Opinion
No. 01-87-00183-CR.
June 27, 1988. Published in Part Pursuant to Tex.R.App.P. 90.
Appeal from the 315th District Court, Harris County, Albert Pruett, J.
George M. Secrest, Sparks Secrest, Houston, relator.
John B. Holmes, Dist. Atty. Harris County, for respondent.
Before EVANS, C.J., and DUNN and SAM BASS, JJ.
OPINION
Opinion on Reconsideration
Upon reconsideration, we withdraw our opinion issued May 12, 1988, and substitute the following opinion. Tex.R.App.P. 101.
A jury found appellant guilty of failure to stop and render aid, determined two enhancement allegations to be true, and imposed punishment at 60 years imprisonment.
Appellant, while driving his pick-up truck, hit Giuditta Mafrica Serrano, an elderly woman, as she was crossing Telephone Road. Two drivers, Quinton Yeager and Perry Archer, who both witnessed the accident, each followed appellant and told him that he had hit a lady and to return to the scene of the accident. Appellant at first insisted that he had not hit anyone, but then said that he would return. He turned around at the first intersection, but instead of returning to the scene, pulled into the parking lot of the apartment complex where his mother lived. This was approximately 500 feet from the scene. Archer testified that he stopped to call for an ambulance, and Yeager, who immediately returned to the scene, testified that he saw appellant park his truck, look in the direction where he and two women were standing around the victim's body, and then go inside the apartment complex. Within five minutes, Yeager flagged down a passing police officer, who checked the victim's vital signs and determined that she was dead. Based on Yeager's statements, the police inspected appellant's truck, which showed substantial damage on the hood and grill, and arrested appellant at his mother's apartment.
In point of error four, appellant challenges the trial court's refusal to set aside the enhancement paragraphs in the indictment, and the court's instruction to the jury relative to the punishment provision of Title 3 of the Penal Code, specifically Penalties for Repeat and Habitual Felony Offenders, Tex.Penal Code Ann. sec. 12.42(d) (Vernon Supp. 1988). Appellant argues that the enhancement provisions in section 12.42 apply only to felonies and would not apply to Tex.Civ. Rev. Stat. Ann. art. 6701d, secs. 38, 40 (Vernon 1977) ("the statute"), under which he was convicted. The statute does not categorize the offense of failure to stop and render aid as a felony, and its punishment range is less than that for a third-degree felony under the Texas Penal Code.
The penalty for a third-degree felony is a minimum of two years and a maximum of 10 years in the penitentiary, with a possible fine up to $5,000. Tex.Penal Code Ann. sec. 12.34 (Vernon 1974). The penalty for failure to stop and render aid is "imprisonment in the penitentiary not to exceed five (5) years or in jail not exceeding one (1) year or by fine not exceeding Five Thousand ($5,000) Dollars, or by both such fine and imprisonment." Art. 6701d, sec. 38. Two prior felony convictions were used to enhance this punishment range to life or 25 to 99 years imprisonment under section 12.42(d) of the Penal Code.
Appellant cites Morgan v. State, 157 Tex.Crim. 117, 247 S.W.2d 94 (Tex.Crim.App. 1952), overruled on other grounds, Hokr v. State, 545 S.W.2d 463, 466 (Tex.Crim.App. 1977), where the court held that failure to stop and render aid is not an offense eo nomine and cannot be said, as a matter of law, to be a felony.
Appellant further argues that the language of Tex.Penal Code Ann. § 1.03(b) (Vernon 1974), underlined below, would prohibit the application of article 12.42 to the offense of failure to stop and render aid, because its punishment is not "classified in accordance with the Penal Code."
(b) The provisions of titles 1, 2, and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified
in accordance with this code. (Emphasis added.)
Appellant contends that the Texas Court of Criminal Appeals in Platter v. State, 600 S.W.2d 803 (Tex.Crim.App. 1980), failed to apply the underlined portion of § 1.03(b) when it held that failure to stop and render aid was a third-degree felony under Tex.Penal Code Ann. art. 12.41(1) (Vernon 1974), and that it was enhanceable under article 12.42. In Platter, the appellant challenged the enhanceability of the statute based on the statute having its own penalty provision, but did not raise the issue of its penalty not being in accordance with the Penal Code. The Platter court held that because the statute did not speak to enhancement, article 12.42 would apply, citing the first part of section 1.03(b), "unless the statute defining the offense provides otherwise." Id. at 805.
Section 12.41 Classification of Offenses Outside this Code. For purposes of this subchapter, any conviction not obtained from a prosecution under this code shall be classified as follows: (1) "felony of the third degree" if confinement in a penitentiary is affixed to the offense as a possible punishment. . . .
Appellant further points to the later case of Gutierrez v. State, 628 S.W.2d 57, 61 (Tex.Crim.App. 1980), overruled on other grounds, Chambers v. State, 711 S.W.2d 240, 247 (Tex.Crim.App. 1986), where the court held that conviction of a second-degree felony under the Controlled Substances Act ("the Act"), Tex.Rev.Civ. Stat. Ann. art. 4476-15, secs. 4.02 and 4.04 (Vernon 1976), may be enhanced to a first-degree felony under Tex.Penal Code Ann. sec. 12.42(b) (Vernon 1974). The Gutierrez court based this decision on an application of the second part of sec. 1.03(b), finding that the punishment for possession of heroin was classified in accordance with the Penal Code. 628 S.W.2d at 61; see also Young v. State, 552 S.W.2d 441, 443 (Tex.Crim.App. 1977). Section 4.04 of the Controlled Substances Act classifies the offense charged in Gutierrez as a second-degree felony. Section 4.01 of the Act sets the penalty for second-degree felonies at two to 20 years imprisonment with a possible fine not to exceed $10,000, the same penalty provided for second-degree felonies in section 12.33 of the Penal Code.
The Gutierrez court further held that section 12.41, which the Platter court used to classify failure to stop and render aid as a third-degree felony, applies only to the enhancing conviction, and not to the primary conviction that will be enhanced. Gutierrez, 628 S.W.2d at 61. The court explained that to determine whether the primary offense defined outside the Texas Penal Code is punishable under Title 3, one must look to section 1.03(b) of the Penal Code, citing the entire text of the section. Id. As previously noted, the court's decision that the conviction under the Controlled Substances Act was properly enhanced under section 12.42 was based on finding that its punishment was classified in accordance with the Penal Code. Id.
As appellant points out, the failure to stop and render aid statute does not define the offense as either a felony or a misdemeanor, nor is its penalty classified in accordance with the penalty for any classification of offenses set out in the Penal Code. See Tex.Penal Code Ann. secs. 12.21-12.34 (Vernon 1974).
The maximum penalty for failure to stop and render aid, five years imprisonment, is one-half of that for a third-degree felony. Furthermore, unlike a third-degree felony with a minimum sentence of two-year imprisonment, failure to stop and render aid is punishable by confinement in jail, with no minimum sentence, or by fine only. It is therefore clear that the legislature did not view the offense of failure to stop and render aid as serious as offenses classified as third-degree felonies, and the effect of any enhancement to the penalty set out under the statute would be proportionately much greater than the effect of enhancement to the penalty for a third-degree felony.
We hold that the offense of failure to stop and render aid may not be enhanced under article 12.42 of the Penal Code because its punishment is not classified in accordance with the Penal Code as required by section 1.03(b) of that code.
Point of error four is sustained.
The discussion of the remaining points of error does not merit the criteria for publication, Tex.R.Civ.P. 90, and is thus ordered not published.
The judgment of the trial court at the punishment phase is reversed, and the cause is remanded for a new punishment hearing; in all other respects, the judgment is affirmed. See Tex. Code Crim.P. 44.29(b) (Vernon Supp. 1988).
In point of error one, appellant contends that the court erred in refusing his requested defensive instructions in the jury charge, which he contends were raised by the evidence. When evidence from any source raises a defensive issue, or raises an issue that a lesser included offense may have been committed, and a jury charge on the issue is properly requested, the issue must be submitted to the jury. Moore v. State, 574 S.W.2d 122, 124 (Tex.Crim.App. 1978). When an issue is not raised by the evidence, the trial court acts properly in refusing a request to instruct on that issue. Brooks v. State, 642 S.W.2d 791, 799 (Tex.Crim.App. 1982).
The first requested instruction read:
Although you may believe from the evidence in this case, beyond a reasonable doubt, that the defendant's vehicle collided with and caused injury and death to the person of Giuditta Mafrica Serrano, at the time and place alleged in the indictment, yet you further believe that the defendant stopped his vehicle as soon as he knew of the collision and then, intended to go to the scene of the injury and render reasonable assistance to the said Guiditta [sic] Mafrica Serrano, and would have done so, had others [sic] present at the scene with the means at hand to accomplish or were accomplishing, then he would not be guilty, and you will so find; or if you have a reasonable doubt thereof, then you will find the defendant not guilty and acquit him.
We find no evidence in the record that appellant "intended to go to the scene of the injury and render reasonable assistance, .. and would have done so, had others [not been] present at the scene." Appellant did not testify at trial. While Archer did testify that appellant looked over at the scene where he and two others were standing around the body of the victim, his testimony did not provide evidence of what was going on in appellant's mind, i.e., any intent to return and reasons for not doing so. See Williams v. State, 132 Tex.Crim. 33, 102 S.W.2d 212 (Tex.Crim.App. 1937) (conviction reversed for failure to take the injured for treatment, where appellant testified that she returned to the scene but that someone else was already taking the injured for treatment).
Appellant's second requested instruction read:
You are further instructed herein that the defendant's failure to do for the injured party that which was done by others is not criminal. Therefore, if you believe from the evidence, or have a reasonable doubt thereof, that on the occasion in question, others at the scene of the injured party, Guiditta [sic] Mafrica Serrano, did not consider it necessary or proper to take, or make arrangements for taking, the complainant to a physician and hospital for medical and surgical treatment, you will find the defendant not guilty and say so by your verdict.
The cases relied upon by appellant in support of this requested charge are factually distinguishable. In those cases, the defendant had remained or returned to the scene, but someone else was already taking the injured for treatment, Bowden v. State, 172 Tex.Crim. 578, 361 S.W.2d 207 (Tex.Crim.App. 1962); Williams, 102 S.W.2d 212; or the injured's relative had preferred calling for an ambulance, Powell v. State, 170 Tex.Crim. 415, 341 S.W.2d 915 (Tex.Crim.App. 1961). In this case, appellant did not return to the scene, and no one was immediately attending to the victim when appellant stopped and viewed the scene. Neither is there evidence that appellant knew that an ambulance had been called.
We therefore find that the requested defensive issues were not raised by the evidence. Point of error one is overruled.
In point of error seven, appellant argues that the trial court reversibly erred when it overruled his objection to the following argument by the prosecutor in the guilt/innocence stage of the trial, that he alleges constitutes a comment on his failure to testify:
I don't know what else I can say ladies and gentlemen. I think we've had enough witnesses. I think the pictures and I think Mr. Yeager and Mr. Archer's testimony says it all. I think if you look at the charge, you can find the defendant failed to remain at the scene and he failed to make any kind of arrangements. And that was his conscious objection [sic]. That was his intent. As I told you on voir dire we can't get into his mind.
Tex. Code Crim.P. Ann. art. 38.08 (Vernon 1979) provides that if the accused invokes his right not to testify, such shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by the prosecutor. The Texas Court of Criminal Appeals has consistently held that a prosecutor's comment on a defendant's failure to testify offends both our state and federal constitutions. See, e.g., Losada v. State, 721 S.W.2d 305, 313 (Tex.Crim.App. 1986). "For a statement to constitute a comment on the failure to testify, the language of such a statement must be either manifestly intended, or of such a character that the jury would naturally and necessarily take it to be a comment on defendant's failure to testify. For an indirect comment to constitute reversible error, it must call for a denial of an assertion of fact or contradictory evidence that only the defendant is in a position to offer." Id. Where the State's comment is invited by appellant's earlier argument, such a comment is not reversible error. Nethery v. State, 692 S.W.2d 686, 703 (Tex.Crim.App. 1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986).
Appellant relies on Koller v. State, 518 S.W.2d 373 (Tex.Crim.App. 1975), where an allegedly similar statement was found to be reversible error. However, the Koller court's reversal was based on finding that other challenged statements, more explicit than the one referred to by appellant, were of such character that the jury naturally and necessarily would take them as comments on appellant's failure to testify. Id. at 376-77. One such argument included:
We still don't know what the motive was. We still don't know what the full facts were of this murder out there on the Bosque River. And it's within Mr. Dunnam's control to bring those blanks, but he won't bring them to you.
The State argues that the objected to statement merely reiterated its explanation on voir dire of the necessity of proving intent by words, actions, and circumstances surrounding the incident. It further argues that the statement was in response to defense counsel's argument concerning whether it was apparent that assistance was necessary, citing Nethery, 692 S.W.2d at 703.
We find that the statement was not manifestly intended, or of such a character that the jury would naturally and necessarily take it to be a comment on defendant's failure to testify. We further find that it was in response to defense counsel's argument.
Appellant's seventh point of error is overruled.
Having determined that the offense of failure to stop and render aid cannot be enhanced under the Texas Penal Code, we need not address the other points of error, all of which concern the punishment phase of the trial. Tex.R.App.P. 90(a).
The judgment of the trial court at the punishment phase is reversed, and the cause is remanded for a new punishment hearing; in all other respects, the judgment is affirmed. See Tex. Code Crim.P. 44.29(b) (Vernon Supp. 1988).