*1 present disposition material to the case, spouse’scommunity is the extent of property interest in an unmatured insur- policy, purchased community ance funds, property in the but not mentioned property division of the divorce decree. We reserve for this determination appropriate Applica- Prudential’s case. refused, tion for is no Writ of Error reversi- ble error. HOOKER,
Terry Wayne Appellant, Texas, Appellee. The STATE of No. 59279. Texas, Appeals
Court of Criminal Panel No. 2.
June 1980. Rehearing Sept. Denied Russell, Hlavinka, Atchley, Waldrop & Stevens, Texarkana, petitioner. for Friedman, Texarkana, Errol respon-
dent.
PER CURIAM.
Insured, Burke, Riley brought P. suit against Company Prudential Insurance
seeking compel change Prudential to
beneficiary policy. of his life insurance Al- though policy granted expressly Burke right,
this Prudential refused to affect the change beneficiary because the named
Burke’s former wife her interest
policy had not been resolved in the divorce judgment. Appeals The Court of Civil af- judgment
firmed the of the trial court de- claring duty that Prudential had the beneficiary allowing Burke recovery attorney’s fees. 614 Appeals correctly
The Court of has Civil issue, decided A the case. collateral *2 598 error, ground
In his first Hooker that the trial court erred in over contends change ruling his motion for a of venue. properly supported by an The motion was signed by persons two and was affidavit hearing. evidentiary denied without an No controverting affidavits had been filed the State. Hussey posed
This is the identical issue State, (Tex.Cr.App.1979), long estab where we held that it had been was entitled to a lished that a defendant change of venue as a matter of law when challenge fails to the motion ei the State controverting by evi ther affidavits or presented hearing on the mo dence change grant The tion. failure Dur venue is reversible error. See also (Tex.Cr.App. rough v. 562 488 S.W.2d 1978). judgment
The is reversed and remanded. J., PHILLIPS, participating. Before the court en banc. MOTION
OPINION ON APPELLANT’S REHEARING FOR ONION, Presiding Judge. original submission this cause
On panel opinion for the was reversed in a grant a of venue. On failure rehearing appellant disagree with does not result, that but insists that he is entitled to McDonald, Waco, appel- for Charles M. challenge sufficiency to the lant. considered, as the lack of suffi evidence to sustain the conviction Felipe Reyna, Atty., Lynnan cient Dist. Waco, Kendrick, Atty., bar retrial while reversal based on Asst. Dist. would Locke Austin, Huttash, Atty., not. Burks v. Robert State’s the venue would See 2141, States, 1, 437 98 57 State. United U.S. S.Ct. (1978); Massey, 1 Greene v. 437 L.Ed.2d DOUGLAS, W. PHILLIPS and C. Before 19, 2151, (1978). 15 98 S.Ct. 57 L.Ed.2d U.S. DAVIS, JJ. appears that in view of Burks It now clear and Greene OPINION should be considered before the evidence DOUGLAS, Judge. though the reversal disposing of a case even ground. may be based on another Swabado appeal a conviction for This is an 361, (Tex.Cr.App. 364 punish- injury assessed to a child. $6,000.00 1980); 605 877 Watson v. years and a fine. ment at twelve
599
rounding
(Tex.Cr.App.1979).
United States v.
his conduct or
See
the result of his
Till,
228,
(5th
1980);
609 F.2d
Unit
he is
Cir.
conduct when
aware of but con-
Miranda,
(5th
sciously disregards
ed
593 F.2d
a substantial and un-
States v.
1979);
Hemming,
justifiable
risk that the circumstances ex-
Cir.
United States
(5th
1979).
ist or the result will occur. The
also Unit
risk must
F.2d
Cir.
See
(3rd
be of such a nature and
its
Gallagher,
ed
We shall therefore consider “(34) bodily injury’ to the of the evidence ‘Serious means bod- panel opinion ily injury that which the failed to consider. creates a substantial risk death, of death or that causes serious Appellant was convicted of “reckless” in- permanent disfigurement, protracted or V.T.C.A., Code, to a child under Penal impairment loss or of the function of (1974).1 22.04 § Punishment was assessed bodily organ.” member or years’ imprisonment at 12 and Appellant contends that failed $6,000.00 State fine. prove the child received a serious (1974) provides: Said 22.04 § bodily injury and failed to show that “(a) person A commits an offense if he act, any, if culpable was done with the intentionally, knowingly, recklessly, or “recklessly.” mental state of negligence with criminal engages in con- Dr. James L. Gilchrist duty was on duct that causes bodily injury, serious emergency room of the Providence physical deficiency serious or mental or 14,1976. in Waco on December About 5:05 impairment, deformity or to a child who p. he two-year-old m. was asked to examine years age younger. is 14 of or Hooker, just brought who had “(b) An offense under this section is a emergency by appellant room and his felony degree.” of the second wife. Dr. Gilchrist testified the child was Omitting parts, the formal the indictment suffering primar- from second burns alleged appellant on or about December ily part over the back of his 13, recklessly 1976 “did then and there en- superior aspect about mid-calf to gage in conduct which bodily caused serious shoulders. The burns were around his mid- injury Hooker, to Michael a child then and portion thighs. to some extent and his younger (14) than years fourteen of sharply burns were very demarcated and age, and which placing conduct consisted of red. The doctor observed that neither the the said Michael Hooker into a bathtub feet nor the hands were burned. The doc- containing quantity of water which was sharp tor indicated the demarcation of the sufficiently resulting hot to cause burns burns meant the child had been burned bodily injury serious to the said Michael water, very body hot and that the had not ” Hooker. .. . long been in period, the water for a or length whatever of time it was in the V.T.C.A., Code, (Definitions Penal 6.03 § water, body was in approximately Culpable States), provides Mental in Sub- position. the same (c): section “(c) person recklessly, A acts or is reck- Dr. Gilchrist testified that the situation less, respect quick to circumstances sur- demanded a evaluation as the child 1977, (Acts 2067, Leg., p. 1. The offense was shown to have occurred on 65th ch. eff. § Therefore, Aug. 1977). December the offense oc- curred before the amendment to said 22.04 § Blair, investigator pa- what a Susan from the Child “was more ill than number He that we see are.” stated that the Unit, tients to the Providence Welfare came Hos- count, sug- white blood cell child had a low pital and observed the child and his burns. gesting possible prob- a number Appellant get told her he told the child to lethargic, the child was lems. He observed standing water he had left for 30 minutes decreased, responsiveness was thus his originally which he had drawn to wash dia- cry when blood was withdrawn he did not pers crying the child started and that when two-year- as would have been normal for a the tub and dried he took the child out of old child. off, noticing slipping. him blisters and skin child, Dr. Appellant, father of the told Appellant’s wife told Blair the water was hospital previ- that on the Gilchrist at her, get told the child to 13th, day, some 24 to 30 ous December thinking in the water the tub had been earlier, he had drawn water in the hours filled for the child’s bath. Later the wife diapers. He bathtub to wash had left *4 present when the told Blair she was standing for 30 minutes when water about occurred. burns tub, get in the and he he told Michael to pulled later the child out when the child Blair related the Child Welfare Unit took began expressed sur- crying. The doctor she, child, custody and her husband prise of the burns if the the redness appellant’s the child from and wife took standing been for 30 minutes. water had early Hospital in the Providence to Hillcrest wife, Karen, Appellant’s told doctor she the morning December hours on had drawn the water for her own bath. City police Henry Garibay, Waco Michael County the McLennan The doctor called officer, went to Providence testified he the Department Welfare and ordered Child December Hospital Emergency Room on youth division of child transferred Garibay the child had Appellant told Hospital. the Hillcrest diapers preparing and he was to dirtied his Kemp, registered nurse for 40 Martha a in the tub and had let the wash the child evening hospital supervisor at years, and placed run minutes before he water for 20 years, for 16 went to Providence Appellant’s child in tub. wife told the the 14, 1976, emergency December the room on cleaning diapers Garibay she was in the Hooker. There where she saw Michael preparing sharp body the and was were lines of the burns on commode bright bums were dark red. She child, got and the when the child in bath for the and there were no burns on the observed that he received the burns. When it was the tub feet, face. child’s hands or conflicting pointed her there were out to stories, and did not talk temperature she became nervous Michael had She testified normal, lethargic and didn’t re- again. above was Garibay spond spoken when to. Harris, family resident Dr. Martha Jean just Kemp figure how the Nurse couldn’t Hospital, Hillcrest testified physician at the burned as he was. child could have been was on December she asked that line indicated there were not The burn “right Hooker by a nurse to see Michael splash as if the child had been thrash- burns testified he away as he was rather ill.” She about, gotten by him- ing and if he had second burns over 38% had burned, been and if self his feet would have vomiting fingers he was and his that he fallen in his hands would have had indicating in color decreased were bluish larger someone than burned. She stated “very oxygenation. appearance His was placed the child in the the child could have sick.” holding and ankles. tub him his hands sharp demarcation of the noted the She appel- Kemp when she asked the related feet, hands, face and the fact that the burns happened agitated and lant what he seemed genitals burned. She stat- his were not fault, and stated, police my I did it.” The “It’s about in if the child had thrashed ed were called. However, water burns would have been different numbness in the extremities. genitals his guilt and would been burned. stage was no evidence at Harris legs Dr. surmised the child’s were appellant experienced trial that loss together prevented geni- held and this feeling his hands time his son being from while tals burned in the hot was burned.
water. charge In its defined the court “serious injuries Dr. Harris stated the child’s were bodily injury” “recklessly” in accord- death, such as to cause a threat serious statutes, applied ance with the the law to that jeopardy except his life was in the facts the case to and submitted the excellent he medical care received. Af- on the law of circumstantial evidence. The supervising physi- ter consultation with two appellant guilty. found the cians, agreed it was Hooker’s case, In a evidence circumstantial condition such that he needed to be present State need not evidence exclud hospital transferred to a which cared for ing every hypothesis except conceivable severely burned individuals. Parkland Hos- guilt, that of it need only defendant’s pital in agreed accept Dallas child. present excluding every reasona Among the problems resulting hypothesis. ble Faulk v. burns, stated, Harris was the (Tex.Cr.App.1980); Phelps body preven- maintenance of fluids and the (Tex.Cr.App.1980); Plunkett v. dehydration tion of and infection. (Tex.Cr.App.1978); condition, toDue the child’s critical Dr. *5 State, Easley (Tex.Cr. v. Harris and physician another rode in the State, App.1978); Stogsdill v. ambulance with the child from Waco to (Tex.Cr.App.1977); State, Flores v. Special equipment Dallas. medical was (Tex.Cr.App.1977). S.W.2d 364 along taken in anticipation of a child’s during the trip. condition the point Each not directly fact need Upon examination after arrival Parkland guilt and independently the of to the ac Hospital listed the child “as in serious to cused, as the cumulative effect of all the according critical condition” to Harris. incriminating may be facts sufficient to support State, the conviction. Plunkett v. Blair Susan testified that Michael Hooker State, supra; Easley supra; Stogsdill v. was in Parkland January until State, supra; supra. placed that he Flores Fur had in a thermore, every foster home after his release. circumstantial She stated evidence he had case “very although necessarily healed must be tested well” its own pink still was of the facts to sufficiency discoloration skin and determine the of the scarring. some support evidence to the conviction. Faulk supra; Earnhart v. appellant testify did or not call (Tex.Cr.App.1979); S.W.2d 551 Moore v. guilt stage witnesses at the of the trial.2 State, 532 (Tex.Cr.App.1976). S.W.2d 333 Through cross-examination of the State’s witnesses, testimony developed reviewing In was that 22- to the sufficien- year-old appellant juvenile cy evidence, suffered from court this must consider age jury’s light onset diabetes at 12 which can the affect verdict of the evidence peripheral system, causing nervous most favorable to the verdict. penalty stage appellant pulled 2. At the testified that room and child out. He acknowl- edged previous he was home on December with two- that sometime thereto he had year-old four-year-old Monica, temperature gauge Michael and raised the on the hot water “high” position. while his wife was at work. He admitted he heater to a He denied know- placed ing placed Michael in and the the tub child cried the water was too hot when he fit,” was, and “threw a but he assumed it was be- Michael in the This tub. evidence of course, cause Michael to didn’t want hair before the the time the washed. passed guilt. When from another room he heard on yelling, the child still he returned to the bath- recounting details of
Without by the second burns suffered observing child over 38% pattern of that when asked the unusual fault, my “It is I appellant burns the stated and cir the other facts along did it” cumstances, the evidence was we conclude every reasonable exclude other
sufficient to except hypothesis charged guilty of and was suffi the offense jury’s Appel support verdict. cient lant’s contention as is overruled. rehearing on this Appellant’s motion for basis is denied. MULCHAHEY, Leroy Ray parte
Ex Appellant. No. 67278. Texas, Appeals of Court Criminal En Banc. *6 April Sept. Rehearing On