State v. Rodriguez, Roman

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0463-08 THE STATE OF TEXAS v. ROMAN RODRIGUEZ, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

BEXAR COUNTY P RICE, J., filed a concurring opinion in which K ELLER, P.J., joined.

CONCURRING OPINION

I agree that the trial court properly granted the motion to quash in this cause. My ultimate reasons are similar to those that the Court offers in its opinion today. I write separately not only to explain why I ultimately agree with the Court, but also to register my dismay with the peculiar and confusing way in which the Legislature has chosen to effectuate its intent in this particular statutory provision.

The statute at issue is decidedly not user-friendly. Section 42.12(a) of the Penal Code makes it a Class A misdemeanor if a person “recklessly discharges a firearm inside the corporate limits of a municipality having a population of 100,000 or more.” 1 One of the cardinal rules of statutory construction is that legislative language should be interpreted according to its plain import—when, in fact, its import is plain. While the language of Section 42.12(a) may seem simple enough, on close inspection it turns out to be anything but plain. Specifically, the statute is hopelessly ambiguous with respect to how the prescribed culpable mental state of recklessness should be applied.

It is plain enough that there are two conduct-related elements in the statute. First, the actor must discharge a firearm. Second, he must do so within densely populated city limits. There are three categories of conduct-related element recognized by the Penal Code: nature of conduct elements, result of conduct elements, and circumstances surrounding conduct elements. Knowing which of these categories of conduct-related element is enumerated in a particular Penal Code provision tells us what kind of culpable mental states can inhere: 1. With respect to nature-of-conduct elements, a person can act intentionally or knowingly.2 2. With respect to result-of-conduct elements, a person can act intentionally, knowingly, recklessly, or with criminal negligence.3 3. With respect to circumstances-surrounding-conduct elements, a person can act with knowledge, recklessness, or criminal negligence.4 In Section 42.12(a), that the conduct must occur within densely populated city limits is plainly a circumstances-surrounding-conduct type of conduct element. Such a conduct element may take a recklessness culpable mental state. But does it, in this statute? 5 And, even more puzzling, what category of conduct element does the Legislature regard “discharge a firearm” to fall under? The answer—to me, at least—is not entirely clear.

On its face, discharging a firearm would seem to be a nature-of-conduct type of element rather than a result-of-conduct or circumstances-surrounding-conduct element. But if that is so, why would the Legislature purport to assign the culpable mental state of recklessness to it—one which nature-of-conduct elements ordinarily, according to the Penal Code scheme, do not take? Perhaps the Legislature did not intend for “recklessly” to modify “discharges a firearm” at all, notwithstanding that it is the directly antecedent adverb in the statutory text. Instead, perhaps the Legislature intended for “recklessly” to modify only the circumstance-surrounding-conduct element in the statute; an actor need only be reckless, to be guilty under this provision, with respect to whether his act of discharging the firearm occurred within densely populated city limits. The act of discharging a firearm need only be voluntary;6 or, alternatively, perhaps a mental state of intentionally or knowingly should be read into the statute for this nature-of-conduct element.7

On the other hand, perhaps it is not beyond the realm of plausibility to construe “discharges a firearm” to be a result-of-conduct element. In that case, it would take a culpable mental state of recklessness under the overall scheme of the Penal Code. Given that “recklessly” immediately precedes “discharges a firearm” in the structure of Section 42.12(a), and therefore seems to have been intended directly to modify it,8 perhaps this is the most natural reading of the statute. If that is the case, I would be inclined to think that what Article 21.15 of the Code of Criminal Procedure requires by way of a particularized allegation of recklessness in the indictment is simply an allegation that the appellant was aware that the firearm was loaded and operable,9 such that it could be said that he was aware of but consciously disregarded the substantial and unjustifiable risk that the voluntary act of putting pressure on the trigger would result in the firearm’s discharge.10

The Court today, however, ascribes a completely different significance to the Legislature’s use of the culpable mental state of recklessness in Section 42.12(a). The Court holds that an actor must be reckless not simply with respect to the simple act of pulling the trigger of the firearm itself, but rather, with respect to some circumstance surrounding the conduct of discharging the firearm—some circumstance other than the only circumstance expressly listed in the statute. Thus, the Court holds that in order to comply with Article 21.15’s notice requirement, the State must allege that the firearm was, e.g., discharged into the ground or sky amidst a crowd of people, or in the backyard of a residential neighborhood, on the grounds of an elementary school, in the direction of a traffic sign, or in a public park. While I have no difficulty believing that this was the actual legislative intent, it seems the least plausible construction of the actual statutory language, since it adds a conduct element (or elements—indeed, any number of elements) not appearing in the language of the statute itself, and thus might expose us to the charge of legislating from the bench if we are wrong.

Still, our paramount duty in construing statutory language is to effectuate the intent of the Legislature. When we insist on implementing plain statutory language, we do so not for its own sake, but because we regard that as the best evidence of the legislative intent. When we encounter a statute that is as impossibly problematic as this one is with respect to the appropriate assignment of the culpable mental state, I believe it is useful and permissible to consult extra-textual sources. Section 42.12 was enacted in 1995 via Senate Bill 68.11 In a bill analysis prepared by the House Research Organization, it is noted that supporters of Senate Bill 68 endorsed its passage: because the current Penal Code offenses of discharge of a firearm in a public place [Section 42.01(a)(7)] and deadly conduct [Section 22.05(b)] do not always cover the firing of guns in private places.

Every year there are numerous cases of people being struck by indiscriminate gunfire. Even a bullet fired straight up in the air on private property can cause severe injury when it lands. People are being shot by randomly fired bullets as they stroll down a street or watch television in their living rooms. [Senate Bill 68] would decrease the likelihood of such senseless shootings and give prosecutors a precise charge to use when they occur.

This suggests to me that what the Legislature had in mind in passing Section 42.12(a) was to assign a reckless culpable mental state to the act of discharging-a-firearm-within-a- densely-populated-city-limits, requiring that the conduct occur under such additional circumstances (albeit not spelled out on the face of the statute) as to create a substantial and unjustifiable risk of injury to another person, with the actor aware of but consciously disregarding that risk. I therefore agree with the Court that we should construe the notice requirement of Article 21.15 to dictate some allegation of recklessness of that sort.

With these added observations, I join the Court’s opinion.

FILED: April 6, 2011 PUBLISH