Schultz v. State

879 S.W.2d 377, 1994 Tex. App. LEXIS 1530, 1994 WL 280485
CourtCourt of Appeals of Texas
DecidedJune 27, 1994
DocketNo. 07-93-0085-CR
StatusPublished
Cited by7 cases

This text of 879 S.W.2d 377 (Schultz v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schultz v. State, 879 S.W.2d 377, 1994 Tex. App. LEXIS 1530, 1994 WL 280485 (Tex. Ct. App. 1994).

Opinion

REYNOLDS, Chief Justice.

A jury found appellant Theresa Ellen Schultz guilty of the offense of abandonment of a child, for which the court assessed punishment at confinement in the county jail for twelve months, probated for twenty-four months, and a fine of $500. Appellant contends 1) the information failed to allege any culpable mental state regarding the circumstances surrounding her intentional conduct and, therefore, was insufficient to support a conviction; 2) in its charge, the trial court misdirected the jury by authorizing a conviction without proof of a culpable mental state regarding her intentional conduct; and 3) the evidence is insufficient to support the conviction. We will overrule the points of error and affirm the judgment.

The evidence prompting the prosecution shows that appellant lived in Lubbock with her daughter, Courtney Shultz, age nine, and her sister’s child, Matthew White, age eleven, who was in appellant’s custody. At noon on 21 September 1991, appellant left the children alone to go to work at Legends, a nightclub. When she finished her shift about seven o’clock in the evening, her employer asked her to stay and participate in a meeting regarding the business development of the nightclub. The meeting lasted until eight-thirty.

At eight-thirty, appellant left Legends and went by the store to purchase a few items for the barbeque planned at Kirk Durham’s apartment. Upon reaching Kirk’s apartment, appellant found the barbeque would have to be postponed. In lieu of the barbeque, she, Kirk, and Jackie Morgan decided to go to the Silver Bullet, a bar.

Eventually, the three left the Silver Bullet and proceeded to the Villa where Charles “Cooter” Morris, another friend, was employed. From there, the four of them went to The Kettle and had breakfast. After eating, they drove back to Kirk’s apartment and appellant proceeded to drive home.

When appellant reached her house around three-thirty a.m., the door was slightly ajar and smoke was coming from the chimney. She appeared at the house of her neighbor, Mickey Taylor, and yelled for him to come help her. Taylor ran from his house into appellant’s home and exited with Matthew, who was dead.

Fire department personnel arrived, searched the home for the fire, found it, and proceeded to extinguish it. They found Courtney’s dead body in the house. The fire marshall was of the opinion that the fire was started in a bedroom closet area by the children playing with matches.

Section 22.041 of the Texas Penal Code Annotated (Vernon 1989 & Supp.1994), designated as ABANDONING OR ENDANGERING CHILD, provides, in part, that

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.

Tex. Penal Code Ann. § 22.041(b) (Vernon 1989). “Abandon,” as used in the statute, “means to leave a child in any place without providing reasonable and necessary care for the child, under circumstances under which no reasonable, similarly situated adult would [379]*379leave a child of that age and ability.” Tex. Penal Code Ann. § 22.041(a) (Vernon Supp. 1994).

Following the statute, the State utilized a two-count information, one count for each child, to charge that on 22 September 1991, appellant did intentionally abandon each child. Prior to jury selection, the State, apparently because of an inability to procure records showing appellant’s custody of Matthew, elected to proceed on count II, which charged that appellant, “having custody of COURTNEY SHULTZ, a child younger than 15 years, [did] intentionally abandon the said COURTNEY SHULTZ under circumstances that exposed the child to an unreasonable risk of harm.”

Initially, on appeal, appellant contends that the information failed to allege any culpable mental state with respect to the circumstances surrounding her intentional conduct and, therefore, is insufficient, as a matter of law, to support the judgment of conviction. She submits that her timely pretrial motion to dismiss the complaint and information clearly suggested the problem, but the State responds that the point of error was not preserved for appellate review. We agree with the State.

Appellant’s pretrial motion to dismiss was predicated on her view that the statute and the information under which she was charged were unconstitutionally vagué, because the terms “abandon” and “unreasonable risk” were not defined- Pretrial, appellant also moved to quash the information, alleging it was defective because “[njeither count alleges whether Defendant abandoned the child in question with or without the intent to return for the child. Therefore, Defendant is not put on notice of whether she is charged with a Class A misdemeanor or a third degree felony.”

As is readily apparent, neither motion embraces appellant’s first-point contention that the information fails to allege any culpable mental state with respect to the circumstances surrounding her intentional conduct. It is now settled, that if a defendant does not object to a defect of form or substance in an information before the date of trial, he waives the right to raise the objection on appeal. Tex.Code Crim.Proc.Ann. art. 1.14(b) (Vernon Supp.1994). Thus, since appellant’s motions made no reference to a culpable mental state, she waived her first-point contention. State v. Oliver, 808 S.W.2d 492, 493-94 (Tex.Cr.App.1991). Appellant’s first point of error is overruled.

Notwithstanding, appellant preserved her contention for review, which is advanced by her second point of error, by timely objecting to the court’s charge. In brief, her objection was that because the offense was a result-oriented crime, the charge erroneously authorized a conviction without requiring any culpable mental state on the element of “under circumstances that expose the child to an unreasonable risk of harm.”

In pursuing her second-point contention, appellant presents a contention of first impression concerning the culpable mental state required for conviction of the offense of abandoning a child. There is no reported decision construing the statute.

It is appellant’s position that abandoning a child is a circumstance-dependent crime; that is, section 22.041(b), supra, prohibits conduct only under unreasonably risky circumstances. She reasons that the statutory words “intentionally abandons” are “vestigial language,” because the focus is on the state of mind that consciously disregards the circumstances surrounding such conduct. Thus, the offense requires a culpable mental state that relates to the nature of the circumstances surrounding the charged conduct, not to the conduct or the result of the conduct. She suggests a construction of the statute to require at least a showing of recklessness of surrounding circumstances as a condition of guilt for abandonment.

There is no profit in lengthening this opinion to address appellant’s analogy of statutes and ease law to support her construction of section 22.041(b), supra; for, contrary to her diligent effort, we do not consider the statutory words “intentionally abandons” to be rudimentary or nonfunctioning language.

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Bluebook (online)
879 S.W.2d 377, 1994 Tex. App. LEXIS 1530, 1994 WL 280485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schultz-v-state-texapp-1994.