Bowen v. State

• Decision Date: 10 November 1982
• Docket Number: No. 1,No. 62239,62239,1
• Citation: 640 S.W.2d 929
• Parties: Edward Thomas BOWEN, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 929

640 S.W.2d 929

Edward Thomas BOWEN, Appellant, v. The STATE of Texas, Appellee.

No. 62239.

Court of Criminal Appeals of Texas Panel No. 1.

Nov. 10, 1982.

Ellis C. McCullough, Houston, for appellant.

Carol S. Vance, Dist. Atty., and Calvin A. Hartmann and Jack Bodiford, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before ODOM, TOM G. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This is an appeal from a conviction for murder, where the right to trial by jury was waived. Upon the finding of guilt, the trial court assessed punishment at 40 years confinement in the Texas Department of Corrections. Appellant advances two grounds of error: (1) that the indictment underlying his conviction is fundamentally defective; ¹ and, (2) that the evidence is insufficient to support the finding of guilt.

In his first ground of error appellant contends that the indictment returned against him alleging his commission of murder is fundamentally defective, arguing that it fails to allege an act clearly dangerous to human life.

The indictment in the case alleges that appellant:

"... did then and there intend to cause serious bodily injury to Timothy Harless, hereafter styled the Complainant, and did cause the death of the Complainant by committing an act clearly dangerous to human life, namely, by beating him ... with his hands and fist."

V.T.C.A. Penal Code, Sec. 19.02 provides in part:

"(a) A person commits an offense if he:

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(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual."

It is sufficient simply to allege the elements of the offense, without specifying the manner and means used to commit the murder. See Boney v. State, 572 S.W.2d 529, 532 (Tex.Cr.App.1978) (manner and means used to cause serious bodily injury, not being an element of aggravated assault need not be alleged) and Castillo v. State, 616 S.W.2d 620, 621 (Tex.Cr.App.1981) (alleging that accused engaged in conduct that caused serious bodily injury to a child states requisite elements of offense); see also Washington v. State, 603 S.W.2d 859 (Tex.Cr.App.1980). Here, the pleader alleged all elements of the offense charged--and more. That "beating ... with his hands and fist" is not necessarily "clearly dangerous to human life" does not render the indictment fundamentally defective.

Appellant's second ground of error contends that the evidence is insufficient to support the conviction.

The record shows that on May 29, 1978, the wife of appellant was admitted to the hospital for an infection. This caused appellant to take a leave of absence from his job in order for him to watch his three stepchildren: Cindy Harless, age five; Keith Harless, age three and a half; and Timothy Harless, age two.

Appellant states in his second corrected affidavit (State's Exhibit No. 12), that at 7:00 a.m. on May 31, 1978, a friend of his wife brought two children by for him to watch. He and the children fell back to sleep until about 8:15 a.m. When appellant woke up and found that the two year old victim, Timothy Harless, had defecated on the bed, he "cuffed him on the head" with his knuckles and then cleaned him.

At noon appellant fixed the children lunch. When he discovered Timothy playing with his food, appellant "cuffed him on the head" another time. A little later appellant found Timothy playing again, so he decided to feed the boy himself. When the little boy spit out the food, appellant once again "cuffed him on the head" with his knuckles.

After the last "cuffing" incident, appellant brought the child inside to give him another bath, then planned to put him to bed. ² The child continued to whine throughout the bath. Appellant proceeded to quiet the baby by grabbing him under the armpit and hitting him in the solar plexus with his fist. He claims he only hit the baby once. Timothy continued to cry; appellant picked him up and dropped him on his back. Appellant states that he took the baby to the hospital immediately after this took place.

Upon the hospital's report of Timothy's condition, a police officer went to the Harless home to investigate. There appellant was found watching television. He invited the officer in and proceeded to tell him what had taken place. Appellant insisted that Timothy was standing on the bottom shelf of a desk ten inches from the floor when he fell, landing on his back and sustaining the injuries. Appellant went to the police station to make an affidavit describing the incident (State's Exhibit No. 11).

After further investigation, the police asked appellant to answer some additional questions. As a result, appellant executed another affidavit (State's Exhibit No. 12) stating he had not told the whole truth in his first affidavit. He was subsequently placed under arrest.

Appellant now asserts that the evidence is insufficient to establish both his intent to cause serious bodily injury, and that his acts caused the death of deceased.

Appellant was a 24 year old male, weighing approximately 200 pounds and measuring 5 feet 7 inches. The victim was a two year old male, weighing 30 pounds and measuring 31 and a half inches. In considering the evidence, it was appropriate for the court to take into account the relative sizes and strengths of the parties. As the Court stated in Hignett v. State, 170 Tex.Cr.R. 342, 341 S.W.2d 166, 169 (1960):

"It would be difficult to envision a set of facts showing an adequate cause for such an assault by a sane man upon a...