*1 647 Verburgt Dor thereby implied, v. sion SHAW, Appellant, (Tex.1997). Rebecca Ann
ner, 959 617 S.W.2d then, “any there is question, v. indi of circumstances plausible statement [speci cating that failure file within the of Texas. STATE period not or inten deliberate fied] inadvertence, tional, but was the result of PD-0211-06. No.
mistake, v. Meshwert or mischance.” Appeals of of Texas. Criminal Court (Tex.1977). Meshwert, 549 S.W.2d in his appeal, In his notice of 31, 2007. Oct. challenge, without Houser petition here 16, Denied Jan. Rehearing new a motion for states that he mailed judgment, after and a days trial nine bearing of
copy a transmittal letter is no
date attached. There motion record,
new trial in the trial court’s reasonably have
Houser could believed it three clerk would receive within An says
weeks of when he he mailed it. everything power
inmate does his who may not satisfy requirements timeliness penalized for the error tardiness v.
prison officials. See T.D.C.J. Williams (Tex.2004)
I.D., 309-310 curiam). If had
(per for new trial motion days judg
been received within 30
ment, appeal would Houser’s notice of Tex.R.App. timely P. been filed.
26.1(a)(1). plausible This statement of cir
cumstances indicates that Houser’s failure not timely appeal file notice of
intentional but inadvertent. See Hone (Tex.2003)
Hanafin, 104 S.W.3d curiam).
(per
Houser was to an extension entitled appeal,
time to file his notice of appeals the court of should thus Accordingly, the appeal.
have dismissed review, grant petition for and with-
we argument, hearing
out oral we reverse and remand the appeals’ judgment Tex.R.App. proceedings.
case further
P. 59.1. *2 Davis, Worth, TX,
L. Patrick Fort Appellant. Vernon,
David W. Assistant District Cleburne, Paul, Atty., Matthew State’s Austin, Atty., for State.
OPINION PRICE, J., opinion delivered the KELLER, P.J., Court which MEYERS, KEASLER, HERVEY and COCHRAN, JJ., joined.
The appellant charged inten- tionally, knowingly, recklessly causing injury to a The jury child. convicted her of causing ap- On recklessly. peal she complained that the trial court in failing erred to instruct the so-called “Good Samaritan” defense. The appeals court held that the trial court refusing did not err in the in- submit granted appellant’s pe- struction. We discretionary tition review to address holding claim that so of appeals applied legal an incorrect standard. brought ap- the State July In ap- court of appeals
We hold plea in deter- to trial before legal pellant correct standard plied the trial, guilt stage “raised” the At mining guilty. the evidence *3 a in this case. and few defense ten witnesses presented “Good Samaritan” State that, in order obtain an exhibits, hold to one appellant presented We also and the de- (herself) instruction on the “Good Samaritan” a few The and exhibits. witness 22.04(k) of the fense embodied in Section witness, Key, Miranda Shaw State’s first Code,1the must show that appellant (1) Penal was the she testified evidence sufficient to the record contains (2) named had a twin sister daughter; she finding, that she support a rational Shaw, palsy, had cerebral sco- who Melissa necessary requisite lacked the mental state (3) liosis, incapacities”; mental and “some offense, she fact to commit the but that 30, 2001, Melissa while she and August on state, requisite mental harbored appellant Johnson resided with the in the engaged conduct under nevertheless Miranda) birth a gave to County, she circumstances, faith, emergency good Schuyler Bryce boy, she named whom and with reasonable care. Because the (4) Shaw; she and on October to insufficient es- record contains parental rights over transferred construed, we tablish the defense as so will then Schuyler to the and moved judgment ap- affirm of the court of residence. out peals. witness, The Robert State’s second (1) deputy AND Johnson, FACTS PROCEDURAL was a testified that he (2) County; POSTURE sheriff of Johnson Novem- he p.m., at 2:00 ber around At Trial dispatched to a residence “in reference February County In a Johnson (3) breathing”; upon an infant that wasn’t an grand jury charg- returned indictment residence, ap- he at the found arrival ing injury with one count pellant “doing [cardiopulmonary manslaughter.2 to a and one child count (4) infant”; shortly on an suscitation] alleged, part, The indictment relevant thereafter, personnel medical emergency [Schuyler appellant, by “shaking the infant to Cook transported arrived and Shaw, Bryce younger a child than fifteen Hospital in Fort Children’s Worth. years age,] causing his head to witness, Michael object,” unknown intentional- State’s third Gau- strike an had (1) det, he a detective ly knowingly bodily inju- or testified that caused serious Office; (count one), County one, ry to him had with the Johnson Sheriff’s paragraph (2) 9, 2001, he evening of November recklessly bodily caused serious (count one, two), Hospi- to Cook Children’s paragraph dispatched had was case; (count two).3 upon this tal connection with recklessly caused his death 19.04(a) 22.04(k)(l)(B), §§ & See See 1. former Code 2. Tex Penal Tex Penal Code change 22.04(a)(1). since recodified without substantive 22.04(k)(2). provision reads: "It is This prosecution under this section manslaughter State abandoned the [causing injury act or that the omission in the trial before the point count at some bodily injury to a consisted of child] serious jury. to the case was submitted emergency care administered in ... medical good reasonable care faith healing person arts.” not licensed arrival hospital, learned from [*] * * Schuyler doctor that Shaw had sustained What, if anything, else did she tell injuries; brain at the hospi- while happened about what that day? tal, spoke he also appellant. Gau- A: That when she laid down testimony det’s continued: nap, for a laid him down on his Q: What you did she tell about Schuyl- back start with. She waited until he history? er’s medical gone sleep, had went back into the room, stomach, rolled him over onto his A: That ... had “SVT” and then completing went about *4 supraventricular tachycardia, which is laundry, and that to she came back wake basically problem rhythm, heart with up him 2:30. back about and that taking Digoxin the child was Q: So 9:30 a.m. to p.m., 2:30 she that; a day twice also that he had a you, Schuyler told taking nap? was small heart murmur. Yes, A: ma’am.
Q: Okay. p.m., And at 2:30 what did you she happened? tell about what Q: And what did Rebecca Shaw tell gone A: That she had wake you date, happened about what had that Schuyler up. diaper, She checked his 9th, November 2001? peed that He he it. wasn’t awake at She approximately A: told me that 8:30 point. that called She to him. He that that morning, Schuyler Shaw had respond. didn’t took She his arm. He up, woken dirty that he had a diaper, respond. didn’t picked When she him stool, loose that prior day [on the] that up, fully that his head fell back she had day long, diarrhea; he loose stool all that breathing noted his was labored. that she him gave then his medicine and point, At panicked, that she became ran then fed him and he drank two diaper bag, obtained a heart mon- ounces, spit that up he a little bit. And itor, style, contact-type ran he spit up, when it was a phlegmy. little kitchen, leads, attempted to wet the had talking That she then was with her to move from one arm into the phone mother on the and walked around operate other arm to She faucets. Schuyler, house set down in then heart checked his beat with the computer, front of the because he liked heart monitor and obtained a heart beat to look at computer the colors on the minute, approximately beats per monitor, and talked to her mother for a still breathing. and he had labored while, and went then and laid down Q: per 53 beats minute? a nap 9:30. about A: Or beats for a 30-second count. Q: 9:30? time, said, Q: Okay. At he that she still breathing? A: A.M. Yes, A: ma’am.
Q: Okay. you Let me ask this. Did she Q: hap- And then did she you what tell you during tell who all was home that pened? time? thought A: calling She about 911 at
< Just her and Schuyler. point figured and then that 911 cy you Did she tell where Melissa was? services, ambulance, emergency < Melissa at school. department volunteer fire not be would she could any marks that He didn’t have then called her able to find her. She observe, okay, that landlord, eyes looked answering ma- talked chine, fussy point, hung up and then called he still at dispatcher okay found point everything And at that appeared situation, to ... out the transferred her that point. him at Response, and the American Medical witness, Alaniz, Juan fourth The State’s sher- department fire and the volunteer (1) he social worker at was a testified iffs officers were route. Hospital; on the eve- Cook Children’s what, anything, if else did So 9, 2001,while he was on ning of November you tell that she— spoke with the duty hospital, at the A: had performed That she injuries; appellant about Shaw’s point. one She remembers him that two told goes locked. to the front door’s She earlier, Schuyler fallen out of his days had door, unlocks the front door. That front arms onto the floor. aunt’s there, they get doing she’s CPR. when *5 witness, Dyar, fifth Donna The State’s Schuyler, transport They they check and (1) in mid- days that for three testified him. appellant she and the November Q: you any have with Did conversation County Jail; cell in the shared a Johnson night Shaw that about how Rebecca (2) time, during appellant that she and the Schuyler brain may gotten these Schuyler happened what had to discussed injuries you that the doctor told about? (3) Shaw; appellant told her that “she the Yes, A: I did. happened to had to going [what was blame what, Q: if anything, And did she tell Schuyler] daughter, [her on her because you that? about wheelchair, in a and that if daughter] was A: I her if accidentally asked she baby to on happened she blamed what the dropped Schuyler, put him too down her, get in trou- daughter] wouldn’t [her hard, it, point and she denied at which I ble”; (4) expla- the said that her appellant her, inju- you asked if didn’t cause these Schuyler’s injuries would be that nation for have, ries, might point who at which she baking “she kitchen cookies and was the dropped tells me that Melissa had Shaw noise, like an she heard loud sounded day on head Schuyler prior his about (5) appellant com- egg cracking”; 8:00, and evening, 8:30 that Melis- Schuyler’s crying plained to her position in a living sa was seated in the “she job” her lose her because “made bak- room while she was in the kitchen (6) sleep”; appellant confessed couldn’t cookies, ing thump and she heard Schuyler kept [he] shook “because she sounded like a hollow melon. She then (7) go sleep”; and crying and wouldn’t living in the Melis- came room found that when she shook appellant said floor, Schuyler with sa still seated breathing. he Schuyler, stopped her, going, laying next to with Melissa sorry, sorry, sorry.” Pm “Pm Pm witness, Puteg- sixth Burton The State’s what, if anything, (1) And did Rebecca nat, pediatric he was a testified you tell what she did then? Hospital; at Cook radiologist Children’s (2) x-rayed picked up A: said that she on November Rebecca (3) brain; resulting injuries. Schuyler Schuyler checked Shaw’s swelling” of any bruising radiographs revealed “diffuse He didn’t have skull brain, “subarachnoid Schuyler’s or the skin. He cuts. both didn’t have (4) hemorrhages; inju- autopsy Schuyler’s subdural” such revealed death was ries “typical were ... after a by severe shak- “something impacting caused head his (5) ing”; and “when children are shaken forcibly impacting his head sur- some severely, they stop breathing.” can object,” possibly padding; face or even bed (4) “shaking [Schuyler] might how witness, The State’s seventh Angel (5) coming impact”; Schuyler’s into (1) Hernandez, pe- testified that he was a injuries probably were not caused a fall neurologist diatric at Cook Children’s height. from a low (2) Hospital; 9, 2001, on November he ex- amined Shaw and reviewed the witness, The State’s tenth and final Gail brain; (3) radiographs his (1) Ledbetter, testified that she case was a was comatose at that time and unable to Department worker the Texas Hu- (4) own; breathe Hernandez’s (2) (TDHS); man Services on November physical examination of Schuyler revealed Cleburne, at the TDHS office boy that the had no inju- visible external appellant interviewed connection (5) ries; the radiographs appellant’s application for public fracture, they brain revealed no skull (3) assistance; accompa- did reveal both subarachnoid and subdur- grandson,” nied “her who was in hemorrhages, al with the subarachnoid (4) stroller; upset be- serious; hemorrhage being the more quit job cause she had had order Schuyler’s injuries were consistent with a grandson; care shaking severe or a blunt-force trauma *6 appellant upset was also because “her fian- but were not consistent with fall from a a ce had left her ... because the child.” (7) feet; height than symp- less four and witnesses, In addition to evi- the State’s toms of the subarachnoid hemorrhage exhibits, dence included four no- most must have occurred within six hours of a of which table was State Exhibit Number shaking severe or blunt-force trauma. Two, Schuyler which consisted of Shaw’s witness, Davis, eighth State’s Susan medical records Cook Children’s (1) testified that physician, she was a Hospital. approxi- Those records totaled care; in pediatric board-certified critical mately pages. Included the records (2) in November she was involved two-page Neurology a “Pediatric Con- Schuyler and the care evaluation of Hernandez, report by Angel sultation” Dr. (3) at Hospital; Shaw Cook Children’s her dated November 2001. In that report, of Schuyler examination revealed “massive expressed Hernandez the view (4) injury”; brain an injury such was not hemorrhagic “subarachnoid consistent with a fall from height; a low probably the of aggressive, result cardio- (5) 11, 2001, a.m., and on November at 7:30 resuscitation, pulmonary although [he hospital she and other at doctors de- possibility not rule of a non- could] out clared Schuyler to be brain-dead. accidental trauma.”4 witness, Krouse, The State’s ninth Marc (1) testified a de- pathologist he was and took the stand her (2) (1) in County; medical examiner for Tarrant fense and testified fall 13, 2001, performed daughters, on November an she lived two (3) Melissa, autopsy Schuyler body; baby Shaw’s the Miranda and and Miranda’s discussed, during closing argument guilt stage. No even one at men- his at the tioned, report until defense did this counsel so (2) time, at boy, Schuyler; she worked pediatrician’s assistant” in a “medical 9th, 2001, me, Q: Tell on November (3) office;5 a medical assis- her duties as phone call you place prompted what “everything that was tant included to 911? care take of all children quired to crib, in his IA: had found immunizations, pediatrician’s] office: [the breathing. having labored and he was (4) in, them”; checking weighing them attention, I felt I needed medical And training proper had care of had hospital and get I couldn’t him to how to handle a children and understood him the same time drive watch (5) properly; child on October myself. residence, out of their Miranda moved physically Q: Okay. you did do What care; leaving Schuyler appellant’s you Schuyler in his crib hav- when saw voluntary took a leave ing breathing problems? job assis- absence from as a medical that I had in clothing A: I dropped Schuyler; tant order to care for hand, crib, ran I my and I to his (i.e., feeding caring properly I him and called to him. He picked up, him, him, him, chang- bathing playing with respond. did not medi- ing diaper, providing appropriate etc.) care, burden,
cal was not a and she (8) Schuyler had a happily;
did so Ma’am, you jury, Q: I want to show the condition,” given “heart for which he was Schuyler in you saw when came daily medication. The testimo- responding, his crib not show the ny continued: you picked up, how and what did 9, 2001,] you [on And November you do next? you woke saw the bus up, Melissa take (demonstrating)6 laying A: He point you to school. And at what did I found him. like that when *7 wake up morning? [that] Okay. That’s where he’s there. Q: Approximately A: 8:30. was laying. me how he Show Q: you Schuyler up, When woke (demonstrating) was on his A: He up, any- you woke did notice stomach, posi- his in this and head was thing you that would cause concern tion bed. Schuyler? about p.m. This 2:15 in the after- Q: is about No, A: sir. noon; is correct? Q: asking you again. you I’m no- Did Approximately. A: Schuyler? tice visible you And Q: what did do next? No, A: sir. (demonstrating crying) I went A: and Q: breathing? How was this, over, and then I and I went like this, like and I his picked up A: called appeared It to be normal. clear, examination, Although entirely appel- the counsel it is not 5. On direct appellant, licensing demonstrating asked the "What’s the a apparently lant pediatri- becoming a medical assistant to a doll. responded, cian?” The somewhat go through ambiguously, "You school through and become licensed. I went school graduated.” and name, Q: and his little went Okay. happened head over. What next? me, And I pulled him to and I ran A: (demonstrating crying) and I had through get the house to his heart moni- number, my dialed landlord’s and I got tor out diaper bag, inwas recording, hung the and I up so the living the room.... speaker phone, again and I hit it and Q: Shaw, point, At this why Ms. how are called 911. And the reason I you holding baby you the go they to the called first them was because were jury— closer, monitor? Show the I and was concerned that 911 I get wouldn’t to me because was in the A: (demonstrating crying) and Like country. this.
Q: you’re holding baby. the —how A: (demonstrating crying) and I’m Q: You Okay. per- were instructed to this, holding him like I’m crying, and form dispatcher, is that telling stay me, and I’m him to correct? hang on.
Q: then up You hooked him to the
heart monitor? (demonstrating crying) A: I and A: (demonstrating crying) and No. I talking dispatcher], [the and then he went got into kitchen rag and wet told me what to do. And he told me to out of the drawer. I pulled rag, and I do the breathing tip rescue and to his it,wet I patted him like this. And I back, tipped head back. So I his head get on, couldn’t turn faucet to Iso and I blowing in mouth. I And switched arms like And I got this. I could wasn’t getting feel seal on his on, faucet I got rag wet and cheek, my I nose with couldn’t open turned faucet grabbed off and then my big enough get mouth around his room, I monitor. went into mouth nose. bedroom, phone because there is no— you holding Are him is he laying speaker phone, bedroom has a stationary position? down in a got it’s attachment the heart monitor, phone because the in the living A: (crying) He’s on bed at this room didn’t have that attachment. time.
Q: Okay. happened What next? Q: Okay. You *8 performing started at this time? A: (demonstrating crying) I placed and him on monitor, the bed with heart the A: Just rescue at breathing first. I grabbed phone, and the and I placed Q: Okay. happened What next? the receiver button. A: (demonstrating crying) I and re- Rebecca, Q: Okay. now. stop Show locked, member the door was because he you the placed how him on the bed paramedics way. said the on their were at point. this And I remembered the door was locked. A: (demonstrating crying) and I placed And I told I needed unlock the this, door, him on put the bed like and I I grabbed Schuyler the and so under- here, grabbed this, heart I monitor and neath they the like because that’s how here, phone sat it and I hit taught [Emergency and the ER Room?] us speaker rag carry button. And class I the here. like this. And went hand, my house, It through and I threw it there. the and I unlocked the [a.m.], the bus house, or 7:30 About 7:15 running the A: through I door. was up. picked the I unlocked door. and door, and what Q: unlocked You the State’s the thrust of summary, In next? happened (1) that: on November evidence was I ran (demonstrating crying) and A: sus- Schuyler Shaw ten-week-old phone the bedroom. back to ulti- injuries, which brain tained massive happened next? Q: And what (2) death; brain those mately caused And (demonstrating crying) and A: deliberate, se- were result injuries doing paramedics CPR when the started trauma; blunt-force shaking vere and/or back [Schuyler] to do CPR. told me the sub- (3) injury, most serious brain bed, for the screaming and I was within six hemorrhage, occurred arachnoid hurry. paramedics to blunt- shaking the severe hours of and/or (4) circumstances, trauma; given the
force to have position was in a appellant did Q: point And then Okay. at some (5) injuries; caused somebody from the sheriff’s 911—did anger out struck shook and/or arrive, any- or have we left department frustration, crying and kept because he thing out? (6) appel- go sleep; would first, officer there police got A: The involving story, concocted lant [said], byme my and he took arm Melissa, explain daughter here, “Ma’am, come come in here with contrast, the injuries. In thrust baby’s me.” simply evidence was 9, 2001, there. at around Q: Stop Where is on November that: happens? your arms? had an Schuyler, when this Is he found who p.m., she 2:15 state; heart, non-responsive in a
abnormal immediately telephoned thereafter, cardiopul- and, began shortly floor, my A: I’m on knees on the monary resuscitation. me. [Schuyler on the bed in front of is] conference, charge
theAt instruct the the trial asked going on? What’s provided Samaritan defense the Good on, ex- going A: I don’t know what’s (later 22.04(k)(l)(B) Penal Code Texas right paramedics come cept the did as Tex- recodified, unchanged, its text that, they working on started after 22.04(k)(2)). appel- as Penal Code [Schuyler]. court how explain to the trial lant did not supported the evidence simply urged special charge; she quested *9 9th, the 911 November when [On] testimony.” court to “recall the the trial ..., Melissa? came down where was call that there argued response in The State atwas school. requested A: She the support no evidence denied the charge. The trial court for special And when she leave Q: Okay. did request.7 morning? appellant’s school defense, request that second argument, the Samaritan close of final At the preserved nothing ap- for untimely and special charge Good requested a again jury subsequently The appel- argued found the instruction.”9 The State third that, guilty not or intentionally “given overwhelming lant of the evidence knowing- injuries not the ly causing bodily injury serious Shaw’s were Schuyl- CPR, aggressive result it is er but found her of of inconceiva- guilty recklessly Shaw harm causing any ble that the suffered bodily injury serious him.8 The request- from the trial court’s denial of the jury appellant’s punishment assessed the ed instruction.” imprisonment years at for twenty and a $10,000. fíne of of two appeals, The court vote of one, point the of er- appellant’s overruled Appeal
On
judgment
ror
trial
and affirmed the
direct
the
appeal,
appellant brought
On
appeals explained
court.10 The court of
single point
error,
arguing
the
that,
juror
a rational
not
“[b]ecause
could
court
denying
requested
trial
erred in
her
shaking
have found that
conduct in
Shaw’s
special charge
the
on
Good Samaritan de-
the
its head
an
baby
hitting
against
In particular,
argued
fense.
the appellant
object
emergency medical
was reasonable
the
Neurology
“Pediatric
Consulta-
not
in
care or that Shaw was
licensed
the
Hernandez,
report by
tion”
Angel
Dr.
in-
arts,
in
healing
question
the
State,
troduced into evidence
the
not
of appeals
raised.”11 The court
did
appel-
“raised
defensive issue that the
not
two arguments.
reach
State’s other
attempt
grandson’s
lant’s
to save her
life
petition
filed a
for
appellant later
have,
fact,
may
tragically
it.”
[ended]
discretionary review,
granted.
which we
response
State’s
brief,
In
petition
accompanying
argument
was threefold. The State ar-
appellant argues:
ap-
the court
gued first that “the trial court did not
peals,
err
trial
determining
denying
requested]
[the
instruction
in denying
requested spe-
court erred
no
because there was
evidence
the rec-
cial
charge
the Good Samaritan de-
fense,
argued
“erroneously
‘rational-ju-
ord to raise same.” The
applied
State
that,
event,
second
the trial court
ror test’ ...
instead of
well-established
”
denying
could
be faulted for
‘raised-by-the-evidence
(ground
test’
quested
one);
ap-
instruction because “defense coun-
review number
the court of
duty
informing
sel
peals
failed his
holding
trial
erred
the evidence
court where
[in
record]
adduced at trial did not raise the Good
supported
was that
requested jury
(ground
[the]
Samaritan defense
review
State,
pellate
gard
gross
review.
constitutes a
deviation from
Seefurth
(Tex.Crim.App.1967);
person
ordinary
an
standard of care that
Tex.Code Crim.
36.15; George
art.
&
all
E. Dix Robert O.
would exercise under
the circumstances
Proc.
Dawson,
standpoint.”
43A Texas Practice-. Criminal Practice
as viewed from the actor's
(2nd ed.2001).
42.217
and Procedure
judge,”
argued,
9. "A
"cannot
trial
State
properly
jury,
8.The
instructed the
expected
every
to remember
bit of testimo-
in accordance with
Penal
Texas
Code
ny
know
adduced
trial or
the contents of
that;
6.03(c),
every
every page of
admit-
exhibit offered and
ted.”
reckless,
person
recklessly,
"A
acts
respect
to the result
conduct
(Tex.App.-
10. Shaw v.
657 2.03(c), Leg- § the two); In Penal Code Samari- Texas number “Are Good the (other issue of “[t]he mandated islature physicians than licensed tans not submitted to of a defense is existence acting under the direction of a persons sup- admitted unless evidence is the healing are physician) who licensed Thus, ques- defense.”13 the porting the provided arts not entitled the defense must used legal standard tion of what 22.04(k)(l)(B) of the Texas Pe- by Section whether, upon determining a by in an good-faith nal Code for their conduct must be submit- request, a defensive issue emergency?” (ground for review number question of jury, really is a ted to the three). granted appellant’s peti- the We interpretation: What did statutory to decide the divided tion order whether 2.03(c), mean, by § Legislature appeals correctly court of construed the de- phrase supporting ... “evidence statutory disposition defense.12 Given our fense”? grounds appellant’s first two for review, ground dismiss her third we may question answer to that moot. precedents. in our We be found that, of purposes
noted
for the
before
(or
2.03(c),
supported
§
a defense is
ANALYSIS
“raised”)
if
is
the record
there
evidence
Apply
Appeals
Did
of
the Court
def
case
making
prima
a
facie
Proper
Standard?
case is that “mini
prima
ense.14 A
facie
necessary to
mum
quantum
We turn first
to the
alle
support a rational inference that [an]
one,
ground
review
number
also
fact is
We have
gation of
true.”15
argues
appeals
she
that the court of
used
2.03(c),
that,
§
stated
under
defendant
wrong legal
determining
standard in
re
production”
“bears the burden of
in denying
court erred
But,
course,
spect
a defense.16
requested special charge
on the Good
more
production”
nothing
“burden of
appellant argues
Samaritan defense. The
prima
facie
making
than
a burden
that the correct standard is the “well-es
case.17
test,”
‘raised-by-the-evidence’
tablished
short,
fails
explain
supposed
2.03(c),
§
how
a de
In
under
raised)
(or
by
by
standard
from
differs
the standard used
the evi
supported
fense is
evidence,
appeals. Certainly,
the court of
is some
dence if there
evidence,”
source,
phrase
by
“raised
as used
on each element
that,
meaning;
jury,
support
has
intrinsic
if
would
appellant,
no
believed
inference that that element
way.
it must be defined
some
a rational
State,
589,
(Tex.
66.3(d)
16.
v.
97 S.W.3d
594
Tex.R.App.
(e).
12. See
P.
&
Zuliani
State,
Crim.App.2003);
v.
804 S.W.2d
Saxton
2.03(c).
13. Texas Penal Code
§
910,
(Tex.Crim.App.1991).
914
State,
v.
S.W.2d
856
14. Richardson
622
(ed.),
on Evidence
17. K. Broun
McCormick
(op.
(Tex.Crim.App.1981)
reh’g);
Garcia
(6th ed.2006);
31A
Evi-
479
C.J.S.
State,
338 at
(Tex.Crim.App.
528 S.W.2d
605
(1996).
1975).
dence
120
Tompkins v.
1987), aff'd,
(Tex.Crim.App.
490 U.S.
(1989).
S.Ct.
true.18 In a As far as held defense back we that “[cjourts is supported, rely only thus a court must on required its are to submit [de- own judgment, light formed in the of its theories of cases same fensive] when are own experience, common sense and of supported by testimony as to some sufficient of limits rational cogence inference it appear, substance to make proven.19 facts If supported likelihood, a defense is at degree least with some evidence, by by then the defendant that finding jury is there could be a defense, entitled an response instruction on that suggested to such issue.”24 That even if the evidence supporting today. de- is still the rule court of ap- The contradicted, fense peals is weak if legal even utilized the correct standard. the trial is opinion of the that appellant’s ground the We overrule the evidence But is credible.20 the evi- review number one.
dence must be such will support that it jury finding rational as to each element of Did the Evidence Raise Good the defense. Samaritan Defense? requirement
The that evidence turn next to the We rationally two, must support jury finding ground be for review number fore a defensive instruction is required argues appeals that the court of erred preserve serves to integrity jury holding that adduced at by as the ensuring factfinder it raise did not the Good Samaritan when, only § instructed as to a given defense pro defense. Texas Penal Code 22.04 evidence, vides, is a part, person defense rational “[a] relevant to the alternative defendant’s criminal if recklessly liab commits an offense he ... ... ility.21 by If a were instructed as to a act ... causes to a ... child serious though bodily injury.”25 goes even the evidence did not statute it, rationally support provide prosecu then the is a “[i]t instruction defense to would constitute an invitation tion under this section the act ... speculation.22 a verdict return based on consisted ... medical emergency care supported by Whether a defense is in good administered faith with rea sufficiency evidence is a question person reviewa sonable care not licensed in ble on as a appeal question of law.23 the healing portion arts.”26 This latter State, valid, 18. See v. 777 S.W.2d Wilson 825 fense constitutes a rational alternative 1989), (Tex.App.-Austin aff'd, offense.”). 853 charged S.W.2d 547 to the (Tex.Crim.App.1993); 23A C.J.S. Criminal (2006). "rational-juror” § Law 1787 Robinson, 22. See P. Criminal Law Defenses appeals standard enunciated the court of 3(b) (1984). § the same standard stated in different lan guage. State, 825; 23. 777 Wilson v. S. Davis, & M. 2 Federal Standards Childress (ed.), 19. See K. Broun McCormick on Evi- (10th ed.1999). § Review 11.29 (6th ed.2006). § dence 338 State, 510, 514, 24. 131 Nickens v. Tex.Crim. State, E.g., 20. Arnold v. 742 S.W.2d (1937). 100 S.W.2d 1987). (Tex.Crim.App. 22.04(a)(1). 25. Tex Penal § Code 21. Arevalo 943 S.W.2d Cf. (“[T]he (Tex.Crim.App.1997) jury is instructed 22.04(k)(l)(B), as to a lesser included Id. since recodified with- offense when 22.04(k)(2). [given change at trial] the evidence adduced that of- out substantive
659 necessary culpable mental negates as the the statute we refer to Good Samar- state, defen- it will to entitle the not suffice itan defense. Rather, a instruction. to a defensive dant is, on its The Good defense Samaritan only appropriate is instruction defensive face, “justifi- a confession-and-avoidance evidence the defendant’s defensive when type of defense.27 Section cation” every essentially admits to element 22.04(k)(l)(B) partic- as a kind of operates culpable mental including the offense justification of ne- example ularized of the state, justification to interposes but cessity, applicable specifically prosecu- criminal conduct. excuse otherwise 9.22 of injury tions for to a child.28 Section State, ob- Young v. we example, For justi- begins: is the Penal Code “Conduct necessity, a to raise order “[i]n served “Conduct,” turn, if....” is defined fied violating un- admits the statute defendant 1.07(a)(10) to of the in Section Penal Code offers charged he is then der which accompa- “an act or omission and its mean weighs necessity justification as a which It is nying mental a defense state.”29 imposing punishment a criminal against responsibility, criminal under 9.02 Section stat- the act or acts which violated the Code, if the “con- of the Penal criminal 31 Young ute.” We held that himself “justified.” justification, by duct” is This necessity be- entitled to a instruction not definition, negate any does not element he com- merely “argued he did not cause offense, intent; including culpable it not have mit the offense because did only excuses would consti- what otherwise he did requisite perform intent and not tute criminal conduct. From this it follows alleged.”32 the actions the State Similar- prosecution injury that evidence in a Nailor, ly, parte in Ex we held that a child that more negate does no than in- was not entitled to a defendant inference that the defendant caused the his de- struction on self defense because recklessly, intentionally, knowingly, confession fensive evidence did show instances, negli- or in some with criminal avoidance, only a lack gence, does not raise the defense. mens quired culpable act and rea.33 not entitled to a defensive respect instruction with case, In the instant asserts nothing negate does more than an element the act administered of the offense.30 care, requisite emergency with the medical care, respect good We have said with to de faith and reasonable try get in order necessity fenses such as defense she conducted self merely again. breathing that when the defensive evidence the child She would Giesberg justification (Tex.Crim.App.2001); v. 27. that de- 368 "[A] is one criminal, State, (Tex.Crim.App. fines conduct otherwise which un- 250 984 S.W.2d acceptable socially der the circumstances 1998). & Daw- George See E. Dix Robert O. liability and which deserves neither criminal son, 43 Texas Practice: Criminal Practice LaFave, W. nor even censure.” Substantive ed.2001). (2d § 36.43 Procedure ed.2003) 9.1(a)(3) (2nd at 7 Criminal Law (internal omitted). quotes 1999). (Tex.Crim.App. 31. 991 S.W.2d 838 §§ 28. See Tex Penal Code 9.02 & 9.22. 32. Id. at 839. 1.07(a)(10) (emphasis 29. Tex Penal Code added). (Tex.Crim.App. 149 S.W.3d 132-34 33. 2004). State, (Tex. E.g., v. 93 S.W.3d Ortiz Crim.App.2002); Solomon report entitled to the Good Samaritan defense it could have been the CPR *13 22.04(k) under only jury actually Section if the injury. that caused the head This however, could have that it particular found was this purports nothing, to establish actually act that caused the child’s head respect appellant with to the ad- injury.34 Dr. Hernandez’s preliminary any the particular ministered CPR with (albeit report testimony) medical not his specifically mental state with to respect injury proba- concluded that the head “is causing a head As in injury. Young and bly aggressive, cardio-pulmo- the result of Nailor, appellant’s the defensive posture nary Hence, resuscitation[.]” there is to throughout seemed be that she jury some evidence from which the could performed any the CPR without conscious (but reasonably certainly found have was might awareness whatsoever that she find) required not appel- to that it was the thereby causing the child some head attempted lant’s caused the head only injury. posture This defensive serves injury. question The next is what the to negate culpable the mental element of the appellant’s evidence shows mental circumstances, a the offense. Under these was, any, specifically state if respect with to charge jury requiring the it to find (if did) causing injury to the head she every constituent to element offense particular way. If there is no indica- beyond of level confidence a reasonable tion she any culpable harbored mental appellant doubt before convicting respect causing state at all with required. all child’s injury administering head while CPR, she not would be entitled to the CONCLUSION defensive instruction.35 these For reasons hold that the trial we refusing not err in points court did to submit the to no particular jury. instruction evidence in from defensive There- the record which it could fore, rationally be albeit reasons somewhat different inferred she harbored by culpable respect expressed than the court of ap- some mental state with those causing below, affirm injury peals opinion a head in its its the course of we administering CPR. There is Dr. Her- judgment affirming judgment of the nandez’s initial conclusion in his written trial court.36 believed, jury knowingly, 34. If the knowledge, respect under the circum- or with with stances, that it was some other that the act of his result conduct when is aware that child, appellant injured obviously then it reasonably is certain conduct to cause the would have no occasion to consider whether result.”); 6.03(c) ("A § person recklessly, acts applied, since it would have reckless, respect or is to ... result jected injury the inference that the resulted his conduct when he aware of but con- “emergency from medical care.” sciously disregards unjustifi- a substantial and occur.”). that ... will able risk the result We say, 35. That is to if there is no basis rational said on have number occasions that jury evidence for to conclude that injury type to a child result-of-conduct she administered the CPR with the conscious E.g., offense. Jefferson to, objective reasonably or was certain (Tex.Crim.App.2006). would, consciously or at least indif- charged was not in the indictment with caus- would, ferent inju- whether she cause the head ing injury negligence, to the child criminal ry, then she would not be entitled to nor did she seek to authorized 6.03(a) ("A instruction. See Tex. Penal Code her for that included convict lesser offense. intent, person intentionally, acts or with respect to ... a result of his when it conduct objective disposition, this we need is his to ... 36.Given not reach conscious desire result.”); 6.03(b) ("A appellant's ground person cause the acts third for review. J., JOHNSON, six hours. The consensus dissenting more than filed a inju- Schuyler’s was that opinion medical opinion. Schuyl- a scenario in which supported ries HOLCOMB, J., dissenting filed a recently shaken, but did er had been opinion. height or an a fall from a low comport with WOMACK, J., dissented. days two before records medical call to *14 J., JOHNSON, dissenting filed a from report pediatric a neurolo- included a opinion. part that at gist, opined who least theory that The state’s in this case was hemorrhaging could have resulted cry- appellant became frustrated with the “aggressive” CPR. him or ing young of the victim and shook Schuyler testified that Appellant him, thereby injuries inflicting struck that breathing, she called 911 stopped that caused his death decid- and thereafter operator 911 coached her on help, that the injuries ing to blame on her disabled CPR, per- and that she how to administer Gaudet, Michael in daughter. a detective by formed as instructed the sheriffs office interviewed who had testimony Her on this operator. the 911 hospital day at the of the appellant by corroborated 911 audio issue was injury, appel- that testified he had asked testimony tapes responding and the Schuyler. if she had dropped lant She officer. police any such that denied conduct. He testified questioned her about might then asked her have Her trial counsel he who else testi- Schuyler, an her conversation with Gaudet. She dropped appellant related head days incident two in her dis- fied that he asked how earlier which Melissa, bumped. then relat- daughter, may abled could have been She ed the incident with Melissa and dropped appellant while was out reiterated At no Schuyler appeared uninjured. of the room. The officer also testified testimony conversa- appellant ap- point told no in her about her that there were Gaudet, testimony parent injuries, or appeared to be tion Gaudet’s time, uninjured, appellant, and that a about his conversation with he cried for stated testify any then “settled down.” there assertion that He did not inflict- any by that the fatal attempt implied to blame Mel- or took Schuyler’s injuries. by Melissa. The witness who issa for ed jailhouse position Dyer, was Donna a The state’s medical evidence from four snitch. no physicians indicated that there were fractures, injuries Appellant job external or skull identified her a “medical .visible assistant,” autopsy swelling position may include but the revealed diffuse certification, hemorrhaging by case of a but is the brain not licensed “healing that would in no as a art.”1 Her type symptoms cause State of Texas signs, programs generally ing administering medications 1. Medical assistant are vital community by physician. Occupational taught in vocational schools and as directed 2006-07, one(certification) junior colleges States or Handbook United Outlook Labor, (associate programs degree), Department Statis- two-year Bureau of Labor job. www.bls.gov/oco/ocosl64. may medical assistant be trained on tics Bulletin general regulated The duties are and tend to office htm. Medical assistants are not Appellant’s de- procedures Occupations Code. administration minor medical the Texas tests, laboratory scription her title and duties indicates such as basic on-site record- 662 that,
claim always has injured been if she 728 (Tex.Crim.App.1987) S.W.2d Schuyler, it during (citations per- omitted). efforts to See also Ferrel v. CPR, form that she is not “licensed in the State, 591 (Tex.Crim.App. arts,” healing and that she was therefore 2001); Muniz v. 851 S.W.2d entitled to a jury instruction on the Good (Tex.Crim.App.l993)(evidence which raises Samaritan defense: “It is a defense to weak, may strong, the issue be contradict prosecution under this section that the act ed, unbelievable). unimpeached, or “In (B) or omission consisted ... emergen- of: determining whether charge defensive cy medical care good administered in faith given, should credibility of evidence and with reasonable care a person not it is controverted or conflicts healing licensed arts.” Tex. Penal with other may the case not be 22.04(k)(l)(B). Code theory considered. When a defensive precedent Our saying consistent *15 by raised evidence from source and a jury that a instruction given must be on a charge properly requested, is it must be by defense that “is raised the evidence.” jury.... submitted to the This rule is “In determining whether the evidence rais designed to jury, insure that the not the es the issue of a charge, defensive this judge will decide credibility the relative of Court must all consider the evidence the evidence. judge When a refuses to trial, raised at regardless of strength give an instruction on a defensive issue of the evidence or whether it is controvert because the evidence supporting it is weak State, ed.” v. Reese 877 S.W.2d 333 unbelievable, or he effectively substitutes (Tex.Crim.App.1994)(quoting Booth v. judgment weight of the evidence State, 679 S.W.2d (Tex.Crim.App. 500 jury. that of the weight of evi 1984)). “This Court has consistently held in support dence of an instruction is imma that an accused is entitled to an instruction State, terial.” v. 742 S.W.2d Woodfox on every by defensive issue raised (citations 409-10 (Tex.Crim.App.1987) evidence.... regardless This is true of omitted.). State, See also v. Miller whether weak, such strong evidence is or (Tex.Crim.App.1991). unimpeached contradicted, or and regard The court of appeals’ statement that an less of what the trial court may may or not if, “element of the defense is ‘raised’ view think about credibility of this evi ing the light evidence most favor dence .... It is also well settled that a defendant, able to the there is evidence testimony defendant’s alone is sufficient to that a juror accept rational could raise a defensive issue requiring an in suffi prove cient (emphasis element” struction in jury charge.... This is added) particularly when, cry is a far here, true as in the consistent and the case proper long-standing made a timely re standard our case law: “it quest charge.” Hayes such a is well testimony settled that defendant’s job description she falls into this supervision physician. that she cine under the of a licensing. confused certification with They formally provide diag- are trained to nostic, assistants, hand, therapeutic, preventative Physicians health on the other required may prescribe complete are care and all states to medication and as- an ac- areas, during program, surgery. sist usually they credited education In rural affiliat- may four-year principal providers. ed with medical be the schools or col- health-care 2006-07,
leges, pass Occupational and to a national examination in Outlook Handbook Texas, Labor, order physi- Department to obtain a license. In United States of Bureau regulated cians assistants are under Tex. of Occ. Labor Statistics Bulletin www.bls. They actually practice gov/oco/ocos081 Code Ch. 204. medi- .htm. HOLCOMB, J., dissenting issue filed alone is sufficient raise a defensive jury opinion. an instruction in the requiring is charge” “regardless and that this true found that jury trial weak, strong such evidence or is injured her reckless when she she was contradicted, regard or unimpeached Schuyler reviewing After grandson, Shaw. may may
less of what the record, that, I if the had conclude this evi credibility think about option, well given might it been precedent makes it abun dence.” Our injury of appellant’s reckless found that support dantly clear that course of during occurred may entirely the defense unbelievable medical administered in emergency care fantastic, but once that evidence and with care. good faith reasonable introduced, an instruction required. My following conclusion is based on the (1) Dr. “Pediatric
Appellant testified that she administered evidence: Hernandez’s shortly after Report,” written operator, CPR as instructed an Consultation the 911 arrived at Hos- Cook Children’s clearly “emergency falls action under 9, 2001, in pital on November which he It medical care.” was for view “sub- expressed the injuries decide whether the resulted from hemorrhagic” probably arachnoid and, the CPR or from if another source aggressive cardiopulmonary result *16 CPR, from the was done the CPR (CPR); (2) tri- Hernandez’s suscitation Dr. in good faith and with care. reasonable testimony that Schuyler’s al “subarachnoid erred, trial court court of The as did the (3) injury; hemorrhage” principal was his finding was appeals, that the defense testimony grandson, that her appellant’s not raised. condition,” Schuyler, had a “heart felonies, charged Appellant with two (4) given daily; he was which medication (1) (2) child, manslaughter and injury to a that, testimony day question, on the her may an any degree offense Schuyler unresponsive found and in she felony first-degree state-jail felony distress, franti- respiratory after which she depending on the and extent of (5) CPR; and cally called 911 commenced jury mens rea. The convicted Schuyler testimony caring her recklessly bodily causing serious happily; and did so not a burden that she injury, second-degree felony the low- and (6) her demonstration to the of how est degree possible for serious bodi- (7) Schuyler; performed she CPR on ly injury. Because determined testimony training she had injuries inflicted were not how of children understood care intentionally knowingly, it is conceivable (8) her testimo- properly; handle them jury, that the had it been told of the Good describing relatively menial duties ny defense, might Samaritan have found for pediatrician. an assistant to on that lies basis. Therein jury, position The in a appellant. the harm to judge appellant’s demeanor on witness charge Appellant was entitled to to see demon- stand and her courtroom did not the Good Samaritan defense. She physically how handled stration she get an instruction harmed such and was rationally Schuyler, could have reconciled its lack. The be re- evidence, conviction should with all of along all of this trial, versed and the case remanded to the evidence adduced at could other trial. respectfully rationally following: court for a new I dis- concluded (1) day question, appellant did sent. find unresponsive and with la- (2) claimed; breathing,
bored as she Letroy HUNTER, Appellant, she Calvin frantically then called 911 and followed the (3) dispatcher’s CPR; begin instructions to life,
in an attempt to save the child’s The STATE of Texas. administered the energetically perhaps erroneously in good faith and No. AP-74983. care; with reasonable course Court of Appeals Criminal of Texas. CPR, administering the Schuyl- she shook er, perhaps inadvertently, and caused his Nov. 2007. mattress, head to strike the bed’s thereby causing injuries; when she Rehearing Denied Jan. shook and caused his head to mattress, strike the she was aware of but
consciously disregarded a substantial and
normally unjustifiable injury. risk of
jury also rationally could have concluded
that the nature of employment
and her overall day conduct on
question were inconsistent her being
a licensed healing member of the arts and was, fact,
that she not a licensed mem- healing
ber of the arts. majority concedes that “there is
some evidence [Dr. Hernandez’s medical
report] from which the could reason-
ably have found ... that it was
attempted CPR that [Schuyler’s] caused injury.” trial,
head Given the above,
recounted also could rea-
sonably have found that appellant, because
of her frantic mental upon finding state
Schuyler unresponsive respiratory and in
distress, was reckless attempted when she
the CPR on him. out, majority
As the points not much
evidence is needed to raise a All defense. evidence,
that is needed is some
source, that would support a rational infer-
ence that each element the defense is
true. That minimal standard was met in
this case.
I respectfully dissent.