Flores v. State
| Decision Date | 13 February 2008 |
| Docket Number | No. PD-0265-07.,PD-0265-07. |
| Citation | 245 S.W.3d 432 |
| Parties | Gerardo FLORES, Appellant v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Jay Brandon, San Antonio, for Appellant.
Art Bauereiss, Asst. District Atty., Lufkin, Jeffrey L. Van Horn, State's Atty., Austin, for State.
KELLER, P.J., delivered the opinion of the Court in which MEYERS, WOMACK, KEASLER, and HERVEY, JJ., joined.
Appellant was convicted of murdering his pregnant girlfriend's twin fetuses by stepping on her abdomen, though he maintains that she also took measures to cause the deaths. Appellant raises three constitutional challenges to the capital murder statute. We hold that the statute is constitutional. In addition, appellant contends that the court of appeals erred in ruling that he was not entitled to a jury instruction on the lesser-included offense of deadly conduct. We disagree. Thus, we shall affirm the court of appeals.
Appellant and his girlfriend Erica Basoria, aged 18 and 16 respectively, had been dating for over a year when Ms. Basoria discovered sometime in February 2004 that she was pregnant. An ultrasound later showed that she was carrying twins. At an April 30 appointment, Ms. Basoria told her doctor, Jerry Johnson, that she was considering an abortion.1 Dr. Johnson informed her that the pregnancy was at such a late stage that he could not perform an abortion safely and that no local physicians performed abortions.
According to Ms. Basoria's testimony, she asked appellant to help her terminate the pregnancy by stepping on her abdomen. He did so on two occasions: two weeks and one week before the premature delivery. She had to ask him repeatedly before he agreed to step on her. According to appellant's statement to the police, he used a "slow, steady press" on her abdomen, and stopped pressing once she asked him to stop.
Ms. Basoria also testified that she took measures to induce the deaths of the fetuses. She struck herself in the abdomen more than ten times. She began engaging in this behavior two weeks before the premature delivery; by the last week of her pregnancy, she was striking herself every day. After Dr. Johnson instructed her to refrain from jogging and going on walks, she took up jogging and failed to limit her walking, in a deliberate attempt to endanger the pregnancy. Ms. Basoria further testified that she had violated her doctor's instructions to take prenatal vitamins, though her medical records showed that she had reported taking them.
On May 7, Ms. Basoria—then approximately 20 to 22 weeks pregnant—prematurely delivered the twins at home. They were stillborn. According to the doctor who conducted the autopsies, the cause of the deaths appeared to be some sort of "blunt force trauma" that had occurred sometime between May 4 and May 6. The twins had been dead in utero for at least one day before they were delivered.
Appellant was indicted for capital murder and murder for intentionally or knowingly causing the deaths of "unborn child # 1" and "unborn child # 2."2 Appellant pled not guilty and filed a pretrial motion to dismiss the indictment on the grounds of due process, equal protection, and the Establishment Clause. The trial court denied the motion, and appellant was tried by a jury.
At trial, expert witnesses testified that either a pregnant woman striking herself repeatedly or another person stepping on a pregnant woman's abdomen could terminate a pregnancy. There was no consensus among the witnesses on whether the striking, the stepping, or some genetic abnormality caused the deaths.3
Dr. Johnson and others who observed Ms. Basoria shortly after the premature delivery observed bruises on her upper arms, a "small" bruise on her face, and "a line of purplish bruises" roughly three inches long across her abdomen.4 When asked about the bruises, Ms. Basoria testified that appellant struck her in the face on the night of May 6, causing the bruise there.5 She also testified that the bruises on her arms resulted when she and appellant were engaging in consensual, playful roughhousing. Dr. Stephen Pustilnik, appellant's expert witness, testified that the bruise on her abdomen appeared to be "much more consistent" with the pregnant woman striking herself than with a foot being pressed down on the abdomen. According to appellant's statement to the police and Ms. Basoria's trial testimony, he stepped above her navel, whereas the bruises on her abdomen were below her navel. Likewise, Ms. Basoria testified that she and not appellant caused those bruises.
To support the theory that Ms. Basoria wanted to have the children and was being abused by appellant, the State presented an expert witness who testified about the dynamics that are typically present in an abusive relationship. He observed that, if the abuser is arrested or charged with a crime, the abused victim will commonly defend the abuser, such as by requesting that the charges be dropped or refusing to testify against him. The State also attempted to impeach Ms. Basoria's credibility by presenting testimony of a teacher who testified that Ms. Basoria showed her the ultrasound pictures and appeared happy and excited about the prospect of having children.
The trial court submitted jury instructions on capital murder, injury to a child, and manslaughter, but denied appellant's request for an instruction on deadly conduct. The jury convicted appellant of capital murder and sentenced him to life in prison.
On direct appeal, appellant raised constitutional challenges to the statute under which he was indicted and argued that the trial court erred in denying his request for a lesser-included offense instruction. The court of appeals affirmed his conviction.
In his first ground, Appellant argues that the statute is unconstitutional because it allows the State to prosecute him for killing an "unborn child."6 Appellant claims that the statute thus contravenes the restrictions announced in Roe v. Wade7 and subsequent abortion decisions of the United States Supreme Court by protecting the life of a fetus before the point of viability. We recently rejected this claim in Lawrence v. State,8 and we reaffirm that holding today.
Appellant also argues in his brief that the statute is unconstitutionally overbroad. Because appellant did not raise this argument in his petition for discretionary review, it is not properly before us. We overrule appellant's first ground for review.
In his second ground, appellant argues that the statute's exception for pregnant women terminating their own pregnancies violates equal protection in this case by exempting Ms. Basoria from criminal prosecution while allowing him to be prosecuted.9 This argument depends on the unusual facts of this case.10 Because Ms. Basoria was cooperating with appellant's attempts to kill the fetuses, he argues, the statute treated the two of them differently even though they were both engaging in the same behavior. Both were attempting to cause the deaths, yet only appellant and not Ms. Basoria could be prosecuted under the statute, because she was the pregnant woman carrying the victims.
In advancing this argument, appellant ignores significant evidence that Ms. Basoria did not, in fact, consent to appellant's stepping on her abdomen. She had bruises on her abdomen, arms, and face, and her lips were swollen and bloody. Appellant admitted to hitting her in the face but argues that the other bruises had innocent explanations—namely, that the bruises on her abdomen were caused by her striking herself, and the bruises on her arms resulted from consensual roughhousing between the two. Nevertheless, a jury could reasonably credit the simpler explanation of the bruises: that all of them-not just the one on her face—resulted from abusive acts by appellant. The State supported this inference through testimony on the general tendency of the victim in an abusive relationship to try to protect the abuser from being criminally prosecuted and convicted. Finally, the State presented evidence that Ms. Basoria seemed to be looking forward to carrying the twins to term.
A reasonable jury could conclude from the above evidence that appellant's acts of stepping on her abdomen were simply abusive rather than part of a plan to which she had agreed. Given that appellant's acts might not have been consensual, the very predicate for appellant's equal protection claim—that both he and Ms. Basoria were engaging in the same behavior—need not have been found to be true by a rational trier of fact.11 Only if the acts were consensual could appellant argue that the statute treated him and Ms. Basoria unequally by allowing the State to prosecute appellant but not Ms. Basoria for the same acts.
In short, appellant sought a pretrial dismissal of the prosecution based on a claim that, even if it had been correct on the underlying merits, could have been resolved only by evidence adduced at trial.12 That is not the purpose of a pretrial motion such as a motion to quash the indictment; rather, its purpose is to address "those issues that can be determined before there is a trial on the general issue of the case."13 Appellant's equal protection argument, based on his allegation that Ms. Basoria consented to the acts for which he was being prosecuted, did not present such an issue.14 The court of appeals thus did not err in affirming the trial court's decision to deny the motion to quash the indictment on this ground. We overrule appellant's second ground for review.
In his third ground, appellant argues that the provision defining an "individual" to include an "unborn child"15 violates the Establishment Clause of the U.S. Constitution by adopting "a religious point of view over a secular one."
To determine whether a statute violates the Establishment Clause, this Court has applied the three-prong test from Lemon v. Kurtzman:
First, ...
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