In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________
No. 06-09-00127-CR ______________________________
COREY DON LOUIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th Judicial District Court Fannin County, Texas Trial Court No. 22697
Before Morriss, C.J., Carter and Moseley, JJ. Opinion by Justice Moseley OPINION
This is an appeal by Corey Don Louis of his Fannin County jury conviction for capital
murder in the death of two-year-old Teddy Lawrence.1
Because there was legally insufficient evidence that Louis intentionally or knowingly
caused the death of the child, we reverse the capital murder conviction and acquit him of that
charge. Due to jury charge error, we remand the case to the trial court for trial on the
lesser-included offenses included in the jury charge.
I. Facts of the Case
The story of the death of the child had its genesis when Teddy and his four-year-old sister,
Beth, rose during the night and made a very big mess in the kitchen of their home, spreading food
(including mustard), dog food, and household chemicals on the floor. This was not the first time
the two children had performed these acts of domestic vandalism.
The children resided with their mother, Danielle Cuba, and her boyfriend, Louis, the
appellant here. Also living in the house were Louis‟ son, John (fourteen at the time), and Cuba‟s
infant son. At the time of the incident here, Louis‟ six-year-old daughter, Meg, was staying with
them during spring break.
On the Saturday of Teddy‟s death, Cuba arose quite early in the morning, being the first of
the adults to awake. Upon discovering the mess the children had made during the night, she woke
up Louis and asked him to deal with the children as she commenced cleaning. Although Cuba did 1 All children‟s names in this opinion have been replaced with pseudonyms.
2 not say she explicitly told Louis to discipline or beat the children because of their offense, there
seemed to be a tacit understanding to that effect. Thus began what can only be described as a
horrendous and excessive discipline session to punish the two children for their misconduct.
Louis engaged in three rounds of beatings of the children with a belt, primarily on their
buttocks. First, he whipped the children shortly after he and Cuba awoke. Cuba testified that at
some point, Louis sat down next to her, then said he was not yet tired, and so he got up and
resumed his beatings. Louis then left for work, instructing that the children were to stand up
facing a wall until he returned. However, having apparently forgotten something he expected to
take, Louis returned inside the house to discover that Teddy was not standing and facing the
hallway wall as instructed (the child was lying on the floor and appeared to be asleep). Seeing
that Teddy was not standing against the wall as instructed, Louis whipped Teddy a third time.
According to the testimony of the child, Meg, during this last beating, Louis said, “You should
have been sleep [sic] when you was [sic] making that big mess. Don‟t try to be sleep [sic] now.”
When Louis finally did leave for work, he instructed Cuba to make the children continue standing
and facing the wall until he returned, when he would resume beating them.
Meg also described some of Louis‟ beatings of the children as “hard” and some as “soft.”
Her description of the beatings corroborated Louis‟ own description of holding the children by an
arm and beating them on their posteriors with a belt. Meg further testified that Louis called them
very coarse names during this time and said, “I‟m [not] going to stop whipping you until I go to
3 work.” Meg said that Teddy and Beth both had difficulty staying on their feet and kept falling
down.
After Louis left for work, Teddy continued to be unable to stand. At some point, he hit his
head; there is conflicting evidence on how this happened. Meg said that the boy was crying and
trying to hold on to Cuba‟s leg; in a move to disengage the child, she flung the boy away, causing
him to hit his head “hard.” John, Louis‟ fourteen-year-old son, said that when Cuba whipped
Teddy, the boy fell back and hit his head on a board on the floor. Cuba, for her part, admitted
kicking the child in the head. Meg also said that Cuba held a hot curling iron next to Teddy‟s
skin, but Cuba denied having done this and the medical examiner found no evidence of burns on
Teddy‟s skin.
Cuba‟s disciplinary acts culminated in tying Teddy‟s wrists to a clothes rod and hanging
the boy in a closet when he was unable to remain standing. Meg said that Teddy‟s feet struggled
to find a stool in the closet and that he kicked about while trying to get his feet on the stool. Cuba
initially denied hanging him so high his feet did not touch the floor, but eventually she conceded
that he might have been in such a position. Cuba maintained that she only left the boy hanging in
the closet for five minutes at most, then let him down and put him to bed and that Teddy was still
breathing when she put him to bed. Cuba also admitted that although Teddy suffered from
asthma and was supposed to receive treatments for the malady twice per day, she had not given
him his medication or treatment the two days prior to the incident date. After Cuba removed
4 Teddy from the closet, she put the children to bed and laid down herself. Sometime around 8:30
that morning, Cuba awoke and found Teddy stiff in bed––rigor mortis had set in. She called
Louis at work, then called 9-1-1. When emergency medical technicians (EMT) arrived, they
determined that the child was already dead and took his body to the local (Bonham) hospital.
When one EMT heard Cuba say she thought the children may have ingested some “blue stuff,” he
suggested they return to the house for the rest of the children as a precaution against possible
poisoning. By this point, Louis had returned from his job in Sherman back to the house in
Bonham, where he was met by a Bonham police officer, who refused to allow Louis in the house.
In a video-recorded statement to law enforcement, although Louis first maintained that he
had only spanked the children with his hand, he later admitted during the interview that he had
employed a belt in the beatings. Nevertheless, he was adamant he did not beat the children
sufficiently hard to cause the extensive subcutaneous hemorrhaging suffered by Teddy and the
injuries (later diagnosed as rhabdomyolysis2) presented by Beth‟s wounds.
At the hospital, Louis told a Child Protective Services (CPS) investigator, “God knows we
didn‟t do nothing [sic] wrong.” The investigator, Dana Mangess, said she attributed this
statement to a grieving parent. He was heard telling another CPS supervisor there was no foul
play involved and that God does not make mistakes. Later in the day, Louis consented to a search
2 Pediatrician Matthew Cox, M.D., testified rhabdomyolysis results from injury to muscle cells. In Beth‟s case, she had soft tissue injuries to her buttocks and back; the injuries resulted in elevated enzyme levels in her muscle cells. The enzyme levels in Beth‟s muscle cells were four times the normal level. Cox said this condition presented a substantial risk of death. Medical examiner McClain said that Teddy did not exhibit rhabdomyolysis because he died too soon; had he lived longer, he likely would have exhibited rhabdomyolysis.
5 of the home and cooperated with police. Two officers did remark they thought Louis had
exhibited nervousness when they examined a belt found at the residence.3 In the days after the
death, Louis remarked to a co-worker that he had spanked the child and asked the co-worker,
“[Y]ou don‟t think that killed him?”
CPS investigators and case agents arrived at the hospital. In following the agency‟s
protocol when there has been a child‟s death in a home, they removed the remaining children to
foster care. They discovered that Beth was in significant pain in her buttocks area; due to that
pain, she could not sit, even to use the toilet. When CPS agents transported her to a foster family,
great care had to be taken to allow the child to be able to sit in the car seat. En route to the foster
family in the Dallas/Fort Worth area, the CPS agents were concerned about Beth‟s condition and
stopped at a hospital in the Dallas area, where the child was admitted for treatment and diagnosed
with rhabdomyolysis (severe injury to her muscle cells).
On the day of the child‟s death, Detective Terry Bee of the Bonham Police Department
viewed the forensic interview given by Meg to CPS investigators. To that point, Bee said he had
3 The record here is not entirely clear: Cuba testified the belt was broken in the beatings; the crime laboratory forensic scientist testified the belt she examined was “broken in half. But neither of the police officers who described searching the home and finding the belt described the belt as broken. There were at least two belts discussed and admitted at trial, neither of which was included in the appellate record. Adding to the confusion, two belts were crossed up, either when submitted by Bonham police or when examined at the crime laboratory––when Detective Bee opened the evidence envelope containing one of the belts, sealed since its examination at the crime laboratory, he removed a green robe belt, expecting a black robe belt. One or both of these may have been used to hang Teddy in the closet. The testimony seems to indicate Louis beat the children with a brown leather belt. Although Louis attacked the competency of the investigation throughout trial, we do not find the details of which belt was used or its condition especially germane to resolution of this appeal. Louis admitted beating the children with a belt; he claimed to be the only person who disciplined the children, and which belt caused the injuries to Teddy is not as important as Louis‟ mental status, as will be discussed below.
6 believed the cause of death was some form of poisoning or accident, based on statements made by
Cuba and Louis and what Bee had seen at the family home. After watching Meg‟s interview, and
based on statements made by her, Bee began to consider that Teddy‟s death could have been
caused by something other than poisoning. The following afternoon (Sunday), Bee received a
telephone call from the medical examiner‟s (M.E.) office. In short, the M.E.‟s report indicated
that Teddy had died from blunt force trauma, including extensive subcutaneous hemorrhaging in
the buttocks and upper thigh regions, among other injuries. Based on this report, Bee changed the
thrust of his investigation to determine whether the death was a homicide. On Monday,
March 17, 2008, arrest warrants were secured for Louis and Cuba. Louis, not yet having been
arrested, agreed to give a statement to Bee and Texas Ranger Brad Oliver. Sometime, apparently
before this interview, Louis and Cuba made contact with Justice of the Peace Joe Dale, who had
ordered an autopsy. Louis asked Dale whether Dale had ever heard of a spanking killing a child.
Also on Monday morning, Louis spoke to Bonham Police Officer James Boatman, who
had been present at the Louis home on Saturday morning (the day of death). Louis related to him
that Louis had seen or been informed of a preliminary autopsy report and he asked Boatman if
“foul play” was being considered in regard to Teddy‟s death. At that time, Louis told Boatman
that he “had to spank the child and he felt like deep in his heart he didn‟t do anything wrong at that
time.”
7 Shortly after this, Louis (still not under arrest or in custody) agreed to accompany Bee and
Oliver to the Fannin County Sheriff‟s Office for an interview. In the video-recorded interview,
admitted at trial and played for the jury, Bee asked Louis if it was possible that Louis had struck
Teddy harder than he intended. He explained that the significant internal bleeding could not have
been caused by the simple “spanking” or “whopping” Louis claimed to have administered. Louis
nevertheless steadfastly maintained that the blows he administered were insufficient to have
caused the massive injuries and he suggested alternatively that the child could have fallen in the
bathroom. Louis attempted to demonstrate how hard he spanked Teddy and Beth by hitting the
desk in the office where he was being interviewed. Louis said that Beth cried during her
spanking, but Teddy “took it like a champ” and did not cry.
Joni McClain, deputy chief M.E. from Dallas County, performed an autopsy. McClain
said her opinion on the cause of the child‟s death was “[h]omicidal violence including blunt-force
trauma.”
“Homicidal violence means the actions of another person caused the death of an
individual.” When asked if she could pinpoint exactly which injury caused Teddy‟s death, she
said, “No, I can‟t just take one of those bruises out. I have to do everything in totality. So it‟s all
of the various bruises combined, because you‟re losing blood into the soft tissue.” She said that
the term “homicidal violence” is used to include the possibility of asphyxia or lack of oxygen;
8 McClain‟s opinion on cause of death took into consideration the report given her by investigators
that the child had been hung in a closet:
I‟d had a history that the child was being hung by its wrists in a closet. So, that would - - you know, after a while, it gets hard to breathe if you‟re hanging there. So, that‟s the reason I went ahead and included that [asphyxia] along with the blunt-force injuries. So, that includes homicidal violence. At autopsy, you may not see anything with a suffocation or asphyxia. But as you‟re losing blood, blood is the thing that carries oxygen to the brain. So, he‟s losing blood, and it‟s harder to breathe if you‟re hanging. So, all of that together is the reason I called it homicidal violence including blunt-force injuries.
McClain said it was possible that the child could have bled to death from the injuries. In
answering a question about progressive suffocation, McClain said, “[Y]ou see all that blood that‟s
going into the soft tissue. And so, blood is what‟s carrying oxygen. So, you‟re getting less blood
that you can pump around.” Later, the following exchange occurred:
Q. . . . . Is it possible to estimate the amount of blood that was lost in [Teddy‟s] buttocks and lower legs ?
A. Just extensive. No, it‟s just all in the other tissue.
Q. You can‟t pull it out of the fat.
A. No.
Teddy had six injuries to his head: some bruises and some scrapes. There were two
impact points on the head corresponding with a subdural hematoma4 (bleeding between the brain
and the dura, a fibrous covering over the brain, beneath the skull), resulting in a small
amount––2 milliliters––of blood in or on the brain. McClain said there was not supposed to be 4 McClain explained the structure as, “[Y]ou‟ve got skull, then you‟ve got dura, and then you‟ve got brain.”
9 blood on the brain. The boy had bruises on his wrists and one bruise on his lower left abdomen.
An unexplained anomaly not explored at trial was that the child had a blood-alcohol content of .06
percent and the vitreous fluid in his eyes contained .08 percent alcohol. No drugs were detected
in the child‟s system. He had bruises and scrapes on his buttocks and on the backs of his legs,
together with similar injuries on his back, all being consistent with having been hit with a belt.
McClain described the pattern marks on Teddy‟s back as “like a railroad track.” There was
extensive hemorrhaging in the buttocks and backs of the legs, along with two small scrapes on the
penis. Although she acknowledged the child could have suffocated by being hung by his wrists, a
situation which could affect his ability to breathe, she would not specifically say whether the final
cause of death was due to asphyxiation or to any particular contusion or injury. Rather, she
looked at the totality of Teddy‟s injuries and concluded all of them, in toto, amounted to homicidal
violence. McClain did say that the extensive hemorrhaging at the buttocks and backs of the legs
was more severe than the brain injury.
II. Sufficiency of Evidence
Louis attacks the sufficiency of the evidence in three primary points of error: (1) in point
one, that the evidence is legally insufficient to support the verdict; (2) in point three, that the
evidence is legally insufficient to prove he had the requisite mental state necessary to be found
guilty of capital murder; and finally, (3) in point four, that the evidence is factually insufficient to
10 support the verdict.5 Because analysis of the sufficiency of the evidence of Louis‟ mens rea is a
necessary part of analyzing the sufficiency of the evidence to support the verdict, we will address
these points together.
We begin with Louis‟ third point of error, in which he claims the evidence was legally
insufficient to prove he had the requisite mens rea to be convicted of capital murder. In reviewing
the evidence for sufficiency, we consider the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson, 443 U.S. at 318–19; Brooks, 2010 WL 3894613, at **1, 14.
Louis was indicted for intentionally or knowingly causing the death of a person who was
under the age of six. TEX. PENAL CODE ANN. § 19.03(a)(8) (Vernon Supp. 2010). “Capital
murder is a result-of-conduct oriented offense; the crime is defined in terms of one‟s objective to
produce, or a substantial certainty of producing, a specified result, i.e. the death of the named
decedent.” Roberts v. State, 273 S.W.3d 322, 329 (Tex. Crim. App. 2008) (citations omitted).
Due process requires the State to prove beyond a reasonable doubt every fact necessary to
constitute the offense alleged. Id. (citing In re Winship, 397 U.S. 358, 364 (1970)). Under a
5 In Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at **1, 14 (Tex. Crim. App. Oct. 6, 2010) (a 4-1-4 decision with one judge joining the lead opinion with a concurring opinion and another concurring with the lead opinion and joining that concurrence), a plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review established by Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and its progeny. The plurality and the concurring judges agreed that the Jackson v. Virginia, 443 U.S. 307 (1979), legal sufficiency standard is the sole standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 2010 WL 3894613, at **1, 14. Since the Texas Court of Criminal Appeals has abolished factual sufficiency review, we need not address the defendant‟s challenge to the factual sufficiency of the evidence.
11 hypothetically-correct jury charge, the State had the burden to prove that Louis intentionally or
knowingly caused the death of Teddy, a child younger than six, by beating him.6
No evidence was presented that Louis ever held the intention to kill Teddy. Louis told
police he was spanking the children as punishment for their having made a mess in the house;
Cuba‟s version of events corroborated this. There is nothing in the testimony of the other two
child witnesses (who were likewise present when the beatings took place) to suggest that Louis
was engaged in anything more than disciplining the children, albeit to an excessive, horrific, and
cruel degree. Cf. Yost v. State, 222 S.W.3d 865 (Tex. App.––Houston [14th Dist.] 2007, pet.
ref‟d) (evidence defendant regularly beat victim and made statements that he would kill her).
Even the police, when questioning Louis, seemed of the opinion that Louis was attempting to
discipline the children and did not realize how hard he was hitting them. Detective Bee said that
when he questioned Louis, Bee did not think that Louis intended to cause Teddy‟s death and that
Bee believed the death was accidental.
A more complex issue in this case is whether there was sufficient evidence to support a
finding that Louis “knowingly” caused Teddy‟s death.
(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or
6 We weigh the sufficiency of the evidence by considering elements of the offense as defined by a hypothetically-correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically-correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase the State‟s burden of proof or unnecessarily restrict the State‟s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.
12 with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
TEX. PENAL CODE ANN. § 6.03 (Vernon 2003). Proof of a culpable mental state is often made by
circumstantial evidence. Dunn v. State, 13 S.W.3d 95, 98–99 (Tex. App.––Texarkana 2000, no
pet.). Proof of knowledge is an inference that may be drawn by the fact-finder both from direct
evidence and from evidence of the circumstances surrounding the act. Dillon v. State, 574
S.W.2d 92, 94–95 (Tex. Crim. App. [Panel Op.] 1978). A jury may infer intent or knowledge
from any facts which tend to prove its existence, including the acts, words, conduct of the accused,
and the method of committing the crime. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002).
“Indeed, mental culpability is of such a nature that it generally must be inferred from the
circumstances under which a prohibited act or admission occurs.” Smith v. State, 965 S.W.2d
509, 518 (Tex. Crim. App. 1998); see also Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim.
App. 1999) (Meyers, J., concurring). Intent can be inferred from the extent of the injuries to the
victim, the method used to produce the injuries, and the relative size and strength of the parties.
Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). In a murder case, evidence of a
particularly brutal or ferocious mechanism of death, inflicted upon a helpless victim, can be
controlling upon the issue of intent or knowledge. Id. Additionally, a culpable mental state can
be inferred from the acts, words, and conduct of the accused. Id.
As with the above discussion on the absence of any evidence Louis intended to kill Teddy,
we find no evidence Louis was aware that his conduct (i.e., spanking––or, more
13 accurately––beating Teddy) was reasonably certain to cause Teddy‟s death. See TEX. PENAL
CODE ANN. § 6.03(b). All of the evidence pointed to Louis and Cuba doing what they did with the
intent to discipline the children, but not attempting to kill them or to engage in conduct they knew
was reasonably certain to kill them. Again, we point to Louis‟ statements to police that he was
disciplining the children and his denials that he hit Teddy with sufficient force or placement to
cause the child‟s injuries. The fact that Louis expressed an intention to resume the “discipline”
when he got home from work indicates that he believed the child would be alive when he returned;
he told Cuba to keep the children facing the wall in the hallway when he left. Cuba testified she
thought Louis‟ “spanking” was what a normal parent would do. She told police Louis “spanked
them like he always do [sic],” indicating that this was, unfortunately, the normal disciplinary
process in the home.
Obviously, we are aware of our duty to defer to the jury‟s determination of the weight and
credibility to be accorded the witnesses and the evidence; we are further cognizant that evidence of
Louis‟ knowledge could be inferred from his acts and statements. However, this is where we find
the absence of evidence most telling. From the descriptions of the events of that terrifying
morning, it is clear that Louis and Cuba were anything but ideal parents and should not have been
in the position of enjoying the joys and bearing the responsibilities of child-rearing. As sad as it is
to contemplate, we must take note of Cuba‟s statement that during this episode, she believed that
Louis was simply engaging in an act of normal child discipline. Obviously, although the brutality
14 and severity of the child‟s wounds must be considered, that still does not yield an inference that
Louis was reasonably certain death would result from his conduct.
We contrast the instant circumstances with those addressed in Duren v. State, 87 S.W.3d
719 (Tex. App.––Texarkana 2002, no pet.). Duren was convicted of capital murder for having
killed a young child who had been left in his charge. Duren gave inconsistent explanations of the
cause of the child‟s injuries and ultimately claimed that he was mimicking a wrestling move and
accidentally threw the child to the ground when he meant to throw the child to a padded chair.
There were no witnesses to the incident. Evidence was presented that Duren had previously
argued with and slapped the child‟s mother, and had a disagreement with her shortly before the
child was injured. There was testimony from medical doctors that the child‟s injuries (which
included blunt force head trauma and injuries along the spine, upper arms, and buttocks) could not
have been sustained in the manner described by Duren. Id. at 724–25.
In Montgomery v. State, 198 S.W.3d 67, 84 (Tex. App.––Fort Worth 2006, pet. ref‟d), the
Fort Worth court found sufficient evidence to support Montgomery‟s capital murder conviction
where Montgomery gave inconsistent stories about the means by which the child‟s injuries were
sustained. There was evidence the child was injured while in the sole care of Montgomery and,
importantly, a medical doctor testified that the child‟s head injuries were so significant that the
person administering the wounds would have been reasonably certain the injuries would cause
death. Id. at 87. Also taking into consideration Montgomery‟s relative size and strength as a
15 college football player versus the size of the sixteen-month-old victim, the appellate court found
sufficient evidence that Montgomery knew his acts would cause death. Id. at 87–88.
In contrast, Louis and Cuba both had charge of the children here, and there is evidence that
Cuba continued the abuse of Teddy after Louis left for work. In addition, other than initially lying
about hitting the children with a belt, Louis eventually admitted using the belt but maintained he
did not hit the children with sufficient force to cause the sustained injuries. Cuba testified that she
believed that Louis spanked the children that Saturday morning just as any other “normal parent”
would. When describing that morning‟s events, it was clear from Cuba‟s testimony that the
“discipline” meted out was customary in that household when she said that she told Louis to “get
up and get” the kids while she performed the perfunctory task of cleaning the mess. This, in her
words, “was nothing new.” Louis got his belt, which he did not do if he were not going to whip
the children. This was apparently nothing extraordinary for this household. “To be aware that
his conduct is reasonably certain to result in death, the actor must also be aware of the lethal nature
of his conduct.” Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999).
In sum, there is simply no evidence that Louis knowingly killed Teddy, as “knowingly” is
defined in the Texas Penal Code. We sustain Louis‟ third point of error and render an acquittal
for the crime of capital murder.7
7 Because the jury was instructed on lesser-included offenses, we would normally at this point proceed to examine whether the evidence supports judgment on one of those offenses. Herrin v. State, 125 S.W.3d 436, 443–45 (Tex. Crim. App. 2002). But because we find harmful jury error in the next part of our analysis, we will not consider the lesser offenses. Rather, we will remand for a new trial.
16 The foregoing discussion and conclusion regarding insufficient evidence to support the
verdict for intentionally or knowingly causing Teddy‟s death render moot Louis‟ points of error
claiming more generally of legal and factual insufficiency of the evidence, so we need not address
them.8
III. Claims of Error in the Jury Charge
Louis makes two claims of error in the charge to the jury. He first claims the trial court
erred by inclusion of the following instruction in the jury charge: “Intent or knowledge may be
inferred by acts done or words spoken.” Next, he claims the trial court should have granted
Louis‟ request to instruct the jury on the defense of mistake of fact.
A. Inferred Intent
In reference to the language in the charge concerning inferred intent, the Texas Court of
Criminal Appeals has said inclusion of such language is an impermissible comment on the weight
of the evidence and is, therefore, error. Brown v. State, 122 S.W.3d 794, 800–01 (Tex. Crim.
App. 2003). It was observed that the “instruction marginally falls on the wrong side of the
„improper- judicial-comment‟ scale because it is simply unnecessary and fails to clarify the law for
the jury.” Id. at 802. Brown lodged an objection to the inclusion of this language. Applying
the test announced in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on
reh‟g), the Texas Court of Criminal Appeals found the error in the case before it was not calculated
8 As for the claim of factual insufficiency, we would not address that claim in light of the Texas Court of Criminal Appeals‟ ruling in Brooks, 2010 WL 3894613, at **1, 14. See footnote 5, supra.
17 to injure the defendant‟s rights, stating that the “instruction is mild, neutral, and an obvious
common-sense proposition.” Brown, 122 S.W.3d at 803.
Because Louis objected to the charge language, we will reverse if we find harm, taking into
consideration all the evidence, the entire jury charge, and the parties‟ arguments. Arline v. State,
721 S.W.2d 348, 351 (Tex. Crim. App. 1986); Almanza, 686 S.W.2d at 174; Durden v. State, 290
S.W.3d 413, 420 (Tex. App.––Texarkana 2009, no pet.). One must take into account that when
charge error was preserved at trial by a timely and specific objection, that error must have been
“calculated to injure the rights of [the] defendant.” TEX. CODE CRIM. PROC. ANN. art. 36.19
(Vernon 2006); Almanza, 686 S.W.2d at 171. In other words, a defendant must have suffered
“some” actual (rather than theoretical) harm from the error. Almanza, 686 S.W.2d at 171. If this
usually relatively benign error were to be taken alone, we might be inclined to find this error “mild,
neutral, and an obvious common-sense proposition.” Brown, 122 S.W.3d at 803. However,
because Louis‟ primary defense relied upon the position that he did not know that his “spankings”
were sufficiently severe to result in the child‟s serious bodily injury or death, we consider this
issue of preserved-charge error conjunctively with Louis‟ point of error complaining of the trial
court‟s denying Louis an instruction on mistake of fact.
B. Mistake of Fact
The trial court denied Louis‟ request for a jury instruction on mistake of fact. “It is a
defense to prosecution that the actor through mistake formed a reasonable belief about a matter of
18 fact if his mistaken belief negated the kind of culpability required for commission of the offense.”
TEX. PENAL CODE ANN. § 8.02(a) (Vernon 2003). A defendant is entitled to an affirmative
defensive instruction on every issue raised by the evidence regardless of whether the evidence
raising the issue is strong, weak, unimpeached, contradicted, or unbelievable. Muniz v. State, 851
S.W.2d 238, 254 (Tex. Crim. App. 1993). Generally, an instruction on the mistake of fact defense
should be given when evidence raising the issue of whether the actor formed a reasonable belief
about a matter of fact, if his mistaken belief negated the kind of culpability required for the
commission of the offense. Samford v. State, 302 S.W.3d 552, 556 (Tex. App.––Texarkana 2009,
no pet.).
In Thompson v. State, 236 S.W.3d 787 (Tex. Crim. App. 2007), the defendant was charged
with intentionally or knowingly causing serious bodily injury to a child, a first-degree felony, and
also with intentionally or knowingly causing bodily injury to a child, a third-degree felony. In
that case, Thompson had beaten a student in his Bible study class with a tree branch, thereby
causing significant injuries. The case hinged on a finding that the doctrine of transferred intent
could apply to transfer of intent from a lesser offense to a greater offense. Thompson‟s intent to
cause bodily injury was found to transfer to his having caused serious bodily injury. Id. at 800.
The Texas Court of Criminal Appeals also stated that mistake of fact could have been raised under
those circumstances and that although Thompson did not request a mistake of fact instruction, he
would have been entitled to such an instruction had he done so. Id. Whether a defendant‟s
19 mistaken belief is reasonable is a matter for the jury or trier of fact to determine. Granger v. State,
3 S.W.3d 36, 38–39 (Tex. Crim. App. 1999).
In the charge given to Louis‟ jury, the following sentence is repeated eight times (first in
the portion of the charge for capital murder and again on each of the lesser-included offense
charges): “A person is nevertheless criminally responsible for causing a result if the only
difference between what actually occurred and what he desired, contemplated, or risked is that a
different offense was committed.” We construe this as being a transferred intent instruction as
codified in Section 6.04(b)(1) of the Texas Penal Code. TEX. PENAL CODE ANN. § 6.04(b)(1)
(Vernon 2003).
Thompson is very similar to Louis‟ situation. Like Thompson, Louis‟ defense was that he
intended to discipline the child, an action which would clearly entail bodily injury as defined by
statute. Although at first blush the facts of this case would not seem to support the normal
mistake of fact situation,9 in light of Thompson, we find Louis was entitled to the mistake of fact
instruction––which he requested but was denied at trial. We must reverse if we find “some harm”
to Louis‟ rights. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Almanza, 686
S.W.2d at 171. As discussed above, we review all the evidence at trial, the charge as a whole, and
the argument of parties.
9 For example: Granger, 3 S.W.3d at 38 (defendant entitled to mistake of fact instruction where evidence raised defensive theory he thought car was unoccupied when he fired into it with pistol); Sands v. State, 64 S.W.3d 488, 493 (Tex. App.––Texarkana 2001, no pet.) (defendant entitled to instruction where he testified he thought syringe of methamphetamine contained vitamin B-12).
20 Louis constructed his defense on two main pillars: (1) that Cuba might have killed the
child after he left the house and (2) that he only intended to discipline the children, not to cause the
death of either. In relation to the second of these defenses, as discussed above, Louis admitted to
investigators that he had struck the child as a means of discipline, but maintained he had not struck
the child with sufficient force to produce the resulting injuries. There was testimony from Cuba
that she thought Louis‟ beating constituted normal parental disciplining. Louis made comments
at the hospital such as, “God knows we didn‟t do nothing [sic] wrong” and was tearful. He asked
two people, including Justice of the Peace Dale, whether it was possible for a spanking to result in
a child‟s death. While it is true that some of this conduct or statements could be construed as
suspicious or self-serving, we are concerned here with a review of all the trial evidence in assaying
harm, not in a sufficiency review where we would be looking at the evidence in the light most
favorable to the verdict.
We also look at the charge as a whole in considering any harm to Louis. As pointed out
above, there was error in instructing the jury it could infer intent from acts or words spoken. We
find this error (which would usually be not harmful) is exacerbated by the erroneous denial of the
mistake of fact instruction. Both errors center upon a major part of Louis‟ defense––that he did
not intend to cause death or serious bodily injury or know that his actions were reasonably certain
to cause those results. The charge also provided for several lesser-included offenses: injury to a
child by intentionally or knowingly causing serious bodily injury; manslaughter; injury to a child
21 by recklessly causing serious bodily injury; injury to a child by intentionally or knowingly causing
bodily injury; injury to a child by recklessly causing bodily injury; criminally negligent homicide;
and injury to a child by causing bodily injury by criminal negligence. 10 Louis‟ requested
instruction on mistake of fact would have instructed the jury that if it believed Louis “through
mistake formed a reasonable belief that the spanking that he administered to [Teddy] was not to the
extent to cause serious bodily injury or bodily injury or death . . . or, if you have a reasonable doubt
thereof, then you will find the defendant not guilty.” Louis‟ two-fold defense hinged on
(a) placing the blame for Teddy‟s death on Cuba, and (b) arguing he did not have the requisite
mental status to be held responsible for the child‟s death.
As regards the parties‟ argument, the State made some brief references to whether the
evidence proved that Louis knew his actions would cause Teddy‟s death. The State argued, “It
wasn‟t in his heart to kill that baby. It wasn‟t. But he was pissed and he took that belt and he
beat that two-year-old . . . .” The State stressed the amount of the beatings and that they took
place over a span of time in more than one session. It further suggested that Louis raced home
from work upon receiving word the child was not breathing in order to hide the belt and other
evidence. The State concluded both sections of its closing arguments by saying that Louis “knew
he went overboard [with the beatings]. He knew he did too much” and that Louis had gone “too
far.” Louis‟ closing argument reiterated his belief that the children were alive and that he
believed them to be relatively well (or at least not at risk of death) when he left them and that the 10 Louis objected to inclusion of these lesser-included offenses.
22 responsibility for the serious bodily injury and death lay at Cuba‟s feet. Counsel argued that
Louis‟ conduct, such as racing home and comments made at the hospital, were consistent with an
innocent mind, because when he left home, the children were alive. Defense counsel cited Louis‟
statements, while alone, caught on the video of his second interview, where he prayed that God
would let the police see what really happened, as evidence of his innocent mind.
In this case, Louis‟ mental state was a hotly contested issue. The failure to instruct the
jury on the defense of mistake of fact was an impediment to Louis‟ ability to present his defense
that he did not have the requisite mens rea to be found guilty and to argue that defense to the jury.
See Palmer v. State, 222 S.W.3d 92, 96 (Tex. App.––Houston [14th Dist.] 2006, no pet.)
(defendant impeached complainant with evidence she had made a false accusation against a third
party; trial court charge erroneously instructed that the jury could only consider the false
accusation if it found the accusation false beyond a reasonable doubt; effectively deprived
defendant of impeachment evidence, resulting in egregious harm); Hinojosa v. State, 744 S.W.2d
319, 322–23 (Tex. App.––Corpus Christi 1988, pet. ref‟d) (where defendant entitled to
self-defense instruction, denial of instruction harmful).
Reviewing the evidence, the charge, and the arguments of counsel, we cannot say that the
charge errors here did not cause some harm to Louis. “[T]he presence of any harm, regardless of
degree, which results from preserved charging error, is sufficient to require reversal of the
conviction.” Arline, 721 S.W.2d at 351. The jury was effectively denied the opportunity to
23 consider Louis‟ most potent defense––that he did not know the degree of injury he was inflicting.
While this defense may not seem reasonable to us, resolution of that reasonableness is a matter for
the jury. Granger, 3 S.W.3d at 38–39. Finding that Louis did suffer some harm, we are
compelled to sustain his eighth point of error and remand this case for a new trial.
There are various lesser-included offenses to the primary charge which involve the
application of Louis‟ mens rea in a greater or lesser degree. It is the province of the jury, after
proper instruction, to determine the reasonableness of Louis‟ mindset when inflicting the damages
to the child.
There are other issues raised by Louis on appeal (e.g., the presence of an
investigator/witness in the courtroom during a portion of the trial after imposition of “the rule”
pursuant to Rule 614, 11 the alleged lack of corroboration of the testimony of Cuba as an
accomplice, the refusal of the trial court to allow cross-examination of Cuba concerning her sexual
liaison with a jailer while incarcerated after the child‟s death), which do not present reversible
error under the circumstances of this case as it was tried. However, because the matters discussed
above are dispositive of this case, we do not choose to delve deeply into a discussion of them.
We reverse the conviction of Louis for capital murder and render an acquittal of that
offense. We remand this case to the trial court for a trial of the lesser-included offenses.
11 TEX. R. EVID. 614.
24 Bailey C. Moseley Justice
Date Submitted: October 6, 2010 Date Decided: December 15, 2010
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