Opinion
No. 14-03-01367-CR
Memorandum Opinion Filed April 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause No. 898,070.
Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
Appellant, Patsy Gunn Gates, appeals her conviction for felony murder based on the underlying offense of failure to stop and render aid ("FSRA"), TEX. TRANSP. CODE ANN. § 550.021 (Vernon 1999). In two issues, appellant claims her conviction for felony murder cannot stand because the statute is ambiguous as to whether FSRA is a felony or misdemeanor. In her first issue, appellant contends that since the statute is ambiguous, under the Rule of Lenity, we must conclude that FSRA is a misdemeanor and therefore incapable of supporting a felony murder conviction. In her second issue, appellant argues that because of this ambiguity, a felony murder conviction based on FSRA violates due process. We affirm. The Transportation Code provides that a conviction for FSRA is punishable by
(1) imprisonment in the institutional division of the Texas Department of Criminal Justice for not more than five years or confinement in the county jail for not more than one year;
(2) a fine not to exceed more than $5,000; or
(3) both the fine and the imprisonment or confinement.TEX. TRANSP. CODE ANN. § 550.021(c). Under the Penal Code, a felony is defined as "an offense so designated by law or punishable by death or confinement in a penitentiary," and a misdemeanor is defined as "an offense so designated by law or punishable by fine, by confinement in jail, or by both fine and confinement in jail." TEX. PEN. CODE ANN. § 1.07(a)(23), (31) (Vernon Supp. 2004-2005). Appellant argues that since the punishment range provided in the Transportation Code includes both felony-type (imprisonment) and misdemeanor-type (fine and/or jail) punishment, the statute is ambiguous. We disagree. The First Court of Appeals addressed a challenge to the FSRA statute based on this same theory in Schmidt v. State, 778 S.W.2d 549 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd). The court concluded that FSRA is a felony offense, "even though the accused may receive punishment other than penitentiary confinement." Id. at 551. Though the punishment provisions of the FSRA statute provide the option of a fine, confinement in jail, or imprisonment, that merely provides a minimum and maximum range of punishment. Id. at 552. If punishment by imprisonment is a possibility, then the offense is a felony, even if other punishment options are available. Id.; see also Lloyd v. State, 704 S.W.2d 67, 68 (Tex.App.-Corpus Christi 1985, no pet.) ("Because the offense with which appellant was charged was potentially punishable by confinement in a penitentiary, it is classified as a felony."); cf. Childress v. State, 784 S.W.2d 361, 365-66 (Tex.Crim.App. 1990) (holding that FSRA is a third degree felony for enhancement purposes because "the offense carries penitentiary time as a possible punishment"). We agree with this analysis and conclude that since imprisonment is a possible punishment, FSRA is unambiguously a felony. Thus, using FSRA as the underlying offense for a felony murder conviction does not implicate the Rule of Lenity or violate due process on the basis that the statute is ambiguous. We overrule appellant's first and second issues and affirm the trial court's judgment.
The State argues that appellant has waived error because she failed to file a motion to quash the indictment as required by TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon Supp. 2004-2005) ("If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object. . . ."). However, appellant does not characterize her issues as attacking the indictment, and thus we reject the State's argument that appellant has waived error on this basis.
The Rule of Lenity "embodies `a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.'" Cuellar v. State, 70 S.W.3d 815, 819 n. 6 (Tex.Crim.App. 2002) (quoting Bell v. United States, 349 U.S. 81, 83 (1955)). The Rule of Lenity is a "factor for a court to consider if, and only if, a statute is ambiguous." Id.