*1
Minor, Petro-
Hudiburg,
allegations
and Owens &
action includes
than
more
in-
could not be
to
leum Solutions
liable
one
product
presents
defective
several
relating
Titeflex for losses
to a
demnify
issues that
difficult
are
to
we
resolve. But
did
product
Petroleum Solutions
already
done our best
to resolve
I
Petro-
manufacture.
would hold that
them,
on
relying
our observation that “it is
Titeflex
indemnify
leum Solutions must
duty
unmistakable
under Section
“only
portion
of the
associ-
defense
premised
82.002 is
on a nexus
between
own
[Petroleum Solutions’]
ated with
given
product.”
manufacturer and its
Ow-
Prods.,
Ansell
products.”
Healthcare
Minor,
ens &
Under construction of section only cludes those losses that a seller incurs 82.002, Petroleum Solutions is a “manufac- related to the product, manufacturer’s chapter respect turer” under does not include losses that another manu- it the un- product to the manufactured: defending facturer incurs claims that its system. fuel derground See id. Petro- formulate, product own was defective. Because Tite- design, leum Solutions did not construct, rebuild, indemnity only flex seeks fabricate, for losses that it produce, defending incurred claims own process, or the flex its compound, assemble defective, product disagree was I with the connector. Petroleum' was a Solutions holding Court’s that Petroleum Solutions’ respect manufacturer with to the finished has a to duty indemnify but Titeflex under product it was not a manufacturer 82.002, section and I dissent to from respect the flex See connector. portion of Court’s judgment. agree I id. Petroleum Solutions duty indemnify would therefore have a arising like Titeflex against seller losses allegations product
out of that the finished defective, duty but the scope of its Titeflex
indemnify does not extend loss- out of arising allegations
es
flex connector itself was See defective. Minor,
id.; & at 485- Owens RODRIGUEZ, Appellant Nilda Iliana 86. Titeflex therefore has no losses for which Petroleum Solutions owes a statuto-
ry indemnify duty to Titeflex. The STATE of Texas. No. PD-1189-13.
IV. Conclusion Appeals Court of Criminal of Texas. requires Section 82.002 manufactur- “[a] June 2014. indemnify er” to “a seller” losses against Opinion Rehearing Feb. on 2015. action,” arising products of “a liability out against which means action “a manufac- seller” alleg-
turer or to recover damages
edly by “a product.” caused defective 82.001(2), & Civ. Prac. Rem. Code
82.002(a). The on how statute’s silence applies liability duty products when a *2 Belton, TX, Kreimeyer, for
James H. Appellant. Odom, District Attor-
Bob D. Assistant Belton, McMinn, State’s At- ney, Lisa C. Austin, TX, the State. torney, fat, neous body OPINION no fluid his testing. could be drawn for The expert MEYERS, J., opinion delivered the explained also that this condition was not KELLER, P.J., Court, in which normal and progressed would be one that PRICE, KEASLER, WOMACK, time, possibly over after the being child’s HERVEY, COCHRAN, JJ., joined. *3 small, provided with but not adequate, Appellant, Rodriguez, Nilda was amounts of food. Appellant only was the charged felony for the death murder care, responsible baby’s adult for the and her son. She was con of two-month-old the child had not a seen doctor since the years prison. victed and sentenced to time he was The other born. children in initially Appellant appealed, challenging care, Appellant’s including the victim’s validity the of the indictment. The court sister, twin seemed to been fed and however, appeals, of determined that she had no health issues related to nutrition. not issue for preserved appellate had trial, At the expert for State testified Rodriguez review. the that victim’s condition would have been 2013). Instead, (Tex.App.-Austin “apparent anybody to who was taking care appeals requested supplemen court of him.” by of This supported was child’s briefing analyze on it should tal whether great-grandmother, who testified that sufficiency prove of the evidence to days when she saw him five prior to his “an act Appellant clearly that committed death, thought she he looked like a dangerous to life in the course human of kitten whose mother not would nurse it. committing of to a child.” even Appellant She told the child Concluding Id. could have looked sick and that he would not last reasonably Appellant inferred that com another two weeks until his scheduled clearly dangerous mitted acts that were check-up Appellant with a doctor. testi- process starving human life in the of fied, however, that she fed the child the son, the appeals court of held the evidence as siblings same his and that she did not legally be to support sufficient the con gain find his lack of weight alarming be- granted viction. Id. at We Ap 633-34. he had Although cause been born small. petition discretionary pellant’s for review Appellant asserted that child did have appeals to determine whether the court of bottles, taking trouble she also confirmed holding erred evidence was reason, there was no medical such as to prove Appellant sufficient commit diarrhea, vomiting chronic that would an act clearly dangerous ted to human life. explain dehydration the victim’s and mal- nutrition. FACTS 8, 2008,
On Appellant gave October charged birth was murder dur- twins, ing one one male and female. Seven course of and in furtherance of the later, weeks EMS to Appellant’s was called commission of the home when she male twin alleged found the uncon- to child. The indictment that her He unresponsive. withholding scious was taken to acts sufficient nutrition and hospital pronounced where he fluid order for the infant to sustain life autopsy clearly dead. An that the him starving danger- indicated infant were dehydration. died from malnutrition and ous to human life caused the child’s gained had only Appellant guilty He ten ounces since birth death. The found charge and was medical by expert described as murder and sentenced wrinkled, skin, having tenting years imprisonment. no subcuta- her to 30 to act or take some failing stances of OF APPEALS
COURT original). (emphasis action.” Id. at 636 initially challenging Appellant appealed, prove Ap- State did not Because the support- invalid for not as the indictment all, any “act” at let pellant committed alleged because it ing the conviction death, alone an act that caused the victim’s omissions, not affirma- a child injury to that the evi- Justice Jones concluded Chief acts, required Section tive Appel- dence was insufficient to 19.02(b)(3). 631; at See also See id. 22.04(1). lant’s conviction. Id. at 639. 19.02(b)(3), Penal Code that she did determined court of appellate re- this issue preserve THE ARGUMENTS OF PARTIES at 631. Rodriguez, 408 S.W.3d
view.
inju-
that in order for
Appellant asserts
However,
request, on its own
the court did
crime for
ry
to a child to be the
*4
motion,
.supplemental
file
parties
that the
murder,
injury must have been
felony
the evidence was suffi-
briefing on whether
by
inflicted
an affirmative act. She con-
committed an
prove
Appellant
cient to
that
prosecution
her
is based entire-
tends that
to human life in the
clearly dangerous
act
and, therefore,
sup-
cannot
ly on omissions
felony
injury
to a child.
course of the
port
disagrees
her conviction. She
Id. at 631-32.
stating
just
it is
appeals,
the court of
briefing
was submit-
After
additional
jury
for a
to infer that con-
as reasonable
ted,
appeals
the court of
then addressed
tinuously feeding an infant less than need-
sufficiency challenge
Appellant’s
legal
Further,
argues
an
she
ed is
omission.
brief where she
supplemental
raised in her
over time cannot
multiple
omissions
alleged
the conduct
in
again asserted “that
an act.
together
be linked
to become
proven at trial —‘star-
the indictment and
”
neglect’
‘omissions.’
vation and
—were
example
an
of where a defendant’s
As
injury to
felony
Id. at 633. The
“act,”
conduct fit the definition of an
Ap
omission,
by
argued,
a
she
could not
child
State, 4
pellant points to Johnson v.
mur-
felony
her conviction because
in
(Tex.Crim.App.1999),
S.W.3d 254
which
an affirmative act. Id.
requires
der
injury
it was determined that
to a child
that,
appeals
The
asserted
while
court
underlying
felony
can
offense for
be
injury
underly-
to a child can serve as the
hitting
murder and that
a child with a
murder,
the State did
ing
object
clearly dangerous
is an act
blunt
prove
clearly dangerous
have to
an act
Appellant
human life.
states
Villa
human life.
Id. The court decided that
(Tex.Crim.
State,
nueva v.
Chief Justice Jones injury to a Appellant’s alleged charged that all of the conduct defendant was omission, omissions, to demonstrate in the were or “in- child order indictment
507
is an
process
of starvation
omis-
ANALYSIS
sion, not an act.
is,
Felony
essentially,
murder
“an unintentional murder committed in the
the question
State asserts that
course of committing
felony.”
a
Fuentes
case is whether the reasonable infer-
State,
(Tex.Crim.
v.
272
S.W.2d
jury
presumptively
ences
made
App.1999). More specifically, the Penal
prove
were sufficient to
the elements of
provides
murder is com
Here,
argues,
the offense.
the State
it
person
mitted where a
“commits or at
was reasonable for the
to infer that
tempts
felony,
to commit a
other than
consistently
the victim was
fed less than
manslaughter, and in the course of and in
necessary
to sustain life and
this con-
furtherance of the commission or attempt
clearly
an
danger-
stituted
affirmative act
... he
attempts
commits or
to commit an
ous
life. The State contends that Ap-
clearly
act
dangerous to human life that
had to
pellant
habitually
have acted
causes the death of an individual.” under-feeding her infant
criticizes the
19.02(b)(3).
§
It
is estab
Penal Code
viewing
as not
the evi-
dissent
lished that
to child
may
offense
light
dence
favorable to the verdict
serve
crime in a felony
also refusing
but
to draw even reasonable
prosecution.
murder
Johnson
inferences,
as the
was allowed to do.
S.W.3d
(Tex.Crim.App.1999);
*5
that,
The
argues
State
while starving
State,
566,
v.
Contreras
312 S.W.3d
584
child
him
getting
the
and not
medical at
However,
(Tex.Crim.App.2010).
while an
omissions, they
sooner
tention
are
are also injury to a
can
child offense
be based on
this, the
points
acts. To illustrate
State
to
omission,
act
an
the
murder stat
State,
(Tex.App.-
Driver v.
We jury could both sides are correct. appeals’ conclusion Appellant inferred that reasonably CONCLUSION omissions, acts, rather than committed where there was no evi presented her son no evidence in this starving There'was is any any such acts. While committed affir- dence of case that inferences, reasonable it allowed to draw in the starvation of her child. mative “act” or theorize about simply speculate cannot The evidence showed her omissions meaning death, of the evidence. possible any rather than caused the infant’s (Tex. State, life, 214 S.W.3d 15 Hooper clearly dangerous to human act Here, Therefore, there was no evi Crim.App.2007). by the statute. required Appellant committed presented support Appel- dence insufficient to evidence was causing acts in the death of any affirmative murder conviction and it must lant’s argues Ap However, the State her son. While be overturned. because food, her son some pellant giving acted in necessarily Appellant guilty found of the survive, for him to enough but not child pro in her failure to criminal conduct lies the evidence is sufficient to As vide a sufficient amount of food. Chief finding guilt, judgment must be out, giving the act of pointed Justice Jones reformed to reflect this. Bowen v. food, however the child some amount (Tex.Crim.App.2012). small, actually prolong serve to his would judgment of the court of life, “clearly dangerous than be the rather reversed and the case is remanded to the act” that caused the child’s death. Rodri judgment to trial court to reform the re- (Jones, C.J., at dis guez, S.W.3d flect a conviction for a child and for senting). punishment hearing a new on this convic- tion. addition, supporting ap-
In *6 peals’ gut statutory conclusion would ALCALA, J., dissenting opinion, filed a between distinction “acts” and “omissions.” JOHNSON, J., joined. which “reasonably It would allow for acts to be ALCALA, J., a dissenting opinion filed practically any inferred” where omission JOHNSON, J., joined. which if example, has occurred. For a child were injure parent respectfully himself and the never I dissent from this Court’s cafe, sought judgment reversing medical under the court of the conviction of Nilda logic, it be appeals’ Rodriguez, appellant, would reasonable for Iliana parent to infer that acted murder and would instead hold that the when he or she sat down on the couch evidence is to uphold sufficient her convic- taking hospital. Although agree instead of the child to the tion for that offense. I if parent provide majority opinion Or did not a child with with the that the law on weather, adequate clothing requires for cold murder commission of an “act,” parent voluntary could infer that the affirma- which means or involun- movement, tively by providing clothing, tary bodily disagree acted some I that the not a coat. Both of exam- fact in deciding but these are finder was irrational ples of omissions—failures to act—but the the circumstances of this case fit within appeals’ any court of conclusion renders that definition. See Tex. Penal 19.02(b)(3). 1.07(a)(1); light ap- distinction between the two words mean- In ingless, pellant’s and would turn each case like claim the infant that she fed
509 bottles, reasonably a fact finder could de- majority opinion is inconsistent with these termine repeatedly feeding principles and will wreak havoc on other act— baby inadequate amount —caused statutes provide for criminal liability dehy- him to starve from malnutrition and If, under similar situations. for example, a dration. person drives his car at a high rate of speed towards his intended victim and have held that Courts a fact finder is him, strikes he has voluntary committed a rational in deciding that the starvation of a act even though injury actually occurs child can constitute an act of commission because the driver has failed to apply his People Jennings, omission. See 50 timely brakes in a manner. One could 616, 133, Cal.Rptr.3d Cal.4th 114 237 P.3d characterize those facts as showing (2010) 474, (describing 524-25 the “pro- was caused an act of commis- longed and purposeful” starvation of child sion that the driver accelerated towards act,” as a “deliberate and finding evidence the victim or by an omission in that he uphold sufficient to defendant’s conviction apply failed to his brakes. Driving at a for first-degree involving murder infliction high rate of speed without torture); applying brakes see also Fairchild v. or continually 611, feeding a child less food P.2d 621 n. 17 (Okla.Crim.App.1999) than required to sustain life (op. reh’g) on are each cir- (describing willfully starving cumstances that a rational child as one of several fact finder examples of “acts could determine are acts of which result in commission as death but do not well force”); as of omission. require Cottam, Because life messy, Commonwealth v. the law does Pa.Super. require 616 A.2d that circum- (1992) stances (describing parents’ encompassing pro- multiple legal conduct in theo- viding inadequate neatly ries be fit sustenance to children into one. as “acts of commission and omission” that I would hold that the evidence is suffi- created a substantial risk of death or seri- cient to establish appellant’s guilt of the bodily injury, ous and upholding defen- I, therefore, murder.1 dants’ convictions for endanger- reckless uphold would decision basis).
ment of person another on that appeals in affirming the judgment of the This similarly Court should hold that the trial court. fact finder here was rational determin- ing that appellant’s providing inadequate ON APPELLANT’S MOTION FOR RE- sustenance that led to the child’s death HEARING FROM THE THIRD was an act of commission. *7 COURT OF BELL APPEALS recognition In reality of the that factual COUNTY circumstances underlying a criminal of- fense are often complicated, Texas law OPINION permits the State to plead cases in the MEYERS, J., delivered opinion the of alternative, including allegations of acts of the unanimous Court. omission, commission and and allows fact finders to use their common sense to re- granted Appellant’s We motion solve factual discrepancies for the purpose rehearing in order to clarify our order that of arriving at a verdict the case. The the trial court reform Appellant’s convic- 1. allegation The State’s other alternative as- baby. sufficient nutrition and fluids from the serted an omission rather Withholding than an act. That nutrition and fluids is indicative alleged appellant alternative withheld of an omission rather than an act. convicting appellant greater the of the injury murder to of a
tion from offense, jury necessarily the punishment a new hear- must conduct child and Ap- every necessary reformed conviction. found element to con- based on the ing remanding the case for appellant vict the for the lesser-included pellant argues 2) trial, offense; rather than reform- an entirely conducting new evidentia- an conducting a new ry sufficiency analysis though ap- the conviction and as the ing disposi- the lesser- hearing, proper pellant is had been convicted of punishment trial, agree. at is there suffi- tion. We included offense support cient evidence to a conviction charged mur- Appellant was for that offense? If the answer to either to a child as the injury der with no, questions of these is that the evidence We determined offense. not authorized to reform the appeals is mur- was insufficient But if the to both judgment. answers conviction, jury necessari- der but that yes, are the court is authorized —indeed guilty of the lesser-included ly found “unjust” required avoid the result of —to However, to a child. offense outright acquittal reforming then and indictment stated she “did judgment to reflect a conviction for the intentionally, knowingly, recklessly there lesser-included offense. negligence and with criminal commit (Tex.Crim.App.2014) felony, namely injury attempt to commit omitted). (footnote Thornton, deciding In application paragraph to a child.” The however, charge each of these we did consider the situation jury included case, there disjunctive, multiple states in the and the where are less- mental Then, Ap- ap- one. when er-included offenses that the court of court defined each convicted, jury pellant peals appellant’s entered could reform the convic- Therefore, there is no tion general verdict. to. We made clear Thornton that way jury to know whether the found that necessary jury reformation is where the intentionally, knowingly, acted every found element of the lesser-included recklessly, negligence or with criminal in offense and the evidence was sufficient to signifi- the starvation of her child. This is support a conviction on that offense to a cant because child offense order an unjust acquittal. to avoid How- varying penalties contains based on the ever, mandatory we did not intend for defendant, mental state of the culpable reformation to extend to circumstances state, without a determination on mental multiple where there are lesser-included guidance will have no on the offenses meet criteria for reforma- applicable range. Tex. Penal punishment tion, or where way we have no to deter- Therefore, § 2.04(e)-(g). simply re- degree mine which of the lesser-included forming Appellant’s conviction not a is appellant guilty offense the found the workable resolution in this case. of, Therefore, in Appellant’s case. we remanding Appellant’s are case to the trial
In Thornton v. we held that: court for a new trial.1 deciding whether to reform the [I]n judgment judgment of the to reflect a conviction for a court of *8 offense, reversed, lesser-included that court must case is remanded to the 1) answer questions: two the course trial court for a new trial on the lesser- intentionally, knowingly, recklessly 1. Because it is not an offense to cause acted negli- to a child with criminal in the death her child. Penal omission 22.04(a). gence, § it will have to be shown that a child included
omission.
Tory KIRK, Appellant Levon STATE Texas
NO. PD-1197-13 Appeals of Criminal of Texas.
Court January
Delivered:
Rehearing Denied March Kita, Dallas,
Matthew Tory J. Levon Kirk, Appellant. Peterson,
Martin L. District Assistant Dallas, Attorney, for the State. P.J., Keller, delivered the opinion of Alcala, J., unanimous Court. filed a concurring opinion. decision, prior
In a suggested we there time limit on was a the trial court’s power to rescind the new granting of a trial. conclude that is no We now there specific pow- limit on the time trial court’s Consequently, er to do so.1 we reverse judgment of the court of appeals. ability granting 1. address new We do not whether the trial court’s to rescind order