Saunders v. State

913 S.W.2d 564, 1995 Tex. Crim. App. LEXIS 126, 1995 WL 713027
CourtCourt of Criminal Appeals of Texas
DecidedDecember 6, 1995
Docket442-94
StatusPublished
Cited by191 cases

This text of 913 S.W.2d 564 (Saunders v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Saunders v. State, 913 S.W.2d 564, 1995 Tex. Crim. App. LEXIS 126, 1995 WL 713027 (Tex. 1995).

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted by a jury of the offense of murder under V.T.C.A. Penal Code, § 19.02(a)(2). The jury assessed his punishment at 75 years confinement in the penitentiary. On appeal he argued, inter alia, that though the trial court had instructed the jury on the lesser included offense of involuntary manslaughter, it erred in failing also to instruct it on the lesser included offense of negligent homicide. The court of appeals disagreed, holding the evidence did not raise negligent homicide, and affirmed appellant’s conviction. Saunders v. State, 780 S.W.2d 471, 475 (Tex.App.—Corpus Christi, 1989). Appellant then filed a petition for discretionary review, contending that the court of appeals erred to hold the evidence did not raise negligent homicide. We agreed, and remanded the case to the court of appeals to conduct a harm analysis in the first instance. Saunders v. State, 840 S.W.2d 390 (Tex.Cr.App.1992).

On remand, the court of appeals held that failure of the trial court to submit the lesser included offense of negligent homicide did not cause “some” harm to appellant, under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984) and Arline v. State, 721 S.W.2d 348 (Tex.Cr.App.1986). The jury in this cause was authorized to convict appellant for the lesser included offense of involuntary manslaughter. In final argument counsel for appellant attempted to persuade the jury to find he had not committed an act clearly dangerous to human life intending to cause serious bodily injury, as called for under § 19.02(a)(2), but had simply acted with conscious disregard for the substantial and unjustified risk that death would result. V.T.C.A. Penal Code, § 6.03(c). The only difference between involuntary manslaughter and negligent homicide is perception of the risk; in the former, that actor recognizes the risk of death and consciously disregards it, while in the latter he is not, but ought to be, aware of the risk that death will result from his conduct. V.T.C.A. Penal Code, [566]*566§ 6.03(d). The court of appeals essentially-reasoned that, having rejected the lesser included offense of involuntary manslaughter and convicted appellant instead of murder, appellant’s jury would not have reached an instruction on negligent homicide even had one been submitted. Thus, appellant suffered no harm even under the lesser standard of “some” harm articulated in Arline v. State, supra. The court of appeals again affirmed the conviction. Saunders v. State, 871 S.W.2d 920 (Tex.App.—Corpus Christi 1994). We granted appellant’s second petition for discretionary review in order more closely to examine its harm analysis. See Tex.R.App.Pro., Rule 200(c)(3).

I.

The indictment alleged that appellant, on or about October 17, 1987, murdered Darrell McFadden, a five month old infant; specifically that, with intent to cause serious bodily injury, he committed an act clearly dangerous to human life, viz: squeezing the baby’s head with his hand, that caused Darrell’s death. § 19.02(a)(2), supra.1 We have summarized the evidence of the case before, as has the court of appeals in several opinions. Nevertheless, we will repeat the facts here in somewhat greater detail in order to facilitate our review of the court of appeals’ harm analysis.

Several months after her illegitimate baby, Darrell, was born in May of 1987, twenty-one year old Reba Annette McFadden went to live with her friend, Carolyn Campise, and with Carolyn’s mother, Precilla, in Humble. While living with the Campises, McFadden took care of the baby only when neither Carolyn nor Precilla was home. In early September, McFadden and the baby moved into an apartment with seventeen year old appellant in Pasadena. One day about a week later during a visit to McFadden’s new apartment, the Campises noticed bruises on Darrell’s face. Precilla took Darrell home to babysit him overnight, since McFadden was scheduled to resume her night-shift job that night. But appellant and McFadden later came and fetched Darrell back. Appellant insisted he would take care of the baby. When in mid-September the Campises again visited, the baby seemed “fine.” But when Carolyn complained that appellant’s dog was jumping on Darrell and scratching him, McFadden, a normally shy and quiet girl, ordered her, “Get your ass out of my house and don’t come back. This is my baby. I’ll do with it what I want with him.” The Campises visited a third time on September 22nd. This time they noticed some small sores below Darrell’s nose and on one ear. When Carolyn complained that “someone had hurt the baby,” appellant answered “something like, give me a break or, you know, give me more credit than that, sort of stating that he hadn’t done it.”

On October 2, 1987, appellant and McFadden took Darrell with them to buy a vacuum cleaner at a Highland Super Store. Appellant held the baby. Once they decided on a purchase, appellant took the baby, who was crying, to a counter and sat him up there. Various Highland employees watched with trepidation as appellant proceeded to hold his hand “with a firm grip” over Darrell’s mouth and nose, to shake him, to squeeze his abdomen, squeeze his neck, and squeeze his head. All the while appellant was heard to say, “God damn it. Shut up, you little motherfucker. Shut up, shut up.” — or words to that effect. Darrell had an abrasion under his left eye, and blood was crusted under his nose. Out of concern, one salesman approached appellant to comment “what a pretty little baby” he had, hoping this would deter him, but as soon as the salesman walked away, appellant began to squeeze the baby’s head again.

The next day, October 3, appellant and McFadden took Darrell, wrapped in a blanket, to a video store. A registered nurse who happened to be there noticed that Darrell’s forehead was swollen and bruised, as was “the jaw area.” She opined that the bruises on his forehead were older, because more greenish. The jaw was more black and blue. She also saw two bright red scratches [567]*567across the baby’s cheeks. Darrell’s eyes were wide and glassy, and there was “no muscular movement of any facial muscles.” She could perceive no “response to any stimulus whatsoever.” The nurse testified that in her opinion “the baby needed some type of medical attention.” McFadden was holding Darrell, and she told him, “I wish you would stop.”

A week later, on October 10, a gun shop employee saw appellant and McFadden come into the shop with Darrell. As they browsed, the employee, who took a particular interest in Darrell because he had an infant child himself, noticed that the baby seemed “bundled up pretty well” — in fact, “over clothed for the day.” Darrell also had socks pulled over his hands. Darrell’s face looked discolored and distorted, and his head was swollen. Nevertheless, the baby smiled at him, and “still had the gleam of a child.” The gun shop employee asked the couple, “What happened to your baby?” Appellant explained that Darrell had “hit himself on the coffee table.” Then appellant and McFadden looked at each other and “their expression changed.” They hurried out of the gun shop.

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Bluebook (online)
913 S.W.2d 564, 1995 Tex. Crim. App. LEXIS 126, 1995 WL 713027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saunders-v-state-texcrimapp-1995.