Opinion
No. 05-08-01716-CR
Opinion Filed June 9, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 196th District Court, Hunt County, Texas, Trial Court Cause No. 24191.
Before Justices RICHTER, LANG-MIERS, and MYERS.
OPINION
Christi Denice King appeals her conviction for murder. After the jury found appellant guilty, the trial court sentenced her to life imprisonment. Appellant brings one issue on appeal asserting the jury charge reduced the State's burden of proof causing appellant egregious harm. We affirm the trial court's judgment.
Appellant's brief contains a second issue, that the jury charge allowed for a non-unanimous verdict. At oral argument of this cause, appellant's counsel withdrew the second issue. Accordingly, we do not that address that issue.
BACKGROUND
On January 27, 2006, appellant's ten-month-old son, E.G., drowned in the bathtub. Miguel Guajardo, E.G.'s father and appellant's common-law husband, testified that the night before the offense, they had an argument over the messiness of the house. Guajardo testified they both became upset, and appellant said "she could take everything away from me . . . and I didn't know what she was capable of." The next morning, appellant, Guajardo, and E.G. went to Guajardo's sister's house. Appellant was going to take care of E.G. and the sister's ten-month-old daughter while Guajardo and his sister were at work. Later that morning, Guajardo called appellant and asked her to call a lender to clear up a dispute about whether a particular payment was made. When appellant called the company on her cell phone, the sister's daughter was in bed asleep, and E.G. was playing on the floor. While talking to the lender, appellant picked up E.G. and prepared to bathe him. She undressed him, started the water in the bathtub, and placed him in it. The plug was not in place in the tub, but the drain was partly clogged. After placing E.G. in the tub, appellant turned the water on "full blast," and she went into the living room to finish her conversation with the lender and to put some notes she had taken into her purse. When appellant returned to the bathroom, the bathtub was one-half to two-thirds full, and E.G. was floating face up with the water from the faucet falling onto his face. Appellant removed E.G. from the tub, and she called 911. Paramedics soon arrived, but the child had no pulse and was not breathing. Paramedics and the doctors at the hospital could not resuscitate him. Evidence before the jury showed that before appellant had E.G., she had two other sons. She lost custody of one of these boys because, when he was less than a year old, she was bathing him in the bathtub, left him alone in the bathtub while she either got some towels or talked to a friend on the telephone, and when she returned, the child's face was under the water and he was turning blue. That child almost drowned but was saved by appellant's father resuscitating him. The State charged appellant with felony murder, alleging appellant committed or attempted to commit the felonies of abandoning a child and endangering a child. See Tex. Penal Code Ann. § 19.02(a)(3) (Vernon 2003); id. § 22.041(b), (c) (Vernon Supp. 2009).CHARGE ERROR
In her sole issue, appellant contends the jury charge improperly reduced the State's burden of proof of the culpable mental state for the underlying felony of abandoning a child. Under section 19.02(a)(3) of the penal code, a person commits murder if hecommits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.Id. § 19.02(a)(3). The State alleged two underlying felonies: abandoning a child (section 22.041(b)) and endangering a child (section 22.041(c)):
(b) A person commits an offense if, having custody, care, or control of a child younger than 15 years, he intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm.
(c) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.Id. § 22.041(b), (c). To prove abandoning a child, the State had to prove appellant acted intentionally; the State could prove endangering a child by showing appellant acted intentionally, knowingly, recklessly, or with criminal negligence. In the section of the charge defining abandoning a child and endangering a child, the charge properly distinguished the different mental states for the two offenses. In the application paragraph, however, the charge instructed the jurors they could find appellant committed either abandoning or endangering if they found appellant acted intentionally, knowingly, recklessly, or with criminal negligence:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 27th day of January, 2006 in Hunt County, Texas, the defendant, CHRISTI DENICE KING, did then and there intentionally or knowingly or recklessly or with criminal negligence, by act or omission, attempt to commit or commit a felony, abandoning or endangering a child, and in the course of or in furtherance of the commission or attempt, did commit or attempt to commit an act clearly dangerous to human life which caused the death of [E.G.], that act being leaving the said [E.G.], a child under the age of one year old, unattended or unsupervised in a bathtub containing water, which caused the said [E.G.]'s death by drowning with water, then you will find the defendant "Guilty" of Murder as charged in the indictment.Appellant did not object to this defect at trial, but she argues the error in the charge deprived her of a fair and impartial trial. The State concedes the charge was erroneous for not separating the mental states for abandoning and endangering a child, but it argues the error is not reversible. Accordingly, we must determine whether the error in the charge is reversible. The standard for determining whether an error in submitting the charge was harmful is set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). When an appellant timely preserves charge error, reversal is required if the error is calculated to injure the rights of the appellant, which means no more than that there must be some harm to the accused from the error. See Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994); Almanza, 686 S.W.2d at 171; Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006). If the defendant did not object at trial to the error in the charge, the reviewing court does not reverse unless the record shows that the error, if any, was so egregiously harmful that the defendant did not receive a fair and impartial trial. Almanza, 686 S.W.2d at 172; see also Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Egregious harm consists of errors affecting the very basis of the case or that deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive. Olivas, 202 S.W.3d at 144; Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). We assess the actual degree of harm in light of the entire jury charge; the state of the evidence, including contested issues and weight of probative evidence; the arguments of counsel; and any other relevant information revealed by the entire record. Olivas, 202 S.W.3d at 144. During jury selection, the State improperly combined the mental states for abandoning and endangering a child: "Abandoning or endangering a child happens when anyone intentionally, knowingly, recklessly or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 in imminent danger of death, bodily harm or physical or mental impairment." Likewise, in jury argument, the State conflated the mental states for abandoning and endangering a child. The jurors were not required to find appellant committed the felony of abandoning a child to find her guilty of murder. Instead, they could convict her of murder if they found she committed endangerment of a child and the other necessary elements of the charge. The record contains overwhelming evidence of appellant's guilt for felony murder by endangering her child. It was undisputed that appellant endangered E.G. and committed an act clearly dangerous to human life by leaving E.G. unattended in a bathtub containing water, and that this act caused E.G.'s death. The only disputed fact issue was appellant's mental state. The defense argued the event was an accident and appellant had no culpable mental state, while the State argued appellant had the required mens rea. The evidence showed that before this incident, appellant had a child less than a year old that almost drowned when she left him unattended in a bathtub while she got towels from another room or while she was on the telephone with a friend. This evidence strongly supports the jury's finding appellant acted recklessly or with criminal negligence because she was aware of and consciously disregarded or ought to have been aware of the risk of leaving a ten-month-old child unattended in a bathtub with running water. On July 18, 2006, appellant told a social worker she should have known better than to leave E.G. unattended in the bathtub because of what had happened with her other child. Because appellant knew her other child nearly died from this conduct, the evidence shows appellant knew the risk was substantial and unjustifiable. Other evidence of appellant's recklessness or criminal negligence endangering E.G. came from her statements during an interview with Investigator Warren Mitchell of the Greenville Police Department and Jennifer Miller, a case worker for Child Protective Services. During the interview, appellant said, "I let my baby die. Was that phone call more important? No. I thought I was getting off the phone and nothing clicked. How can I be a good mom if nothing clicked? And I had a useless conversation with a lady that I'd done finished what I needed to find out." She told them she left E.G. alone in the bathroom long enough for the bathtub to fill one-half to two-thirds full. She said, "I was negligent, and I walked away, got distracted, came back, and I found him floating face up with the water running on his face." She also said, "My baby died because I walked away. I didn't realize how long I'd been gone. And obviously, like you said, I was gone long enough for him to drown. . . . One stupid, stupid, stupid, stupid, stupid mistake." The jury could convict appellant if it found she committed either abandonment or endangerment of a child. In light of the overwhelming evidence that appellant committed felony murder by endangering a child, we conclude the error in the charging on the mental state for the alternate underlying felony of abandoning a child did not deprive appellant of a fair and impartial trial and did not cause appellant egregious harm. Accordingly, the error is not reversible. We overrule appellant's issue. We affirm the trial court's judgment.