Opinion
No. 05-06-01673-CR
Opinion issued August 31, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F06-00887-H.
OPINION
On August 10, 2006, appellant Lindsey Alyn Crumpton was indicted for the offense of vehicular manslaughter alleged to have occurred on or about November 9, 2004. Appellant pleaded not guilty before a jury on August 21, 2006 to the charged offense. At the conclusion of the guilt-innocence phase of trial, the jury found appellant guilty of the lesser-included offense of criminally negligent homicide; and at the end of the punishment phase, the jury assessed appellant's punishment at ten (10) years in prison, a term within the range of punishment for a third degree felony. This appeal ensued. On appeal, appellant presents two issues, the second of which is dependent on the resolution of the first. In issue one, appellant contends the trial court erred in entering an affirmative finding of a deadly weapon in the judgment because appellant was convicted of a lesser-included offense and the application paragraph of the charge did not refer to a deadly weapon, the jury was not asked to make an affirmative deadly weapon finding, and an automobile is not a deadly weapon per se. In issue two, appellant contends she was convicted of a state jail felony but the punishment range was improperly enhanced to a third degree felony. For reasons that follow, we resolve each of appellant's issues against her and affirm the trial court's judgment.
At punishment, the jury heard victim-impact evidence from relatives of the deceased; appellant's mother testified to family-impact evidence and appellant's eligibility for probation.
The enhanced punishment was based on the deadly weapon finding. See Tex. Pen. Code Ann. § 12.35(c) (Vernon 2003).
Factual Background
The manslaughter indictment was based on an automobile collision between two vehicles, one of which was driven by appellant. The underlying facts of the collision are essentially undisputed; however, testimony of the accident reconstruction experts differed in one respect. Appellant was driving her Ford Explorer southbound on Interstate 35 in Dallas County when it traveled across the median into the northbound lanes of Interstate 35 and collided with a Chevrolet Impala driven by the deceased. The deceased died as a result of blunt force trauma caused by the collision. Police quickly arrived at the scene. Lancaster police officer Bryan Dorsey was one of the first officers to arrive. After putting out a fire resulting from the collision, Dorsey went to appellant's vehicle to investigate the facts. Upon inquiry, appellant told Dorsey she had been traveling south on I-35 before the collision. As Dorsey turned away from appellant, she grabbed him by the shoulder. When Dorsey turned back toward appellant, she told him she had attempted to commit suicide. When asked to clarify, appellant said she had driven across the median. As a result of an injury, appellant was taken to the hospital by ambulance. During the trip to the hospital, appellant motioned to Jared Carr, a paramedic, to move closer so she could talk to him. When Carr moved closer, appellant told him the collision had been an attempted suicide. When she was asked by Carr if she meant the collision had been on purpose, appellant said it had. Another paramedic in the ambulance, Rusty Lee Johnson, overheard the conversation. Johnson verified he had heard correctly that appellant said the accident had been on purpose. After delivering appellant to the hospital staff, the two paramedics went back to the collision scene to tell the police of appellant's comments to them. Appellant testified at trial. She testified that shortly before the collision she had taken "everything in her medicine cabinet" in an effort to kill herself, including Tylenol, Ibuprofen, and Benadryl. However, she only passed out and woke up vomiting sometime between 9:00 and 9:30 that night. Appellant talked to her mother on the telephone. Appellant's mother asked appellant to drive to the mother's home in Waxahachie. It was then appellant devised a plan to "flip" her car on the Interstate, killing herself. Not wanting her puppy to die, she left the puppy behind in her apartment. Appellant testified she drove her vehicle onto the grassy median in a suicide attempt to "flip" her car-not to drive into oncoming traffic. Appellant presented evidence from experts that after her car hit the grassy median, it lost control and accidentally went into the northbound lanes of the Interstate. Appellant also presented evidence that at the time of the accident, she was in withdrawal from her prescribed depression medication. One of the side effects of that withdrawal was suicide ideation. A medical expert testified appellant's symptoms were compounded by appellant's use of marijuana and cocaine the day of the accident. Appellant's mother essentially confirmed appellant's testimony. Appellant denied any intention of hurting anyone else and said that because of her mental condition, she was not aware of the dangerous consequences her actions could cause. A psychiatrist, Dr. Lisa Clayton, interviewed appellant and reviewed her medical records. At trial, Clayton testified that on the date of the accident, if appellant had not been taking the prescribed drug Effexor she would have had withdrawal symptoms including nausea, vision, and hearing impairment, and suicide ideation. Appellant could not have anticipated these side-effects; she was concentrating only on suicide.Procedural Background Indictment
The indictment charging appellant with manslaughter reads, in relevant part, as follows:[D]id recklessly cause the death of an individual, Kristina Bartlett, hereinafter called complainant, by driving her motor vehicle, a deadly weapon, off of the highway, causing her motor vehicle to move into the opposing lane of traffic and strike and collide with the complainant's motor vehicle[.]
Jury Charge
The application paragraph on the lesser-included offense of criminally negligent homicide, of which the jury found appellant guilty, reads as follows:Now bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt, that on or about November 9, 2004, in Dallas County, Texas, the defendant, caused the death of Kristina Bartlett by criminal negligence, then you will find the defendant guilty of criminally negligent homicide as included in the indictment.The verdict form at guilt-innocence reads as follows:
We, the jury, find the defendant guilty of criminally negligent homicide, as included in the indictment.The verdict form at punishment reads as follows:
We, the [j]ury, having found the defendant guilty of the offense of criminally negligent homicide, as included in the indictment, assess his [sic] punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for ten years (10) and a fine of 0.
Appeal
The issue we must first resolve in this appeal is whether the jury, as fact finder, made an express affirmative finding that a deadly weapon was used or exhibited during the commission of the lesser-included criminally negligent homicide of which the jury found appellant guilty. The second issue raised is whether the punishment range was properly enhanced to a third-degree felony. Resolution of the second issue depends on our resolution of the first. Appellant argues the trial court reversibly erred in making an affirmative deadly weapon finding in the judgment. She seeks deletion of that finding and a remand for a new punishment hearing. Appellant so contends because, in her view, the jury, as fact finder, did not make an express or explicit finding appellant used a deadly weapon, and the trial court had no authority to enter the affirmative finding in the judgment. Appellant relies primarily on LaFleur v. State, 106 S.W.3d 91 (Tex.Crim.App. 2003). She also cites an unpublished opinion from this Court. Appellant first sets out the three means by which an affirmative finding of use of a deadly weapon may be properly entered, as outlined in LaFleur. Id. at 95. Appellant then interprets LaFleur to hold that "when the defendant is convicted of a lesser included offense, an affirmative finding may be made if the application paragraph explicitly and expressly states that the defendant used a deadly weapon." Appellant points out that an automobile is not a deadly weapon per se, and, although the application paragraph for manslaughter did contain explicit deadly weapon language, the application paragraph for the lesser-included criminally negligent homicide and the verdict form finding appellant guilty of the lesser-included offense did not contain explicit deadly weapon language. Finally, appellant concludes the affirmative finding in the judgment is not supported by any of the means set out in LaFleur. Thus, argues appellant, the jury did not make an express or explicit finding that appellant used a deadly weapon. And because the jury was the fact finder, the trial court had no authority to enter the affirmative finding in the judgment. See Barecky v. State, 639 S.W.2d 943, 945 (Tex.Crim.App. [Panel Op.] 1982). The State responds that the lack of a deadly weapon reference in the application paragraph on the lesser-included offense in the jury charge is not dispositive. It argues that because the manslaughter indictment alleged the use of a deadly weapon and the jury's verdict form on the lesser-included offense of criminally negligent homicide referred to the indictment, the trial court's affirmative finding of a deadly weapon in the judgment was proper. And because the deadly weapon finding was proper, the punishment was properly enhanced to a third-degree felony based on that finding.Applicable Law
In Polk v. State, 693 S.W.2d 391, 393 (Tex.Crim.App. 1985), the court of criminal appeals held that in order for a trial court to properly enter an affirmative deadly weapon finding in the judgment, the jury must have made an "express" deadly weapon finding. Polk's purpose of ensuring there was an express deadly weapon finding is satisfied by looking to the application paragraph of the jury charge, as well as to the verdict form and indictment. Lafleur, 106 S.W.3d at 98. Polk, however, did not address the situation in which a defendant is indicted for one offense using a deadly weapon, but found guilty of a lesser-included offense, also using a deadly weapon. See id. at 96. That issue was addressed in Davis v. State, 897 S.W.2d 791 (Tex.Crim.App. 1995), overruled in part by LaFleur, 106 S.W.3d at 99. The Davis court held that the affirmative deadly weapon finding in the judgment was improper, reasoning that the "jury charge was not sufficient because the verdict form itself `made no reference to a deadly weapon nor did it refer back to the indictment.'" Lafleur, 106 S.W.3d at 97 (citing Davis, 897 S.W.2d at 793). This was confusing to many. As the court stated in Lafleur,[U]nder the reasoning of Travelstead and Davis, courts should look to the application paragraph to overturn a deadly weapon finding if that paragraph includes a parties charge, but courts should not look to that same application paragraph to uphold a deadly weapon finding. This is peculiar logic. . . . Polk reasoned that the jury charge was relevant; Davis said it was not. One of them is wrong.Id. In LaFleur, the court reaffirmed its decision in Polk and concluded its reasoning in Davis was flawed. Id. at 97-98. Lafluer held "that courts may look to the application paragraph of a lesser-included offense to determine if the express deadly weapon allegation in that portion of the jury charge matches the deadly weapon allegation in the indictment for the charged offense. If so, the trial court may enter a deadly weapon finding in the judgment based upon the jury's verdict of guilt on the lesser-included offense." Id. at 92. In a footnote following that holding, the court stated,
We do not suggest that reference to the application paragraph is the sole method, or even a preferred method, for making a deadly weapon finding when a person is convicted of a lesser-included offense. There is much merit in Judge Price's preference for a special "deadly weapon" issue. That is a commendable practice. We hold only that a trial judge has the authority to enter a deadly weapon finding based upon express "deadly weapon" language in the application paragraph of a lesser-included offense.Id. n. 6. Lafleur "overrule[d] Davis to the extent that it would prohibit courts from referring to the application paragraph of the jury charge to determine if the jury has made an express deadly weapon finding." Id. at 98.
Analysis
Although there may have been a better way to instruct the jury on the deadly weapon issue, Lafleur does not require it. As the court noted in Lafleur, with reference to this Court's opinion in Garza v. State, 912 S.W.2d 835, 836 (Tex.App.-Dallas 1995, no pet.), "[o]bviously, the phrase `lesser included offense' means lesser-included offense of the offense charged in the indictment-murder committed with a deadly weapon." Lafleur, 106 S.W.3d 98 n. 37. In the case before us, it is just as obvious. "Lesser-included offense" means lesser-included of the offense charged in the indictment-vehicular manslaughter "by driving her motor vehicle, a deadly weapon, off of the highway, causing her motor vehicle to move into the opposing lane of traffic and strike and collided with the complainant's motor vehicle." Just as in Davis, the jury in this case could not have found appellant guilty of criminally negligent homicide, as included within the manslaughter indictment, without also expressly deciding she used her motor vehicle, a deadly weapon. The reference to the indictment in both the application paragraph and in the verdict form is sufficient to constitute an express finding by the jury a deadly weapon was used during the commission of the offense and, thus, sufficient to support a deadly weapon finding in the judgment. The trial court's deadly weapon finding in the judgment was, therefore, proper. The trial court did not err by entering such a finding. We resolve appellant's first issue against her.Enhanced Third-Degree Felony Punishment
In issue two, appellant contends the punishment range was improperly enhanced to a third-degree felony because the fact finder, the jury, did not explicitly or expressly find that a deadly weapon was used in the commission of the offense. For the reasons set out under issue one, we disagree. Appellant was convicted of criminally negligent homicide, a state jail felony. Tex. Pen. Code Ann. § 19.05 (Vernon 2003). Section 12.35(c) of the Texas Penal Code provides, in relevant part:(c) An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:
(1) a deadly weapon as defined in Section 1.07 was used or exhibited during the commission of the offense . . . and that the individual used or exhibited the deadly weapon. . . .Id. § 12.35(c)(1) (Vernon 2003). Appellant acknowledges that "[h]ad a finding that [appellant's] automobile was a deadly weapon been made by the trier of fact, the jury, the penalty range could have been properly enhanced to a third degree felony." Because we have resolved issue one against appellant, concluding the jury did expressly find a deadly weapon was used during commission of the offense of criminally negligent homicide, it follows that we, likewise, resolve issue two against appellant. The jury's express factual finding that a deadly weapon was used operated to enhance the punishment level of the offense for which appellant was convicted to a third-degree felony. Id. The punishment range for a third-degree felony is not less than two nor more than ten years' imprisonment and an optional fine not to exceed $10,000. Id. § 12.34. Appellant was sentenced to ten years' imprisonment with no fine, a term within the range of punishment for a third-degree felony. We resolve appellant's second issue against her. We affirm the trial court's judgment.