Frank Flores CUELLAR, Appellant, v. The STATE of Texas, Appellee.
No. 13-96-571-CR
Court of Appeals of Texas, Corpus Christi.
Nov. 6, 1997.
James D. Rosenkild, Assistant District Attorney, Corpus Christi, for Appellee.
Before SEERDEN, C.J., and CHAVEZ and RODRIGUEZ, JJ
OPINION
CHAVEZ, Justice.
Appellant Frank Flores Cuellar was convicted of intoxication manslaughter and driving while intoxicated. The intoxication manslaughter charge was tried first, and, after the jury trial on that charge was completed, proceedings commenced on the driving while intoxicated charge. Appellant appeals from the intoxication manslaughter conviction by two points of error. The first point argues that the trial court erred in failing to quash the indictment because the victim of the offense was a fetus at the time of appellant‘s conduct and, therefore, was not an “individual” within the legal meaning of that term. The second point argues that the intoxication manslaughter statute was unconstitutionally vague as applied to this appellant, because the definition of an individual does not provide notice that a fetus fits within that definition. The appeal of the driving while intoxicated charge argues in a single point of error that the charge should have been dismissed on double jeopardy grounds, since driving while intoxicated does not require proof of any additional element not required in proving intoxication manslaughter. We affirm both convictions.
Facts
Appellant drove his car into a car being driven by Jeannie Coronado, who was then seven and one-half months pregnant. As a result of the collision, Coronado was pinned between the seat and the steering wheel, with the steering wheel pushing into her abdomen. Both appellant and Coronado were taken to the hospital. Appellant‘s blood alcohol level was tested one and-a-half hours after the collision and found to have a concentration of .24.1 Coronado‘s attending physician at the hospital observed fetal distress and therefore performed an emergency caesarian section. A live baby girl was born and named Krystal Zuniga. Shortly after birth the baby‘s head appeared swollen, indicating internal bleeding in the brain. Her condition deteriorated and she died approximately forty-three hours later. The medical examiner concluded that the cause of death was injury to the brain resulting from the automobile collision.
Analysis
Appellant‘s first challenge to the intoxication manslaughter conviction pertains to the trial court‘s denial of appellant‘s motion to quash the indictment. Generally, an indictment which tracks statutory language should survive a motion to quash. Olurebi v. State, 870 S.W.2d 58, 61 (Tex. Crim. App. 1994). A motion to quash should be granted only if the language concerning the defendant‘s conduct is so vague or indefinite as to deny the defendant effective notice of the acts allegedly committed. Bynum v. State, 767 S.W.2d 769, 778 (Tex. Crim. App. 1989). A trial court is not permitted to look behind the indictment by previewing the evidence to determine whether evidence supports the indictment. Brooks v. State, 642 S.W.2d 791, 795 (Tex. Crim. App. 1982); State v. Clarke, 880 S.W.2d 854, 854-55 (Tex. App. - Corpus Christi 1994, pet. ref‘d).
In this case the motion to quash was brought before the trial court in an unusual manner. The parties stipulated to certain facts solely for purposes of the hearing on
Appellant‘s conviction in this case was for intoxication manslaughter. The intoxication manslaughter statute provides:
A person commits an offense if the person:
(1) operates a motor vehicle in a public place, an aircraft, or a watercraft; and
(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.
In this case, it is undisputed that the victim died as a result of injuries received during the auto collision caused by appellant‘s drunk driving. It is also undisputed that the victim had not been born at the time of appellant‘s conduct, and it is undisputed that the victim later was born and later did meet the statutory definition of an individual. Therefore this case presents the question of whether the Penal Code authorizes a conviction only when a victim meets the definition of an individual at the time of the alleged misconduct, or whether a conviction may also be authorized if a victim attains the status of an individual after the alleged misconduct.2
Provisions in the Penal Code are not to be strictly construed but rather are to be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.
If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the child dyeth in her body, and she is delivered of a dead childe, this is a great misprision, and no murder; but if the child be born alive and dyeth of the potion, battery, or other
cause, this is murder; for in the law it is accounted a reasonable creature, in rerum natura, when it is born alive.
3 Coke, Institutes 58 (1648). Therefore, the common law would allow a conviction for not just manslaughter but also murder when a child is born alive and then dies as a result of prenatal injuries.
The state of New York, which shares the same “has been born and is alive” statutory definition of a person (See
When other states have faced vehicular manslaughter charges based on facts such as the facts before us, where the victim was born and lived for a short while before dying from prenatal injuries, they have consistently upheld the conviction. In State v. Hammett, 192 Ga. App. 224, 384 S.E.2d 220 (1989) the Georgia Court of Appeals reviewed a conviction for homicide by vehicle where a driver collided with a car containing a pregnant woman. The woman was taken to a hospital and an emergency caesarian section was performed. Her child lived for eleven hours before succumbing to injuries it suffered in the car crash. The Georgia court, referring to the common law “born alive” doctrine,3 held that “it is not the victim‘s status at the time the injuries are inflicted that determines the nature of the crime, but the victim‘s status at the time of death.” Id. at 221. The court contrasted the facts before it from those in Billingsley v. State, 183 Ga. App. 850, 360 S.E.2d 451 (1987), where a conviction for homicide by vehicle was reversed because the victim in that case was never born. Hammett, 384 S.E.2d at 220. Because the victim in Hammett was born and alive for a period of time, the conviction for homicide by vehicle in that case was upheld. Id.
In Jones v. Commonwealth, 830 S.W.2d 877 (Ky. 1992), the Kentucky Supreme Court reviewed a conviction for manslaughter that resulted from a drunk driver colliding with a car driven by a pregnant woman. An emergency caesarian section was performed and a live baby born who lived for fourteen hours before dying from prenatal injuries suffered in the collision. The Kentucky court also distinguished these facts from those of a prior opinion in the state‘s jurisprudence, Hollis v. Commonwealth, 652 S.W.2d 61 (Ky. 1983), where a conviction was reversed because the victim was an unborn fetus who had not been born alive. Jones, 830 S.W.2d at 878. Jones relied on the common law “born alive” doctrine and affirmed the conviction. Id. at 879-80.
In People v. Bolar, 109 Ill. App. 3d 384, 64 Ill. Dec. 919, 440 N.E.2d 639 (1982), an Illinois court faced the same sort of facts, where the defendant drove his car into a car containing a pregnant woman, the woman delivered her child by emergency caesarian section, and the child lived for a short period of time before dying from injuries sustained in the crash. Relying on the common law “born alive” doctrine, the Illinois court upheld the conviction for reckless homicide. Id. 64 Ill. Dec. at 923-25, 440 N.E.2d at 643-45.
Finally, State v. Soto, 378 N.W.2d 625 (Minn. 1985) states that “the overwhelming majority of jurisdictions within the United States which have considered the issue have
Appellant cites Showery v. State, 690 S.W.2d 689 (Tex. App.-El Paso 1985, pet. ref‘d) for the proposition that the proper analysis is to consider whether the victim met the statutory definition of an individual at the time of the defendant‘s conduct. In that case, the appellant was a physician who withdrew a fetus from a pregnant woman who apparently wanted an abortion. After the baby was removed from the womb, the appellant then used various means to suffocate the baby. The baby exhibited signs of life after it was removed from the womb, including limb movements and indications of breathing. The El Paso court stated “[t]he jury was required to find that the individual allegedly murdered by the [a]ppellant had been born and was alive at the time of the alleged misconduct.” Id. at 692.
Without such a finding, no conviction could have been authorized because, unless the victim had been born and was alive at the time of the alleged misconduct, there could be no other time when the victim met the statutory definition of an individual. Before the victim was extracted from the womb, the victim had not “been born.” After the appellant‘s alleged misconduct, the victim was not “alive.” The only way the victim could satisfy the “has been born and is alive” requirement was if the victim had been born and was alive at the moment of the alleged misconduct.
In the case before us, it is undisputed that Krystal Zuniga was born and alive after the alleged misconduct. Therefore, the finding required in Showery is not required in this case.
It is not necessary that all of the elements of a criminal offense be immediately satisfied at the time of the defendant‘s conduct. It is axiomatic that a homicide conviction, requiring the death of the victim as an element of the offense, may stand even though the victim‘s death is not instantaneous with the defendant‘s conduct but results from that conduct at a later time. See, e.g., Alba v. State, 905 S.W.2d 581 (Tex. Crim. App. 1995). To limit our perspective to the moment of the accused‘s conduct, as appellant urges, would be contrary to this well-established doctrine.
Furthermore, the civil law of this state recognizes the rights of a child who suffers some injury in the womb and is later born alive to be compensated for those prenatal injuries. A tort cause of action exists for injuries inflicted while the victim was in the womb, so long as the victim is later born and alive. Yandell v. Delgado, 471 S.W.2d 569, 569 (Tex. 1971). In Witty v. American Gen. Capital Dist., Inc., 727 S.W.2d 503, 504 (Tex. 1987) the Texas Supreme Court acknowledged the doctrine stated in Yandell. Witty, 727 S.W.2d at 505. The Witty court refused to allow recovery under Wrongful Death Act, not because the victim was a fetus at the time of the alleged misconduct, but because the victim died in the womb and was never born alive. Witty, 727 S.W.2d at 505-06. The conduct of a woman who takes illegal drugs while pregnant can be considered “conduct endangering the physical or emotional well-being of the child” for purposes of involuntary termination of parental rights under
The elements of intoxication manslaughter are (1) a person (2) operating a motor vehicle in a public place (3) who is intoxicated, and (4) by reason of that intoxication causes the death of another. It is undisputed that appellant was a person operating a motor vehicle in a public place while intoxicated. It is undisputed that Krystal Zuniga died by reason of Cuellar‘s intoxication. It is also undisputed that Krystal Zuniga was born and was alive for a period of time. Therefore, in applying the statutory definition “has been born and is alive” to the facts of this case, we hold that Krystal Zuniga was an “individual” under the criminal law of this state. Appellant‘s first point of error from the intoxication manslaughter conviction is overruled.
Appellant also contends that the intoxication manslaughter statute was unconstitutionally vague as applied to him. When a statute is challenged as unconstitutionally vague, our concern is premised on notions of notice and due process. Cain v. State, 855 S.W.2d 714, 717 (Tex. Crim. App. 1993). Essentially, as a society we want people to know what conduct is prohibited before we enforce the laws which prohibit their conduct. Id. When determining whether a state statute is unconstitutional on vagueness grounds, where no constitutionally protected right is concerned, the reviewing court need only scrutinize the statute to determine whether it is impermissibly vague as applied to the challenging party‘s specific conduct. Id. at 718. That is, the reviewing court must look at the defendant‘s conduct alone, and examine whether that conduct was clearly prohibited by the statute. Mills v. State, 941 S.W.2d 204, 209 (Tex. App.-Corpus Christi 1996, pet. ref‘d). The reviewing court should not just engage in a mere rhetorical critique, but should instead focus on a broader sense of fairness to the accused. Bynum v. State, 767 S.W.2d 769, 773 (Tex. Crim. App. 1989).
Appellant cites Collins v. State, 890 S.W.2d 893 (Tex. App.-El Paso 1994, no pet.) in support of his argument that this statute was unconstitutionally vague as applied to him. In that case, the appellant had smoked crack cocaine while she was pregnant, causing her child to be born in a state of addiction and to suffer pain from withdrawal. The appellant was charged with injury to a child, but the El Paso court ruled that the injury to a child statute was unconstitutionally vague as applied to her. Id. at 897. Implicit in the court‘s decision was the holding that, given Texas‘s definition of an individual as a person who has been born and is alive, applying a criminal statute against one who injures a fetus is unconstitutionally vague, even if the fetus is later born alive and is harmed by the prenatal injuries. To the extent this holding would compel us to hold that the intoxication manslaughter statute was unconstitutionally vague as applied to the facts of this case, we decline to follow it.
Appellant does not dispute that he had sufficient notice that, in driving his car while intoxicated, he was violating the criminal law. Appellant contends instead that he lacked adequate notice that a person such as Krystal Zuniga, who was in the womb at the time of his conduct, could be included in the definition of an individual under the intoxication manslaughter statute. This same argument was made by the appellant in Hall, to which the New York court responded “[i]t is axiomatic that a perpetrator of illegal conduct takes his victims as he finds them, so it is entirely irrelevant whether defendant actually knew or should have known that a pregnant woman was in the vicinity and that her fetus could be wounded as a result of his actions.” Hall, 557 N.Y.S.2d at 885. If we accepted appellant‘s reasoning, then whenever a court resolves an unsettled issue of statutory interpretation, that court would then be obligated to acquit the defendant on the ground that the statute was unconstitutionally vague prior to the court‘s resolution of the issue. Focusing on a broader sense of fairness to the accused, this is not a case where a defendant is ambushed by a vague provision in the criminal law he could not
Appellant‘s second point of error on his intoxication manslaughter conviction is overruled.
The D.W.I. Conviction
Appellant‘s complaint regarding his conviction for driving while intoxicated is that this conviction was barred by the double jeopardy prohibition. After appellant was convicted of intoxication manslaughter, appellant filed his notice of appeal of that conviction on November 4, 1996. At the same time appellant filed a special plea arguing that the State‘s prosecution of appellant for driving while intoxicated was barred by double jeopardy.
Prohibitions against double jeopardy are found in the
Where prosecution is sought for multiple offenses arising from the same conduct, the double jeopardy prohibition is violated unless each offense requires proof of an additional fact that the other does not. Blockburger v. United States, 284 U.S. 299 (1932); State v. Hensley, 866 S.W.2d 28, 29 (Tex. Crim. App. 1993). Appellant contends that the offense of driving while intoxicated does not require proof of any facts that are not also required to prove the offense of intoxication manslaughter, and therefore his conviction for intoxication manslaughter bars his prosecution for driving while intoxicated. However, appellant‘s conviction for intoxication manslaughter had been appealed at the time he filed his special plea and therefore was not a final conviction when the charge of driving while intoxicated came before the trial court.6 Only a final conviction in a former case will support a plea of double jeopardy based on the former conviction. Dailey v. State, 162 Tex. Crim. 387, 285 S.W.2d 733, 733 (1955); Hosey v. State, 760 S.W.2d 778, 780 (Tex. App.-Corpus Christi 1988, pet. ref‘d.) We hold that the trial court did not err in refusing to grant appellant‘s special plea of double jeopardy and overrule appellant‘s sole point of error regarding his conviction for driving while intoxicated.
The judgment of the trial court is AFFIRMED.
RODRIGUEZ, J., dissents.
RODRIGUEZ, Justice, dissenting.
Because I do not believe the legislature has defined “another,” “person,” or “individual” to include an unborn fetus, even if later born alive, I dissent from the majority‘s disposition of points of error one and two.
In Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991), the court of criminal appeals, relying on
Contrary to the majority, I find no ambiguity in the intoxication manslaughter statute. That statute provides that a person commits the offense if he is intoxicated and by reason of that intoxication, causes the death of another by accident or mistake.
We must presume the legislature did not make a mistake in choosing the words and grammatical structure used in this statute. The grammatical structure of this sentence clearly evidences the legislature‘s intent that an entity must already be living at the time the proscribed conduct occurs. The penal code has not proscribed any conduct with respect to a fetus, and the legislature, by its definitions of “another,” “person,” and “individual” has specifically limited the application of our penal laws to conduct committed against a human being who has been born and is alive. The United States Supreme Court has said that the unborn are not persons under the
I find Showery v. State, 690 S.W.2d 689 (Tex. App.-El Paso 1985, pet. ref‘d), to be persuasive. In that case, a doctor delivered a fetus and then caused the death of the newborn by suffocating it. The jury charge defined “individual” as “a human being who has been born and is alive” as prescribed by
In affirming Showery‘s conviction, the El Paso Court of Appeals noted that the penal code necessitated findings of live birth and actual life at the time of Showery‘s conduct. Showery, 690 S.W.2d at 694. I see no reason to apply a different standard here. In order for the jury to convict appellant, the penal code necessitated findings of live birth and actual life at the time of appellant‘s conduct. It is uncontroverted that Ms. Coronado had not yet given birth to Krystal Zuniga at the time of the accident; thus there was no actual life at the time of appellant‘s conduct.
It is a rule of statutory construction that words and phrases omitted from a statute are presumed to be omitted for a purpose. If the legislature had intended criminal consequences for conduct occurring before the birth of the fetus, it could have easily done so. For example, in
I find nothing in the Texas Penal Code to demonstrate a legislative intent that an unborn fetus, even if later born alive, is to be embraced within the scope of the intoxication manslaughter statute. As such, I find no ambiguity in the statute necessitating the application of the extra-textual factors considered and applied by the majority. As stated by the dissent in Presley v. Newport Hosp., my conclusion is
By its opinion, the majority holds that the legislature, in enacting § 49.08, intended “another” to include a viable fetus, and has declared by judicial fiat that the time has come to prosecute, under the intoxication manslaughter statute, one who inflicts injury upon an unborn, but viable fetus whose death does not occur until after it has been delivered. In so doing, the majority has drastically rewritten the manslaughter statute under the guise of “construing” it. From such judicial activism I must dissent.
Relying on Collins, I would also sustain appellant‘s second point of error, that the statute is unconstitutionally vague as applied to his conduct. The majority wholly fails to address Collins‘s discussion of legislative intent with respect to the definition of a person, choosing instead to summarily dismiss the El Paso Court of Appeals‘s well reasoned opinion because it conflicts with the majority‘s perception that
Appellant clearly alleged he lacked adequate notice that a “person” such as Krystal Zuniga could be included in the definition of “another;” thus, it is irrelevant that, as pointed out by the majority, he did not dispute he had sufficient notice he was driving his car while intoxicated.
To determine whether a criminal statute is vague, the initial inquiry should be whether an ordinary, law-abiding citizen would have received sufficient information that his conduct risked violating a criminal law. Bynum v. State, 767 S.W.2d 769, 773 (Tex. Crim. App. 1989); Collins, 890 S.W.2d at 897. Because there is nothing in § 49.08 which gives an ordinary citizen notice that he could be prosecuted for injury to a fetus, I would hold that this statute is unconstitutionally vague as applied to appellant.
My decision rests, of course, with what I perceive the law to be in this matter. I am, however, in no way insulated from feelings which acknowledge the anguish suffered by Ms. Coronado in the death of her child and the scope of the overwhelming tragedy that has occurred. I am constrained by the statute as it has been enacted by our legislature. If the law is to be changed to allow prosecution for conduct such as appellant‘s, that change must come from the legislature, not from this Court. See Edinburg Hospital Authority v. Trevino, 941 S.W.2d 76, 79, n. 1 (Tex. 1997).