Whitmire v. State

Court of Criminal Appeals of Texas

Whitmire v. State

943 S.W.2d 894, 1997 Tex. Crim. App. LEXIS 18, 1997 WL 165439

CourtCourt of Criminal Appeals of Texas

DecidedApril 9, 1997

Docket390-96

StatusPublished

Cited by34 cases

This text of 943 S.W.2d 894 (Whitmire 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

Whitmire v. State, 943 S.W.2d 894, 1997 Tex. Crim. App. LEXIS 18, 1997 WL 165439 (Tex. 1997).

Pincite

Opinion

OPINION ON STATES PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of the offense of reckless injury to a child, and his punishment assessed at two years confinement in the penitentiary. The evidence shows that in the late evening of January 23,1994, with a blood alcohol concentration of between .205 and .207, appellant drove his car across the center line of a highway in Comanche County, striking an on-coming car and seriously injuring a six year old boy who was riding in the back seat. On appeal appellant argued that the evidence was insufficient to establish he recklessly injured the child because he had not been aware that there was a child in *895 the on-coming car when he collided with it. The Eastland Court of Appeals agreed, and reversed appellant’s conviction, rendering a judgment of acquittal. Whitmire v. State, 913 S.W.2d 738, at 740 (Tex.App.—Eastland 1996). In its petition for discretionary review, the State contends that the court of appeals erred to hold appellant must specifically have been aware there was a child in the other car before it can be said he was “aware of but consciously disregard[ed] a substantial and unjustifiable risk that” the child would be injured. Y.T.C.A., Penal Code, Section 6.03(c). We granted the State’s petition in order to examine this contention. Tex.R.App.Pro., Rule 200(c)(2) & (4).

Appellant has died, however, and the State has moved that the appeal be permanently abated. Under our precedents, the death of an appellant during the pendency of his appeal deprives this Court and the court of appeals of jurisdiction. Rheinlander v. State, 918 S.W.2d 527, 528 (Tex.Cr.App.1996). Accordingly, the motion to abate is granted, both the District Attorney’s and the State Prosecuting Attorney’s petitions for discretionary review are dismissed, and the East-land Court of Appeals is directed to permanently abate the appeal of this cause. Tex. R.App.Pro., Rule 9(b).

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION ON STATES PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of the offense of reckless injury to a child, and his punishment assessed at two years confinement in the penitentiary. The evidence shows that in the late evening of January 23,1994, with a blood alcohol concentration of between .205 and .207, appellant drove his car across the center line of a highway in Comanche County, striking an on-coming car and seriously injuring a six year old boy who was riding in the back seat. On appeal appellant argued that the evidence was insufficient to establish he recklessly injured the child because he had not been aware that there was a child in *895 the on-coming car when he collided with it. The Eastland Court of Appeals agreed, and reversed appellant’s conviction, rendering a judgment of acquittal. Whitmire v. State, 913 S.W.2d 738, at 740 (Tex.App.—Eastland 1996). In its petition for discretionary review, the State contends that the court of appeals erred to hold appellant must specifically have been aware there was a child in the other car before it can be said he was “aware of but consciously disregard[ed] a substantial and unjustifiable risk that” the child would be injured. Y.T.C.A., Penal Code, Section 6.03(c). We granted the State’s petition in order to examine this contention. Tex.R.App.Pro., Rule 200(c)(2) & (4).

Appellant has died, however, and the State has moved that the appeal be permanently abated. Under our precedents, the death of an appellant during the pendency of his appeal deprives this Court and the court of appeals of jurisdiction. Rheinlander v. State, 918 S.W.2d 527, 528 (Tex.Cr.App.1996). Accordingly, the motion to abate is granted, both the District Attorney’s and the State Prosecuting Attorney’s petitions for discretionary review are dismissed, and the East-land Court of Appeals is directed to permanently abate the appeal of this cause. Tex. R.App.Pro., Rule 9(b).

Cite This Page — Counsel Stack

Bluebook (online)

943 S.W.2d 894, 1997 Tex. Crim. App. LEXIS 18, 1997 WL 165439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitmire-v-state-texcrimapp-1997.

Opinion

Related

Cite This Page — Counsel Stack