Lead Opinion
delivered the opinion of the Court,
Appellant, Nilda Rodriguez, was charged with felony murder for the death of her two-month-old son. She was convicted and sentenced to 30 years in prison. Appellant appealed, initially challenging the validity of the indictment. The court of appeals, however, determined that she had not preserved this issue for appellate review. Rodriguez v. State,
FACTS
On October 8, 2008, Appellant gave birth to twins, one male and one female. Seven weeks later, EMS was called to Appellant’s home when she found the male twin unconscious and unresponsive. He was taken to the hospital where he was pronounced dead. An autopsy indicated that the infant died from malnutrition and dehydration. He had gained only ten ounces since birth and was described by a medical expert as having wrinkled, tenting skin, no subcutaneous fat, and no fluid in his body that could be drawn for testing. The expert also explained that this condition was not normal and would be one that progressed over time, possibly after the child’s being provided with small, but not adequate, amounts of food. Appellant was the only adult responsible for the baby’s care, and the child had not seen a doctor since the time he was born. The other children in Appellant’s care, including the victim’s twin sister, seemed to have been fed and had no health issues related to nutrition.
At trial, an expert for the State testified that the victim’s condition would have been “apparent to anybody who was taking care of him.” This was supported by the child’s great-grandmother, who testified that when she saw him five days prior to his death, she thought that he looked like a kitten whose mother would not nurse it. She even told Appellant that the child looked sick and that he would not last another two weeks until his scheduled check-up with a doctor. Appellant testified, however, that she fed the child the same as his siblings and that she did not find his lack of weight gain alarming because he had been born small. Although Appellant asserted that the child did have trouble taking bottles, she also confirmed that there was no medical reason, such as chronic vomiting or diarrhea, that would explain the victim’s dehydration and malnutrition.
Appellant was charged with murder during the course of and in furtherance of the commission of the felony offense of injury to a child. The indictment alleged that her acts of withholding sufficient nutrition and fluid in order for the infant to sustain life and of starving him were clearly dangerous to human life and caused the child’s death. The jury found Appellant guilty of the felony murder charge and sentenced her to 30 years imprisonment.
Appellant appealed, initially challenging the indictment as invalid for not supporting the conviction because it alleged only injury to a child by omissions, not affirmative acts, as required by Section 19.02(b)(3). See id. at 631; See also Tex. Penal Code §§ 19.02(b)(3), 22.04(1). The court of appeals determined that she did not preserve this issue for appellate review. Rodriguez,
After the additional briefing was submitted, the court of appeals then addressed Appellant’s legal sufficiency challenge raised in her supplemental brief where she again asserted “that the conduct alleged in the indictment and proven at trial — ‘starvation and neglect’ — were ‘omissions.’ ” Id. at 633. The felony offense of injury to a child by omission, she argued, could not support her conviction because felony murder requires an affirmative act. Id.
The court of appeals asserted that, while injury to a child can serve as the underlying felony for felony murder, the State did have to prove an act clearly dangerous to human life. Id. The court decided that the jury could have inferred from the evidence that Appellant committed acts in starving the child, such as feeding him far less than he needed, that were clearly dangerous to human life. Id. Viewing the evidence in the light most favorable to the verdict, the court of appeals concluded that the evidence was legally sufficient to support the conviction. Id. at 634.
Chief Justice Jones dissented, asserting that all of the Appellant’s conduct alleged in the indictment were omissions, or “instances of failing to act or take some action.” Id. at 636 (emphasis in original). Because the State did not prove that Appellant committed any “act” at all, let alone an act that caused the victim’s death, Chief Justice Jones concluded that the evidence was insufficient to support Appellant’s conviction. Id. at 639.
ARGUMENTS OF THE PARTIES
Appellant asserts that in order for injury to a child to be the underlying crime for felony murder, the injury must have been inflicted by an affirmative act. She contends that her prosecution is based entirely on omissions and, therefore, cannot support her conviction. She disagrees with the court of appeals, stating that it is just as reasonable for a jury to infer that continuously feeding an infant less than needed is an omission. Further, she argues that multiple omissions over time cannot be linked together to become an act.
As an example of where a defendant’s conduct fit the definition of an “act,” Appellant points to Johnson v. State,
The State asserts that the question in this case is whether the reasonable inferences that the jury presumptively made were sufficient to prove the elements of the offense. Here, the State argues, it was reasonable for the jury to infer that the victim was consistently fed less than necessary to sustain life and that this constituted an affirmative act clearly dangerous to life. The State contends that Appellant had to have acted habitually in under-feeding her infant and criticizes the dissent as not only not viewing the evidence in a light favorable to the verdict but also refusing to draw even reasonable inferences, as the jury was allowed to do.
The State argues that, while starving the child and not getting him medical attention sooner are omissions, they are also acts. To illustrate this, the State points to Driver v. State,
The State goes on to assert that the cases Appellant cites do not support her position. For example, the State says, Hill actually states that the actions the defendant took in chaining his child in order to deprive him of food supported the deadly weapon finding, not that starving does not imply action. Further, Villa-nueva deals only with double jeopardy and does not address the issue in this case.
ANALYSIS
Felony murder is, essentially, “an unintentional murder committed in the course of committing a felony.” Fuentes v. State,
An “act” is a voluntary or involuntary bodily movement, while an “omission” is a “failure to act.” Id. at § 1.07(a)(1), (a)(34). The evidence presented at trial showed that Appellant’s infant died of malnutrition and dehydration, that Appellant was the child’s sole caregiver, that the child’s condition would have been apparent to anyone caring for him, and that Appellant should have sought medical care for him. The' indictment specifically alleged that Appellant (1) starved the infant, and (2) withheld from him sufficient nutrition and fluids to maintain life. All of this conduct involves the Appellant not performing some act that was required of her, which forces each allegation squarely within the definition of an omission. Id. at § 1.07(a)(34).
In addition, supporting the court of appeals’ conclusion would gut the statutory distinction between “acts” and “omissions.” It would allow for acts to be “reasonably inferred” where practically any omission has occurred. For example, if a child were to injure himself and the parent never sought medical cafe, under the court of appeals’ logic, it would be reasonable for the jury to infer that the parent acted when he or she sat down on the couch instead of taking the child to the hospital. Or if a parent did not provide a child with adequate clothing for cold weather, the jury could infer that the parent affirmatively acted by providing some clothing, but not a coat. Both of these are examples of omissions — failures to act — but the court of appeals’ conclusion renders any distinction between the two words meaningless, and would turn each case like this into a simple semantic argument where both sides are correct.
CONCLUSION
There'was no evidence presented in this case that Appellant committed any affirmative “act” in the starvation of her child. The evidence showed only her omissions caused the infant’s death, rather than any act clearly dangerous to human life, as required by the statute. Therefore, the evidence was insufficient to support Appellant’s felony murder conviction and it must be overturned. However, because the jury necessarily found Appellant guilty of the underlying felony of injury to a child and the evidence is sufficient to support this finding of guilt, the judgment must be reformed to reflect this. Bowen v. State,
Dissenting Opinion
filed a dissenting opinion in which JOHNSON, J., joined.
I respectfully dissent from this Court’s judgment reversing the conviction of Nilda Iliana Rodriguez, appellant, for felony murder and would instead hold that the evidence is sufficient to uphold her conviction for that offense. Although I agree with the majority opinion that the law on felony murder requires commission of an “act,” which means voluntary or involuntary bodily movement, I disagree that the fact finder was irrational in deciding that the circumstances of this case fit within that definition. See Tex. Penal Code §§ 1.07(a)(1); 19.02(b)(3). In light of appellant’s claim that she fed the infant with
Courts have held that a fact finder is rational in deciding that the starvation of a child can constitute an act of commission and omission. See People v. Jennings,
In recognition of the reality that factual circumstances underlying a criminal offense are often complicated, Texas law permits the State to plead cases in the alternative, including allegations of acts of commission and omission, and allows fact finders to use their common sense to resolve factual discrepancies for the purpose of arriving at a verdict in the case. The majority opinion is inconsistent with these principles and will wreak havoc on other statutes that provide for criminal liability under similar situations. If, for example, a person drives his car at a high rate of speed towards his intended victim and strikes him, he has committed a voluntary act even though the injury actually occurs because the driver has failed to apply his brakes in a timely manner. One could characterize those facts as showing that the injury was caused by an act of commission in that the driver accelerated towards the victim or by an omission in that he failed to apply his brakes. Driving at a high rate of speed without applying brakes or continually feeding a child less food than required to sustain life are each circumstances that a rational fact finder could determine are acts of commission as well as of omission. Because life is messy, the law does not require that circumstances encompassing multiple legal theories be fit neatly into only one.
I would hold that the evidence is sufficient to establish appellant’s guilt of the offense of felony murder.
Notes
. The State’s other alternative allegation asserted an omission rather than an act. That alternative alleged that appellant withheld sufficient nutrition and fluids from the baby. Withholding nutrition and fluids is indicative of an omission rather than an act.
Lead Opinion
ON APPELLANT’S MOTION FOR REHEARING FROM THE THIRD COURT OF APPEALS BELL COUNTY
OPINION
delivered the opinion of the unanimous Court.
We granted Appellant’s motion for rehearing in order to clarify our order that the trial court reform Appellant’s convic
Appellant was charged with felony murder with injury to a child as the underlying offense. We determined that the evidence was insufficient to support the felony murder conviction, but that the jury necessarily found her guilty of the lesser-included offense of injury to a child. However, the indictment stated that she “did then and there intentionally, knowingly, recklessly and with criminal negligence commit and attempt to commit a felony, namely injury to a child.” The application paragraph of the jury charge included each of these mental states in the disjunctive, and the court defined each one. Then, when Appellant was convicted, the jury entered a general verdict. Therefore, there is no way to know whether the jury found that Appellant acted intentionally, knowingly, recklessly, or with criminal negligence in the starvation of her child. This is significant because the injury to a child offense contains varying penalties based on the culpable mental state of the defendant, and without a determination on mental state, the jury will have no guidance on the applicable punishment range. Tex. Penal Code § 2.04(e)-(g). Therefore, simply reforming Appellant’s conviction is not a workable resolution in this case.
In Thornton v. State, we held that:
[I]n deciding whether to reform the judgment to reflect a conviction for a lesser-included offense, that court must answer two questions: 1) in the course of convicting the appellant of the greater offense, must the jury have necessarily found every element necessary to convict the appellant for the lesser-included offense; and 2) conducting an evidentia-ry sufficiency analysis as though the appellant had been convicted of the lesser-included offense at trial, is there sufficient evidence to support a conviction for that offense? If the answer to either of these questions is no, the court of appeals is not authorized to reform the judgment. But if the answers to both are yes, the court is authorized — indeed required — to avoid the “unjust” result of an outright acquittal by reforming the judgment to reflect a conviction for the lesser-included offense.
The judgment of the court of appeals is reversed, and the case is remanded to the trial court for a new trial on the lesser-
. Because it is not an offense to cause injury to a child by omission with criminal negligence, it will have to be shown that Appellant acted intentionally, knowingly, or recklessly in the death of her child. Tex. Penal Code § 22.04(a).