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finding that failure to properly secure a child in a vehicle was a result-of-conduct offense
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No. 05-03-00096-CR
Opinion filed December 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4 Dallas County, Texas, Trial Court Cause No. F01-02257-K. Affirmed.
Before Justices MORRIS, O'NEILL, and LANG.
OPINION
This appeal arises from the death of A.E., a three-year-old child, who fell out of the car her mother, Norma Leticia Suarez, was driving. After a trial before the court, Suarez was convicted of recklessly endangering A.E. and was sentenced to two years' confinement in state jail. In three issues, Suarez challenges the legal sufficiency of the evidence to support her conviction for reckless endangerment. Suarez also brings three issues regarding the punishment phase, contending she was denied her constitutional right to effective assistance of counsel and the trial judge pre-determined her sentence in violation of her constitutional and statutory rights to a fair punishment hearing. We decide these issues adversely to Suarez and affirm the trial court's judgment.
Factual and Procedural Background
About 10:00 p.m. on September 23, 2000, Suarez left her home with her son P. and her daughters N.E. and A.E. in the car. She drove to the home of Michelle Dominguez, the former wife of Suarez's husband and Suarez's good friend, and then drove to the home of Violanda Corral, P.'s grandmother, arriving between 10:30 and 11:00 p.m. Suarez left P. at Corral's house and began to drive home. N.E. was in the front passenger seat, and A.E. was in the back seat. When Suarez arrived home about 11:45 p.m., A.E. was not in the car. A.E. had fallen out of the car as it crossed the Continental Street bridge. She was struck by another car and died of head injuries. The indictment alleged that Suarez "intentionally, knowingly and recklessly, and with criminal negligence, by act and omission, engage[d] in conduct that placed [A.E.] . . . in imminent danger of death, bodily injury, and physical and mental impairment." The indictment alleged three manner and means: (1) by driving a car in which A.E. had been placed and did not remain secured in a manner which would prevent her from exiting and falling out of the car while Suarez was operating it; (2) by failing to supervise A.E. in a manner which would prevent her from exiting and falling out of the car while Suarez was operating it; and (3) by failing to supervise A.E. in a manner which would allow Suarez to be aware of and respond to the child exiting and falling out of the car while Suarez was operating it. Suarez filed a motion to quash the indictment, but the record does not show that it was brought to the trial court's attention. Suarez pleaded not guilty and waived her right to a jury trial. The trial court specifically found Suarez guilty of recklessly endangering A.E by failing to properly supervise her. At the close of the punishment phase, the trial court sentenced Suarez to confinement for two years. Suarez filed an amended motion for new trial on grounds of ineffective assistance of counsel. After a hearing, the trial court orally denied the amended motion for new trial. This appeal followed.Legal Sufficiency of the Evidence
In her first three issues, Suarez challenges the legal sufficiency of the evidence supporting her conviction for reckless endangerment of A.E.Standard of Review and Applicable Law
In reviewing the legal sufficiency of the evidence, we look at all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The sufficiency of evidence to support a conviction is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim. App. 1987). The fact finder is the sole judge of the weight and credibility of witness testimony. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). When a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, the verdict stands if the evidence is sufficient with respect to any of the acts charged. Kitchens v. State, 823 S.W.2d 256, 259 (Tex.Crim.App. 1991). A person commits the offense of endangering a child if she "intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment." Tex. Pen. Code Ann. § 22.041(c) (Vernon 2003). An offense under this section is a state jail felony. Id. § 22.041(f). Section 22.041 "applies only to those who have custody, care, or control of the child victim," and it "imposes a duty upon those responsible for children to refrain from unreasonably subjecting the child to danger." Schultz v. State, 923 S.W.2d 1, 4 (Tex.Crim.App. 1996) (plurality op.). A parent has the "duty of care, control, protection, and reasonable discipline of the child." Tex. Fam. Code Ann. § 151.001(a)(2) (Vernon Supp. 2004). A person who omits to perform an act does not commit an offense unless a law as defined by section 1.07 provides that the omission is an offense or otherwise provides that he has a duty to perform an act. Tex. Pen. Code Ann. § 6.01(c) (Vernon 2003). "Law" means "a statute of this state. . . ." Id. § 1.07(a)(30) (Vernon Supp. 2004). Under the law in effect at the time of A.E.'s death, a person committed an offense if she operated a passenger car, transported a child over two years of age, but younger than four years of age, and did not keep the child secured during the operation of the vehicle by using either a child passenger safety seat or a safety belt. Act of May 23, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen. Laws 1025, 1643, amended by Act of May 25, 2001, 77th Leg., R.S., ch. 910, § 1, 2001 Tex. Gen. Laws 1821, 1821 (current version at Tex. Transp. Code Ann. § 545.412(a) (Vernon Supp. 2004)).Discussion
In part of her first issue, Suarez contends that the evidence is legally insufficient to prove reckless endangerment because the indictment does not allege that she omitted to perform any act required by law or that she engaged in any reckless conduct that endangered A.E. In effect, Suarez argues that the indictment does not allege any criminal acts. Suarez moved to quash the indictment on grounds that included failure to describe with particularity the proscribed conduct. "If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding." Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2004). This article requires a defendant to object, not merely file a motion, to preserve error. Mills v. State, 941 S.W.2d 204, 208 (Tex. App.-Corpus Christi 1996, pet. ref'd). The simple filing of a motion is not sufficient to bring a matter to the trial court's attention. Id. Suarez filed her motion to quash the indictment on November 6, 2002, and the trial began on December 3, 2002. The record does not show that Suarez presented her motion to quash to the court or objected to the indictment before the date on which the trial on the merits commenced. By failing to present her motion to quash the indictment to the trial court or to object before the date of trial, Suarez has failed to timely object to any defects in the indictment. See Tex. Code Crim. Proc. Ann. art 1.14(b); Mills, 941 S.W.2d at 208. Thus, Suarez has waived any error as to defects in the indictment. See Tex.R.App.P. 33.1. Accordingly, we decide Suarez's first issue adversely to her to this extent. In the remainder of her legal sufficiency issues, Suarez contends that the State failed to prove that she committed any reckless act that endangered A.E. or that she recklessly omitted any act, which omission constituted a violation of law or which she had a legal duty to perform. Moreover, she contends that the State failed to prove that any conduct of Suarez placed A.E. in imminent danger. The State responds it proved all three manner and means of committing the offense. As noted above, Suarez had a duty, as A.E.'s mother or as the operator of the vehicle, to secure A.E. in the car by either a child safety seat or a seatbelt. See Tex. Fam. Code Ann. § 151.001(a)(2); Act of May 23, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen. Laws 1025, 1643 (amended 2001) (current version at Tex. Transp. Code Ann. § 545.412(a) (Vernon Supp. 2004)). Here, Suarez was specifically found guilty of recklessly endangering A.E. by failing to properly supervise A.E. This was an omission. Under section 22.041(c), the culpable mental state applies to the result of Suarez's conduct. See Millslagle v. State, 81 S.W.3d 895, 896 n. 1 (Tex. App.-Austin 2002, pet. ref'd) ("[A]ny conduct that places a child in imminent danger is prohibited."); see also Alvarado v. State, 704 S.W.2d 36, 38-39 (Tex.Crim.App. 1985) ("The only 'element of conduct' which can be the object of all four of the culpable mental states is 'result of conduct.'"); but see Walker v. State, 95 S.W.3d 516, 521 n. 1 (Tex. App.-Fort Worth 2002, pet. ref'd) (disagreeing that child endangerment is a "result of conduct" offense, as concluded by Millslagle). Accordingly, Suarez is guilty if she was reckless. In this case, recklessness would exist if she was aware of, but consciously disregarded, a substantial and unjustifiable risk that her failure to supervise A.E. placed A.E. in imminent danger of death, bodily injury, or physical or mental impairment. An investigating police officer testified that A.E. fell out of the front passenger window and "[i]f you're fastened in a seatbelt, you're not going to fall from a moving vehicle." The officer further testified that the seatbelt clips in the back seat "were pushed down like non-use where they're pushed down." He said, "Instead of being — where people are usually using their belts all the time, they're usually hanging out onto the seats. These were pushed down, if you think about a seat, down along the crease." In addition, without objection from the parties, the trial judge observed the car in the sheriff's garage in the courthouse. Thus, there was evidence that the back seatbelts were not in use and, thus, A.E. was not secured in a seatbelt. Suarez contends that the evidence shows that A.E. was "at some point" secured in a seatbelt. First, Suarez points to Estrada's testimony that A.E. placed the belt on herself when Suarez left Suarez and Estrada's home. Further, Suarez points to Dominguez's testimony that she buckled A.E. in the car. Corral testified that she told Suarez to "[m]ake sure you buckle up the girls." However, Corral did not see A.E. Corral testified that she saw Suarez look towards the back seat and then put N.E. in the front seat. In response to the question "Was there any doubt in your mind that [A.E.] was properly seat-belted?" Corral said, "No." There was testimony that A.E. could unbuckle her seatbelt. Moreover, there was evidence that Suarez stopped at a red light before driving across the bridge and checked to see if A.E. was still asleep. If the trial court believed that A.E. was not secured in a seatbelt after the car left Corral's house, then Suarez's failure to observe that A.E. was not belted when Suarez stopped at the red light constitutes reckless conduct within the allegations of the indictment. After looking at all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found that Suarez's reckless failure to supervise A.E. as to her seatbelt, an omission, placed A.E. in imminent danger of death, bodily injury, or physical or mental impairment beyond a reasonable doubt. Accordingly, we resolve Suarez's first three points against her.Effective Assistance of Counsel
In her fourth issue, Suarez contends that she was denied her constitutional right to effective representation by counsel at the punishment hearing. Specifically, Suarez contends her counsel was ineffective by failing to present proper punishment evidence in reliance on his belief that the trial judge agreed not to assess a jail sentence. In challenging counsel's effectiveness at trial, an appellant has the burden to show by a preponderance of evidence: (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms; and (2) the deficiency "prejudices" the appellant, that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. Rosales v. State, 841 S.W.2d 368, 375 (Tex.Crim.App. 1992) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1993)). The Strickland standard applies to the punishment phase of trial. Hernandez v. State, 988 S.W.2d 770, 770 n. 1 (Tex.Crim.App. 1999). In his affidavit attached to the amended motion for new trial, Suarez's counsel stated that the trial judge "assured me not to worry about him sentencing Ms. Suarez to prison." According to counsel, he relied upon this "representation" and did not present witnesses at the punishment phase who would have provided "positive testimony" regarding community supervision for Suarez. Counsel contended that his mistaken reliance on the trial judge's "representation" and consequent failure to present additional witnesses constituted ineffective assistance of counsel. At the punishment hearing, the trial judge referred to the pre-sentence interview (PSI), which stated that Suarez was unlikely to admit responsibility for personal or family difficulties and she needed an additional supportive network to aid in decision-making in regard to her children. Suarez called two witnesses. Her first witness, Dr. William Flynn, a psychologist, testified that he saw Suarez for nineteen fifty-minute sessions between November 2000 and February 2001. He treated Suarez for mental health symptoms and also evaluated her "for her likelihood of being able to meet the terms of probation, if offered, and . . . for her risk of re-offending in a criminal way." Flynn testified that Suarez was a good candidate for probation with a low risk for failure. On cross-examination, Flynn testified that he did not believe that Suarez had accepted responsibility for her behavior. Suarez's second witness was her husband, James Estrada, who testified that Suarez was a good mother, she "felt bad" about A.E.'s death, and the family would help Suarez complete probation successfully. On cross-examination, Estrada testified that Suarez had not changed her behavior, that is, "[s]he's always been the same with the kids." In addition, Dominguez and Corral testified that Suarez was a good mother. At the hearing on the amended motion for new trial, Suarez's counsel said that, had he known Suarez might not get probation, he would have presented more witnesses from a group of about thirty persons, including friends, her pastor, fellow church-goers, and her teenaged children, to testify as to Suarez's good character. He also would have sought additional expert testimony on whether Suarez exhibited signs of remorse and whether she was rehabilitated. In addition, counsel testified that Estrada may have been biased and therefore not the best witness for showing objective character testimony. Also testifying at the hearing on the amended motion for new trial was the original trial judge. He denied that he guaranteed Suarez's counsel that he was going to give probation. In addition, the question was asked of him, "Let me clarify, if I think what you are saying — you are saying that at the moment you heard she didn't accept responsibility for it that's when you felt the two year sentence was appropriate?" The trial judge replied, "That's when I realized, yes." The trial judge was also asked:So had you heard her other evidence on [sic] to the contrary that she had accepted responsibility, had you heard her pastor or members of her church, her friends, extended family or friends or community, had they testified that she had accepted responsibility or had another expert testify to say that she had accepted responsibility, would you have taken those into consideration?The trial judge responded, "I would have taken it into consideration, but I would not have changed my punishment. It would have just made it more difficult for me to decide." Even assuming that Suarez has shown by a preponderance of evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms, we cannot conclude that she has shown by a preponderance of the evidence that any deficiency "prejudiced" her, that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. First, the trial judge testified at the hearing on the amended motion for new trial that when Flynn, Suarez's expert, testified on cross-examination as to Suarez's failure to accept responsibility, he decided the two-year sentence was appropriate. Although counsel testified that he had the ability to obtain additional expert testimony related to remorsefulness and rehabilitation, this testimony is not conclusive that such evidence would have been favorable to Suarez. Moreover, the trial judge testified that the cumulative testimony counsel could have presented would not have made any difference in view of the trial testimony and Flynn's testimony as to Suarez's failure to accept responsibility. Thus, counsel's testimony that another expert would have made a difference is conjecture. Second, the testimony of other character witnesses identified by counsel would likely have been cumulative of Estrada's testimony and was unlikely to have been unbiased or objective. Therefore, we conclude that Suarez has failed to carry her burden to show ineffective assistance of counsel. We decide her fourth issue adversely to her.
Assessment of Punishment
In her fifth and sixth issues, Suarez contends that the trial judge denied her due process rights and, pursuant to article 37.07 of the code of criminal procedure, her statutory right to a punishment hearing. See U.S. Const. art. XIV; Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon Supp. 2004). Specifically, Suarez contends that the trial judge pre-determined her punishment based on his stated desire to "send a message," which was unrelated to her offense and sentence and deprived her of her right to a fair sentencing hearing. In her brief, Suarez characterizes the trial judge's testimony at the hearing on the amended motion for new trial as, "I do not know what I could have heard that would have changed my mind." However, Suarez does not provide a record reference for this statement, and we cannot locate this precise quote in the record. Instead, the trial judge and the presiding judge at the hearing on the amended motion for new trial had this exchange regarding character witnesses other than Flynn and Estrada:The Court: Had that type of information been made available to you, regardless of why it wasn't, I mean regardless of what his [i.e., counsel's] motivation to not put it there, but had you had that type of information available and if you gave it any weight and credibility, could it have been a thought by you that maybe the punishment should not be two years or something less than perhaps probation?
[Trial Judge]: I believe Ms. Suarez was a suitable candidate for probation. I don't think the facts of the case justified probation. I think the facts of the case justified sending a message to the public that you need to protect your children. I do not know what testimony that he could have presented that could have altered that feeling based on all of the evidence I heard during guilt/innocence, based on the evaluation during punishment and the jury, not jury arguments but the closing arguments during punishment. What my overriding belief was, was that a message needs to be sent to protect the children. And I think if anybody will read the record I said it right there in my sentencing. There is nothing I could have done to punish that woman anymore than she has been punished.
The Court: So your 2 year sentence, you're saying —
[Trial Judge]: I don't think you can rehabilitate her because she didn't do an intentional act.
The Court: So your testimony is that she got 2 years to send a message?
[Trial Judge]: Basically, yes, sir.In addition, the trial judge was asked, "At the time after Ms. Suarez was found guilty, had you made up your mind [about punishment]?" to which he responded, "No." He also denied that, prior to having the PSI prepared, he had made up his mind about what he was going to do regarding punishment. We conclude that this evidence shows that the trial judge's mind was not closed as to punishment and that he heard evidence before deciding on punishment. We decide Suarez's fifth and sixth issues adversely to her.