Reid, Esteen William v. The State of Texas--Appeal from 177th District Court of Harris County

Affirmed and Memorandum Opinion filed February 13, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00535-CR

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ESTEEN WILLIAM REID, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 881,458

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M E M O R A N D U M O P I N I O N

Appellant Esteen William Reid appeals his conviction for attempted capital murder on the ground that the evidence was legally insufficient to prove the offense. We affirm.

Appellant s challenge to the sufficiency of the evidence contends that he cannot be convicted only on a strong suspicion, but does not specify which element(s) of the offense the evidence failed to prove or explain how or why the evidence failed to prove any elements. Because this challenge thus fails to demonstrate that the evidence is insufficient, it is overruled.

Appellant also contends that his indictment charged him only with deadly conduct, not attempted capital murder. Even if this were true, his brief concedes that it is a defect of substance (as contrasted from a fundamental defect). Because he did not raise it in a timely motion to quash the indictment, the complaint is waived. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2003).

In addition, attempted capital murder is a result-of-conduct offense for which the culpable mental state pertains to causing death.[1] Deadly (or reckless) conduct is a lesser-included offense of attempted capital murder. See Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986). It is a nature-of-conduct offense for which the culpable mental state pertains only to engaging in the conduct, not causing a result. See Tex. Pen. Code Ann. 22.05 (Vernon1994). Although the indictment in this case alleged conduct that could constitute either deadly conduct or attempted capital murder, it alleged a culpable mental state that could only be the latter, i.e., with the specific intent to commit capital murder. Therefore, the indictment did not charge appellant with only deadly conduct. Accordingly, appellant s issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed February 13, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

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

[1] See Tex. Pen. Code Ann. 15.01(a), 19.02(b), 19.03(a) (Vernon 1994); Medina v. State, 7 S.W.3d 633, 639 (Tex. Crim. App. 1999).