Summary
concluding allegation that defendant recklessly caused bodily injury by throwing wife to the ground causing her to strike head and body on ground sufficient
Summary of this case from Allen v. StateOpinion
No. 05-07-00364-CR.
Opinion issued April 28, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-80626-06.
Before Chief Justice THOMAS and Justices WRIGHT and FRANCIS.
MEMORANDUM OPINION
In one issue, appellant contends the trial court erred in denying his motion to quash the information because the allegations in the information were insufficient "to satisfy the notice requirements for pleading reckless conduct in an assault case." We affirm. The sufficiency of an information is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004). When, as in this case, the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, the trial court's ruling is subject to de novo review. Id. Appellant was charged and convicted under section 22.01(a)(1) of the penal code which provides a person commits the offense of assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2007). The information alleged appellant did: [i]ntentionally, knowingly, and recklessly cause bodily injury to Kristina Leavitt by picking up Kristina Leavitt with [appellant's] hands and throwing Kristina Leavitt to the ground with [appellant's] hands causing Kristina Leavitt to strike her head and body against the ground. Appellant moved to quash the information, arguing it did not provide sufficient notice of the acts the State relied upon to constitute recklessness. When the State alleges the defendant acted recklessly in the commission of an offense, the information must also allege, with reasonable certainty, the act or acts relied upon to constitute recklessness. Tex. Code Crim. Proc. Ann. art. 21.15 (Vernon 1989). An information is insufficient if it merely alleges the accused acted recklessly in committing the offense. Id. However, the information is sufficient if it "alleges the act relied upon to constitute recklessness with reasonable certainty so it informs the accused of the nature of the reckless act of which he or she is accused." State v. Emanuel, 873 S.W.2d 108, 109 (Tex.App.-Dallas 1994, no pet.) (concluding indictment alleging violation of section 22.01(a)(1) of the penal code was sufficient because it "did not merely track the statutory language and allege that [the defendant] recklessly caused bodily injury, as prohibited by article 21.15" but, rather, "specified [the defendant's] reckless act as hitting the complainant with a belt"); see State v. Rodgers, 214 S.W.3d 644, 649 (Tex.App.-Eastland 2006, pet. ref'd) (concluding information alleging violation of section 22.01(a)(1) of the penal code was sufficient because it alleged reckless acts of "pushing," "kicking," "striking," "choking," and "squeezing"). Here, the information did not merely allege appellant caused bodily injury to the complainant, who was his wife. Rather, it specified his reckless act of picking his wife up and throwing her to the ground, causing her to strike her head and body against the ground. The information sufficiently alleged the acts relied upon by the State to prove reckless conduct. Emanuel, 873 S.W.2d at 109; Agripino v. State, 217 S.W.3d 707, 712 (Tex.App.-El Paso 2007, no pet.) The trial court did not err in denying appellant's motion to quash. Accordingly, we overrule appellant's issue and affirm the trial court's judgment.