Summary
In Leavitt, the State alleged in the information that the defendant "intentionally, knowingly, and recklessly cause[d] bodily injury to [the complainant] by hitting [the complainant] in the face with the hand of the [defendant]."
Summary of this case from State v. RodgersOpinion
No. 05-06-00341-CR
Opinion issued July 25, 2006. DO NOT PUBLISH.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. 002-88491-04. Affirmed.
OPINION
The trial court granted appellee David Daniel Leavitt's motion to quash the information charging he assaulted a family member. In one issue, the State complains the trial court erred in granting the motion to quash the indictment. We reverse the trial court's judgment and remand this cause to the trial court with instructions to reinstate the information. Appellee moved to quash the information, asserting it did not comply with article 21.25 of the code of criminal procedure because the information failed to "allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence." At the hearing on appellee's motion, appellee argued that he was entitled to "further information concerning the recklessness act, the manner that [sic] it occurred, and how it was reckless." The trial court questioned appellee about whether he relied on 21.25 or 21.15, and appellee conceded he had misstated the section number in his motion. The State relied on State v. Emanuel, 873 S.W.2d 108 (Tex.App.-Dallas 1994, no pet.), arguing that the information adequately alleged the reckless act. The trial court stated it believed the legislature had changed the statute since this Court issued the Emanuel case. And, because of that change, Emanuel would not "reach the same result." While this Court might possibly decide Emanuel differently under another version of section 21.15, we note the legislature last amended section 21.15 in 1973, with the amendment becoming effective January 1, 1974. Consequently, because the legislature has not changed section 21.15 and no higher court has held that Emanuel was wrongly decided, we conclude Emanuel is still the law in this jurisdiction. We agree that when an information alleges the accused acted recklessly, it must also allege with "reasonable certainty" the act or acts which constitute recklessness. See York, 31 S.W.3d at 801. Here, the information alleged appellee "intentionally, knowingly, and recklessly cause[d] bodily injury to [the complainant] by hitting the [complainant] in the face with the hand of the [appellee]." In Emanuel, this Court reviewed an information virtually identical to the instant information and concluded it adequately informed the defendant of the acts upon which the State was relying. See Emanuel, 873 S.W.2d at 109-10. The court of criminal appeals has not overruled Emanuel, and we are bound by this Court's earlier decision. Consequently, we conclude the information in this case adequately informed appellee of the act upon which the State intended to rely. We sustain the State's issue. We reverse the trial court's order granting the motion to quash and remand to the trial court with instructions to reinstate the information.
Because we decide that this information is sufficient to allege the reckless act on which the State relied, we need not decide if appellee's failure to allege the correct section in his written motion to quash prohibits his raising this point for the first time on appeal. See State v. York, 31 S.W.3d 798, 803 (Tex.App.-Dallas 2000, pet. ref'd).