No. 04-07-00436-CR
Delivered and Filed: February 27, 2008. DO NOT PUBLISH
Appealed from the County Court at Law No. 12, Bexar County, Texas, Trial Court No. 996024, Honorable Michael E. Mery, Judge Presiding. Affirmed.
Sitting: ALMA L. LÓPEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
Opinion by: PHYLIS J. SPEEDLIN, Justice.
The State of Texas appeals from the county court's order dismissing a misdemeanor charge against Roman Rodriguez for recklessly discharging a firearm within a municipality of 100,000 or more people, in violation of Texas Penal Code section 42.12. Tex. Penal Code Ann. § 42.12 (Vernon 2003). We affirm the county court's order.
Background
The State's information against Rodriquez alleged that, in Bexar County, Texas: On or about the 12th Day of January, 2007, Ramon [sic] G. Rodriguez did recklessly discharge a firearm inside the corporate city limits of a municipality having a population of One Hundred Thousand (100,000) or more, namely: the City of San Antonio, by pulling the trigger on a firearm which contained ammunition and was operable.
In Rodriguez's motion to set aside the information, Rodriguez alleged the information failed to give him the statutorily and constitutionally required notice sufficient to enable him to prepare a defense to the allegations by failing to "allege with reasonable certainty any act or circumstance which would show that this was done in a reckless manner as required by the Texas Code of Criminal Procedure Article 21.15." After a brief hearing, the trial judge granted Rodriguez's motion and dismissed the case. The State argues that the trial court erred by granting Rodriguez's motion. Applicable Law
The adequacy of a charging instrument is a question of law subject to de novo review. State v. Moff, 154 S.W.3d 599, 601(Tex.Crim.App. 2004). An information "must allege on its face the facts necessary to show that the offense was committed, to bar a subsequent prosecution for the same offense, and to give the defendant notice of precisely what he is charged with." DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.Crim.App. 1988). "Recklessly discharg[ing] a firearm inside the corporate limits of a municipality having a population of 100,000 or more" is a misdemeanor offense. Tex. Penal Code Ann. § 42.12. When an accused is charged with acting recklessly in the commission of an offense, article 21.15 of the Texas Code of Criminal Procedure further requires that: [T]he . . . information . . . allege, with reasonable certainty, the act or acts relied upon to constitute recklessness . . ., and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly. . . .
Tex. Code Crim. Proc. Ann. art. 21.15 (Vernon 1989). Thus, if recklessness is an element of the offense, the charging instrument must "allege the circumstances of the act which indicate that the defendant acted in a reckless manner." Gengnagel v. State, 748 S.W.2d 227, 229 (Tex.Crim.App. 1988), superseded by constitutional amendment on other grounds, Tex. Const. art. V, § 12. Analysis
Here, the information clearly alleged the act which the State contended was done with recklessness — Rodriguez discharged a firearm inside the city of San Antonio, by pulling the trigger on a firearm which contained ammunition and was operable. However, the information did not allege the circumstances of the act or other acts which indicate Rodriguez acted in a reckless manner. The State argues that the phrase, "by pulling the trigger on a firearm which contained ammunition and was operable," is sufficient to apprise Rodriguez of the act of recklessness which violated the law. The State's information, however, did not inform Rodriguez of the circumstances that indicate he pulled the trigger of a loaded firearm in a reckless manner. See Gengnagel, 748 S.W.2d at 229; see also Garza v. State, 50 S.W.3d 559, 564 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (stating the words "into the ground in a crowd of people" described the reckless act). Because discharging a loaded firearm within the city limits by pulling the trigger is not a violation of the law per se, article 21.15 requires more to allege recklessness. See State v. Vasquez, 34 S.W.3d 332, 334 (Tex.App.-San Antonio 2000, no pet.) (holding that the word "reckless" in section 42.12 precludes an interpretation that the discharge of a firearm within the city limits is per se reckless). Although the acts indicating recklessness need not be pled in penal code terms nor be facially reckless acts, the allegations must be sufficient to allow a trier of fact to conclude that Rodriguez was reckless in his actions. See Townsley v. State, 538 S.W.2d 411, 412-13 (Tex.Crim.App. 1976); Graham v. State, 657 S.W.2d 99, 103-04 (Tex.Crim.App. 1983); Crume v. State, 658 S.W.2d 607, 609 (Tex.Crim.App. 1983). In Townsley, the Court of Criminal Appeals analyzed the application of article 21.15 in the context of the offense of involuntary manslaughter with a vehicle. Townsley, 538 S.W.2d at 412. The court initially noted that an information had been held deficient in cases where the information simply charged aggravated assault with a motor vehicle by "willfully and with negligence colliding with and causing injury to" a person. Id. The court reasoned that in those cases the information failed "to comply with the requirement of the statute that the acts relied upon to constitute negligence be alleged with reasonable certainty." Id. The Townsley court then distinguished the language in those cases from the language of the challenged indictment and determined the challenged indictment was sufficient because it included the following language: "by driving a motor vehicle at an excessive rate of speed while attempting to elude a police officer, and recklessly causing said vehicle to run off the roadway and roll over." Id. The court concluded that the quoted language alleged the act relied upon to constitute recklessness. Id.; see also Arredondo v. State, 582 S.W.2d 457, 458-59 (Tex.Crim.App. 1979) (holding the indictment alleged the act relied upon to constitute recklessness by alleging the defendant recklessly caused the death of an individual "by grabbing the steering wheel of a motor vehicle and pulling said steering wheel to the right while [appellant] was a passenger in the right front seat of said motor vehicle, thereby recklessly causing said motor vehicle to veer to the right and strike the said Robert Valdez, thereby fatally injuring the said Robert Valdez"). In the instant case, the allegation that Rodriguez "recklessly discharge[d] a firearm . . . by pulling the trigger on a firearm which contained ammunition and was operable" is similar to the allegation that the defendant committed an offense of aggravated assault with a motor vehicle by "colliding with and causing injury to" a person. Neither alleges the circumstances of the act which indicate the actor was reckless. Because the State failed to allege with reasonable certainty the act or circumstance which indicates Rodriguez discharged the firearm in a reckless manner, we overrule the State's single point of error. See Gengnagel, 748 S.W.2d at 229. Conclusion
The order of the trial court is affirmed.