Mark Andrew KOHLER, Appellant, v. STATE of Texas, Appellee. Deanna Elaine KOHLER, Appellant, v. STATE of Texas, Appellee.
Nos. 13-85-281-CR, 13-85-282-CR
Court of Appeals of Texas, Corpus Christi
May 29, 1986
Rehearing Denied June 26, 1986
Further, just after the complаinant testified as set out above, he again asserted that he identified appellant at a lineup. Appellant objected that the answer was nonresponsive, and the court overruled the objection. No complaint is made on appeal concerning this ruling. Thus, the same evidеnce now complained of was later admitted, over objection, and the ruling on the latter objection has not been brought forward as a ground of error.
For these reasons, we hold that any complaint that Huynh‘s testimony about the lineup was the fruit of an illegal arrest has been waived.
The fourth ground of error is overruled.
Appellant finally contends that because the jury determined his guilt, the trial court lacked authority to make a finding in the judgment of the date the offense was committed. He argues that only the jury could properly make this finding because the jury is the exclusive judge of the facts,
Appellant would compare a finding of the offense date with a finding of the use of a “deadly weapon,” pursuant to
The fifth ground of error is overruled.
The judgment is affirmed.
Grant Jones, Dist. Atty., Corpus Christi, for appellee.
OPINION
SEERDEN, Justice.
A jury convicted appellants of murdering their infant son аnd set punishment at ten years’ confinement probated for ten years. We affirm the judgments of the trial court.
By their first two grounds of error, appellants challenge the sufficiency of the evidence to prove the necessary intent and that lack of food and medical care causеd baby Luke‘s death.
We must view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McGoldrick v. State, 682 S.W.2d 573, 577-78 (Tex. Crim. App. 1985); Garrett v. State, 682 S.W.2d 301, 304-05 (Tex. Crim. App. 1984); Jackson v. State, 672 S.W.2d 801, 803 (Tex. Crim. App. 1984); Carlsen v. State, 654 S.W.2d 444, 447 (Tex. Crim. App. 1983).
The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony. A jury may accept or reject any testimony.
Under
By their third ground of error, appellants assert that the trial court erred in admitting “evidence of a search and fruits thereof without a warrant” when there was no evidence that appellants’ consent was voluntary. Appellants objects to the testimony of Yanira Rosales, a Department of Human Resources caseworker, Police Investigator Cavazos, and Police Sergeant Arnold Acuna, who inspected appellants’ house trailer on November 17, 1984.
Acuna testified that JoAnn Kohler, the victim‘s paternal grandmother, contacted him and communicated that she feared for the life and safety of the child Mark, Jr. (“Andy“). He instructed her tо get permission from her son so they could inspect. His primary concern was to see that the child was in good health. About an hour and a half after the first contact, JoAnn contacted him again and asked him to come to the trailer. When he arrived, JoAnn invited him in. He introduced himself to Mark, and JoAnn lеd him on a tour of the trailer.
Cavazos testified that he arrived after Acuna had seen the trailer, and that he met Acuna outside. They knocked, and Mark opened the door. They asked if they could come in, and Mark said yes. Cavazos testified that he asked Mark if he could look before Acunа gave him a tour of the trailer, and Mark said yes.
Police officers who are invited in are not trespassers. If an officer is lawfully where he is, he may seize what is in open view. In this case, appellant seeks to suppress testimony of the view itself. The officers did not gain access to the trailer by fraud or deceit. Acuna was invited into and escorted through the trailer by appellant Mark‘s mother. He had a right to go where he was invited, to make observations, and to recount his observations to the jury. Swink v. State, 617 S.W.2d 203, 210 (Tex. Crim. App. 1981) cert. denied, 454 U.S. 1087 (1981); Alberti v. State, 495 S.W.2d 236, 237 (Tex. Crim. App. 1973); Bell v. State, 676 S.W.2d 219, 220 (Tex. App.—Corpus Christi 1984, pet. ref‘d). When Officer Cavazos asked, Mark specifically allowеd him to look around.
Fourth Amendment protections against searches only apply to searches conducted by law enforcement personnel. Rosales and appellant Mark‘s mother were not law enforcement personnel, and they testified in detail about the conditions in
Appellants’ fourth ground alleges that the trial court erred in failing to quash the indictment because it did not negate the existence of exceptions to appellants’ parental duties set out at
This question was discussed in Priego v. State, 658 S.W.2d 655 (Tex. App.—El Paso 1983, no pet.). We agree with the analysis in that case that under
In their fifth and final ground of error, appellants claim that the evidenсe was insufficient to negate the exceptions discussed in ground of error number four. We disagree. The testimony is replete with references to the status of appellants as parents of the deceased. They each testified and freely admitted he was their son. Their defense to the charge was that they had provided adequate food and medical care for their child, that any failure to do so was because of their preoccupation with the serious heart condition of an older child, and that the deceased died from a condition known as Sudden Infant Deаth Syndrome. We hold the evidence was sufficient for the jury to find appellants the parents of the deceased within the meaning of
The judgments of the trial court are AFFIRMED.
Before SEERDEN, UTTER and BENAVIDES, JJ.
OPINION ON MOTION FOR REHEARING
SEERDEN, Justice.
Appellants have requested rehearing, asserting that “the court erred in holding that the evidence was sufficient to support the jury‘s verdict as the State failed to prove the necessary intent to cause death and that death was caused by lack of food and medical care as alleged in the indictment.” Under their ground of error, they argue that the evidence on intent will not support a finding of guilt beyond a reasonable doubt.
Circumstantial evidence is generally relied on and is sufficient to prove a required culpable mental state. Thompson v. State, 676 S.W.2d 173, 175 (Tex. App.—Houston [14th Dist.] 1984, no pet.). If the evidence supports an inference other than the guilt of an accused, a finding of guilt beyond a reasonable doubt is not a rational finding. Chambers v. State, 711 S.W.2d 240 (Tex. Crim. App. 1986) (on State‘s motion for rehearing); McGoldrick v. State, 682 S.W.2d 573, 577-78 (Tex. Crim. App. 1985); Freeman v. State, 654 S.W.2d 450, 456 (Tex. Crim. App. 1983). The necessary intent or mens rea for murder is intentionally or knowingly.
A person acts intentionally, or with intent, with respect to the nature of his/her conduct or to a result of his/her conduct when it is their conscious objeсtive or desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the nature of
The definitions in the charge come from
We need not speculatе on appellants’ conscious objective or desire. It is sufficient that evidence shows that appellants were aware that the circumstances existed, and that their conduct would be reasonably certain to cause death.
Luke was 3 months old at death. At birth, he weighed 6½ pounds, and thе doctor who delivered him testified that he was normal. During the first half of Luke‘s life, his maternal grandmother cared for him while his mother worked. Dr. Simpson, the older son‘s doctor, testified that he saw Luke at an appointment for his brother when Luke was about a month old. He listened to Luke‘s heart, and noticed no signs of malnutrition.
At death, Luke weighed only 4 to 6 ounces more than his birth weight. Both the pathologist who conducted the autopsy and the doctor who signed the death certificate testified that on a standard growth chart, Luke was below the fifth percentile in weight for an infant of three months. This was characterized as “way abnormal.” His head circumference was also “way below normal.” Dr. O‘Ryan, a pediatrician who saw the infant shortly after birth and after it was dead, testified to three stages of malnutrition in infants. He said that in the first stage, the baby will use its fat and lose weight, in the second stage, there is a growth arrest, and “in the more severe form of starvation when the baby hasn‘t had anything, hardly anything at all, the head circumference is below normal because the brain itself stops growing.”
All of the doctors and medical personnel who participated in the attempts to revive Luke testified that he was emaciated. Kevin Oliver, a general duty hospital corpsman who assisted giving CPR, said the child‘s facial bones were prominent, he could count the ribs, and “skin and bones” would be a good description. He also said that its skin was not elastic. Dr. Chilton said the baby looked like “one of the Ethiopian children you seе on a commercial” and said it had sunken cheeks and “hardly any meat.” Dr. Siegel said the child was “skin and bones” with “sunken cheeks.” Flight surgeon Lillian Wilson said she first thought because of its size that the child was four weeks old or younger, and that the skin was like dehydrated skin, that the child had no muscle tone, “no muscle, no fat.” Dr. Restrеpo, who had treated starving children in Colombia, opined that the child starved. He mentioned “an angulated-type of face,” “prominent ribs,” and lack of fat. He also said the baby had “atropic skin” indicative of lack of food or vitamins.
Given the evidence of the child‘s weight and extreme appearance, the jury could infer that its condition was noticeable to appellants prior to the child‘s death.
There was also direct evidence of appellants’ awareness of the child‘s condition. The maternal grandfather testified that three days before Luke died, he and his wife had advised appellants to take Luke to a doctor because of his failure to gain weight. The maternal grandmother acknowledged that she had given such advice. Appellants testified that they were going to take Luke on the day he died, although they had no appointment.
Aрpellants mention that the death certificate lists “Sudden Infant Death” (SIDS) among causes. The doctor who wrote the certificate testified that he listed several possible causes, including “failure to thrive,” and that starvation was a type of “failure to thrive.” He explained in detail how he came to reject the SIDS theory and
We find the evidence, and particularly that on intent, sufficient to support the jury‘s verdict. We OVERRULE appellants’ motiоn for rehearing.
Ronnall Aaron NELSON, Appellant, v. Judy NELSON, Appellee.
No. 9462.
Court of Appeals of Texas, Texarkana.
June 3, 1986.
Albert J. Levario, McKnight and Gabriel, San Antonio, for appellant.
Rogelio Munoz, Uvalde, for appellee.
PER CURIAM.
Ronnall Nelson appeals from a divorce judgment, complaining of the amount of child support awarded and the court‘s action in awarding his wife $4,027.00 as reimbursement for community payments on his separate real estate.
Ronnall and Judy Nelson were married on December 3, 1976. A divorce was granted the parties on February 21, 1985. Mrs. Nelson was appointed managing conservator of the parties’ child, and Mr. Nelson was ordered to pay $300.00 monthly as child support. Mrs. Nelson was also awarded $4,027.00 as reimbursement to the