No. 4-04-00886-CR
Delivered and Filed: April 12, 2006. DO NOT PUBLISH.
Appeal from the 290th Judicial District Court, Bexar County, Texas, Trial Court No. 2004CR0941, Honorable Sharon MacRae, Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, and Phylis J. SPEEDLIN, Justice.
Opinion by: PHYLIS J. SPEEDLIN, Justice.
Michael Bracken Price appeals his murder conviction contending: (1) the trial court erred in failing to submit the lesser-included offense of criminal negligent homicide; (2) the felony offense of deadly conduct cannot underlie a felony murder conviction; and (3) the indictment failed to allege a culpable mental state for deadly conduct. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.
Criminal Negligent Homicide
A two-step test is applied in determining whether a charge on a lesser-included offense should be given. Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App. 2002); Ybarra v. State, 890 S.W.2d 98, 108 (Tex.App.-San Antonio 1994, pet. ref'd). The first step is to decide whether the offense is actually a lesser-included offense of the offense charged. Feldman, 71 S.W.3d at 750; Ybarra, 890 S.W.2d at 108. Criminal negligent homicide is a lesser included offense of murder. Saunders v. State, 913 S.W.2d 564, 572 (Tex.Crim.App. 1995); Burnett v. State, 865 S.W.2d 223, 228 (Tex.App.-San Antonio 1993, pet. ref'd). The second step of the test requires that the record contain some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense. Feldman, 71 S.w.3d at 750; Ybarra, 890 S.W.2d at 108. A person acts with criminal negligence when he or she ought to be aware of a substantial and justifiable risk that the circumstances exist or the result will occur. Lugo v. State, 667 S.W.2d 144, 147-48 (Tex.Crim.App. 1984). The key to criminal negligence is the failure of the actor to perceive the risk created by his conduct. Still v. State, 709 S.W.2d 658, 660 (Tex.Crim.App. 1986). "Pertinent to a determination of whether the evidence shows an awareness of the risk that circumstances exist or that the result will occur are factors like a defendant's familiarity with the gun and its potential for injury; a defendant's conduct in handling the gun; how the weapon could be fired; how the weapon was actually fired, i.e., attendant circumstances." Id. After an initial altercation with several individuals outside a bar, Price returned to his hotel room and retrieved a rifle. Price returned to the scene intending to recover certain items that he lost during the altercation. Price testified that the rifle was loaded and chambered. Price took the rifle with him for protection. When he arrived at the scene, an ambulance was in the parking lot. Price pulled into the parking lot and stopped intending to wait until the ambulance left before recovering his lost items. Price testified that an individual approached his truck screaming and gesturing. Price grabbed his rifle, pointed it out of the window, and started firing. Price stated he "wanted to stop the guy from advancing and [he] just fired it up over the area." Price was driving his truck out of the parking lot as he was firing, and he was firing at an upward direction behind him. Price testified that he had used the rifle to hunt and was aware that the rifle had a "real good chance" of killing if the rifle was aimed and discharged. Although Price testified that he shot over the area rather than aiming in a particular direction, Price testified that he did so to keep the advancing individual away from him. See Mendieta v. State, 706 S.W.2d 651, 653 (Tex.Crim.App. 1986) (finding awareness of risk when appellant pulled knife and began swinging to keep the deceased away from him). Price testified that he was familiar with the rifle, had fired the rifle previously, and knew it was loaded. Accordingly, there was no evidence to support a rational finding that Price was unaware of the risk that the circumstances existed or the result would occur, and the trial court did not err in denying the charge on criminal negligent homicide. Price's first issue is overruled. Deadly Conduct as Underlying Offense
In his second issue, Price contends that deadly conduct cannot be the underlying felony offense for felony murder because deadly conduct is a lesser-included offense of manslaughter. See Johnson v. State, 4 S.W.3d 254, 258 (Tex.Crim.App. 1999) (holding a conviction for felony murder will not lie when the underlying felony is manslaughter or a lesser-included offense of manslaughter). We reject this contention for the same reasons given by our sister courts in addressing this issue. See, e.g., Arellano v. State, No. 05-02-01200-CR, 2003 WL 22480926, at *1 (Tex.App.-Dallas Nov. 4, 2003, no pet.) (not designated for publication); Freeland v. State, No. 05-02-01746, 2003 WL 22456353, at *1-2 (Tex.App.-Dallas Oct. 30, 2003, no pet.) (not designated for publication); Yandell v. State, 46 S.W.3d 357, 360-61 (Tex.App.-Austin 2001, pet. ref'd); Medellin v. State, 960 S.W.2d 904, 906-07 (Tex.App.-Amarillo 1997, no pet.). In establishing deadly conduct, the State must prove that Price knowingly discharged a firearm, a fact not required to establish the commission of manslaughter, and deadly conduct requires proof of knowing conduct, which is a more culpable mental state than the recklessness required for manslaughter. See Freeland, 2003 WL 22456353, at *2; Yandell, 46 S.W.3d at 361. Because deadly conduct is not a lesser-included offense of manslaughter, Price's second issue is overruled. Culpable Mental State
In his final issue, Price contends that the trial court erred in denying his motion to quash because the indictment failed to allege a culpable mental state for the underlying deadly conduct offense. Assuming that the indictment should have alleged the culpable mental state for deadly conduct, Price was required to show that the omission of the culpable mental state prejudiced his substantial rights. See Flores v. State, 102 S.W.3d 328, 332-33 (Tex.App.-Eastland 2003, pet. ref'd); Yandell, 46 S.W.3d at 362. Whether Prices's substantial rights were prejudiced turns on the question of whether he had notice adequate to prepare his defense. See Flores, 102 S.W.3d at 332; Yandell, 46 S.W.3d at 362. Although Price states in his brief that the omission "denied him sufficient notice to prepare an adequate defense," Price does not explain how this omission affected the notice he received. Rather, the record in this case reflects that Price was fully aware of the crime for which he was accused and the factual allegations on which that accusation rested, and Price testified and called other witnesses to testify in an effort to refute the factual allegations. Because the record does not show that Price's substantial rights were prejudiced by the alleged omission in the indictment, Price's third issue is overruled. Conclusion
The trial court's judgment is affirmed.