*1 RODRIGUEZ, Appellant Nilda Iliana Texas, Appellee.
The STATE
No. 03-10-00715-CR. Texas, Appeals of
Court of
Austin.
July 2013. Granted
Discretionary Review
Nov. *2 Belton, Kreimeyer, TX,
James H. Appellant. Garza,
Henry County Louis Bell District Odom, Attorney, Bob D. Assistant District TX, Belton, Attorney, for Appellee. JONES, Before Chief Justice Justices GOODWIN and FIELD.
OPINION GOODWIN, MELISSA Justice. Appellant Nilda Uiana Rodriguez ap- peals judgment from a convicting her of the offense of for the death of her seven-week-old son. See Tex. Penal For the reasons that follow, judgment we affirm the of convic- tion.
BACKGROUND Rodriguez gave to her birth son on Octo- ber 2008. She other had children at the time. After was discharged her son from the hospital, Rodriguez responsible for his care as well as other children’s starvation, the evidence established care. Her husband was overseas 3, 2008, condition and need for Her son died on December the child’s time. malnutrition, dehydration, apparent. readily as a result of medical treatment were *3 neglect. Rodriguez did not and medical for the expert opined An the State that the day son to a doctor from dehydrated take her was malnourished and child hospital that he went home from the until and that “his condition would have been day day, died. that EMS was the he On apparent anybody taking to who was care Rodriguez’s home. Her son called to was He also testi- of him on routine basis.” he was hospital pro- taken to the where dehydration fied the and that malnutrition nounced dead. nutrition over inadequate were a result of “that child period days, this wasn’t the paragraphs,
In two nutrition,” getting enough and that The State Rodriguez type “progresses of condition over time.” at- alleged Rodriguez that committed and performed autopsy The the coroner who tempted to commit the offense of similarly on child concluded the the that child “in course of and and the dehy- and cause of death was malnutrition in furtherance of the commission and at- The of the great-grandmother dration. felony, of the said tempted commission Rodriguez also testified that she told child attempt Rodriguez, Nilda Iliana did to days five before the child that died act clearly danger- commit and commit an sick,” “looks he look like he “don’t ous human life caused the death to which that will make two weeks” and Rodri- of [her child].” guez needed like.” calling “to be 911 looks I, In Paragraph the indictment named Rodriguez did not take her son to following clearly “act[s] death, day of doctor until the his but she (1) child, “starving” human life”: the said “yes, sir” when asked whether answered (2) “withholding and from” the said child him she fed and whether she treated him and to maintain “sufficient nutrition fluids like all of her other The children. evi- II, life.” In indictment Paragraph no dence also showed that there was medi- the following danger- “act[s] named condition, for cal reason her son’s such as human life”: vomiting diarrhea other medical Rodriguez Iliana then Nilda did and problems, withholding of suffi- except there fail to insure the said [child] cient nutrition fluids. and ingested and benefitted from sufficient fluids; and, and then nutrition did Rodriguez guilty found fail to there seek medical care when it thirty years’ punishment assessed con- apparent was said need- [child] finement Texas Department ed medical care and said Nilda Ilia- Criminal The trial court Justice. thereaf- na Rodriguez per- was then and there ter a judgment entered of conviction (1) legal having statutory son jury. child]; and
duty
having
as-
[the
care, custody,
control
sumed
over
ANALYSIS
duty
had the
[the child]
[the child]
Appellant’s Initial Brief
food,
provide protection,
and medical
care.
the sole
in her appel-
issue raised
brief,
Rodriguez
Rodriguez challenges
testified that
lant’s
the va-
respon-
she
during
lidity
sible for her son’s care
his life.
indictment. She contends:
dispute
support appel-
She does not
that her son died of
“The indictment does not
subject
lant’s conviction
murder because
court
not
did
matter jurisdic-
child,
tion,
predicate felony
we
complaint
consider this
paragraph
each
of the indict-
Teal,
first time
appeal. See
ment,
acts,
omission,
committed
[is]
S.W.3d at 178-79. “The proper test
required
by section
[of
determine if a charging instrument alleges
Texas Penal
See Tex. Penal
Code].”
‘an
allegations
offense’ is whether the
in it
19.02(b)(3),
Rodriguez
§§
22.04.1
contends
are clear enough that one can identify the
prosecuted
her under the
alleged.”
they are,
Id. at 180. “If
*4
wrong
theory
statute and
of law. She
then the indictment is sufficient to confer
argues that
only alleged
the indictment
subject
jurisdiction.”
matter
Id. Applying
omissions,
acts,
not affirmative
and that
here,
this test
we conclude that the allega-
a
injury
by
to
sup-
omission cannot
tions in the indictment “are clear enough
port
the offense of
that one can identify”
offense
is
murder under section
however,
a
Rodriguez,
did not file
19.02(b)(3) of the Penal
upon
Code based
indictment,
motion to quash
object
to
the underlying felony
injury
to a child.
trial,
any
the indictment at
time during the
See id. We overrule Rodriguez’s sole is-
argument
or otherwise raise this
with the
sue
raised
brief.
She, therefore,
trial court.
pre
failed to
this
appellate
serve
issue for
review. See
Appellant’s Supplemental Brief
(“If
1.14(b)
Tex.Code Crim. Proc. art.
object
defect,
defendant does not
to a
er
Although
analysis
our
should be com-
ror,
irregularity
or
formof
or substance in plete, this
requested supplemental
Court
an indictment or information before the
briefing from
parties.
We asked
date on which the trial on the merits com
raise,
whether we can and should
on our
mences, he
right
waives and forfeits the
to
motion,
own
sufficiency
of the evidence
defect, error,
object
or irregularity
to the
support
the conviction and “whether the
may
and he
objection
not raise the
that,
evidence was
prove
sufficient to
appeal
any
postconviction
or in
pro
other
alleged, the appellant committed an act
ceeding.”); Teal v.
230 S.W.3d
clearly dangerous to human life in the
176-77,
(discuss
182 (Tex.Crim.App.2007)
committing
course of
1.14(b)
ing article
and holding that defen
In response,
parties
child.”
both
filed
right
object
dant waived
to indictment
supplemental briefs that
both
addressed
defects).
issues.
context,
To the
Rodriguez’s
extent
Rodriguez’s
we address
complaint is that the
challenge
indictment failed to
in her supplemental brief to the
and, therefore,
charge an offense
legal sufficiency
the trial
the evidence to
§
1. Section
of the Penal Code states
Tex. Penal Code
Section 22.04
the elements of
murder as follows:
provides
of the Penal Code
the elements for
(b) person
A
commits an offense if
...
§
he:
the offense of
Id.
child.
22.04.
attempts
felony,
commits or
to commit a
by
by
This offense
be committed
or
"act”
manslaughter,
other than
and in the course
22.04(a).
§
"omission.” Id.
The elements for
of and in furtherance of the commission or
upon
the offense of
a child
based
attempt,
flight
or in immediate
from the
require
legal
"a
"omission”
the actor to have
attempt,
or
commission
he commits or at-
statutory duty
or
act”
"assumed
tempts
to commit an act
care, custody,
or control of
child.”
Id.
to human life that
causes
death of an
22.04(b).
individual.
2010).
measure the
See Tex.
We
of conviction.
judgment
of the offense
by the elements
(“A
evidence
may be amended
P.
brief
R.App.
38.7
correct
hypothetically
in a
defined
re
justice
whenever
supplemented
v.
Cada
charge.
terms the
reasonable
quires, on whatever
v.
(Tex.Crim.App.2011); Malik
State, 252
Bigon v.
may prescribe.”);
court
(Tex.Crim.App.1997).
(“Ap
(Tex.Crim.App.2008)
“accurately sets
charge
is one that
Such
jurisdiction and
courts have the
pellate
law,
the indict
is authorized
out the
(ci
error.”)
authority
unassigned
review
ment,
unnecessarily increase the
omitted);
tations
Carroll
unnecessarily
proof or
burden of
State’s
liability,
State’s theories
restrict the
(“Once
is
appellate
court
jurisdiction of
particular
adequately describes
invoked,
reviewing function
exercise of its
Byrd
was tried.”
the defendant
which
discretion or
only
limited
its own
(Tex.Crim.
*5
statute.”) (quoting
restrictive
Carter
valid
Malik,
App.2011) (quoting
(Tex.Crim.
State,
v.
656 S.W.2d
240).3
App.1983)).2
legal sufficiency
of
assessing
Standard
Review
of
evidence,
“to
duty
we have a
ensure
sufficiency
reviewing the
When
sup
presented actually
the evidence
that
conviction,
we
support
of the evidence
com
a conclusion that the defendant
ports
light
in the
all of the evidence
consider
charged.”
crime that was
mitted the
to the verdict to determine
most favorable
742, 750
v.
Williams
of fact could
any
whether
rational
trier
v.
(Tex.Crim.App.2007); Winfrey
the essential elements of
(Tex.Crim.App.2010).
found
323 S.W.3d
beyond a
doubt.
reasonable
Jack
Act or Omission
307, 319, 99
Virginia, 443 U.S.
S.Ct.
son v.
(1979);
challenge
guez urges ciency that the conduct in the support evidence to convictions child). proven at indictment and trial —“starvation “omissions,” neglect” and that —were agree however, We with Rodriguez, offense of to a child prove had to “an support felony omission cannot murder be- dangerous to human life” to requires cause an “act.” conviction of felony murder. See Tex. Pe- 19.02(b)(3), 22.04; §§ Penal See Tex. Code nal §§ One of the 1.07(a)(1) (defining see also id. “Act” to allegations State’s “starving [the movement, “bodily mean whether volun- The child].” evidence at trial established tary involuntary, speech”), includes that Rodriguez’s son starved to death over (a)(34) time, (defining period “Omission” as “failure to a Rodriguez was re- act”). sponsible primarily cared for him dur-
ing
time,
that period of
including feeding
“Felony
him,
murder is an uninten
and that
the child’s condition was
tional murder committed in the
apparent.
expert
course of
The
for the State and
committing felony.” Threadgill
coroner testified that the child died as
a result of malnutrition
dehydration,
(citation omitted).
expert
and the
testified that the
only felony
ex
condition
“progresses over time.” After
pressly
seeing
excluded from
offenses that
*6
days
died,
child five
before he
the great-
may serve as the underlying felony is man
grandmother
Rodriguez
told
that
she
slaughter.
See Tex.
Penal Code
calling
needed “to be
911 looks like.”
19.02(b)(3);
State,
Spence v.
325 S.W.3d
646,
(Tex.Crim.App.2010) (focusing
The jury could have reasonably
text
objective
“literal
to determine the
inferred from this evidence that Rodriguez
meaning of that
text at the time of its
committed acts—such
continuously
statutes).
interpreting
enactment” when
feeding her son far less than he needed—
19.02,
Informed
the text of section
we
in starving her son that
“clearly
were
dan
conclude that
be based
Jackson,
gerous to human life.” See
upon the underlying
offense of
ato
(in
319,
at
U.S.
section Penal Code. Ac- BACKGROUND cordingly, I cannot escape the conclusion (alleging injury indictment twins, Appellant gave birth Deon and omission”) sister, “by felo- early his October 2008. Deon and, ny murder under the facts of this case weighed pounds 6 ounces at birth. Sev- further, that the evidence is legally en insuffi- weeks later he died as a result of *8 felony cient to support her conviction dehydration. malnutrition and At the time death, of his he weighed only pounds. 6 The evidence at trial established that Deon Felony murder is an unintentional mur starved to death. The evidence also der committed in committing the course of showed that there no was medical reason felony. a v. Threadgill for the child’s condition the except with- 654, 665 (citing holding proper of nutrition and that his (Tex. Fuentes v. condition and need for medical treatment Crim.App.1999)). felony-murder In a readily apparent any-
would been (1) prosecution, the State an prove must caring one him on a routine basis. underlying felony (attempted or commit indictment, ted,
In a two-paragraph excepting manslaughter the or an offense (2) charged appellant “felony manslaughter), mur- included within an act der” using “injury clearly to child” the dangerous (attempted a under- to human life committed), (3) felony lying offense. The criminal death an conduct the individu (4) (1) al, alleged (i.e., in the paragraph dangerous first act causation death), proper failing nutrition and a connection received caused felony and underlying between The State necessary obtain medical care. (“in in the course dangerous act conduct— characterized all of flight of ... or immediate furtherance for the actions and inactions —as “acts” from”). State, 312 v. S.W.3d Contreras However, the murder.1 purposes Tex. (Tex.Crim.App.2010); see 583-84 “act” to specifically Penal Code defines 19.02(b)(3). § same felo Penal Code The movement, whether volun- bodily mean “a also underlying act of the can nious 1.07(a)(1). § tary involuntary[.]” Id. hu as the act serve Despite attempt to the State’s differentiate life; danger an proof man no additional an appellant’s conduct or characterize underlying felony is beyond “act,” starving all of the conduct— required. Johnson v. child, withholding sufficient nutrition (Tex.Crim.App.1999); see Lomax life, liquids necessary failing to maintain ingests sufficient nutri- ensure that 19.02(b)(3), 2007). According to section fluids, failing tion and obtain neces- however, it is clear failing sary medical care—are instances of to human life must cause A to act or take some action. failure to act felony- death of an individual before 1.07(a)(34) (“‘Omis- § is an omission. Id. applies. rule See Tex. Penal Code murder act.”). An sion’ means failure to “act” part action on the involves affirmative argued appellant The State at trial that person, of a while an “omission” involves her “ac- committed Appellant’s of action. conduct as forgoing starving withholding her son and tions”— alleged in the proved indictment —and from him—and adequate nutrition omissions, failing to ensure that her son trial —involved not acts.2 “inactions”— argued: closing argument, 1. In withholding ... act of [T]he sufficient The defendant in this case withheld nutri- nutrition, child, hydration, killed the made did make tion. Starved her child. She him die.... This is her act in com- hydrated. he him about sure was She didn't feed mitting injury enough. to a child that then led to the That is the act in furtherance of mur- to child. death of child. That's what She didn’t sure that he benefited make der is. from the She didn’t make sure nutrition. jury charge did the Penal not contain right weight. put She he on amount of Code definition of either "act” or "omission.” get didn't him to a doctor. This could have obligated charge jury The trial court is stopped. happen have to been This didn’t applicable "law to the case.” Tex. baby and that could have lived. But she 36.14; Murphy art. Code Crim. Proc. get didn't medical care. She didn't take (Tex.App.-Austin no him a free clinic. And that is an act Thus, pet.). trial court must instruct the furtherance child. *9 on each element of the offense statutory each definition that affects acted, food, be- Because she withheld meaning of of the Har an element offense. by getting cause she failed to act him to that State, 740, (Tex.App. kins v. 268 S.W.3d 742 doctor, felony hospital, guilty she’s of 2008, ref'd); pet. Murphy, Fort 44 Worth murder. term, phrase, at If a S.W.3d 661. word later, argument, closing And final jury properly that the must use to resolve the argued: defined, statutorily [Bjut issues is the trial court charged ... what she’s with is with- food, statutory to the holding withholding must submit the definition hydration, with- State, 348, jury. 721 n. holding Arline v. S.W.2d 352 Doing an nutrition. that's 1986); Harkins, 4 to human life. And in so 742-43; doing causing Murphy, of 44 the death him. at S.W.3d at 661.
637
injury
a child can
conduct constituting
The offense
be be
“an act
dangerous to human life.”3
felony
used as the
offense for
predicate
Contreras,
at
Relying
language
felony-
on the
of the
Johnson,
258);
584
4
(citing
S.W.3d
see
statute,
rejects
murder
the majority
ap-
State,
08-03-00508-CR,
Hopper v.
No.
pellant’s
injury
contention that felony
to a
2108665,
(Tex.App.-Austin
2004 WL
at *6
“by
child
support
omission” cannot
the of-
2004,
refd)
(mem.
23,
pet.
Sept.
op., not
fense of
murder. 408 S.W.3d at
Further,
designated
publication).
for
it is
agree
631.1
with the majority’s conclusion
be
possible
a child to
commit
plain
language
section
“by
ted
omission.” See Tex. Penal Code 19.02(b)(3)
necessarily
exclude
22.04(a);
State,
§
also
Villanueva
“by
as
child
omission”
an un-
744,
227
747
S.W.3d
derlying
a
felony-murder prose-
“by
“by
terms
act” or
(reaffirming that
See,
Lomax,
cution.
e.g.,
233 S.W.3d at
omission”
means of
constitute alternative
(“The plain language
309
of Section
child).
addition,
committing injury
19.02(b)(3)
also does not exclude
starving
failing
a child
to obtain neces
underlying felony
felony-
DWI
an
for a
sary
support
medical care can
conviction
prosecution,
and we must under-
See,
for the
child.
the Legislature
stand
to have meant what
State,
237,
e.g.,
264
243
Baldwin v.
S.W.3d
plain
language
Section
2008,
(Tex.App.-Houston
pet.
[1st Dist.]
expresses.”).
reject appellant’s
I further
ref'd) (evidence
permit
was sufficient to
contention because while the
feloni-
same
jury
reasonably
children
infer that
suf
ous conduct can
both the under-
bodily injury
appel
fered
because
serious
lying felony
the act clearly dangerous
intentionally
knowingly
lant
failed to
life,
to human
it does not have to. After
provide adequate nutrition and medical
all,
is,
definition,
while
an omission
care);
State,
see also Rosales v.
act,
failure to
that does not mean that a
(Tex.App.-Tyler
pet.
S.W.2d
defendant
an omission
ref'd);
Hill v.
900-
S.W.2d
in some
engage
type
not also
of act dur-
1994), aff'd,
01 (Tex.App.-Fort Worth
913 ing the course of that
There
omission.4
(Tex.Crim.App.1996).
S.W.2d 581
But the
an
proof
can be
additional
omission)
(or
constituting
issue here
beyond
is whether conduct
the felonious act
Thus,
underlying felony.
“omission”—a “failure to act”—can also of the
like the
Here,
court
submit
"conduct”
the trial
did not
Penal Code defines the term
Nevertheless,
relevant definitions.
under Tex
to include
Tex. Penal
"an act
omission.”
law,
we measure the
of the
1.07(a)(10).
evidence
the elements of the offense as
hypothetically
defined
correct
in a
injury-to-a-
example,
4. For
in Hill v.
charge.
Cada
case,
appellants physically
re-
(Tex.Crim.App.2011); Malik v.
son, chaining
up,
strained their
him
in order
(Tex.Crim.App.1997).
Such
deny
him food. Hill v.
charge
"accurately
sets out
is one
1994),
(Tex.App.-Fort
902-03
Worth
law,
indictment,
by the
is authorized
does not
aff’d,
(Tex.Crim.App.1996).
majority,
appellant’s
is de
life” as “act”
to human
dangerous
predicated
be
felony
cannot
that
the Penal
The definitions
by
fined
Code.
a child
felony
the
offense
of the Penal Code
in section 1.07
contained
Rather,
inju-
per se.
when
“by omission”
offenses,
we are
Penal
Code
apply
underly-
the
“by
omission” is
ry to a
statutory definitions
ignore
free to
the
not
mur-
ing
our
See Hines
substitute
own.
must
der,
of the case
specific
facts
suffi-
the evidence is
whether
determine
1995) (“[W]e
Penal
are bound to construe
(1) the omission
to demonstrate both
cient
in
in
of definitions
provisions
light
Code
(2)
child,
causing the
to the
itself.”);
Tex. Pe
Code
see also
the Penal
human
clearly dangerous to
requisite act
1.05;
§
Tex. Gov’t Code
nal Code
said,
being
causing death. That
life
311.011(b).
for conduct
Consequently,
§
“by
to a child
I believe that
though
human
clearly
dangerous
to be an “act
can,
by an
accompanied
when
omission”
19.02(b)(3), must first
section
it
life” under
act,
of-
dangerous
additional
1.07(a)(1),
“act” as
section
be an
defined
murder,
not do so
it does
fense of
this code
explicitly
“[i]n
which
states that
in this case.
movement,
bodily
...
means a
‘[a]efi
notes,
majority
the evidence
theAs
Tex.
voluntary
involuntary[.]”
whether
demonstrated that Deon starved
trial
1.07(a)(1).
danger
§
“Clearly
Penal Code
time and that he
period
death over a
type
life”
ous to human
describes
dehy-
a result of malnutrition and
died as
dispense
but it
not
required,
act
majority
The
Here, dehydration malnutrition and presented, evidence neither the evidence caused Deon’s death. These conditions at trial nor reasonable inferences there by act, appellant’s were caused failure from support the conclusion appellant i.e., providing adequate not nutrition an committed “act dangerous child and not medical care obtaining human life” that caused her son’s death. him. The evidence not any reflect There simply is no evidence in the record “act” associated with these “omissions.” before us in the course of starving majority “continuously construes feed- son, medically neglecting her appellant en her son ing far less than he needed” an gaged any type of bodily affirmative so, but disagree, “act.” even the “act” of movement that caused Deon’s death. Nor feeding any amount of food not could itself any is there evidence from which a jury fact, have caused Deon’s death. could reasonably make this inference. is opposite Any true. amount food fed The majority’s contrary conclusion to the to Deon provided would have nutri- some speculation based on rather than facts tion and off dehy- staved malnutrition and evidence. dration, not caused these conditions. Thus, even if one feeding construed too Although the evidence established that “act,” does, to be little as the majority it death, omissions caused Deon’s death,
was not an act that caused but the evidence does not show that she com- rather one that prolonged life.5 any all, mitted act at let alone an “act
Juries permitted are to draw clearly dangerous reasonable to human life” that evidence, they inferences from but are Consequently, caused his death. the evi- permitted not to draw conclusions based dence fails to establish an essential ele- speculation. on Hooper v. 214 ment of the charged offense of mur- (Tex.Crim.App.2007). An in appellant der—that committed an act ference is a conclusion reached consid to human life that ering other facts deducing logical caused her son’s death.6 expert, pediatrician The State's medical causing the See death. Tex. Penal Code abuse, specializing 19.02(b)(2) ("A §§ in child testified that the person commits wasting away body of the from malnutrition if ... knowingly he causes the death of an "progresses individualf.]”); 6.03(b) ("A over time depends ... and a little person acts know bit how much being the child is fed. ingly, If knowledge, or with respect with ato all, absolutely he’s happen not fed at it will result his conduct when he is aware that rapidly. If more he’s small fed amounts but reasonably his conduct is certain cause the amounts, adequate not happen result.”). will over a Or simply the State could prolonged prolonged period of charged time.” to a child omis —more 22.04(a), (b)(1). sion. id. "Knowingly” See 6. The State charge appellant did not have to causing bodily injury” "serious child is as it did. It could have degree felony, her with first which carries the same 19.02(b)(2), punishment range under section which does id. See 19.02(c); require 22.04(a)(1), (e). proof only §§ an "act” but
CONCLUSION under section
Felony murder clearly dangerous proof of
requires clearly danger- life—not conduct
to human omission to human life caused
dangerous to human life—that Without evidence of an individual.
death or, “an specifically, more an “act”
showing to human life” death, evidence in Deon’s
caused
case, law, cannot a matter am there- for murder. I
conviction compelled to find that the evidence
fore appellant’s to support insufficient
legally According-
conviction
ly, I would sustain not, majority Because the
challenge. respectfully dissent. ROGERS, Appellant
Emmett Walkcon,
Robert ORR and
Ltd., Appellees.
No. 02-12-00333-CV. Texas, Appeals
Court
Fort Worth.
Aug. Minton, The Law Offices of
Michael W. P.L.L.C., Worth, Minton, Fort Michael W. TX, Appellant.