Adelman v. State
| Decision Date | 21 May 1987 |
| Docket Number | No. 01-86-0117-CR,01-86-0117-CR |
| Citation | 731 S.W.2d 143 |
| Parties | Mirella L. ADELMAN, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Ronald N. Haynes, Houston, for appellant.
John B. Holmes, Jr., Harris County Dist. Atty., William J. Delmore, III, Gladys A. Guero, Harris County Asst. Dist. Attys., Houston, for appellee.
Before SAM BASS, COHEN and DUNN, JJ.
Appellant was convicted of falsely imprisoning her 25-year-old son at a time when he was mentally incompetent and she served as his court-appointed guardian. She waived a jury, pleaded not guilty, and represented herself at trial with assistance from a lawyer. The trial court found her guilty and assessed punishment at confinement for 180 days, probated.
Appellant, now represented by counsel, challenges the sufficiency of the evidence.
The information alleged that appellant:
On or about October 10, 1985 did ... unlawfully, intentionally, and knowingly restrain Daniel Adelman, hereafter styled the complainant, by force, intimidation or deception by using handcuffs and a foot shackle to prevent the liberation of the complainant.
The information alleged the class B misdemeanor offense condemned in Tex.Penal Code Ann. sec. 20.02 (Vernon 1974). Section 20.02 provides:
A person commits an offense if he intentionally or knowingly restrains another person.
Section 20.01 of the Penal Code provides:
In this chapter: (1) "Restrain" means to restrict a person's movements without consent, so as to interfere substantially with his liberty, ... by confining him. Restraint is "without consent" if it is accomplished by: (A) force, intimidation, or deception; ....
The first point of error asserts that the trial court erred in finding appellant guilty because her conduct was justified under Tex.Penal Code Ann. sec. 9.63 (Vernon 1974). Section 9.63 provides:
The use of force ... against a mental incompetent is justified: (1) if the actor is the incompetent's guardian or someone similarly responsible for the general care and supervision of the incompetent; and (2) when and to the degree the actor reasonably believes the force is necessary: (A) to safeguard and promote the incompetent's welfare; ...
The use of justified force is a defense to prosecution. Tex.Penal Code Ann. sec. 9.02 (Vernon 1974). If the evidence raises an issue of justification concerning a guardian's use of force, a reasonable doubt on the issue requires that the guardian be acquitted. Tex.Penal Code Ann. sec. 2.03(d) (Vernon 1974). In other words, the State must prove beyond a reasonable doubt that the guardian had no reasonable belief that the force used was necessary for the incompetent's welfare.
Moreover, Tex.Penal Code Ann. sec. 9.03 (Vernon 1974) provides that confinement is justified when "force" is justified under sec. 9.63. Section 9.03 provides:
Confinement is justified when force is justified by this chapter if the actor takes reasonable measures to terminate the confinement as soon as he knows he safely can unless the person confined has been arrested for an offense.
Finally, whenever the use of force is justified, the threat of force is also justified. Tex.Penal Code Ann. sec. 9.04 (Vernon 1974).
The undisputed evidence showed that Daniel Adelman was incompetent and that the appellant was his guardian and was responsible for his general care and supervision. Thus, appellant's confinement of, and use or threat of force against, Daniel was justified when and to the degree she reasonably believed that it was necessary for his welfare.
Section 9.63 does not justify a guardian's use of force based solely upon a subjective belief in its necessity. Rather, force, threats of force, and confinement are justified only when the guardian "reasonably believes" that they are necessary to the incompetent's welfare. A "reasonable belief" is a "belief that would be held by an ordinary and prudent man in the same circumstances as the actor." Tex.Penal Code Ann. sec. 1.07(31) (Vernon 1974).
In resolving this challenge to the sufficiency of the evidence, we are guided by the analogous standard set out in Van Guilder v. State, 709 S.W.2d 178 (Tex.Crim.App.1985). We view the evidence in the light most favorable to the verdict in order to decide whether any rational fact finder could have found, beyond a reasonable doubt, that appellant did not reasonably believe that the use of handcuffs and a foot shackle was necessary on October 10, 1985, to safeguard and promote her incompetent son's welfare. That is the only issue before us. We are not allowed by law to decide whether appellant should have been her son's guardian, whether she did or can provide him a suitable home, or whether she has or may abuse him at any other time or in any other way. These issues are within the exclusive jurisdiction of the probate court, which has the sole power to appoint and remove guardians. Tex.Prob.Code Ann. sec. 5(c) (Vernon Supp.1987).
The record reveals that appellant took "reasonable measures to terminate the confinement" as soon as she knew that she safely could. Appellant testified, without impeachment or contradiction, that her son was not placed in his room for the night of October 10, 1985, with handcuffs and foot shackles on; that he did not sleep that night so restrained; and that after he returned to his room for the night, she gave him the key to remove the restraints. Appellant thus met the requirement of Penal Code sec. 9.03 that justified confinement be terminated as soon as safely possible.
We must now decide whether a rational fact finder could have found, beyond a reasonable doubt, that appellant did not reasonably believe that the hand and foot restraints were necessary to her son's welfare.
Appellant's son, Daniel, was 25 years old on October 10, 1985. The undisputed psychiatric diagnoses in the record reflect that he suffered from paranoid schizophrenia or schizophrenia, chronic undifferentiated type. He was adjudicated incompetent on January 19, 1982. Daniel was committed several times to the Austin State Hospital, once for a year. Dr. Boulos of the Austin State Hospital testified that Daniel can be dangerous; that he had once tried to choke another patient; and that Daniel was on homicide precaution, escape precaution, and suicide precaution at various times. Dr. Boulos testified that he was frightened of Daniel and that Daniel once tried to hit him, necessitating the assistance of two orderlies to restrain Daniel. Al Baker, a social worker at the Harris County Psychiatric Hospital, testified that Daniel often demonstrated violent behavior. Bruce Sante, an orderly at the Harris County Psychiatric Hospital, testified that he broke his hand attempting to restrain Daniel, despite the assistance of three other men. Dr. Abdula testified that she was attacked by Daniel and ordered him restrained and secluded. Appellant testified that Daniel tore up the walls of his room on 15 to 20 occasions; that he broke his toilet so that it was incapable of being flushed; and that he threw a brick through a window and threw his shackles at appellant.
Appellant was specifically charged with illegally restraining Daniel by "force, intimidation or deception by using handcuffs and foot shackle" on October 10, 1985. On that day, State's witness Roger Berlin met appellant at the Lipstick Lounge, where she...
To continue reading
Request your trial
-
Adelman v. State
...with appellant, found the evidence to be insufficient, and reformed the judgment to reflect an acquittal. Adelman v. State, 731 S.W.2d 143 (Tex.App.-Houston [1st Dist.] 1987). The State petitioned this Court for discretionary review claiming that the Court of Appeals did not review the evid......
- Hicks v. Western Funding, Inc.