,……………….………………………...……...Appellee

* * * * *

STATE’S BRIEF ON THE MERITS

* * * * *

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, THE STATE OF TEXAS, by and through her Criminal

District Attorney, Stephen B. Tyler, and as Appellant in the above numbered

and entitled cause, and files this the Appellant’s brief showing:

STATEMENT OF THE CASE

Appellee was charged by indictment with one count of Intoxication

Manslaughter (Count 1), one count of Accident Involving Personal Injury or

Death (Count 2), and one count of Criminally Negligent Homicide (Count

3). [CR-I-6-8]. On May 4, 2015, Appellee filed a motion to quash Count 2

of the indictment. [CR-I-64-66]. The Appellant submitted a response to that

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
1
motion on May 5, 2015. [CR-I-70-72]. On May 5, 2015, the Honorable Elí

Garza presiding, verbally granted Appellee’s motion to quash. [RR-V-6].

On May 12, 2015, the Appellant requested the trial court memorialize its

order granting the motion to quash in writing. [CR-I-95-96]. On May 13,

2015, the trial court signed a written order granting the motion to quash on

the grounds that the indictment for Count 2 did not track the statutory

language set forth in Sections 550.021 and 550.023 of the Texas

Transportation Code. [CR-I-101]. The State timely filed its notice of appeal

on May 20, 2015. [CR-I-102-105].

ISSUES PRESENTED

1) Is a motion to quash untimely when it is filed after a party has
announced ready for trial?

2) Did the trial court err in hearing a motion to quash that was untimely
filed?

3) Is that an offense occurred in one of the locations listed in Section
550.001 of the Texas Transportation Code an element of an offense
alleged under Section 550.021 of the Texas Transportation Code?

4) Did Count 2 of the indictment fully allege an offense under Texas
law?

5) Did the trial court fail to properly considering the whole of the
indictment when evaluating if Count 2 of the indictment included an
accusation that the offense occurred in a public place.

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
2
STATEMENT OF THE FACTS

On May 2, 2014, Appellee was indicted for one count of Intoxication

Manslaughter (Count 1), one count of Accident Involving Personal Injury or

Death (Count 2), and one count of Criminally Negligent Homicide (Count

3). [CR-I-6-7]. All three counts included a deadly weapon allegation and

were enhanced due to three prior non-State Jail felony convictions. [CR-I-7-

8]. All three counts alleged the offenses occurred on February 8, 2014 in

Victoria County, Texas. [CR-I-6]. Count 1 specifically alleged that the

Appellee was operating a motor vehicle in a public place when he caused the

death of Ms. Natalie Nicole Luna by running over her. [CR-I-6]. Count 2

specifically alleged that the Appellee operated a vehicle that struck a

pedestrian and caused the death of that pedestrian, Natalie Nicole Luna.

[CR-I-6].

Appellee’s trial counsel, Mr. Micah Hatley, was appointed on May 14,

2014. [CR-I-14]. The case was set for motion’s hearings on August 5, 2014

and again on October 28, 2014. [CR-I-116]. Appellee did not file any

motion to quash in advance of these hearings. [CR-I].

On January 6, 2015, another pre-trial motions docket was held for this

case. [RR-II-1]. Appellee did not file any sort of motion to quash in

advance of that hearing. [CR-I]. Appellee did not request a hearing on a
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
3
motion to quash at the January 6, 2015 pre-trial hearing. [RR-II].

Appellee’s only motion that was addressed at this hearing was a motion to

suppress. [RR-II-4-5].

On February 4, 2015, that motion to suppress hearing was conducted

for this case. [RR-III-1]. The trial court established at the end of that

hearing that the case would be set for jury docket announcements on

February 25, 2015 for trial beginning on March 2, 2015. [RR-III-143]. At

no point in this hearing did Appellee indicate he intended to file a motion to

quash or request a hearing for such a motion. [RR-III].

On February 25, 2015, the case was set for jury announcements. [RR-

IV-1]. At that hearing both the State and the Appellee announced ready for

trial. [RR-IV-6]. The trial court then indicated the case would be set for

trial on March 23, 2015. [RR-IV-6]. At no time during this hearing did

Appellee indicate he intended to file a motion to quash or request a hearing

for such a motion. [RR-IV].

The March 23, 2015 trial setting was cancelled and the case was

instead set for trial on May 4, 2015. [CR-I-117-118]. On May 4, 2015, the

Appellee filed a motion to quash Count 2 of the indictment. [CR-I-64-66].

Amongst other things, this motion alleged that Count 2 of the indictment

was defective because it failed to allege that the offense had occurred in one
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
4
of the locations listed under Section 550.001 of the Texas Transportation

Code. [CR-I-64-65]. Appellee’s motion did not provide any justification for

why it was filed the day trial was scheduled to begin. [CR-I-64-66]. This

motion to quash was filed on May 4, 2015, the same day the jury panel that

would hear Appellee’s case was sworn and qualified. [CR-I-118;

Supplemental CR-I-1]. The case had been scheduled to begin on May 4,

2015 but was reset to the next day due to “scheduling issues with some of

the individuals involved in the trial.” [Supplemental CR-I-4].

The State filed a response to the Appellee’s motion to quash the next

day, May 5, 2015, asserting that Appellee’s motion was untimely and that

the charging language in Count 2 was legally sufficient. [CR-I-70-72].

On May 5, 2015, prior to bringing in the venire panel to begin jury

selection in this case, the trial court took up Appellee’s motion to quash.

[RR-V-6]. The trial court did not permit any argument at this hearing but

instead ruled solely upon the written submissions of the parties. RR-V-6].

The trial court granted Appellee’s motion to quash without explanation.

[RR-V-6]. Appellee did not present any justification for why he had only

submitted his motion to quash the day before this hearing, and the trial court

did not articulate any finding of good cause for why it was allowing the

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
5
motion to be heard despite its late filing and without giving the State seven

days to respond to the motion. [RR-V-6].

The State then sought confirmation from the trial court that the

court’s ruling would not bar the State from proceeding with the accusations

contained within Count 2 at some future date. [RR-V-7]. The trial court

agreed that jeopardy had not attached as to Count 2. [RR-V-6-7]. The case

then proceeded to trial under Counts 1 and 3. [CR-I-117-118].

On May 12, 2015, the State filed a motion requesting the trial court

put its order granting the motion to quash Count 2 in writing. [CR-I-95-96].

The trial court submitted a written order on May 13, 2015. [CR-I-101]. The

trial court’s written order indicated that the court’s reason for granting the

motion was that the language in the indictment did not track the statutory

language of Articles 550.021 and 550.023. [CR-I-101]. The trial court’s

order did not specify how the language in the indictment failed to track those

statutory provisions. [CR-I-101]. The trial court’s order did not state if the

court was treating it as an element of the offense of Article 550.021 that the

State allege the offense occurred in one of the locations described in Article

550.001. The trial court’s order did not make any finding of good cause for

why the Appellee had filed his motion the day before trial began that

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
6
justified proceeding to a ruling on the motion without giving the State seven

days to respond to the motion. [CR-I-101].

SUMMARY OF THE ARGUMENT

Appellee’s motion to quash was untimely. Texas law requires

motions to quash to be presented at the first opportunity and prohibits

permitting them to be heard after the defense has announced ready for trial.

Appellee did not present his motion to quash at the first opportunity, and he

submitted it after he had already announced ready for trial. As such the trial

court committed reversible error in granting the Appellee a hearing on his

motion to quash, and the trial court’s ruling granting said motion should

therefore be reversed.

In the alternative, even if the trial court did not error in granting

Appellee a hearing on his motion to quash, the trial court still erred in

granting that motion because the indictment as to Count 2 was legally

sufficient to be a proper charging instrument. The indictment for Count 2

included all the elements of the offense under Section 550.021 of the Texas

Transportation Code (Accident Involving Personal Injury or Death). The

locations listed in Section 550.001 of the Texas Transportation Code are not

elements of the offense of Section 550.021 and thus do not have to be

alleged in the indictment. Nor was the indictment as to Count 2 vague in
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
7
regards to how the Appellee violated Section 550.023 of the Texas

Transportation Code; the allegations concerning Section 550.023 were a

constituent offense of the greater alleged offense of violating Section

550.021 and therefore the State was not required to allege specifics as to

how Section 550.023 was violated as part of an indictment alleging a

violation of Section 550.021. And while there was a scrivener’s error

contained within Count 2 of the indictment, that error did not invalidate the

count as even with the scrivener’s error, Count 2 still fully alleged a

violation of Section 550.021, and was so titled by code section and name

within the charging language in the indictment. Furthermore, Count 2, when

read in conjunction with the indictment as a whole, clearly alleged that the

alleged offense occurred within the State of Texas. As such there was no

legal basis to quash Count 2, and as such the trial court committed reversible

error by granting Appellee’s motion to quash.

Furthermore, even should it be held that the State must allege that an

offense under Section 550.021 occurred in one of the locations listed in

Section 550.001 to constitute a valid indictment, the indictment in this case

was still valid as to Count 2 because, when read as a whole, the indictment

established that all of the allegations contained within it occurred in a public

place. Therefore the indictment did allege that the offense in Count 2
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
8
occurred in one of the locations listed with Section 550.001 and thus Count

2 would be legally sufficient to support a charge under Section 550.021.

ARGUMENT

I. Appellee’s Motion to Quash was untimely and thus the trial
court committed reversible error by ruling upon that motion.

Texas law holds that a motion to quash should be made at the first

opportunity. See Neal v. State, 150 S.W. 3d 169, 176 (Tex. Crim. App.

2004). Furthermore, the motion to quash must be presented to the trial court

prior to an announcement by that party that it is ready for trial. Id.

Appellee’s motion to quash failed to meet either of these requirements, and

thus it was plain error for the trial court to even give that motion a hearing,

much less to grant the motion.

Pre-trial hearings were set in this case on August 5, 2014, October 28,

2014, and January 6, 2015. [CR-I-116]. Appellee did not file a motion to

quash in advance of any of those hearings. [CR-I]. Appellee’s pre-trial

motion to suppress was heard in another pre-trial hearing that was held in

this case on February 4, 2015. [RR-III-1]. Appellee did not raise any

motion to quash in advance of that hearing or indicate he intended to file

such a motion at that hearing. [CR-I; RR-III]. Jury announcements were

then made in this case on February 25, 2015. [RR-IV-1]. Appellee

announced ready for trial at that hearing [RR-IV-6], and again did not file
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
9
any motion to quash in advance of that hearing or indicate at the hearing that

he would be filing a motion to quash. [CR-I; RR-IV-6]. Appellee did not

actually file his motion to quash until May 4, 2015 [CR-I-64-66], the day the

venire panel that would make up the jury for this case was sworn and

qualified and the day for which trial was scheduled to begin. [CR-I-118;

Supplement CR-I-1]. The motion to quash was then not heard until the

following day, May 5, 2015; the day trial began in this case. [CR-I-119].

From that record it is clear Appellee failed to raise his motion to

quash at the first opportunity. Appellee’s defense counsel was appointed on

May 14, 2014. [CR-I-14]. Thus he had already been assigned to the case

for nearly three months by the time of the first pre-trial motion hearing in

this case which was held on August 5, 2014. [CR-I-116]. That hearing date

was the first opportunity for Appellee to present a motion to quash, and

Appellee let the hearing pass without even filing a motion to quash much

less arranging to have a hearing held on such a motion. [CR-I]. Nor did

Appellee present a motion to quash at the second pre-trial hearing

opportunity (October 28, 2014), or the third pre-trial hearing opportunity

(January 6, 2015), or the fourth pre-trial hearing opportunity (February 4,

2015) or even the fifth pre-trial hearing opportunity (February 25, 2015.)

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
10
[CR-I-116-117]. Thus Appellee entirely failed to meet the Neal requirement

to have a motion to quash heard at the first opportunity.

But an even more serious Neal breach was that Appellee filed his

motion to quash long after he had already announced ready for trial.

Appellee announced ready for trial on February 25, 2015. [RR-IV-6]

Appellee filed his motion to quash more than two months later on May 4,

2015. [CR-I-64]. The Court of Criminal Appeals has established that

motions to quash “must be presented to the trial court prior to an

announcement by that party that it is ready for trial.” Neal, 150 S.W. 3d at

176 (emphasis added). Thus this requirement to present the motion to quash

before announcing ready for trial is a mandatory rule. It is not subject to any

kind of “for good cause” exception and the trial court is not vested with any

authority to throw out this requirement. Appellee had an absolute obligation

to present any motion to quash before he announced ready in this case, and

he certainly had ample opportunity to do so seeing as Appellee’s defense

counsel had been on the case for nearly nine months and had four previous

pre-trial settings prior to his announcement of ready for trial. Thus Appellee

clearly violated the requirements set down in Neal.

The requirement to submit a motion to quash prior to announcing

ready for trial is not an unreasonable rule. The logic behind such a straight
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
11
forward requirement is obvious. A party should not be required to prepare

for trial (which can involve extensive expenditures in time and money) and

the courts should not be required to bring in dozens (if not hundreds) of

citizens to serve as veniremen (at considerable disruption to those citizens’

own lives) just to have the trial cancelled at the last minute due to the filing

of a motion that could easily have been filed and ruled upon months

previously. Thus it is entirely sensible to require a party to present any

motion to quash prior to announcing ready for trial. Doing so is the best

way to promote judicial economy and the efficient administration of justice.

Likewise the consequence for failing to timely file such a motion must be

forfeiture of the right to have the motion heard. If there are not substantial

consequences for violating the Neal timeliness rule then the rule is rendering

meaningless.

Appellee failed to satisfy the requirement to present a motion to

quash before announcing ready for trial. He filed his motion the day trial

was scheduled to begin, and this date was over two months after he had

already announced ready for trial. [CR-I-64; RR-IV-6] His failure to

present this motion to quash before announcing ready for trial violated an

absolute requirement, and as such it should have barred him from getting a

hearing on his motion to quash. Texas law does not allow for such motions
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
12
to be submitted post-announcement of ready for trial on a showing of good

cause, and even if it did allow for a good cause exemption, Appellee can

hardly show good cause in this case, as he had ample opportunity to file this

motion prior to his announcing ready and did not articulate any reasons at all

to excuse his late filing of the motion. Thus there was no legal basis for

permitting Appellee’s motion to be heard, and the trial court erred by

granting the motion.

The Sanchez case cited in Appellee’s motion to quash does not

establish any justification for Appellee’s untimely filing in this case.

Sanchez turned on the interpretation of Article 45.019(f) of the Texas Code

of Criminal Procedure. See Sanchez v. State, 138 S.W. 3d 324, 325 (Tex.

Crim. App. 2004). Chapter 45 of the Texas Code of Criminal Procedure

deals exclusively with criminal actions in Justice and Municipal courts.

Sanchez, 138 S.W. 3d at 325 (emphasis added). Therefore Article 45.019(f)

(and by extension Sanchez itself) has nothing to do with matters in a District

Court case. Sanchez is about the rules for Class C misdemeanor cases and

those rules are and should be very different than the rules for felony

offenses. Neal not Sanchez is the controlling case for challenges to the

charging instrument in felony cases, and Neal clearly shows that Appellee’s

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
13
motion was untimely since it was made after the Appellee had already

announced ready for trial.

Since Appellee had already announced ready for trial prior to

presenting his motion to quash, said motion was untimely, and therefore it

was reversible error for the trial court to rule on that motion. Accordingly,

the trial court’s order granting the motion to quash as to Count 2 in the

indictment should be reversed.

II. The trial court committed reversible error in granting
Appellee’s motion to quash Count 2 of the indictment
because that count was legally sufficient.

In the alternative, even if the trial court did not error by ruling on

Appellee’s untimely motion to quash, the trial court still committed

reversible error in granting Appellee’s motion to quash because Count 2 of

the indictment satisfied all of the requirements for a proper charging

instrument.

The sufficiency of a charging instrument is a question of law, so

appellate courts are to review the trial court’s ruling on a motion to quash de

novo. Smith v. State, 309 S.W. 3d 10, 13-14 (Tex. Crim. App. 2010).

Furthermore, in the context of a motion to quash, a reviewing court is to

look to whether the indictment facially alleges the elements of the offense.

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
14
State v. Zuniga, 2015 WL 4381064, 13-14-00316-CR at 2 (Tex. App.-

Corpus Christi July 16, 2015)(mem. op., not designated for publication).

The Texas Court of Criminal Appeals previously held as to Vernon’s

Annotated Texas Civil Statute Article 6701d, Section 38, the predecessor

statute to the Section 550.021 of the Texas Transportation Code (the statute

at issue in Count 2 in this case), that the elements of failure to stop and

render aid are: 1) a driver of a vehicle, 2) involved in an accident, 3)

resulting in injury or death of any person, 4) intentionally and knowingly, 5)

fails to stop and render reasonable assistance. See Steen v. State, 640 S.W.

2d 912, 914 (Tex. Crim. App. 1982)(decided under former VTCS art. 6701d

§38). Section 550.021 of the Texas Transportation Code has essentially the

same elements. The only real difference between the current statute and its

predecessor is that Section 550.021 lists the specific actions that are

expected of a driver who has been in an accident involving injury or death to

another person rather than just requiring that they render “reasonable

assistance.

The indictment for Count 2 specifically alleged that the Appellant

was intentionally or knowingly operating a vehicle that was involved in an

accident, that the Appellant knew the accident had occurred, that the

accident resulted in death to another person, and that Appellant intentionally
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
15
and knowingly failed to render the aid required under Section 550.023 of the

Texas Transportation Code (which is one of the four actions required to

comply with the requirements Section 550.021(a)). [CR-I-6]. Thus the

indictment included all the elements of the offense of Accident Involving

Personal Injury or Death and precisely tracked the statutory language for that

offense. When an indictment tracks the language of a statute, that

indictment will generally satisfy constitutional notice requirements. See

State v. Rousseau, 396 S.W. 3d 550, 555 n.6 (Tex. Crim. App. 2013). This

indictment tracked the statutory language of Section 550.021 and alleged all

the elements of the charged offense and as such it was a sufficient

indictment and should not have been quashed.

Appellee alleged in his motion to quash that the indictment as to

Count 2 failed to include all the required elements because it did not allege

the violation occurred in any of the locations described in Section 550.001 of

the Texas Transportation Code. [CR-I-64-65]. This claim is without merit

as the locations described in Section 550.001 are not elements of the offense

of Section 550.021. See Steen, 640 S.W. 2d at 914; see also Pryor v. State,

651 S.W. 2d 22, 24 (Tex. App.-Dallas 1983, pet. ref’d)(holding that

designation of a particular location is not an element of the offense of failure

to stop and render aid and thus it does not have to be alleged in the
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
16
indictment.) As already discussed, Section 550.021 is functionally the same

offense as VTCS art. 6701d §38. Therefore if the accident occurring on a

public place was not an element of VTCS art. 6701d §38, then it stands to

reason it is also not an element of that offense’s successor statute, Section

550.021. And if the accident occurring on a public place is not an element

of Section 550.021, then it does not need to be alleged in the indictment for

such an offense, and accordingly the lack of such an allegation in the

indictment cannot justify the granting of a motion to quash. Therefore,

while the trial court’s ruling granting the motion to quash did not clearly

delineate exactly what the trial court believed was missing from Count 2,

[CR-I-101], if the trial court believed it was the lack of an allegation stating

that the offense occurred in one of the locations listed under Section 550.001

that rendered the indictment for Count 2 defective, then the trial court’s

ruling was in error and must be reversed.

Appellee also asserted in his motion to quash that the indictment was

vague as to how Appellee violated Section 550.023 of the Texas

Transportation Code and failed to state an offense due to listing four ways

that Appellee allegedly violated Section 550.023, none of which are

contained within the language of that statute. [CR-I-65-66]. These claims

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
17
also are without legal merit and thus could not have formed a valid basis for

the trial court granting the motion to quash.

As to the vagueness challenge, it is long settled Texas law that when

the State alleges an offense that subsumes another offense, the State is not

required to allege the elements of the constituent offense in the charging

instrument for the greater offense. See Hammett v. State, 578 S.W. 2d 699,

708 (Tex. Crim. App. 1979)(holding that “an indictment charging one

offense during the commission of another crime need not allege the elements

of the later offense.”) See also Alba v. State, 905 S.W.2d 581, 585

(Tex.Crim.App.1995)(indictment need not allege constituent elements of

underlying offense which elevates murder to capital murder); Jarnigan v.

State, 57 S.W. 3d 76, 92 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd)(in

an organized crime case, the state need not allege the manner and means by

which the underlying theft was committed; State v. Rivera, 42 S.W.3d 323,

328–29 (Tex.App.-El Paso 2001, pet. ref'd)(state need not allege manner and

means by which underlying offense such as bribery was committed in

organized crime case.) Therefore since the alleged violation of Section

550.023 was a constituent part of the charged offense for Appellee’s alleged

violation of Section 550.021, the State was under no obligation to allege the

specifics of how Appellee violated Section 550.023 in the indictment, and if
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
18
the State is not required to allege something in the indictment then failing to

allege what is not required to be alleged cannot form the basis for a

vagueness challenge to the indictment.

As for Appellee’s contention that the indictment failed to state an

offense under Count 2, it should first be noted that the language in Count 2

which states “intentionally and knowingly failed to comply with the

requirements of Transportation Code Section 550.023; namely:” contains an

obvious scrivener’s error as the reference to “Section 550.023” in that

sentence was clearly meant to state “Section 550.021.” rather than “Section

550.023.” [CR-I-6]. That there was a clerical error here is manifest as the

count is titled by the code section number and nominal title (550.021) and

because all four of the violations listed underneath the erroneous language

track precisely with the four requirements imposed under Section

550.021(a). [CR-I-6]. Thus obviously the intent there was to allege that the

Appellee had violated Section 550.021 by failing to do those four actions.

Furthermore, the fourth manner in which Section 550.023 was allegedly

violated states that the Appellee failed to “Remain at the scene of the

accident until the defendant complied with the requirements of

Transportation Code Section 550.023.” [CR-I-6]. The State would hardly

deliberately allege that a defendant violated Section 550.023 by failing to
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
19
comply with the requirements of Section 550.023; such a statement would

be needlessly circular. As such it is clear this portion of the indictment

contained a scrivener’s error.

That this scrivener’s error is now an issue before the appellate courts

perfectly demonstrates the reason for the Neal rule requiring motions to

quash to be submitted at the first opportunity and before a party announces

ready for trial. Neal, 150 S.W. 3d at 176. If the Appellee had submitted his

motion to quash in a timely fashion at any of the five pre-trial hearings

before the trial date, and if the trial court had given the State the seven days

to respond to Appellee’s motion to quash which the State would normally be

entitled to under Article 28.01, Section 2 of the Texas Code of Criminal

Procedure (which the trial court presumably would have done if the

Appellee had filed his motion to quash in a timely manner), then this issue

could have easily been addressed by the State simply filing a motion to

amend the indictment so as to correct the scrivener’s error in Count 2. Such

a motion to amend would have resolved Appellee’s issue with the indictment

and could have been easily heard at any of the five pre-trial hearings held in

this case before the case proceeded to trial, all of which were more than ten

days before the start of the trial, and thus would have enabled the indictment

to be corrected without causing any delay in the scheduled court
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
20
proceedings. Instead though with the Appellee failing to timely file his

motion to quash and only finally filing said motion the day trial was

scheduled to begin [CR-I-64, 118], and with the trial court ruling on the

motion to quash the very next day, mere moments before jury selection

commenced, [CR-I-119, RR-V-6], the State could not legally submit a

motion to amend the indictment. See Hinojosa v. State, 875 S.W. 2d 339,

341-342 (Tex. App.-Corpus Christi 1994, no pet)(holding that the State

cannot amend the indictment on the day the jury will be impaneled and

sworn.) The best way to avoid such a sequence of events in future cases is

to rigorously enforce the Neal rule since requiring parties to raise their

challenges to indictments at the first opportunity and before announcing

ready for trial, insures the opportunity to correct any mistakes/deficiencies in

an indictment well before trial is to begin and thus best promotes judicial

efficiency and economy while respecting the rights of all parties.

At any rate, even taking into account the scrivener’s error, Count 2

still fully stated an offense and thus should not have been quashed. Failing

to comply with the requirements of Section 550.023 is one of the listed ways

a defendant can violate Section 550.021 of the Texas Transportation Code as

it constitutes a violation of Section 550.021(a)(4). The indictment for Count

2 alleged that Appellee failed to comply with the requirements of
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
21
Transportation Code Section 550.023 by, amongst other omissions, failing to

remain at the scene of the accident until the Appellee had complied with the

requirements of Section 550.023. [CR-I-6]. Accusing the defendant of

violating Section 550.023 by violating Section 550.023 may be a redundant

accusation, but it is still a legally valid accusation since it does state one of

the grounds by which a defendant can commit an offense under Section

550.021, and the State is not required to allege the specifics of how the

Appellee committed the constituent offense of Section 550.023 since that

offense was contained within the larger charged offense of Section 550.021.

See Hammett, 578 S.W. 2d at 708. Therefore since the State was not

required to allege how the Appellee failed to comply with the requirements

of Section 550.023 in the indictment; merely alleging that the Appellee

failed to comply with those requirements was all the indictment needed to

fully state an offense. The indictment did include that language and thus it

was still a legally valid charging instrument regardless of the scrivener’s

error. [CR-I-6].

Now the scrivener’s error, without correction or abandonment as

surplusage, may have foreclosed the State from being permitted to prove the

other three omissions alleged to have been committed by the Appellee,

(failing to immediately stop at or as close as possible to the scene of the
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
22
accident, failing to return to the scene if the accident if not stopped there,

and failing to immediately determine if a person was involved in the

accident, and if that person required aid) since those three omissions all

constitute violations of Section 550.021 rather than violations of Section

550.023. However, even if those three alleged violations are disregarded,

that still leaves the charging instrument with a valid manner of establishing a

violation of Section 550.021 as the State only has to be able to prove one of

the means of committing an offense to be able to obtain a conviction for that

offense. See Lehman v. State, 792 S.W. 2d 82, 84 (Tex. Crim. App. 1990).

Thus even with the scrivener’s error, Count 2 was legally sufficient and

should not have been quashed.

The Appellee also alleged in his motion to quash that the indictment

did not give adequate notice that the offense took place within the State of

Texas. [CR-I-65]. This argument too is without merit. The opening

paragraph of the indictment alleges that the charged offenses occurred in the

County of Victoria and State of Texas. [CR-I-6](emphasis added.) When

construing an indictment, the indictment is to be read as a whole, applying

practical rather than technical considerations. Harrison v. State, 76 S.W. 3d

537, 539 (Tex. App.-Corpus Christi 2002, no pet); Oliver v. State, 692 S.W.

2d 712, 714 (Tex. Crim. App. 1985). Reading the indictment as a whole,
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
23
there is simply no way to read the indictment and conclude anything other

than that it is alleging that all three of the charged offenses occurred within

the State of Texas. Thus this claim of error also provided no basis to justify

the trial court granting the motion to quash.

Therefore Count 2 of the indictment in this case was legally sufficient.

It fully listed all the elements of the offense of Accident Involving Personal

Injury or Death, was not vague as to how the charged offense was

committed, fully stated an offense, and, when read in conjunction with the

rest of the indictment, clearly established that the alleged offense occurred

within the State of Texas. It is true that Count 2 contained a scrivener’s

error, but even when that error is taken into account, the count still fully, if

unartfully, stated a charged offense. As such since Count 2 was legally

sufficient to support a criminal charge of the Appellee violating Section

550.021, it was a valid charging instrument and therefore it was reversible

error for the trial court to grant Appellee’s motion to quash.

III. The indictment, when considered as a whole, alleged that Count
2 occurred in a public place.

In the alternative again, even if it is concluded that the locations listed

under Section 550.001 of the Texas Transportation Code are an element of

the offense of Section 550.021 and must be alleged as part of the indictment

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
24
for such a charge, Count 2 was still adequate on that point because when the

indictment is read as a whole, it clearly alleged that the offense listed in

Count 2 occurred in a public place and thus did include an accusation that

the offense occurred in a location listed within Section 550.001 of the Texas

Transportation Code.

As just discussed, when construing an indictment the indictment

must be read as a whole. Harrison, 76 S.W. 3d at 539; Oliver, 692 S.W. 2d

at 714. In this case the opening paragraph of the indictment establishes that

the charged offenses were alleged to have been committed by the Appellee

and all occurred on the same date, on or about the 8th day of February, 2014,

in the same county and state, Victoria County within the State of Texas.

[CR-I-6]. Count 1 of the indictment then alleged that the Appellee was

operating a vehicle in a public place and that while doing so he struck and

killed Ms. Natalie Luna. [CR-I-6]. Count 2 likewise alleged that the

Appellee violated Section 550.021 due to his actions related to his striking

Ms. Luna while operating a vehicle. [CR-I-6].

Taking all of this into account, it is obvious from reading the

indictment as a whole that Count 2 is part of the same incident as Count 1.

Both allegations involve the exact same incident involving a motor vehicle,

allegedly being driven by the Appellee, striking and killing the exact same
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
25
person, Ms. Nicole Luna. Accordingly, if Count 1 is alleged to have

occurred in a public place then it is obvious that Count 2 also would have to

have occurred in a public place. The roadway where Appellee allegedly

struck Ms. Luna cannot be a public place in regards to Count 1 and not a

public place in regards to Count 2. If it is a public place in one instance it

must be a public place in regards to the other. Therefore since the State

alleged the offense in Count 1 occurred in a public place, and since Count 2

manifestly occurred at the same location as Count 1, reading the indictment

as a whole clearly establishes an allegation that Count 2 also occurred in a

public place.

A public place is one of the enumerated grounds under Section

550.001(3). Therefore, since the indictment, when read as a whole, alleges

that Count 2 occurred in a public place; the indictment includes one of the

locations contained within Section 550.001 which in turn means that even if

an indictment under Section 552.021 is required to allege the offense

occurred at a location listed under Section 550.001, this indictment fully

satisfied that requirement. As such even if that additional element is

required the indictment when read as a whole established that element and as

such Count 2 was a legally sufficient charging instrument, and therefore it

should not have been quashed.
Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
26
PRAYER

WHEREFORE, PREMISES CONSIDERED, the State prays that this

Honorable Court reverse the judgment of the trial court.

Respectfully submitted,

STEPHEN B. TYLER
CRIMINAL DISTRICT ATTORNEY

/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139

ATTORNEYS FOR THE APPELLANT,
THE STATE OF TEXAS

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
27
CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,

Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,

Texas, certify that the number of words in Appellant’s Brief submitted on

August 3, 2015, excluding those matters listed in Rule 9.4(i)(1) is 5,646.

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
28
CERTIFICATE OF SERVICE

I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria

County, Texas, certify that a copy of the foregoing brief has been served on

Luis Martinez, P.O. Box 410, Victoria, Texas, 77902, Attorney for the

Appellee, Hector Garcia, by electronic mail on the day of August 3, 2015.

Brief of Appellant
Victoria County Criminal District Attorney
No. 13-15-00235-CR
29