01-11-01089-CR Sean Michael McGuire v. The State of Texas–Appeal from 240th District Court of Fort Bend County

Sean Michael McGuire appeals from the trial court’s denial of his first amended application for writ of habeas corpus, in which he challenges the validity of the State’s indictment and asserts collateral estoppel on the basis of a subsequent indictment. We hold that the trial court did not abuse its discretion in denying McGuire’s application.

Background

According to the State, the following events occurred: McGuire was involved in a collision on FM 762 near Highway 59 in Richmond, Texas. He left the scene before Texas Department of Public Safety (DPS) troopers arrived. When the troopers arrived, they discovered on the side of the road the dead body of David Stidman and his motorcycle. The motorcycle appeared to have been dragged to its location. Further down FM 762, the troopers discovered McGuire stopped in the middle of the road in a black pickup truck. The truck had front end damage. McGuire had bloodshot eyes, slurred speech, smelled of alcohol, and was unsteady on his feet. He admitted to drinking before the crash. McGuire was determined to be intoxicated and taken to Oak Bend Hospital for a blood test. His blood alcohol level was double the legal limit at the time of the test. The test also revealed Benzoylecognine, a cocaine metabolite, in his system.
The State charged McGuire with felony murder (Count I) and, alternatively, intoxication assault (Count II). McGuire filed a application for writ of habeas corpus, arguing that the indictment was “illegal and invalid.” The trial court denied the application, and this appeal followed.

Standard of Review

We review a trial court’s denial of habeas corpus relief under an abuse of discretion standard. Ex parte Wheeler, 203 S.W.3d 317, 326 (Tex. Crim. App. 2006); Ex parte Necessary, 333 S.W.3d 782, 787 (Tex. App.—Houston [1st Dist.] 2010, no pet.). Under the abuse of discretion standard, we review questions of law de novo. Ex parte Necessary, 333 S.W.3d at 787.

Validity of the Indictment

McGuire challenges the indictment on two grounds. He first contends that the State’s indictment fails to allege an offense because it “alleges the Defendant ‘committed an act clearly dangerous to human life’ by an ‘omission’ in ‘failing to maintain an adequate lookout for traffic and road conditions’ and by ‘failing to take proper evasive actions[,’] which is on its face volatile and contrary to the charging prohibition contained in Section 6.01(c) of the Texas Penal Code rendering the allegations in the attempted indictment in [this case] not having stated an offense against the laws of the State of Texas.” McGuire next complains that he is improperly restrained of liberty via constructive custody[1] “by the imposition and restraint of an illegal and Invalid Indictment for the Offense of Murder [in this case] after the same facts and circumstances ha[ve] been subsequently presented to and ruled upon adverse to the State by a duly empanel[l]ed Grand Jury in Fort Bend County, Texas by a ‘No-Bill’ on April 25, 2011 or stated another way in legal consequence, an adverse finding of probable cause to believe probable Cause exist[ed] to believe Defendant committed the offense of Murder as alleged by the State. Said continued prosecution of the case after the said Grand Jury[’s] ‘No-Bill’ is and should be collaterally estoppe[d] and barred, under the legal doctrine of collateral estoppel under both the Texas and Federally Constitutionally based law and precedent in which []he seeks to prevent the State of Texas from further prosecuting h[im] for facts and circumstances that have already been litigated and decided adversely to the State of Texas.”
We hold that the trial court did not abuse its discretion in denying McGuire’s application for writ of habeas corpus with respect to either of these arguments.
A. Requirement of Voluntary Act or Omission
Under the Texas Penal Code, a person commits murder if, in the course of committing a felony, he commits an act clearly dangerous to human life that causes a death. See Tex. Penal Code Ann. 19.02(b)(3) (West 2011).[2] Driving while intoxicated (DWI) constitutes a felony if the person has been convicted of two prior DWIs. Id. 49.09(b)(2), 49.04 (West 2011). Count I of the indictment in this case charges McGuire with causing David Stidman’s death by committing an act clearly dangerous to human life while in the course of committing the felony of driving while intoxicated after two prior convictions for DWI. The indictment identifies the act clearly dangerous to human life as: “while driving a motor vehicle on a public street [McGuire] failed to maintain an adequate lookout for traffic and road conditions and failed to take proper evasive actions, and thus collided with a motorcycle driven by David Stidman causing the death of David Stidman” while committing his third DWI.
McGuire contends that the State’s indictment cannot support a murder prosecution because it fails to allege an “act” that is clearly dangerous to human life; instead, according to McGuire, the indictment only alleges “omissions.” McGuire argues that an omission cannot support a murder charge, relying on the “Requirement of Voluntary Act or Omission” provision of the Penal Code. See Tex. Penal Code Ann. 6.01 (West 2011). This provision provides that a person may commit an offense if he voluntarily engages in an act or an omission, but limits the circumstances under which an offense can be based on an omission: “a person who omits to perform an act does not commit an offense unless a law as defined by section 1.07 provides that the omission is an offense or otherwise provides that he has a duty to perform the act.” Id. 6.01(c). Section 1.07 of the Penal Code defines a “law” as meaning the Texas or United States Constitution, a state or federal statute, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute. Id. 1.07 (West 2011).
The implication of McGuire’s argument appears to be that his failure to maintain an adequate lookout for traffic and road conditions and failure to take proper evasive actions are omissions of actions that he had no legal obligation to take. But the law in Texas does impose a duty on drivers to maintain an adequate lookout and take proper evasive actions when necessary to avoid colliding with vehicles in front of them, and the failure to abide by these and other traffic laws is a voluntary act or omission upon which a criminal offense may be based. See, e.g., Lomax v. State, 233 S.W.3d 302, 304 n.5 (Tex. Crim. App. 2007) (affirming felony murder conviction based on indictment alleging that defendant “while in the course of and the furtherance of the commission of [felony DWI] did commit an act clearly dangerous to human life, to wit: by operating his motor vehicle . . . at an unreasonable speed, by failing to maintain a proper lookout for traffic and road conditions, and by failing to take adequate evasive actions prior to striking a motor vehicle occupied by [the victim] and did thereby cause the death of [the victim].”); Stadt v. State, 182 S.W.3d 360, 361 (Tex. Crim. App. 2005) (affirming conviction for criminally negligent homicide in vehicle collision based on failure to control speed, failure to maintain proper lookout for traffic and road conditions, failure to maintain single lane of traffic, and changing lanes in unsafe manner); Crume v. State, 658 S.W.2d 607, 608 (Tex. Crim. App. 1983) (affirming conviction for involuntary manslaughter based on indictment alleging that defendant recklessly caused victim’s death when, while driving while intoxicated, he caused his vehicle to collide with victim “by failing to guide his vehicle away from the Complainant and by failing to keep a lookout for the Complainant”); Carter v. State, No. 01-07-00301-CR, 2008 WL 5177903 (Tex. App.—Houston [1st Dist.] Dec. 11, 2008, pet. struck) (mem. op., not designated for publication) (affirming felony murder conviction based on commission of acts clearly dangerous to human life in course of felony DWI, “to wit: failing to maintain a single lane of traffic, failing to take proper evasive action, failing to control his speed, failing to properly use the safety appliances in the motor vehicle operated by the defendant in a timely manner, or failing to maintain a proper lookout thereby striking a vehicle occupied by [the victim] and did thereby cause the death of [the victim]”); Goodrich v. State, 156 S.W.3d 141, 145 (Tex. App.—Dallas 2005, pet. ref’d) (affirming criminally negligent homicide conviction based on failure to control speed, failure to maintain single lane of traffic, failure to maintain lookout, failure to attend to existing road conditions, and failure to take proper evasive action); see also Tex. Transp. Code Ann. 545.062(a) (West 2011) (requiring driver to maintain safe distance from vehicle ahead in light of traffic and road conditions, sufficient to allow driver time to stop safely without colliding with car ahead or veering into another vehicle, object, or person).
Moreover, the indictment alleges the affirmative voluntary actions of consuming alcohol and driving on a public street. See Lomax, 233 S.W.3d at 305 n.7 (noting that, in felony murder cases based on third-offense DWI, the “voluntary act” required includes the consumption of alcohol); see also Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003) (stating that section 6.01’s “voluntary act” requirement “does not necessarily go to the ultimate act,” but rather, requires that the allegations “include an act” that is voluntary).[3]
An indictment for felony murder is not required to allege the constituent elements of the underlying felony. Tompkins v. State, 774 S.W.2d 195, 206 (Tex. Crim. App. 1987). And, with respect to the elements of felony murder, it is generally sufficient for the indictment to allege the elements of the offense without specifying the manner and means used to commit the offense. Bowen v. State, 640 S.W.2d 929, 930–31 (Tex. Crim. App. 1982) (holding that indictment that alleged elements of offense was sufficient and identification of specific acts alleged to be clearly dangerous to human life was additional information). The indictment in this case alleges the elements of felony murder: during the course of committing the felony of third-offense DWI, McGuire committed acts that a jury could conclude are clearly dangerous to human life, and those acts caused the death of David Stidman. See Tex. Penal Code Ann. 19.02(b)(3) (identifying elements of felony murder).
We hold that the trial court did not abuse its discretion in denying McGuire’s writ of habeas corpus on the asserted ground that the State failed to satisfy the requirements of section 6.01 of the Penal Code. See Tex. Penal Code Ann. 6.01. We overrule McGuire’s first issue.
B. Collateral Estoppel
The State’s original indictment against McGuire charged him with murder and, alternatively, intoxicated manslaughter. The State subsequently sought a second indictment charging McGuire with the same two offenses.[4] According to the pleadings in the record, the grand jury initially returned a “true bill” on both indictments but later notified the district attorney’s office that the “true bill” on the second indictment had been returned in error. The State dismissed the prosecution on the second indictment and moved forward on the original indictment.
Citing Ashe v. Swenson, McGuire asserts that the grand jury’s “no bill” of the second indictment precludes the State from prosecuting McGuire on the original indictment under the doctrine of collateral estoppel. 397 U.S. 436, 90 S. Ct. 1189 (1970). The Court of Criminal Appeals rejected a similar argument in Shumake v. State, 502 S.W.2d 758, 760 (Tex. Crim. App. 1973). In Shumake, after one grand jury “no billed” the State’s first indictment, a second grand jury returned an indictment based on substantially the same facts and testimony heard by the first grand jury. Id. Shumake argued that collateral estoppel barred the State from prosecuting him under the second indictment when a grand jury had returned a “no bill” on a earlier indictment for the same charges. Id. The Court disagreed. Id. It held that the collateral estoppel rule in Ashe applies to valid and final judgments, not grand jury indictments. Id. In rejecting Shumake’s argument, the Court reiterated the rule that a prior “no bill” by a grand jury is not material in any way to the defense of a case. Id. (citing Smith v. State, 474 S.W.2d 486 (Tex. Crim. App. 1972)).
The reasoning in Shumake defeats McGuire’s argument here. The State’s second indictment is not a valid and final judgment to which the collateral estoppel rule in Ashe applies. See Shumake, 502 S.W.2d at 760; see also Ashe, 397 U.S. at 443, 90 S. Ct. at 1194. McGuire argues that his case is distinguishable from Shumake because the indictment that was “no billed” in this case came after the indictment on which the State now prosecutes him. But the analysis in Shumake is not dependant on the order in which the indictments were presented to the grand jury. See Shumake, 502 S.W.2d at 760. We see no reason that the State should be permitted to continue to seek subsequent indictments after a “no bill” but risk losing its right to prosecute if it seeks a subsequent indictment after a “true bill.” Nor did the second indictment act to vitiate or cancel the first indictment. See Louis v. State, 61 S.W.3d 593, 596 (Tex. App.—Amarillo 2001, pet. ref’d) (observing that second indictment for same offense “merely institutes another, new criminal action against the accused” and holding that second indictment did not prevent prosecution of defendant under first indictment) (citing Wallace v. State, 170 S.W.2d 762, 764 (1943); Bonner v. State, 29 Tex. Ct. App. 223, 229, 15 S.W. 821, 821 (1890); Trevino v. State, 900 S.W.2d 815, 817 (Tex. App.—Corpus Christi 1995, no pet.); United States v. Stricklin, 591 F.2d 1112, 1115 n.1 (5th Cir.), cert. denied, 444 U.S. 963, 100 S. Ct. 449 (1979)).
We hold that the trial court did not abuse its discretion in denying McGuire’s application for writ of habeas on the asserted ground that collateral estoppel bars the State from prosecuting him under the indictment in this case. We overrule McGuire’s second issue.

Conclusion

We hold that the trial court did not abuse its discretion in denying McGuire’s first amended application for writ of habeas corpus.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. Tex. R. App. P. 47.2(b).
[1] McGuire is not in jail but has been released on bail.
[2] The felony must be a felony other than manslaughter. See Tex. Penal Code Ann. 19.02(b)(3).
[3] “Voluntariness” under Section 6.01 refers only to a person’s own physical body movements; it is separate and distinct from any mental state requirement. See Rogers, 105 S.W.3d at 638–39.
[4] The two indictments are largely the same but contain some differences. The first indictment separates the murder and intoxicated manslaughter charges into two counts, while the second indictment separates these charges into two paragraphs. The first indictment alleges that McGuire committed an act clearly dangerous to human life while in the furtherance of a felony or in flight from commission of a felony, while the second indictment eliminates the “in flight” alternative. The first indictment contains the allegations regarding McGuire’s failure to maintain a proper lookout and failure to take evasive action, while the second indictment eliminates those details. Finally, the first indictment references only intoxication by alcohol in the count relating to intoxicated manslaughter, while the second indictment includes the alternative of intoxication by controlled substance.

Opinion PDF file
Opinion on the court’s website

This entry was posted in 1st Court of Appeals - CR and tagged . Bookmark the permalink.