*1 Sweed, 69; also see See HUDSON, Cynthia Appellant, Ann 447-49;
Goad,
Bignall,
Saunders v. is (Tex.Crim.App.1995). The rationale “ ‘some’harm occurs because permitted not to fulfill its role as
was dispute factual
factfinder to resolve the the defendant com-
[regarding] whether Id. greater
mitted the or lesser offense.” ease, limited to either this
finding guilty greater of the of- Wortham injury to a knowing
fense of intentional or greater
child or acquitting Wortham
offense. See id. Wortham received a for- sentence,
ty-year which far exceeds the
punishment range for either reckless or
criminally injury to a child. See negligent 12.32, §§ 12.33
Tex. Penal Code Ann. (West
(West 2011), 12.35, 22.04(e), (g) §§ State, 224
Supp.2011); see also Robalin v. 470, 477 (Tex.App.-Houston [1st reasons, pet.). For these I
Dist.]
believe the trial court’s refusal of Wort- requested
ham’s instructions on lesser-in- in harm. See
cluded offenses resulted
Saunders,
I
sustain second reverse Wortham’s judgment,
the trial court’s and remand this proceedings
case for further consistent opinion. this *3 Miller, James,
Troy Hornsby, A. Miller TX, LLP, Hornsby, ap- Texarkana for & pellant. Allen, County District Attor- both because there was insufficient evi Cass
Clint TX, kill appellee. dence of intent and because the ney, Linden evidence was insufficient to prove kidnap C.J., MORRISS, CARTER and Before ping. See McFarland v. MOSELEY, JJ. 99 (Tex.Crim.App.1996); Nash v. 139-40 (Tex.App.-Texar OPINION denied) 2003, pet. kana (appellate court always challenges must address to suffi Opinion by Chief Justice MORRISS. evidence). ciency Sufficiency of the evi day beatings At the end of a of brutal *4 by is measured the dence elements of the Cynthia adopted, Ann Hudson of her thir- by offense hypothetically as defined cor Samuel,1 son, teen-year-old paramedics ar- State, rect jury charge. Malik v. 953 the Hudson home and found Sam- rived at (Tex.Crim.App.1997). S.W.2d body, only in clean badly uel’s bruised clad hypothetically The correct charge briefs, starkly his white on the floor of law, “sets the by out is authorized the From her conviction for bare bedroom. indictment, unnecessarily does not in murder,2 capital appeals, urging Hudson crease the State’s proof burden of or un points nine of error.3 We reverse and necessarily the restrict State’s theories of trial, although remand for a new because— liability, and adequately par describes the (1) to support the evidence was sufficient ticular offense for which the was defendant (2) kill, jury finding intent to of tried.” Id. support evidence was sufficient (3) kidnapping, and Hudson’s finding of First, we address Hudson’s claim (4) challenges Hudson constitutional fail— there was insufficient evidence to jury question to a on man- was entitled prove intentionally she caused Samuel’s slaughter. charged death. The indictment evidentiary each of the two We address capital intentionally causing murder — challenge issues and the constitutional be- while in Samuel’s death the course of com addressing manslaughter fore Hudson’s is- mitting attempting kidnapp to commit we disposition, sue. Because of our do not “a ing.4 Capital murder is result-of-con points address the other of error. State, offense.” v. duct oriented Roberts (Tex.Crim.App.2008). (1) to Sup- The Evidence Was Sufficient by intention may While murder be caused Jury Finding Intent to Kill port the of ally knowingly causing the victim’s death, capital Hudson claims that the evidence murder includes the element murder, intentionally that the actor the vic- prove capital was insufficient to caused amended, parent kidnap improperly 1. While the named Samu- cannot deceased child was el, child, pseudonyms we the other kidnapping have used his or her own statute is unconstitutional, minor children referenced herein for their there evidence is insufficient protection. kidnapping, the indictment is defec- omitting kidnapping, tive in the elements of automatically 2. The trial court sentenced fairly in not and the indictment is defective imprisonment pos- Hudson to life without the informing kidnapping element. Hudson of the sibility parole. See Tex.Code Crim. Proc. 37.071, (West 2011). § Supp. Ann. art. § generally 4. 19.03 See Tex. Penal Code Ann. murder) (West claims evidence there is insufficient (capital Supp.2011), § 20.03 kill, to show intent to it was error to omit a (West 2011). (kidnapping) instruction, manslaughter judgment was Samuel, Elaine were all blood- Gary, tim’s death. Morrow v. see also Hudson and Bill. (Tex.Crim.App.1988); siblings adopted 375 n. 3 days Thanksgiving Day Alvarado the few between un- (Tex.Crim.App.1995) (capital 3, 2008, 'murder had been and December 19.03(a)(2) intentional requires is, der Section “fasted,” that confined to his room and murder; knowing murder does not suf- testimony Gary’s of food. deprived —and fice). statement, also admitted into his written preceding, the events regarding evidence— day, Late on the fateful Hudson’s hus- of, December 3 con- and on afternoon (Bill), band, report called 9-1-1 to William That stituted central evidence trial. death, initially Samuel’s which he said painted picture. evidence a brutal choking. responding result paramedic deputy Tim Tolleson and first that, to from Gary testified be released sight on the scene both were struck room, “repent” Samuel needed to boy, “spotless” of the dead clad thoughts.5 lustful briefs, lying in the center of the bare room. *5 De- Starting p.m., at or soon after 2:30 bruising, “stripes,” The from his child bore fresh; were periodical- neck to his feet. Some wounds Hudson beat Samuel cember By the time partially some were healed. implements. various The first im- ly, with arrived, in, rigor Tolleson mortis had set to Samuel to plement appears used beat body was cold and stiff. and Samuel’s During been a broom handle. those have ple- about the parents When he asked said, “I early beatings, reportedly Samuel boy’s thora of wounds and marks on the repent,” beatings but continued. body, they explained he had “reactive at- broke, handle Hudson When broom disorder,” tachment or “RAD” and had Gary bring to her a with a mop asked history surviving The of self-mutilation. handle, ultimately under metal which bent night children were removed that to the beatings the continued of Samuel. Hud- family’s pastor. home of the When the Gary son then sent out for a red and black clothing children’s was delivered to them a rake, garden metal with which she contin- later, day clothing or two in the left hidden appar- rake handle beatings. ued the The Gary, for Samuel’s brother was a note also, ently prompting Hudson to bent from to him he suggesting Hudson that expressing from Samuel’s room emerge had not seen her beat telling Samuel and something for that would not desire dispose him to of the note. white, met- bend. Hudson’s solution was a bat, al baseball with which she beat Samu- later, couple days
A Hudson was bat, During beating el more. found, bleeding, park. at a roadside She to move reportedly Hudson told Samuel had cut her arms inside the and left elbows head, his Samuel said that was break- she cops” claiming responsibili- note “for the bones, said, Samuel, you “I ty beating Gary ing for for his and she told and and “murder[ing]” your Samuel. move head.” Gary worldly testified Samuel was confined to his two three weeks desires.” beatings, before the Samuel had been con- Cynthia [Hudson] room because "Miss said Gary fined to room. had his said Hudson thoughts, having or lust.” she was deviant Samuel, imposed "fasting” on which meant system in the There was an alarm house food, drink, fasting from and sometimes bath- which, armed, when made a noise whenever room use. Hudson made the children fast to opened. a room’s door was "give having repent time to instead of [them] up, shop, building to sit them to his telling After behind the returned, Gary room. When she house. went outside and then left the looked in lying on the floor. She Samuel was still the window to see Samuel on the floor of green with a responded by hitting room, him with a blanket over him and his cord, he remained on the computer but eyes on, halfway opened. lights were that, if he not warned him did floor. She and nothing wrapped he had around his stayed get she would the bat. He get up, arrived, neck. police Before the got hit him until she on the floor. She say, “told what to us but to be honest.” Gary to come into tired. Hudson directed Gary police She told to tell that he and help up. stand Samuel She room and Samuel “had wars with switches and stuff wrists, ties from Samuel’s be- zip removed explain stripes were on him.” blue. Samu- turning cause his hands were this, After the children were removed from having standing up, spite el was trouble the Hudson home. Soon a note came from so; that he do he of Hudson’s directions Hudson, Gary: directed to “dying.” Hudson said he felt like he was you. I love You nothing saw of Samu- him to the floor and left dropped Samuel spankings. get el’s You never saw him minutes, twenty only to return with the whipped. Nothing [REDACTED] —no bat, the beat- upright, sit him and continue part at all. Flush this. Make sure it bat, chest, him in the ings hitting with the goes you, down. I love Mom. arms, kicking him in the ribs. legs, Samuel’s sister Elaine corroborated afternoon, late in the point At some much of the abuse by Gary. described On Bill, Hudson called who came home around *6 Thanksgiving, a few days before Samuel’s p.m. Gary 7:00 earlier than usual. —much death, Elaine saw “brownish-reddish in parents spoke “prayer said the two marks, looked like bruises on Samuel’s (also referred to as the “book room” dinner, Thanksgiving arms.” After Elaine room”) time, Bill to for a then went Samu- and Samuel their swapped usual chores— room; Gary slapping el’s heard a sound. kitchen, Elaine cleaned dishes in the and pray- Hudson then sent the children to the Samuel cleaned the bathroom because pray. er them to A room and instructed anybody “Hudson didn’t want to see Sam- later, few minutes she came in and told the pulled marks whenever he t- up uel’s his children Samuel had committed suicide. that, point shirt.” Elaine said at some in Gary said this made him mad and sad day, change Hudson made Samuel because he knew Samuel had not commit- longsleeve from a short-sleeve to a shirt. Gary ted suicide. said that Hudson then Elaine saw bruises on Samuel’s also back “gather up told him and Bill to all the tools neck, Hudson, sitting and and said close to .... whipped that she him with the ones Samuel, shirt, adjusted his frequently ap- that, know, you that I gotted all the ones parently so the marks would not be visi- her and the that she [sic] for ones used ble.7 Bill Gary beat us with.”6 said he and On the afternoon of December Hud- gathered implements weapons be- fore Bill Elaine that Samuel not paramedics were called. took son told could said, any- pronoun when asked if did 6. The “us” drew an instruction and 7. Elaine Hudson instruction; thing ordinary during holiday out of the limiting there were indications fixing gathering, “kept up on [Samu- Gary, if Hudson also beat not the other chil- t-shirt”; had marks on his t- "[Samuel] el’s] dren. back, up t- shirt on his and so she lifted his make it doesn't show.” [sic] shirt sure created more healing. Others had been Hudson “felt the leave his room because two fractures in his day, recently. Elaine heard Samuel had of lust.” That spirit ulna, being “very one “fresh” or re- voice in Samuel’s room left Hudson’s however, Gwin, any he did not offer screaming, “saying that cent.” heard Samuel saying age let of the other break. opinion want to live. He was as to doesn’t amount of repents.” significant him and “that he Samuel There was also a die” pain. hemorrhaging, ranging if he was in Elaine said from Samuel’s sub- sounded as blades, between possible discipline scalp, heard noises of under his shoulder she also neck, ribs, the of his and arms. room: his back from Samuel’s beating of an item on pace It was a included starvation in his cause of Gwin trace you ... could follow the in death based on the ketone level Samu- that whenever she it. You could tell were those seen in el’s blood. levels down, (claps and then hands up lifts it diabetes, alcoholism, or star- someone (Claps like that. hands together) it’d be vation; and there was no indication Samu- together) again. And el was afflicted the first two.8 Con- trary testimony Gary, of Elaine and death, told After Samuel’s Bill there was both Hudson and testified Elaine and the other children what to do ample always food available to the chil- police when the arrived —to tell them Sam- dren; punish- not withheld as food was the children uel committed suicide and for ment. Hudson said both Elaine and Sam- beating “not to tell on her for him.” Hud- uel in their rooms. hoarded food evi- Gary told to “hide some of the son dence.” Hudson instructed the children: opinion, Gwin said fast, telling get
She was us that she’ll us have wounds to Samuel could not been fast, possible, as get she’ll us back soon He said that it was self-inflicted. also telling us that she didn’t kill and she impossible for someone to choke them- him, Samuel, telling kill and she was us death, especially given selves to that Sam- her, not to tell—not—if we tell on she’ll uel’s broken arm would increase the de- *7 whoop us until the cows come home. the arm gree difficulty generate to to occlude his own blood flow to strength Elaine testified she never saw Samuel re- choke himself. hurt fuse food or himself. examiner, that she and Bill explained
The medical Dr. Chester “at risk” and claimed that adopted Gwin of the Southwest Institute of Foren- children Science, Gary the of death beat and killed Samuel. Hudson said sic testified cause that, left a attempted blunt force trauma and starvation. when she suicide and was days a few confessing killing He classified the death as homicide. The note to death, after she had been at- body had bruises and abrasions on his Samuel’s back, hands, face, neck, chest, arms, Gary legs, tempting to take the blame for in- injuries keep family together. being of his feet. Some After tops ends,” days in the “squared-off looped; by had and some terviewed law enforcement death, Bill injuries could have been after the she told she believed looped-shaped try pin this injuries “going a cord. Some of the authorities were to to caused why, at trial sub- scabbing, indicating having [Gary].” were been on When asked sequently, Gary killing, she accused of the present process “awhile” and were enough a relevant that the blunt force trauma would be 8. Gwin said the starvation was death, finding contributing merit a of homicide. factor to Samuel’s but to fasting for her children. Hudson denied Gary group was “a of six.... she said trying making I the statements about the spirit the children that was state’s taken lust. him.”9 Hudson testified protect to with Samuel while she Gary killed she believed homicides, is in As often the case there the property a walk around taking
was is no direct evidence Hudson intended to that, testified December 2008. She cause Samuel’s death. Evidence showed hour-long from her when she returned boy, part Hudson beat and starved the as walk, In her she did not check on Samuel. discipline system. of a maniacal But there Ray Copeland, interview to nothing overt show she had the out, acting Samuel was alive and claimed purpose certainly to kill the child. It is “mad,” 4:30 using “profanities,” around possible interpret to the evidence to show house; p.m. when she came back into punish injure her intent to and, Bill to p.m, around 6:00 she called beatings, child. the middle of the she spoke After she and Bill for a come home. stopped implements, get to switch one house, Bill went to Samuel’s while at “affect him.” In her would “suicide” and found him dead. room note, “murder[ingj” Hudson admits Samu that, el; parents Both said in the weeks but the note also claims that the beat death, ings before his Samuel had been refus- she administered were because Samu kicking to eat and his bed to hurt el urinated on the floor of his room. The ing worsening Hudson said Samuel’s note contains a timeline of the himself. events events, “storming,” the 3. Late in the behavior had included December detail of act- having p.m., Hudsons’ term for tantrums or Hudson wrote at 6:00 she “Got time, quite long,” had been scared Samuel was too ing [sic] out. For some course, exhibiting aggressive behavior and urinat- and she called her husband. Of said, may any intent inferred from ing “[H]e’s his room. Hudson be facts existence, angry figure including at the mother because of the which tend to its acts, words, accused, he had conduct of the damage in his life.” She testified RAD, evidencing seventy-five eighty committing and the method of the crime. (Tex.Crim. Hart percent symptoms. parent Neither were; mental symptoms App.2002). culpable what those each ac- Proof of said evi knowledged Samuel had not been taken to state is often made circumstantial dence, acts, words, doctor, psychiatrist such as and conduct.10 psychologist, (Tex. diagnosed have this condition or treated. Guevara v. *8 State, they Crim.App.2004); Bill did claim that had Dunn v. 13 S.W.3d Hudson and 95, 2000, no gone looking specialist (Tex.App.-Texarkana to Dallas for a to 98-99 knowledge ques Intent and are fact pet.). treat this condition. When confronted journal entry jury’s a for the determination and are prosecutor the about where tions wrote, 21, “May through I evidence of fasting always proven am the almost 1,” surrounding the crime. again children until June the circumstances State, 640, 649 inadvertently Manrique claimed to have omitted v. 994 S.W.2d “for,” (Tex.Crim.App.1999). jury’s function entry such that the meant she was 7, 2009, argues intent to kill 9. Hudson testified on December 10. The State Hudson's conduct, may inferred from her Samuel be voluntary Hudson and Bill executed relin- beatings, especially her continued after Samu- quishments parental rights Gary, of as to dying, felt like he was and el cried out that he Elaine, and three other minor children. culpability. her acts to cover her 886 jurors interpret could to credibility the that reasonable the of wit
is to evaluate intent to kill that Hudson had an evaluate the evidence. See show nesses and (Tex. State, 699, to Samuel. The evidence is sufficient 253 S.W.3d 705 Lancon v. intentionally prove Hudson caused Samu- giveWe due deference Crim.App.2008). State, See Roberts v. 220 See Marshall v. el’s death. jury’s to a determination. 521, State, 618, (Tex.Crim.App.2007); 524 (Tex.Crim.App. 625 210 S.W.3d State, 188, 2006). v. 151 S.W.3d Lane (Tex.Crim.App.2004). attempts or to flight Evidence of up guilt,11 jury can be used a to cover (2) to Sup- The Evidence Was Sufficient v. guilt. Bigby draw an inference of See port Jury Finding Kidnapping the State, 864, (Tex.Crim.App. 892 S.W.2d 883 challenges sufficiency the Hudson also 1994). Intent can be inferred from the prove kidnapped the she Sam- evidence victim, the injuries extent of the to the uel. injuries, produce method used to the strength par the relative size and The trial court limited the defini State, ties. Patrick v. 906 S.W.2d abduct, kidnapping. an element in tion of case, (Tex.Crim.App.1995). In a murder First, to the the trial court did not submit a particularly evidence of brutal fero restraining by alternative of se jury the death, inflicted on a cious mechanism holding person place a in a creting victim, helpless probative can be on the likely to be found. where he or she is not intent or Id. The knowledge. issue of 20.01(2)(A) § See Tex. Penal Code Ann. may infer the intent to kill from the use of (West 2011). Thus, way the the State deadly weapon,12 not be unless would kidnapping prove was to Hud could reasonable to infer that death or serious son restrained Samuel with the intent to bodily injury could result from the use of prevent by using his liberation or threat State, weapon. Ross v. deadly force. Tex. Penal ening to use (Tex.Crim.App.1992); Flana cf. 20.01(2)(B) (West 2011). § Ann. Code (Tex. gan v. apparent attempt an to honor causa 1984). Crim.App. Op.] When a [Panel charge’s kidnapping tion element manner, deadly weapon deadly in is used from component keep and to find very the inference of intent to kill can be ing kidnapping simply based on the violent Godsey strong. See S.W.2d beatings express sug evidence —when (Tex.Crim.App.1986). gested beatings that the were needed to Here, in trial court’s brutality captivity the use of suc- hold Samuel —the charge following qualifica then weapons cession of interaction issued among players paint picture a vivid tion: children, Gary attempt, inflicted no Hudson told and the other after the assert she death, night say of Samuel’s injury Gary responsi- to Samuel and that himself; Gary police had beat she told to tell boy's *9 ble death. played he and Samuel ’’wars” in the woods switches, and hit each other with which ac- 12. The State claims that the multitude of im- boys; counted for marks on the and the note plements, deadly weapons, suggests as used Gary telling Hudson sent to him he "saw information, intent to As a matter of kill. [Samuelj's nothing spankings" of and that he any finding was not asked to make re- whipped. points never saw Samuel The State garding any implements whether of the were complicity to Hudson's denial of before the deadly weapons. attempt, change storyline, suicide but her of case, you sup- that in this whether there is sufficient evidence to
You are instructed ... of guilty port finding the defendant a that may accomplished find she only you beyond if find kidnapping Samuel, continuation of the restraint of doubt that the said defendant reasonable in part, by using threatening least or dead- did, if she accomplished kidnapping, ly force. legs the hands and of Samuel by binding The evidence expressly does not show a ties, and in no other plastic zip with causal connection between the use or manner. deadly of threat force Hudson and challenge to this instruc- Hudson made restraint, Samuel’s continued but the con- tion. does, opinion, text in our provide some The trial court’s instruction comes after juror evidence that a reasonable could use charge. in the the definitions of terms to find that causal connection. Samuel’s “kidnapping” that provide The definitions “repentance” early in the beatings can rea- abduct, happens and abduction means sonably be expressing understood as a de- in- actor restrains another with
when an sire to leave his room and to end the liberation prevent person’s tent to that beatings. One can also interpret the con- using threatening deadly or force. beatings tinued sig- thereafter as Hudson’s jury they directs the can added instruction nal that the restraint was continuing and guilty kidnapping if only find Hudson Also, that Samuel was not free to leave. they accomplished kidnap- find she that afternoon, during the course of the Samuel (i.e., ping restraining pre- with intent to obviously became weaker and less able to by using threatening vent liberation liberation, act to effect his own another force) deadly by binding Samuel’s hands interpreted factor that could be as a causal words, ties. In other legs zip link beatings between the and the contin- be to have kidnapped Hudson could found ued restraint.13 zip if use of to her ties bind though conclude kidnap- We that — boy’s legs qualified hands and as use of ping statute to seems be stretched here to deadly force. normally cover horrendous facts not con- But, apply because we are to the hypo- kidnapping sidered is sufficient evi- —there thetically jury charge, correct we will not support to kidnapping dence element instruction, apply the trial court’s extra charge. limiting finding kidnapping to use zip required ties. The State was (3) Challenges Hudson’s Constitutional Samuel, Hudson restrained with intent to Fail liberation, prevent his she accom- Hudson also claims that by using deadly plished threatening kidnapping Texas statute is unconstitution question force. There is no that Hudson Samuel, al under both the Due Process Clause of restrained that she intended liberation, time, and the prevent his at least for a United States Constitution Due of Law Clause of the Texas and that she used and threatened to use Course Constitution, facially14 deadly key question applied force. The here is both and as requirement 13. We find no that the use or 14. The normal facial attack on the constitu- deadly tionality threat of force must be the sole of a statute fails unless the claimant cause restraint, any constitutionally or that there be evidence establishes that the statute is attempt escape every of an the restraint or of an infirm circumstance. United States *10 - Stevens, -, 1577, expression overt of a desire to do v. U.S. 130 S.Ct. so. 888 child, situation, the that fundamen- relationship it im- with because parent-child
to a
liberty
right
liberty
or
interest cannot extend to the
plicates the fundamental
tal
con-
parent
of a
to make decisions
deadly
against
interest
threat of
force
the
use or
care,
custody,
the
and control
cerning
with nur-
very
charged
child he or she is
says
child. Hudson
parent’s
that
in protecting
The State’s interest
turing.
exception
kidnap-
to the
parental
without a
compelling
parents’
is as
as the
children
statute,
constitutionally flawed.
it is
ping
family integrity.” Kottmyer
v.
“interest
disagree.
We
(6th Cir.2006).
Maas,
684,
436 F.3d
par
that a
correctly points
out
that the
agree
We
concerning
make decisions
right
ent’s
affecting
liberty
when
fundamental
inter-
care,
control of his or her
custody,
the
and
ests,
serving
compelling
must be
a
state
right
with which the
child is
fundamental
narrowly draw the law
interest and must
allowed to
government
lightly
must not
be
affecting
Washington
such interests. See
Granville, 530
interfere. See Troxel v.
702, 721, 117
Glucksberg,
v.
521 U.S.
S.Ct.
57,
2054,
889 range jury, negates or discipline falls within refutes an element of when that given But disagreement. greater subject offense or is to differ of reasonable and the in- kidnapping interpretations by jury. the Texas statute ent Saunders State, (Tex. based establishing kidnapping prong stant v. the use through But, the intent to restrain Crim.App.1992). on a lesser-included-of force, deadly we have not been or threat of fense instruction is by just not warranted shown, see, any such dan- and we cannot disbelieving evidence an proving element liberty ger parent’s here. A fundamental of the greater Hampton, offense. 109 allowing cannot extend to him or interest S.W.3d 440-41. or,
her to beat his or her child to death Here, the charge and conviction was for that, of to administer or threaten short capital murder. See Tex. Penal Code Ann. that fits within the definition punishment § charged 19.03. The indictment that Hud- “deadly force.” We overrule Hudson’s son challenges. constitutional
intentionally the death of ... cause[d] (k) Ques- Jury to a Hudson Entitled Was Hudson, by beating Samuel the said Manslaughter
tion on cord, mop a a han- dle, handle, rake, a broom a a baseball Hudson claims the trial court bat, by withholding food from the harmfully including erred in not an in Hudson, said Samuel and the defendant struction on the lesser included offense16 was then and there in the course of manslaughter charge. agree. in the We committing attempting or to commit the if a defendant is To determine offense of of Samuel kidnapping Hud- in to a lesser-included-offense entitled son. struction, two-pronged applies. test kidnapping, The elements of as submitted First, the lesser-included offense must be jury charge, finding allowed for proof necessary within the to es included if kidnapping found Hudson re- Hampton offense charged. tablish the prevent strained Samuel with intent to State, (Tex.Crim.App. S.W.3d by using threatening deadly liberation or 2003); Bignall v. 20.01, §§ force. See Tex. Second, Penal Ann. (Tex.Crim.App.1994). there must Code (West 2011). Thus, 20.03 the State had to in the record that would be some evidence (1) that, intentionally killed Sam- jury rationally to find if the permit (2) him, restraining uel in the course of guilty, guilty only defendant is he or she is liberation, deprive with intent him of of the lesser-included offense. Hall v. deadly force (Tex.Crim.App. using threatening while 2007). (kidnapping). If the did not find the qualify A defendant can for a less kidnapping, if the rec elements of and found that er-included-offense instruction death, did so contains evidence if believed Hudson caused Samuel’s but ord (3) charged An it differs from the offense offense is a lesser-included offense if: respect culpable only in the that a less (1) by proof it is established of the same mental state suffices to establish its com- required all the to estab- or less than facts mission; or charged; the commission of the offense lish (4) attempt of an to commit (2) consists charged it differs from the offense charged or an otherwise includ- the offense respect injury that a less serious ed offense. injury person, proper- or risk of to the same (West art. 37.09 ty, commission; public its interest suffices establish Tex.Code Crim. Proc. Ann. 2006). *12 890 not enti- argues convicted The State Hudson was
recklessly, she could have been Therefore, charge manslaughter in cir- tled to a lesser of manslaughter. the of case, causing she did not admit to the manslaughter of this was because cumstances boy’s Lofton, death. The State cites for capital offense of mur- a lesser-included testimo- proposition the that a defendant’s der.17 any not commit ny that he or she did to a lesser-includ To be entitled offense, testimony showing no offense must charge, ed-offense the evidence es all, adequate is not to raise the occurred offense as a tablish the lesser-included of a offense. Lofton issue lesser-included charged to the valid rational alternative charged public was with assault on serv- State, 217, offense. Cornet v. 359 S.W.3d ant, jury charged on the and wanted (Tex.Crim.App.2012). Anything 229-30 resisting lesser-included offense of arrest. than a of evidence is suffi more scintilla Lofton testified he committed no offense— cient to entitle a defendant to a lesser nor that he neither assaulted officer State, 586, charge. Ferrel v. 55 S.W.3d of resisted arrest. The Texas Court Crim- In (Tex.Crim.App.2001). making 589 this held, inal conclude that the Appeals “We decision, courts do not consider whether evidence in the instant case did not raise credible, controverted, or the evidence is the issue of the lesser-included offense of in conflict with other evidence. Hall v. resisting arrest. A defendant’s own testi- State, 470, (Tex.Crim.App. 158 S.W.3d 473 offense, mony that he committed 2005). testimony which that no otherwise shows prong, appel In applying second all, adequate offense occurred at is not examine the entire late court must record of a lesser-included of- raise issue plucking instead of certain evidence from Id. The evidence in that case fense.” in examining the record and a vacuum. an showed Lofton intended to assault offi- (Tex. State, 463, v. 865 Ramos S.W.2d 465 in process cer whom Lofton knew Crim.App.1993). any If evidence from lawfully discharging his duties. Even if raises the of a lesser-included source issue arrest, he his prevent intended offense, charge on that lesser offense recklessly force at caused use of the least jury charge, be included in the must bodily injury. Id. whether the evidence is introduced denying request State or the defense and whether it is Hudson’s for a weak, the trial court strong, impeached, charge manslaughter, or contradicted. on (Tex. State, 434, reasoning Bell 442 to the State’s applied v. 693 S.W.2d similar Crim.App.1985). raising appellate argument. Citing “po- Evidence the is Hudson’s absolutely nothing sue must be considered within the context sition that she had to do Ramos, Samuel],” killing the trial evidence as a whole. See with [the said, 865 at 465. that shows court would have to be some “[T]here S.W.2d Evidence that, Yes, blows, testimony no offense occurred at all fails to raise the I did inflict the my that it lead issue of a lesser-included offense. but it was not intent would Lofton (Tex.Crim. State, degree 652 to such a of harm and that S.W.3d ... App.2001). engage in that behavior did constitute State, capital 17. See Mathis v. murder case where could have (Tex.Crim.App.2002); (citing Moore v. passion) found Cardenas v. sudden (trial (Tex.Crim.App.1998) court (Tex.Crim.App. refusing request erred in for instruction on 2000)). voluntary manslaughter lesser offense of in tended to disregard support of a substantial anees the idea that she the conscious kill, intended to unjustifiable discipline, risk” order some not Samuel. *13 present. to be evidence of recklessness Her brutal acts were done entirely within parent/child the context of a relationship, is different from The instant situation albeit an abnormal one. At the time Hud- in Evidence from presented that Lofton. i.e., son’s acts were before committed — possibility of an any source can raise Samuel’s death —it is not they certain that on a lesser-included offense. instruction rationally could only be understood as end- Bell, Further, at 442. See 693 S.W.2d ing in Samuel’s death. the beatings While Appeals while the Texas of Criminal Court vicious, undeniably were jury could that, presents has said where a defendant they have concluded that were intended no offense evidence he or she committed merely severely discipline, but not to evidence, presents no a lesser-included kill. only where “there is charge precluded is showing
no
otherwise
is
[s]he
evidence
This is contrasted with other
cases
guilty only of a lesser included offense.” which various courts found the defendant
Here, Hudson,
24.
Bignall, 887 S.W.2d at
qualified
had not
for a lesser-included-of
Lofton,
like
testified she committed no of-
Cardenas,
fense instruction.
See
fense. But
there was other evidence
(severe
at
beating,
plus
pointing
possibility
recklessly
to the
towel;
strangulation with
defendant’s
causing
beatings,
death —the excessive
victim,
claim not to realize how hard he hit
child,
nutrition,
restraints on the
denied
insufficient
to raise lesser-included of
punish-
Hudson’s
that she was
comments
fense);
State,
Delgado v.
No. 13-08-00490-
Samuel,
instruments,
ing
the various
and CR,
(Tex.App.
WL
at *8-10
length
beating
extended
ses-
7, 2011,
-Corpus
April
pet.)
Christi
no
evidence,
sions.18
on the
there
Based
was
(mem. op.,
designated
publication)
not
“directly germane”19
evidence
to the less-
woman,
(strangling
pregnant
causing
manslaughter;
jury
er offense of
a rational
child;
death of her and unborn
defendant’s
guilty
could have found Hudson
kill,
alone,
standing
denial of intent to
does
charge.
here had considera-
require
not
lesser-included-offense instruc
ble affirmative evidence based on which it
State,
tion);
Yanez v.
recklessly
could have concluded Hudson
(Tex.App.-Corpus
pet.)
Christi
death;
beyond
caused Samuel’s
it went far
(with
victims,
gunshot
three
defense theo
merely disbelieving tending
evidence
ry
“inadvertently
victim was
shot” has no
to show
to kill.
Hudson’s intent
See
support in record and does not raise less
Hampton,
Arline v. ing jury Samuel’s death. The was not Crim.App.1986). given finding. the chance to make that demonstrates some harm to The record given If the had been the alterna- Capital requires proof murder Hudson. manslaughter, convict of tive to intentionally caused the vic- the defendant is, a reck- that to find that she acted with death. Tex. Penal tim’s Code Ann. mind, reasonably possible less state of is 19.03(a)(2). § to While there is evidence might that have been the result. that intentionally caused Samu- prove Hudson Thus, harm. there was death, evidence is not conclusive el’s such harm Because Hudson suffered some open interpretation. Although and is manslaughter charge, of a from the denial Samuel, kill Hudson testified she did not conviction and we reverse the trial court’s testified she beat two children house Having remand the case for a new trial. boy thoroughly violently. and point of error granted relief on Hudson’s cops” note left “for the at her suicide she regarding the lesser-included offense of attempt, Hudson indicated she beat Samu- unnecessary manslaughter, it is to address punishment urinating el as on the floor. points her other of error. Gary, Samuel’s brother who witnessed the beatings, said that Samuel was confined reverse Hudson’s conviction and re- We Gary Elaine punishment. his room as trial court for a new trial. mand to the that admitted feel- both testified by Dissenting Opinion The children’s Justice
ing “spirit of lust.” testimony suggests responsi- Samuel was MOSELEY. stages healing.
20. The medical examiner said that some of
different
Samuel's wounds bore scabs and were
Justice,
MOSELEY,
prevent
her victim with the intent to
his
BAILEY C.
dissenting.
using
threatening
liberation
to use
deadly force. Tex. Penal
Ann.
Code
proof that the
amply sufficient
There is
20.01(2)(B)(West 2011).
§
hideously
horren-
subjected
victim was
abuse that led to his
physical
violent
dous
appear
would
that in order to
It
Ann
Cynthia
Hudson was
death and
rea,
the requisite mens
the State had the
perpetrated that
treat-
person
who
obligation to show that at least some of the
degree
length
ment. Because of
deadly
or applied
threatened
force existed
abuse
physical
of the various means
as the
pre
result Hudson’s intention of
mother,
to the child
administered
venting her victim’s liberation.
Laster
Hudson,
certainly rationally
could
State,
(Tex.Crim.App.
mens rea to convict
requisite
infer the
2009);
Brimage v.
Patrick v.
Hudson of murder.
*15
(Tex.Crim.App.1994).
All of the
(Tex.Crim.App.1995).
pointed
evidence in this case
to the fact
deadly
that the
force was threatened and
problem
in this case lies with the
(brutally)
with a
applied
objective
different
meet all of the elements
proof necessary to
prevention
than
the
victim’s liberation in
Here,
alleged
the State
capital
murder.
found)
purge
boy
mind:
to somehow
the
from
(and
jury
that the murder of
the
him
feelings of lust or to convince
to re
child occurred in the course of “com-
the
attempting
kidnap-
to commit
move that
lust from himself. As
mitting
stated
19.03(a)(2)
§
before,
ping.”
overwhelming
there is
evidence
Tex. Penal
Ann.
Code
(West 2011).
child,
against
that force was used
the
re
is, however,
sulting in death. There
sim
The Due Process Clause
United
ply
jury
from which the
could
evidence
person
a
from
protects
States Constitution
rationally
sickeningly,
infer that
dead
upon proof beyond a
“except
conviction
ly,
lengthy
employed
force
every
necessary
reasonable doubt of
fact
preventing
was done with the intention of
to constitute the crime with which he is
plainly
the child’s liberation. There was
charged.” Byrd v.
another motive—the intention to exorcise
(Tex.Crim.App.2011) (citing Jackson v.
feelings
appar
of lust which
307, 316,
Virginia,
U.S.
S.Ct.
in
ently
residing
believed to have been
(1979)). Therefore, in or-
element. ample evidence to mur-
there was
der, legally evidence is insufficient committed the murder
prove that Hudson