Kohler v. State

713 S.W.2d 141

• Court: Court of Appeals of Texas
• Decided: May 29, 1986
• Docket: 13-85-281-CR, 13-85-282-CR
• Status: Published

Opinions

OPINION

SEERDEN, Justice.

A jury convicted appellants of murdering their infant son and set punishment at ten years’ confinement probated for ten years. We affirm the judgments of the trial court.

By their first two grounds of error, appellants challenge the sufficiency of the evidence to prove the necessary intent and that lack of food and medical care caused baby Luke’s death.

We must view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McGoldrick v. State, 682 S.W.2d 573, 577-78 (Tex.Crim.App.1985); Garrett v. State, 682 S.W.2d 301, 304-5 (Tex.Crim.App.1984); Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984); Carlsen v. State, 654 S.W.2d 444, 447 (Tex.Crim.App.1983).

The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony. A jury may accept or reject any testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981); Barros v. State, 661 S.W.2d 337, 340 (Tex.App—Corpus Christi 1983, no pet.)

Under TEX.PENAL CODE ANN. § 19.02(a)(1) (Vernon 1974), a person commits murder if he (1) intentionally or knowingly (2) causes the death of an individual. The State charged that appellants caused the death by not providing food and medical care, which they had a duty to provide. The evidence indicates that baby Luke’s medical care consisted of a checkup one day after birth, the removal of the cap from his circumcision when he was about a week old, and the monitoring of his heartbeat at an appointment for his brother. Luke was three months old at death. Appellants never took Luke for checkups as recommended, even though medical care was free and readily available. Although appellants attempted to adduce evidence that the child died of Sudden Infant Death Syndrome, medical experts disagreed with appellants. Several doctors who saw the baby at his death testified that the child was emaciated or malnourished and opined that starvation or malnourishment was the cause of death. We hold there was sufficient evidence for the jury to find that appellants failed to provide food and medical care for the child. Acts of omission have been found intentional by circumstantial evidence in similar cases. See Righi v. State, 689 S.W.2d 908, 910 (Tex.App.—Beaumont 1984, pet. ref’d); De Leon v. State, 684 S.W.2d 778, 782 (Tex.App.—Corpus Christi 1984, no pet.); Battle v. State, 681 S.W.2d 104, 107 (Tex.App.—Houston [14th Dist.] 1984, pet. ref'd). Grounds one and two are overruled.

By their third ground of error, appellants assert that the trial court erred in admitting “evidence of a search and fruits thereof without a warrant” when there was no evidence that appellants’ consent was voluntary. Appellants objects to the testimony of Yanira Rosales, a Department of Human Resources caseworker, Police Investigator Cavazos, and Police Sergeant Arnold Acuna, who inspected appellants’ house trailer on November 17, 1984.

Acuna testified that JoAnn Kohler, the victim’s paternal grandmother, contacted him and communicated that she feared for the life and safety of the child Mark, Jr. (“Andy”). He instructed her to get permission from her son so they could inspect. His primary concern was to see that the child was in good health. About an hour and a half after the first contact, JoAnn contacted him again and asked him to come to the trailer. When he arrived, JoAnn invited him in. He introduced himself to Mark, and JoAnn led him on a tour of the trailer.

Cavazos testified that he arrived after Acuna had seen the trailer, and that he met Acuna outside. They knocked, and Mark opened the door. They asked if they could come in, and Mark said yes. Cavazos testified that he asked Mark if he could look before Acuna gave him a tour of the trailer, and Mark said yes.

Police officers who are invited in are not trespassers. If an officer is lawfully where he is, he may seize what is in open view. In this case, appellant seeks to suppress testimony of the view itself. The officers did not gain access to the trailer by fraud or deceit. Acuna was invited into and escorted through the trailer by appellant Mark’s mother. He had a right to go where he was invited, to make observations, and to recount his observations to the jury. Swink v. State, 617 S.W.2d 203, 210 (Tex.Crim.App.1981) cert. denied, 454 U.S. 1087, 102 S.Ct. 648, 70 L.Ed.2d 624 (1981); Alberti v. State, 495 S.W.2d 236, 237 (Tex.Crim.App.1973); Bell v. State, 676 S.W.2d 219, 220 (Tex.App.—Corpus Christi 1984, pet. ref’d). When Officer Cavazos asked, Mark specifically allowed him to look around.

Fourth Amendment protections against searches only apply to searches conducted by law enforcement personnel. Rosales and appellant Mark’s mother were not law enforcement personnel, and they testified in detail about the conditions in the trailer. The testimony to which appellants object is merely cumulative of that given by appellant Mark’s mother without objection. Thus, its admission is not reversible error. Brasfield v. State, 600 S.W.2d 288, 296 (Tex.Crim.App.1980); Lichtenwalter v. State, 554 S.W.2d 693, 694 (Tex.Crim.App.1977). We overrule appellants’ third ground.

Appellants’ fourth ground alleges that the trial court erred in failing to quash the indictment because it did not negate the existence of exceptions to appellants’ parental duties set out at TEX.FAM.CODE ANN. § 12.04 (Vernon Supp.1986).

TEX.FAM.CODE ANN. § 12.04 begins, “Except as otherwise provided by judicial order or by an affidavit of relinquishment of parental rights ... the parent of a child has the following rights, privileges, duties, and powers.” Section 12.04(3) lists the parental duties to provide a child with food and medical care.

This question was discussed in Priego v. State, 658 S.W.2d 655 (Tex.App.—El Paso 1983, no pet.). We agree with the analysis in that case that under TEX.FAM.CODE ANN. § 11.01 (Vernon 1975), one is not a parent if voluntary relinquishment or judicial termination of the parental relationship has taken place. We hold the indictment sufficient. Ground of error number four is overruled.

In their fifth and final ground of error, appellants claim that the evidence was insufficient to negate the exceptions discussed in ground of error number four. We disagree. The testimony is replete with references to the status of appellants as parents of the deceased. They each testified and freely admitted he was their son. Their defense to the charge was that they had provided adequate food and medical care for their child, that any failure to do so was because of their pre-occupation with the serious heart condition of an older child, and that the deceased died from a condition known as Sudden Infant Death Syndrome. We hold the evidence was sufficient for the jury to find appellants the parents of the deceased within the meaning of TEX.FAM.CODE ANN. § 12.04 (Vernon Supp.1986). The fifth ground of error is overruled.

The judgments of the trial court are AFFIRMED.

Before SEERDEN, UTTER and BENA-VIDES, JJ.