Shirley Lee Van v. The State of Texas--Appeal from 18th District Court of Johnson County

AFFIRMED

MAY 17, 1990

NO. 10-89-261-CR

Trial Court

# 26210

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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SHIRLEY LEE VAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 18th Judicial District Court

Johnson County, Texas

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O P I N I O N

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Appellant was indicted for involuntary manslaughter, and a jury convicted her of criminally negligent homicide, a lesser-included offense. Her punishment was assessed at one year in jail and a $2000 fine. See TEX. PENAL CODE ANN. 19.05(a)(1), 19.07(a) (Vernon 1989). She complains that the indictment was defective because it failed to: (1) allege an offense; and (2) set forth in plain and intelligible language sufficient information to enable her to prepare a defense. She also asserts that the court erred when it allowed the State to substantively amend the indictment. The judgment will be affirmed.

The amended indictment alleged that on September 11, 1987, Appellant "recklessly [caused] the death of an individual, Baby Girl Van, by interrupting the breathing of Baby Girl Van thereby causing the death of Baby Girl Van." Appellant filed a motion to quash the indictment on the grounds that it did not allege with reasonable certainty the act or acts relied upon to constitute recklessness or set forth the offense charged in plain and intelligible words. The court denied the motion. In points one and two Appellant complains that the court erred when it denied her motion.

Article 21.15 of the Code of Criminal Procedure provides:

Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.

TEX. CODE CRIM. PROC. ANN. art. 21.15 (Vernon 1989). An indictment complies with article 21.15 if "the act relied upon to constitute recklessness is alleged with reasonable certainty so that the accused will be informed of the nature of the reckless act." Townsley v. State, 538 S.W.2d 411, 412 (Tex. Crim. App. 1976). The amended indictment alleged with reasonable certainty that Appellant caused the death of the child by interrupting her breathing. Furthermore, allegations as to how the child's breathing was interrupted would be purely evidentiary. See American Plant Food Corporation v. State, 508 S.W.2d 598, 604 n.3 (Tex. Crim. App. 1974).

An indictment is sufficient if it:

charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.

TEX. CODE CRIM. PROC. ANN. art. 21.11 (Vernon 1989). The language of the indictment eliminated all hypothetical circumstances except causing the child's death by interrupting her breathing. Appellant testified on cross-examination that she understood the charges against her, and that she had seen and understood the amended indictment. Based on these admissions as well as the specific language contained in the amended indictment, a person of common understanding could have understood the charges, and Appellant was notified of the charges against her. Points one and two are overruled.

The original indictment alleged that Appellant "recklessly [caused] the death of an individual, Baby Girl Van, to-wit: by failing to provide the necessary assistance, as she was required to do, thereby causing the death of Baby Girl Van." Appellant filed a motion to quash the indictment, and the State filed a motion to amend the indictment. The court granted the State's motion, and the amended indictment, alleging that Appellant "recklessly [caused] the death of an individual, Baby Girl Van, by interrupting the breathing of Baby Girl Van thereby causing the death of Baby Girl Van," was filed. Subsequently, Appellant filed a motion to quash the amended indictment, claiming that "any amendments to the indictment would charge [her] with an additional or different offense, or in the alternative, [her] substantial rights . . . would be prejudiced." Her third point is that the court erred when it allowed the State to substantively amend the indictment.

Article 28.10 of the Code of Criminal Procedure provides in part:

(a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.

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(c) An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.

TEX. CODE CRIM. PROC. ANN. art. 28.10 (Vernon 1989). Here, the indictment was amended more than sixty days prior to trial, and Appellant had ample time to respond. Furthermore, both the original and the amended indictments charged Appellant with the same offense, involuntary manslaughter, i.e., "recklessly [causing] the death of an individual, Baby Girl Van." See TEX. PENAL CODE ANN. 19.05(a)(1) (Vernon 1989). The amended indictment merely alleged with more specificity the act Appellant was charged with recklessly committing. Point three is overruled.

All points have been overruled. The judgment is affirmed.

BOB L. THOMAS

DO NOT PUBLISHChief Justice