The State of Texas v. Lee Herrington--Appeal from 87th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-02-083-CR

THE STATE OF TEXAS,

Appellant

v.

LEE HERRINGTON,

Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 01-168-CR

O P I N I O N

A grand jury presented an indictment against Lee Herrington for injury to a child. Herrington filed a motion to quash the indictment alleging that the indictment improperly joined multiple offenses in a single count. The State claims in one point that the trial court erred in granting the motion to quash indictment. We reverse and remand.

The pertinent portion of the indictment states in one count consisting of one paragraph that Herrington:

Did then and there intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly or recklessly by omission cause serious mental deficiency, impairment or injury to his daughter S.H., a child 14 years of age or younger...

The indictment continues on to allege in the alternative eleven different acts and omissions by which Herrington committed the offense.

The standard of review for a trial court s ruling on motion to quash is abuse of discretion. Thomas v. State, 621 S.W.2d 158, 164 (Tex. Crim. App. 1980). Article 21.24 of the Code of Criminal Procedure states in pertinent part, A count may contain as many separate paragraphs charging the same offense as necessary, but no paragraph may charge more than one offense. Tex. Code Crim. Proc. Ann. art. 21.24(b) (Vernon 1989).

A "count" is used to charge an offense and a "paragraph" is a portion or subset of a count charging a distinct method of committing that offense. Harris v. State, 34 S.W.3d 609, 613 (Tex. App. Waco 2000 pet. ref d); Watkins v. State, 946 S.W.2d 594, 601 (Tex. App. Fort Worth 1997, no pet.). An indictment is duplicitous when it alleges two or more offenses in a single count. Carlock v. State, 8 S.W.3d 717, 721 (Tex. App. Waco 1999 pet. ref d). However, the State may utilize as many paragraphs as are necessary to allege the various manner and means of committing one offense. Callins v. State, 780 S.W.2d 176, 183 (Tex. Crim. App. 1989); Harris, 34 S.W.3d at 613. When an offense may be committed in more than one way, the State may allege the various manners and means in the conjunctive. Vaughn v. State, 634 S.W.2d 310, 312 (Tex. Crim. App. [Panel Op.] 1982).

Whether the allegations constitute various means of committing an offense or whether they constitute distinct offenses requires analysis of the statute under which Herrington is charged. In Vick v. State, a double jeopardy case, the Court of Criminal Appeals analyzed the sexual assault statute to determine whether the legislature intended to create distinct offenses within its subparts or merely multiple means of committing a single offense. Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim. App. 1999). The Court noted that sexual assault is a conduct-oriented offense. Id. The use of or in dividing the specific conduct described in each subdivision of the statute was an indication that each subdivision described a separate offense. Id. at 832-33. The same logic for determining whether the legislature intended for a statute to contain distinct offenses applies in this case.

Injury to a child is a result-oriented crime. Haggins v. State, 785 S.W.2d 827, 828 (Tex. Crim. App. 1990). A result-oriented crime focuses on the result of the defendant s conduct rather than the conduct itself. Id. We analyze the statute to determine which injuries, rather than which conduct, the legislature intended to comprise separate offenses.

In Vaughn, the Court of Criminal Appeals analyzed the offense of aggravated robbery. Vaughn v. State, 634 S.W.2d 310, 312 (Tex. Crim. App. 1982). The State prosecuted Vaughn for aggravated robbery by threatening or placing the victim in fear of imminent bodily injury or death. Id.; Tex. Pen. Code Ann. 29.03(a)(3) (Vernon 1994). Aggravated robbery is a result-oriented crime in this circumstance. // Garza v. State, 794 S.W.2d 497, 500-501 (Tex. Crim. App. 1990). The Court stated, When an offense may be committed in two ways the state may allege both ways in the conjunctive. Vaughn, 634 S.W.2d at 312. The two ways of committing the single offense of aggravated robbery were threaten and place. Tex. Pen. Code Ann. 29.03(a)(3). The Court held that it is proper to allege in the conjunctive the acts threaten and/or place because these are various means by which a defendant may accomplish the result proscribed. Id.

Section 22.04 of the Texas Penal Code proscribes injury to a child. It provides:

(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:

(1) serious bodily injury;

(2) serious mental deficiency, impairment, or injury; or

(3) bodily injury.

Tex. Pen. Code Ann. 22.04(a) (Vernon Supp. 2002) (emphasis added). Section 22.04 proscribes three distinct results: serious bodily injury; serious mental deficiency, impairment or injury; and bodily injury. Each result is separated by the use of or. Accordingly, we conclude that section 22.04 describes three distinct offenses related to a child: (1) injury to a child by serious bodily injury; (2) injury to a child by mental deficiency, impairment, or injury; and (3) injury to a child by bodily injury. Omission and commission are the manner in which a person may cause the prohibited results. Cf. Vaughn, 634 S.W.2d at 312.

In the indictment, one statutory offense was alleged by the State: injury to a child by causing serious mental deficiency, impairment or injury. See Tex. Pen. Code Ann. 22.04(a)(2). The eleven acts and omissions alleged conjunctively in the indictment are merely means of accomplishing the prohibited result. This falls within the parameters of Vaughn and is not duplicitous under Carlock. Vaughn, 634 S.W.2d at 312; Carlock, 8 S.W.3d at 721.

Herrington additionally argues that because the various acts and omissions could have been committed at different times, they necessarily allege different offenses. Without evidence in the record, it is impossible to tell whether these acts occurred under the umbrella of a continuous act or were separated in time so as to create distinct offenses which may require an election. Wilson v. State, 3 S.W.3d 223, 225 (Tex. App. Waco 1999, pet. ref d) (when an indictment charges a defendant with a single offense but the State offers evidence of multiple acts and omissions for which the defendant could be convicted under the indictment, the defendant should ask the trial court to make the state elect which act or omission it will rely upon for conviction).

We hold that the trial court abused its discretion in quashing the indictment. We reverse the order and remand this cause for further proceedings consistent with this opinion.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Reverse and remand

Opinion delivered and filed November 27, 2002

Do not publish

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