Cuellar v. State, 13-96-571-CR

• Decision Date: 06 November 1997
• Docket Number: No. 13-96-571-CR,13-96-571-CR
• Citation: Cuellar v. State, 957 S.W.2d 134 (Tex. App. 1997)
• Parties: Frank Flores CUELLAR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 134

957 S.W.2d 134

Frank Flores CUELLAR, Appellant, v. The STATE of Texas, Appellee.

No. 13-96-571-CR.

Court of Appeals of Texas Corpus Christi.

Nov. 6, 1997.

Anne M. Marshall, Corpus Christi, for Appellant.

James D. Rosenkild, Assistant District Attorney, Corpus Christi, for Appellee.

Before SEERDEN, C.J., and CHAVEZ and RODRIGUEZ, JJ

OPINION

CHAVEZ, Justice.

Appellant Frank Flores Cuellar was convicted of intoxication manslaughter and driving while intoxicated. The intoxication manslaughter charge was tried first, and, after the jury trial on that charge was completed, proceedings commenced on the driving while intoxicated charge. Appellant appeals from the intoxication manslaughter conviction by two points of error. The first point argues that the trial court erred in failing to quash the indictment because the victim of the offense was a fetus at the time of appellant's conduct and, therefore, was not an "individual" within the legal meaning of that term. The second point argues that the intoxication manslaughter statute was unconstitutionally vague as applied to this appellant, because the definition of an individual does not provide notice that a fetus fits within that definition. The appeal of the driving while intoxicated charge argues in a single point of error that the charge should have been dismissed on double jeopardy grounds, since driving while intoxicated does not require proof of any additional element not required in proving intoxication manslaughter. We affirm both convictions.

Facts

Appellant drove his car into a car being driven by Jeannie Coronado, who was then seven and one-half months pregnant. As a result of the collision, Coronado was pinned between the seat and the steering wheel, with the steering wheel pushing into her abdomen. Both appellant and Coronado were taken to the hospital. Appellant's blood alcohol level was tested one and-a-half hours after the collision and found to have a concentration of .24. ¹ Coronado's attending physician at the hospital observed fetal distress and therefore performed an emergency caesarian section. A live baby girl was born and named Krystal Zuniga. Shortly after birth the baby's head appeared swollen, indicating internal bleeding in the brain. Her condition deteriorated and she died approximately forty-three hours later. The medical examiner concluded that the cause of death was injury to the brain resulting from the automobile collision.

Analysis

Appellant's first challenge to the intoxication manslaughter conviction pertains to the trial court's denial of appellant's motion to quash the indictment. Generally, an indictment which tracks statutory language should survive a motion to quash. Olurebi v. State, 870 S.W.2d 58, 61 (Tex.Crim.App.1994). A motion to quash should be granted only if the language concerning the defendant's conduct is so vague or indefinite as to deny the defendant effective notice of the acts allegedly committed. Bynum v. State, 767 S.W.2d 769, 778 (Tex.Crim.App.1989). A trial court is not permitted to look behind the indictment by previewing the evidence to determine whether evidence supports the indictment. Brooks v. State, 642 S.W.2d 791, 795 (Tex.Crim.App.1982); State v. Clarke, 880 S.W.2d 854, 854-55 (Tex.App.--Corpus Christi 1994, pet. ref'd).

In this case the motion to quash was brought before the trial court in an unusual manner. The parties stipulated to certain facts solely for purposes of the hearing on the motion to quash. The document containing the stipulations was signed by both parties and indicates that the parties agreed to the stipulations "in the interests of a speedy resolution of questions of law." Despite the State's agreement with the procedure of holding the hearing on stipulated facts, the State now argues on appeal that it would have been improper for the trial court to consider the stipulated facts and grant the motion to quash based on the sufficiency of those facts. We hold that the State's willing participation in the hearing on stipulated facts bars its present complaint regarding this procedure. See Janecka v. State, 823 S.W.2d 232, 243-44 (Tex.Crim.App.1990) (State's participation without objection in direct appeal before special master waived right to complain about that procedure); see also McFarland v. State, 834 S.W.2d 481, 486 (Tex.App.--Corpus Christi 1992, no pet.) (appellant waived complaint regarding special judge presiding over competency hearing by failing to object).

Appellant's conviction in this case was for intoxication manslaughter. The intoxication manslaughter statute provides:

A person commits an offense if the person:

(1) operates a motor vehicle in a public place, an aircraft, or a watercraft; and

(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

TEX. PENAL CODE ANN. § 49.08 (Vernon 1994). "Another" is defined in the Penal Code to mean a "person," a "person" is defined to include an "individual," and an "individual" is defined as "a human being who has been born and is alive." TEX. PENAL CODE ANN. § 1.07(5), (38), (27) (Vernon 1994).

In this case, it is undisputed that the victim died as a result of injuries received during the auto collision caused by appellant's drunk driving. It is also undisputed that the victim had not been born at the time of appellant's conduct, and it is undisputed that the victim later was born and later did meet the statutory definition of an individual. Therefore this case presents the question of whether the Penal Code authorizes a conviction only when a victim meets the definition of an individual at the time of the alleged misconduct, or whether a conviction may also be authorized if a victim attains the status of an individual after the alleged misconduct.

Provisions in the Penal Code are not to be strictly construed but rather are to be construed according to the fair import of their terms, to promote justice and effect the objectives of the code. Tex. Penal Code Ann. § 1.05(a) (Vernon 1994). The "has been born and is alive" definition in the Penal Code does not address the precise issue before us. "Has been born and is alive" does not tell us at what point in time the individual needs to have been born and be alive. The dissent seems certain that the victim's status under the law is frozen at the moment of the alleged misconduct. We do not believe the statute provides a clear mandate of this interpretation. ² When the language of a statute is not plain but instead rather ambiguous, courts are permitted to consider extratextual factors. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). Among the extratextual factors that may be considered is the common law. TEX. GOV'T CODE ANN. § 311.023(4) (Vernon 1988). The Texas definition "has been born and is alive" closely resembles the ancient common law "born alive" doctrine. The common law provided that:

If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the child dyeth in her body, and she is delivered of a dead childe, this is a great misprision, and no murder; but if the child be born alive and dyeth of the potion, battery, or other cause, this is murder; for in the law it is accounted a reasonable creature, in rerum natura, when it is born alive.

3 Coke, Institutes 58 (1648). Therefore, the common law would allow a conviction for not just manslaughter but also murder when a child is born alive and then dies as a result of prenatal injuries.

The state of New York, which shares the same "has been born and is alive" statutory definition of a person (See N.Y. PENAL LAW 125.05(1)), recently confronted the same issue presently before us. In People v. Hall, 158 A.D.2d 69, 557 N.Y.S.2d 879 (1990) the appellate division of the New York supreme court confronted these facts: Hall fired a gun, intending to hit Aaron. Instead he hit Brigette Garrett, who was approximately seven months pregnant, in the abdomen. Her baby Attallia was delivered by emergency caesarian section and lived for thirty-six hours before dying as a result of maladies caused by Hall's gunshots. The appellant argued that his murder conviction could not stand because Attallia was not a person under the legal definition of that term. However, focusing on the substantial evidence that Attallia was born and was alive for a period of time before her death, the New York court held that she was a person under New York criminal law and affirmed Hall's conviction. Hall, 557 N.Y.S.2d at 883.

When other states have faced vehicular manslaughter charges based on facts such as the facts before us, where the victim was born and lived for a short while before dying from prenatal injuries, they have consistently upheld the conviction. In State v. Hammett, 192 Ga.App. 224, 384 S.E.2d 220 (1989) the Georgia Court of Appeals reviewed a conviction for homicide by vehicle where a driver collided with a car containing a pregnant woman. The woman was taken to a hospital and an emergency caesarian section was performed. Her child lived for eleven hours before succumbing to injuries it suffered in the car crash. The Georgia court, referring to the common law "born alive" doctrine, held that "it is not the victim's status at the time the injuries are inflicted that determines the nature of the crime, ³ but the victim's status at the time of death." Id. 384 S.E.2d at 221. The court contrasted the facts before it from those in Billingsley v. State, 183 Ga.App. 850, 360 S.E.2d 451 (1987), where a conviction for homicide by vehicle was reversed because the victim in that case was never born. Hammett, 384 S.E.2d at 220. Because the victim in Hammett was born and alive for a period of time, the conviction for homicide by vehicle in that case was upheld. Id.

In Jones v. Commonwealth, 830 S.W.2d 877 (Ky.1992), the Kentucky Supreme Court reviewed a conviction for manslaughter that resulted from a drunk driver...