NO. 13-15-00235-CR

IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT OF 

TEXAS

AT CORPUS CHRISTI

THE STATE OF TEXAS, 

Appellant,

v. 

HECTOR GARCIA, 

Appellee. 

On Appeal from the 

24th 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 

ACCEPTED

13-15-00235-CR

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

8/3/2015 2:44:35 PM

CECILE FOY GSANGER

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 8/3/2015 2:44:35 PM CECILE FOY GSANGER Clerk
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00235-CR

i

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

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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
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Victoria County Criminal District Attorney

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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 
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Victoria County Criminal District Attorney

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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
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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NO. 13-15-00235-CR

IN THE COURT OF APPEALS

FOR THE THIRTEEN DISTRICT OF TEXAS

AT CORPUS CHRISTI

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

v.

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 
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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.
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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. [RRIV-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 
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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 
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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 
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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 
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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 
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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.) 
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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[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 
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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 
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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 
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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

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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 
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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 
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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

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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

19

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

20

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

21

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 
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

22

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

23

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

24

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

25

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 
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Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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

27

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

28

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.

/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
Brief of Appellant

Victoria County Criminal District Attorney

No. 13-15-00235-CR

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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.

/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