Harold Thomas Allen v. The State of Texas--Appeal from County Court of Johnson County

NO. 10-90-011-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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HAROLD THOMAS ALLEN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From County Court

Johnson County, Texas

Trial Court # M89-02595

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O P I N I O N

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A jury convicted Appellant of criminally negligent homicide and assessed his punishment at a $2000 fine, which was probated, and one year in jail. See Tex. Penal Code Ann. 19.07(a) (Vernon 1989). He contends the court erred when it: (1) refused to quash the indictment; (2) admitted prejudicial exhibits into evidence; and (3) denied two requested jury instructions. The judgment will be affirmed.

The State alleged that Appellant:

did then and there by criminal negligence, to-wit: did drive and did operate a motor vehicle upon a public roadway . . . and did drive and operate said motor vehicle to the left of the center of the said roadway, and did cause the death of [the decedent] by colliding said motor vehicle with another motor vehicle occupied by [the decedent].

Appellant tried to quash the indictment, alleging that it failed to charge an offense in plain and intelligible language or a culpable mental state. His third point is based on the denial of the motion.

A person commits an offense if he causes the death of an individual by criminal negligence. Id. A person is criminally negligent when:

with respect to circumstances surrounding his conduct or the result of his conduct . . . 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.

Id. at 6.03(d) (Vernon 1974).

The acts alleged to constitute criminal negligence were described with reasonable enough certainty to charge the offense in plain and intelligible language. See Sackett v. State, 688 S.W.2d 123, 125 (Tex. App.--Beaumont 1985, no pet.); Thompson v. State, 676 S.W.2d 173, 177 (Tex. App.--Houston [14th Dist.] 1984, no pet.). Criminal negligence is the culpable mental state for criminally negligent homicide. Dillon v. State, 574 S.W.2d 92, 93 (Tex. Crim. App. [Panel Op.] 1978). The indictment charged a culpable mental state because it alleged that Appellant acted with criminal negligence.

Appellant argues that the "main thrust" of the State's proof related to his consumption of alcohol, which was not alleged in the indictment. The evidence was sufficient to prove the allegations in the indictment, i.e., that he caused the decedent's death by operating his vehicle to the left of the center of the roadway with criminal negligence. Point three is overruled.

The court admitted into evidence three autopsy photographs and an autopsy report over Appellant's objections that the exhibits would "inflame" the jury and bolster the testimony of the medical examiner. The photographs were a side view of the decedent's head showing the injuries to the head and neck area. Appellant argues under point one that the photographs and autopsy report were improperly admitted.

When a verbal description of a body is admissible, a photograph depicting the same is likewise admissible. Williams v. State, 773 S.W.2d 525, 539 (Tex. Crim. App. 1988). A photograph which is relevant is not rendered inadmissible merely because it may tend to arouse the passions of the jury. Lopez v. State, 630 S.W.2d 936, 939 (Tex. Crim. App. [Panel Op.] 1982). Relevant evidence may be excluded, however, if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Crim. Evid. 403. Thus, a court does not abuse its discretion when it admits a relevant photograph unless the probative value of the photograph is very slight and its inflammatory nature is very great. See Williams, 773 S.W.2d at 539.

Dr. Krouse, a medical examiner, testified extensively about the decedent's injuries and the cause of death without any objection from Appellant. Proof of the decedent's death was relevant because it was an element of the offense. See Tex. Penal Code Ann. 19.07(a) (Vernon 1989). Although graphic in nature, the photographs did not show the effects of the autopsy, but merely depicted the extent of the injuries to the neck and head area. Because a verbal description of the injuries was admissible, and was admitted without objection, the photographs depicting the injuries were likewise admissible. One cannot say that the court abused its discretion when it admitted them into evidence. See TEX. R. CRIM. EVID. 403; Williams, 773 S.W.2d at 539.

The autopsy report merely substantiated Krouse's testimony, which was admitted without objection. Assuming that the report was improperly admitted, no reversible error occurred because the facts in the report were proved by Krouse's testimony. See Brasfield v. State, 600 S.W.2d 288, 296 (Tex. Crim. App. 1980). Accordingly, point one is overruled.

Appellant requested these instructions:

1. You are further instructed that no act done by accident is an offense. If you find and believe from the evidence that the death of [the decedent] was the result of an accident, or you have a reasonable doubt thereof, then you will find [Appellant] not guilty.

2. Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute.

3. A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession, in violation of a statute that provides that conduct is an offense.

The court submitted the third instruction, but denied the first two. Appellant complains in point two that, by refusing his second instruction, the court left the jury with inadequate instructions on what conduct constitutes an offense. Point four is that, by failing to submit the first instruction, the court refused to submit the defensive issue of accident.

The court gave this instruction to the jury: "A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession, in violation of a statute that provides that conduct is an offense." This informed the jury that conduct constitutes an offense only if it is voluntarily engaged in and violates a statute that makes the conduct an offense, which was the essence of Appellant's second and third instructions. Under the circumstances, Appellant was not harmed because the instruction given was substantially similar to the second and third instructions which were refused. See DeBolt v. State, 604 S.W.2d 164, 168 (Tex. Crim. App. [Panel Op.] 1980). Point two is overruled.

Appellant argues that the defense of accident should have been submitted to the jury by his first instruction because the collision was unintentional. See Stiles v. State, 520 S.W.2d 894, 896 (Tex. Crim. App. 1975). The distinction between intentional and unintentional conduct is no longer valid. Dockery v. State, 542 S.W.2d 644, 649 (Tex. Crim. App. 1975). Homicide is punishable only when the state proves voluntary conduct and a culpable mental state. Id. Thus, the court did not err when it refused Appellant's requested instruction on the former defense of accident. Point four is overruled.

All points have been overruled. The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Chief Justice McDonald (Retired),

and Justice James (Retired)

Affirmed

Opinion filed and delivered January 31, 1991

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