Dillon v. State

• Decision Date: 22 November 1978
• Docket Number: 57757,No. 3,Nos. 57756,s. 57756,3
• Citation: 574 S.W.2d 92
• Parties: Jeffery DILLON, Appellant, v. The STATE of Texas, Appellee. Cindy DILLON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 92

574 S.W.2d 92

Jeffery DILLON, Appellant, v. The STATE of Texas, Appellee.

Cindy DILLON, Appellant, v. The STATE of Texas, Appellee.

Nos. 57756, 57757.

Court of Criminal Appeals of Texas, Panel No. 3.

Nov. 22, 1978.

Rehearing En Banc Denied Dec. 20, 1978.

James H. Kreimeyer, Belton, court appointed, for appellant.

Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, for the State.

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

OPINION

ODOM, Judge.

These are appeals from convictions for involuntary manslaughter in which Jeffery Dillon and Cindy Dillon pled nolo contendere to the court and received punishment terms of five years and three years respectively.

Appellants were indicted for murder under V.T.C.A., Penal Code Sec. 19.02, by failing to provide necessary food and medical care as was their duty as parents, as a result of which their infant child starved to death. They pled nolo contendere to the lesser included offense of involuntary manslaughter under V.T.C.A., Penal Code Sec. 19.05.

In their sole ground of error appellants contend the evidence is insufficient to support their pleas to involuntary manslaughter, and that the evidence, at most, shows criminally negligent homicide. The culpable mental state for murder is to intentionally or Knowingly cause the death of an individual. The culpable mental state for involuntary manslaughter is to Recklessly cause the death of an individual. Criminal negligence is the culpable mental state applicable to criminally negligent homicide. V.T.C.A., Penal Code Sec. 19.07.

V.T.C.A., Penal Code Sec. 6.03 defines the culpable mental states. The definitions of the three culpable mental states referred to in the preceding paragraph are:

"(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

"(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

"(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint."

The distinctions among these culpable mental states, as applied to appellants' awareness of the fatal consequences of their failure to fulfill their parental duties to provide food or medical care for their infant child (as alleged in the indictment), are distinctions among whether (1) appellants knew their conduct was reasonably certain to cause their child's death, (2) appellants were aware of but consciously disregarded a substantial and unjustifiable risk that their child's death would result from their conduct, or (3) appellants ought to have been aware of a substantial and unjustifiable risk that their child's death would result.

Appellants do not contest the fact that a substantial and unjustifiable risk of their child's death existed. They argue, instead, that certain testimony showed:

". . . that Appellants perhaps ought to have been aware of the risk involved to their daughter and that their failure to be aware of the risk constituted a gross deviation from the standard of care of an ordinary person under the circumstances. There is no evidence, on the other hand, that Appellants actually knew of the risk involved to their daughter but consciously disregarded it."

The question and answer by Dr. Allen upon which appellants rely for this argument are:

"Q. But apparently there were a great many people, while they were concerned about the child, were not so aware of the eminent danger to the child. That's what my question is addressed to primarily.

"Is it possible that the parents could have been concerned without being aware of the danger and the potential result inevitable result, I would say? Could they have been aware of the condition without being aware of the fact that death was eminent?

"A. I think that's possible. I think that death is a hard thing to know about without experience. Maybe they could look at this child and not realize that they could be killing the child.

"I don't think I could have, but maybe they could have."

This testimony does not render the evidence insufficient to show appellants were aware of the risk involved.

First, the question and answer are addressed more to whether appellants knew or realized that death would Result than to whether they were aware of the Risk of death. As such, the question and answer go more to whether appellants possessed the requisite culpable mental state for murder than for involuntary manslaughter.

Second, proof of a culpable mental state generally relies on circumstantial evidence. Upon consideration of recklessness versus criminal negligence, whether one is aware of a requisite risk or simply should be aware of it, is a conclusion to be drawn through inference from all the circumstances by the trier of fact. The statement by a witness that it is Possible that a person was not aware of a risk of which most persons similarly situated would be aware is simply a statement of the obvious. The issue is not one of theoretical possibility, but one of whether, given all the circumstances, it is reasonable to infer that the particular individual on trial was in fact aware of the risk. If such an inference is reasonable, it is for the trier of fact to determine which circumstances to accept as proven and whether to draw that inference, and it is not for this Court to overturn such an inference, drawn on the whole of the circumstances, because one witness testified to the possibility that the inference could be false even though soundly supported by the circumstances. Such an approach to the issues of proof of culpable mental states would render the evidence insufficient in all cases, as it is always Possible that one's intents are different than what all outward appearances would indicate.

The ground of error is overruled.

The judgment is affirmed.

ROBERTS, Judge, dissenting.

Appellants contend that the evidence was insufficient to support their pleas of nolo contendere because the State failed to prove that they "recklessly" caused the death of their infant child, Rita Dillon. ¹ I would reverse the judgments of conviction.

Rita Dillon died on January 22, 1977 at the approximate age of five months; the cause of death was starvation. Although the exact date is not reflected by the record, it appears that sometime during the month of November, 1976, appellants brought Rita to the emergency room of Darnall Army Hospital at Fort Hood in order to receive treatment for ant bites. The record reflects that Rita was examined and treated by a physician's assistant who noted on his report that "Examination was normal."

Rose Hundley, a nurse at the hospital, testified that on January 20, 1977, she met appellants at a bowling alley on post at Fort Hood. Hundley testified that she was "shocked" at the child's appearance. She also testified that when she was holding Rita, Jeffery Dillon commented, "Don't you think she is skinny?" Hundley finally testified that when she returned to the hospital that evening she informally notified a few staff...