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 24 th Judicial District Court Of Victoria County, Texas Cause No. 14-05-2 7962 -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

CLERKBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR i IDENTITY OF PARTIES AND COUNSEL
Pursuant to T EX
. R. A PP
. 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 El í Elmo Garza 377 th Judicial District Court Victoria, Texas TRIAL PROSECUTOR Brendan Wyatt Guy State Bar No. 24034895 Assis tant 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 7790 2 APPELLATE STATE’S Brendan Wyatt Guy ATTORNEY State Bar No. 240 34895 Assistant Criminal District Attorney 205 N. Bridge St. Ste 301 Victoria , Texas 77901

- 6576 APPELLATE DEFENSE Luis Adrian Martinez ATTORNEY State Bar No. 240 10213 P.O. Box 410 Victoria, Texas 7790 2

- 0410Brief of Appellant Victoria County Criminal District Attorney No. 13

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- CR ii TABLE OF CONT ENTS PAGE (S) IDENTITY OF PARTIES AND COUNSEL ................................ ........... i TABLE OF CONTENTS ................................ ................................ ......... ii INDEX OF AUTHORITIES ................................ ............................... i ii
- i v STATEMENT OF THE CASE ................................ ............................. 1
- 2 ISSUES PRESENTED ................................ ................................ .............. 2 STATEMEN T 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 th at count was legally sufficient ................................ ................................ .................. 14
- 24
III. The indictment , when considered as a whole, a lleged that Count 2 occurred i n a public place ................. 24
- 26 PRAYER ................................ ................................ ................................ .. 27 SIGNATURE ................................ ................................ ........................... 27 CERTIFICATE OF COMPLIANCE ................................ ................... 28 CERTIFICATE OF SERVICE ................................ ............................. 29Brief of Appellant Victoria County Criminal District Attorney No. 13

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- CR iii INDEX OF AUTHORITIE S Texas Cases Alba v. State, 905 S.W.2d 581 (Tex.Crim.App.1995) ........................... 1 8 Hammett v. State, 578 S.W. 2d 699 (Tex. Crim. App. 1979) .......... 18, 22
Har rison 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 p ublication) ................................ ............ 15Brief of Appellant Victoria County Criminal District Attorney No. 13

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- CR iv Steen v. State, 640 S.W. 2d 912 (Tex. Crim. App. 1982) ................. 15
- 16

Texas Statutes TEX. CODE CRIM. PRO C. 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, 1 6
- 23 V E RNON’s ANN. CIV. ST . art. 6701d , §§ 38 ................................ 1 5, 17

Texas Rules TEX. R. APP. 9.4 ................................ ................................ ..................... 2 8 TEX. R. APP. 38 . 1 ................................ ................................ ...................... iBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 1 NO. 13
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- 00 235
- CR IN THE COURT OF APPEALS FOR THE THIRTEEN DISTRICT OF TEXAS AT CORPUS CHRISTI THE STATE OF TEXAS,...

.. ........... ...................................App elant

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 App ell ant in the above numbered and entitled cause, and files this the Appell ant ’s brief showing: STATEMENT OF THE CASE Appellee was charged by in dictment 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 thatBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 2 motion on May 5, 2015. [CR

- I

- 70

- 72]. On May 5, 2015, the Honorable El í Garza presiding, verbally granted Appellee ’s motion to quash

. [R R

- 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. 0 21 and 550. 0 23 of the Texas Transportation Code . [CR

- I

- 101]

. The State timely filed its n otice of a ppeal

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 tha t 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 indic tment 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.Brief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 3 STATEME NT OF THE FACTS On May 2, 2014, Appell ee 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 th ree 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 specifica lly 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 an d caused the death of that pedestrian, Natalie Nicole Luna. [CR

- I

- 6]. Appellee ’s trial counsel, Mr. Micah Hat l e y, 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 th e s e hearing s . [CR

- I]. On January 6, 2015, a nother 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 hearin g. [CR

- I ]. Appellee did not request a hearing on aBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 4 motion to quash at th e 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 po int 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. [RR

IV

- 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 thin gs, t his motion alleged that Count 2 of the indictment was defective because it failed to allege that the offense had occurred in oneBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 5 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 ; Supplement al CR

- I

- 1 ]. The case had been s cheduled 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].
Th e State filed a response to the Appellee’ s m otion to q uash 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 sel ection 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 part ies. RR

- V

- 6]. The trial court granted Appell ee’s motion to quash without explanation

. [RR

- V

- 6]. Appellee did not present any justification for why he had only submitted his mo tion to quash the day before this hearing, and the trial court did not articulate any finding of good cause f o r why it was allow ing theBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 6 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 a t some future date . [RR

- V

- 7]. T he 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 M ay 12, 2015, the State filed a motion requesting the tria l 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 indicat ed 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 5 50.001. 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 thatBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 7 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 th e 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 indi ctment as to Count 2 was legally sufficient to be a proper charg ing 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 inBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 8 regards to how the Appellee violate d Section 550.023 of the Texas Transportation Code; th e allegation s 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 Sec tion 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, Cou nt 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 all eged 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 reversib le error by granting Appellee’s motion to quash

. Furthermore , even should it be held that the State must all ege that an of fense under Section 550.021 occur red 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 indictme nt established that all of the allegations contained withi n it occurred in a public place . Therefore the indictment did allege that the offense in Count 2Brief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 9 occurred in one of the locations listed with Section 550.001 and thus Count 2 would be legally sufficient to support a c harge 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 b e 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 qua sh 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 Ja nuary 6, 2015 . [CR

- I

- 116]

. Appellee did not file a motion to quash in advance of any of those hearings. [CR

- I]. A ppellee’s pre

- trial motion to suppress was heard in an other 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 rea dy for trial at that hearing [RR

- IV

- 6], and again did not fileBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 10 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 w as then not heard until the foll owing day, May 5, 2015; the day trial bega n 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

w as 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 pre sent 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.)Brief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 11 [CR

- I

- 116

- 117]. Thus Appellee entirely failed to meet the Neal req uirement 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 Febr uary 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 th e trial court is not vested with any authority to throw out this requirement . Appellee had an absolute obligation to present a ny motion to quash before he announced ready in this case, and he certainly had ample opportunity to do so seeing as Appellee ’s d efense 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 m otion to quash prior to announcing ready for trial is not an unreasonable rule. The logic behind such a straightBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 12 forward requirement is obvious. A party should not be required to prepare for trial (which can involve extensive expenditures in time and mon ey) 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 tha t could easily have been fi led 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 ad ministration 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 renderi ng meaningless. Appellee failed to satisfy th e r equirement 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 a nnounced 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 d oes not allow for such motionsBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 13 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 reason s at all
to excuse his late filing of the motion

. Thus there was no legal basis for permittin g Appellee’s motion to be heard, and the trial court erred by granting the motion.
T he Sa nchez 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 co urts

. Sanchez, 138 S.W. 3d at 325 (emphasis added). Therefore Article 45.019(f) (and by extens ion Sanchez itself) ha s nothing to do with matters in a D istrict
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’sBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 14 motion was unt imely since it was made after the Appellee had already announced ready for trial. Since Appellee had already announced ready for trial pr ior 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.
I I . The trial court committed reversible error in granting Appellee’s motion to quash Count 2 of the indictment because th at count was legally sufficient . In the alternative, even if the tria l 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 require ments for a proper charging instru ment

. 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 , i n 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

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- CR 15 State v. Zuniga, 2015 WL 4381064, 13

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- 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. Se e 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 pred ecessor 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 App ellant intentionallyBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 16 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 incl uded all the elements of the offense of Accident Involving
Pers onal 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 a s 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 Sectio n 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 2 2, 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 theBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 17 indictment.) As already discussed , Section 550.02 1 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 i s 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 gran ting 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 alleg ation 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 t he language of that statute. [CR

- I

- 65

- 66]. These claimsBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 18 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)(hold ing 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 und erlying 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 crim e case, the state need not allege the manner and means by which the underlying theft was co mmitted ; 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 ifBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 19 the State is not requir ed 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 f o r 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 Transportatio n Code Section 550.023; namely:” contains an obvious scrivener’s error as t he reference to “ Section 5 50.023 ” 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 v iolations 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 failin g 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 Se ction 550.023.” [CR

- I

- 6]. The State would hardly deliberately allege that a defendant violated Section 550.023 by failing toBrief of Appellant Victoria County Criminal District Attorney No. 13

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- 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 re spond 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 ti mely manner), then this issue

co uld 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

a nd 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 w ould have enabled the indictment to be corrected witho ut causing any delay in the scheduled courtBrief of Appellant Victoria County Criminal District Attorney No. 13

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- 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 o n 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 cha llenges 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 promote s 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 th e listed ways a defendant can violate Section 550.021 o f the Texas T ransportation 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 ofBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 22 Transportation Code S ection 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 550.02 3 may be a redundant accusation, but it is still a legally v alid accusation since it does state one of the grounds by which a defendant can commit a n o ffense under Section 550.021, and the State is not required to allege the specifics of how the Appellee c ommitted the constituent offense of Section 550.023 since that offense wa s contained within the lar ger 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 co mply 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 . T he indictment did include that language and thus it

was s till a legally valid charging instrument regardless of the scrivener’s

error . [CR

- I

- 6].
Now t he scrivener’s error , without correction or abandonment as surplusage, may have foreclosed the State from being permitted to prove the other three omiss ions alleged to have been committed by the Appellee , (failing to immediately stop at or as close as possible to the scene of theBrief of Appellant Victoria County Criminal District Attorney No. 13

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- 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 550.02 1 rather than violations of Section 550.023

. However, even if those three alleged violations a re disregarded, that still le aves 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 m eans 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 no tice 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 offense s occurred in the County of Victoria and State of Texas . [CR

- I

- 6](emphasi s added.) W hen 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, 7 14 (Tex. Crim. App. 1985). Reading the indictment as a whole ,Brief of Appellant Victoria County Criminal District Attorney No. 13

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- 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 Injur y 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. I t is true that Count 2 contained a scrivener’s error, but even when that error is taken int o 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 Sec tion 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 55 0 .001 of the Texas Transportation Code are an element of the offense of Section 55 0 .021 and must be alleged as part of the indictmentBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 25 for s uch a charge, Count 2 was still adequate on that point because when the indictment is read as a whole, it clearly allege d that the offense listed in Count 2 occurred i n a public place and thus d id include an accusation that the offense occurred in a locati on 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 da te , on or about the 8 th day of February, 2014 , in the same county and state, Victoria County within th e 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 likewi s e allege d that the Appellee violated Section 550.021 du e 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 t he exact same incident involving a motor vehicle , allegedly being driven by the Appellee, striking and killing the exact sameBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 26 person, Ms. Nicole Luna. Accordingly, if Count 1 is alleged to hav e occurred in a public place th e n it is obvious that Count 2 al so 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 publi c pla ce in regards to the other. T herefore 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 i ndictment as a whole clearly establishes an allegati on 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 i ncludes 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 r equirement. 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

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- 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 Ass istant Criminal District Attorney SBN 24034895 205 North Bridge Street, Suite 301 Victoria, Texas 77902 E

- mail: bguy@vctx.org Telephone: (361) 575

- 0468 F acsimile: (361) 576

- 4139

ATTORNEYS FOR THE APPELL ANT , THE STATE OF TEXA SBrief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 28 CERTIFICATE OF COMPLIANCE In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,
Br endan Wyatt Guy , Assistant Criminal District Attorney, Victoria County, Texas, certify that the number of words in Appell ant ’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

- 4139Brief of Appellant Victoria County Criminal District Attorney No. 13

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- CR 29 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 Appell ee , 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