Harrington v. State
Decision Date | 09 March 1977 |
Docket Number | No. 52626,52626 |
Citation | 547 S.W.2d 621 |
Parties | Gary HARRINGTON, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
DALLY, Commissioner.
This is an appeal from a conviction for the offense of murder; Article 1256, V.A.P.C. (1925); the punishment is imprisonment for life.
Appellant and his wife were jointly indicted for the murder of their two year old daughter. Appellant's motion for severance was granted and his wife was tried first. 1 Appellant contends that the evidence is insufficient to support the conviction; that the court erred in charging the jury on the law of principals; and that the court erred in admitting photographs of the deceased.
The record reflects that the deceased was the two year old daughter of appellant. Of particular importance is the testimony of Assistant Medical Examiner Dr. Giles Green who performed the autopsy on the deceased. Dr. Green described the child as thin, very emaciated, the ribs were very prominent, and the spaces between the ribs were sunken in. There were bruises and abrasions on many parts of the child's body and deep cuts on the child's fingers made with a sharp instrument. The right lung had multiple areas of hemorrhage. The child was 27 inches long and weighed 123/4 pounds. Dr. Green testified that a normal two year old child should be from 30 to 32 inches long. The autopsy revealed that the child died of starvation. Dr. Green stated that since malnutrition will stop a child's growth, his opinion was that the state of malnutrition existed from several months to as much as six months or a year. The child was not suffering from any disease other than the extreme degree of malnutrition which caused her death.
Gail Reise, a neighbor, was a frequent visitor at appellant's apartment and sold Avon products to Mrs. Harrington. She was never allowed in the apartment unless she called first. If she happened to stop by the apartment unannounced no one would answer; but if she went back to her own apartment and called, Mrs. Harrington would meet her at the door. Mrs. Reise only saw the child once when the baby was six months old. On all the other visits she never saw or heard the baby, and the door to the baby's room was always closed. Mrs. Reise, who had raised two healthy children of her own, testified that she saw appellant's baby daughter when she was six months old; Mrs. Reise was of the opinion that the child was not receiving a proper diet. She said the baby did not smile, sit up, make any sounds, or even respond to being held or cuddled. Mrs. Reise never saw a picture of the child in the apartment although she had been shown "snapshot" pictures of appellant and all their pets. During the Christmas season the appellant and his wife hung Christmas stockings for themselves, their dog, cat, bird, and rabbit, but they had no stocking or presents for their baby girl.
Another neighbor, Roylene Babin, who was also an Avon representative, visited appellant's apartment about once every two weeks for about six months, yet never saw or heard the baby, and the door to the baby's room was always closed.
The child died about 10:00 p.m. on July 26, 1973. The police were not called until 4:00 a.m. on July 27th. The police officer who answered the call said the whole apartment had a strong odor of animal and human excrement. Inside the baby's room were two large cages and one contained a "fat" black rabbit. Animal excrement was laying about the floor, and what appeared to be human excrement was smeared on the wall behind the crib. The officer stated that all of appellant's pet animals appeared to be healthy and well fed.
Appellant contends that the circumstantial evidence is insufficient to show that a willful act or omission on his part caused the child's death. He says that the evidence does not show that he, acting alone or in concert with his wife, failed to do any act causing the death of his daughter.
It is the duty of each parent to support his or her minor children. Family Code, Sec. 4.02 (formerly Article 4614, V.A.C.S.); Article 602, V.A.P.C. (1925). See also, Family Code, Sec. 12.04 and Ronk v. State, 544 S.W.2d 123 (Tex.Cr.App.1976). The fact that a father might entrust the care of his child to his wife or some other person does not relieve him of his responsibility to see that his child is properly cared for unless it is shown that some other person had sole and exclusive care, custody, and control of the minor child. Cf. Eaglen v. State, 249 Ind. 144, 231 N.E.2d 147 (1967). The omission or neglect to perform a duty resulting in death, such as of a mother failing to feed her child, may constitute murder where the omission was willful and there was a deliberate intent to cause death. Martinez v. State, 498 S.W.2d 938 (Tex.Cr.App.1973); 40 Am.Jur.2d, Homicide, Sec. 89 (1968); Annot. 61 A.L.R.3d 1207 (1975).
The record reflects that appellant was the father of the deceased child. The child resided with appellant and his wife at their apartment. Appellant introduced some business records from a hospital in Pasadena which showed that he was in the hospital for surgery from June 18th to June 30, 1973. However, those same records and the testimony of the physician who performed the surgery show that appellant was not confined to his bed upon release from the hospital. The child died on July 26, 1973. Moreover, Dr. Green testified that the state of malnutrition extended over a prolonged period of time.
The court charged the jury on the law of murder with malice, criminally negligent homicide, circumstantial evidence, the duty of a parent to support his minor children, and the law of principals. In Floyd v. State, 494 S.W.2d 828 (Tex.Cr.App.1973) this Court stated:
". . . when a jury, advised of the restrictions which the law places on circumstantial evidence, reaches the conclusion upon evidence properly before them that the accused is guilty, it is not for the reviewing court to supplant their findings by its own unless it is able to point to weaknesses, omissions, or inconsistencies in the evidence which destroy its cogency."
We hold that the evidence is sufficient to show that the appellant caused his daughter's death by his failure to perform his parental duty of support. The evidence is also sufficient for the jury to find that the appellant's failure to perform this duty was willful, intentional, and with malice aforethought. The case of Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976), upon which appellant relies, is distinguishable from the facts of this case. In Suff the two month old baby died as a result of a sharp blow to the abdomen with a blunt instrument. This Court affirmed the father's conviction, but reversed the mother's conviction because there was not even "a scintilla of evidence" to show that the mother struck the death blow. In the case at bar the child's death resulted from a continuing course of conduct extending over a prolonged period of time.
Appellant contends that there is no evidence to show that the deceased was Laini Deanne Harrington, since Dr. Green testified that he performed an autopsy on Laini Harrington. This argument is wholly without merit. A failure or mistake in proving the middle name of the victim alleged in the indictment may be disregarded and treated as immaterial. The failure to prove or refer to the middle name did not, under these facts, constitute a variance or raise a question of identity. Article 21.07 V.A.C.C.P.; Martin v. State, 541 S.W.2d 605 (Tex.Cr.App.1976); Stephens v. State, 433 S.W.2d 428 (Tex.Cr.App.1968); Davis v. State, 463 S.W.2d 434 (Tex.Cr.App.1971).
Appellant also claims there was no evidence that he imprisoned his daughter from about November 1, 1972, until her death as was alleged in the indictment. If it was necessary to prove this allegation, which appears to be mere surplusage, the allegation is supported by circumstantial evidence. Roylene Babin testified that she visited appellant's apartment on many occasions selling Avon products. She never saw appellant's daughter during any visit. The door to the baby's room was always closed. Another neighbor, Gail Reise, during much of this same time period, only saw the baby once. On all other visits she did not see the baby and the baby's door was always closed. On the...
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