Hilliard v. State

• Decision Date: 17 July 1974
• Docket Number: No. 47632,47632
• Citation: 513 S.W.2d 28
• Parties: Dave Horace HILLIARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 28

513 S.W.2d 28

Dave Horace HILLIARD, Appellant, v. The STATE of Texas, Appellee.

No. 47632.

Court of Criminal Appeals of Texas.

July 17, 1974.

Rehearing Denied Sept. 18, 1974.

John L. Foster and Wayne D. Meissner, Austin, for appellant.

Robert O. Smith, Dist. Atty., Stephen H. Capelle, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

Appellant was convicted, in a jury trial, of murder with malice. Punishment was assessed at life imprisonment.

The record reflects that on September 6, 1972, appellant resided with the mother of deceased Monica Marie Jones, along with Monica, her grandmother and the latter's husband. Monica was then two years eight month old. Early in the afternnon of September 6, appellant took Monica to a neighborhood store. The store manager saw Monica run out of the store, and appellant chasing after her. Five minutes later, appellant returned carrying Monica whose dress had blood on it. An eyewitness observed appellant striking Monica in the back with his fist and kicking her with his feet. Appellant took her home, where he told her grandmother that she had been asleep across the street at the washateria. Monica had diarrhea that evening, was unable to get up to play the next day, and was taken to the hospital.

Dr. Bowen examined her on September 8, and on the 9th performed surgery. He found her to be in a profound shock, with a laceration of the right lobe of the liver, and stress ulcers caused by physical stress or extreme emotional upheaval. She had numerous scars and one active open wound on her legs and an abrasion on her skin, and lacerations of a type most frequently occurring from a moderate to large amount of external force applied to the body. In his opinion, the laceration of the liver was caused from 'external blunt trauma,' which would have resulted from being kicked or hit with a man's fist.

Medical testimony, including that of a surgeon who performed two operations on the child, due to internal bleeding, and a pathologist who did an autopsy shortly after her death in the hospital on the morning of September 12th, established that her death was due to a fracture or laceration of the right lobe of her liver caused by external blunt trauma. This laceration could have been caused by the child being kicked, or struck with a fist.

Appellant in his first ground alleges that the court committed error in submitting paragraphs V, VI, VII, VIII, and IX of the chrge to the jury, since such paragraphs presented a theory for conviction not alleged in the indictment. He claims a fatal variance under Article 21.02 and 21.11, Vernon's Ann.C.C.P., and a denial of due process as guaranteed by the Fourteenth Amendment of the Federal Constitution.

The indictment charged the appellant with the unlawful killing with malice aforethought of the deceased by kicking and stomping her with his feet, and by other means unknown to the grand jurors. Paragraph V of the charge set out the terms of Article 1148a, Vernon's Ann.P.C. ¹ Paragraph VI defines a battery. Paragraph VII contains the language of Article 42, V.A.P.C. ² Paragraph VIII provides that murder with malice, murder without malice, and the intentional infliction of injury on a child 14 years of age or younger are felonies. Paragraph IX of the charge reads of follows:

'Now bearing in mind the foregoing instructions, if you find and believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Dave Horace Hilliard, on or about the 6th day of September, 1972, in the County of Travis and State of Texas did then and there voluntarily with malice aforethought kill Monica Marie Jones by kicking her with his feet, and by other means unknown to the Grand Jurors,

or

'If you believe from the evidence, beyond a reasonable doubt, that the defendant, Dave Horace Hilliard, in the County of Travis and State of Texas, on or about the 6th day of September, 1972 with malice aforethought did then and there while intending to unlawfully and intentionally commit a battery upon Monica Marie Jones, a child younger than 14 years of age, and that in the act of preparing for executing the same, through mistake or accident killed the said Monica Marie Jones, a child younger than 14 years of age by kicking her with his feet, and by other means unknown to the Grand Jurors, then you will find the defendant guilty of murder with malice aforethought and so say by your verdict, but if you do not so believe from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant, Dave Horace Hilliard, of the offense of murder with malice aforethought, and proceed to consider the question of the defendant's guilt or innocence of the offense of murder without malice.'

Appellant objected to the submission of the issue of appellant's guilt under the provisions of Article 42, V.A.P.C., since the indictment alleged only murder with malice, and not an accidental killing while preparing for an executing a felony, and, therefore, the indictment failed to give him notice of the accusation he needed to meet, this being in contravention of Chapter 21, of the Texas Code of Criminal Procedure and the due process clause of the Constitution of the United States.

This contention is without merit and is overruled. Caraway v. State, Tex.Cr.App., 489 S.W.2d 106, 110. Cf. Hodges v. State, 160 Tex.Cr.R. 579, 272 S.W.2d 902; Walker v. State, 138 Tex.Cr.R. 343, 135 S.W.2d 992. As stated in Caraway, supra, in overruling this same contention:

'Appellant also complains that the court erred in charging the jury under Art. 42, V.A.P.C. He claims that the indictment alleged only murder with malice aforethought, thought, not an accidental killing committed while preparing for or executing a felony, and that therefore the indictment failed to inform him as to the accusation he needed to meet.

'This Court has held that the State need not plead its evidence in the indictment. Silva v. State, 112 Tex.Cr.R. 223, 15 S.W.2d 1046 (1929); Jones v. State, 89 Tex.Cr.R. 355, 231 S.W.2d 122 (1921).'

In ground of error number two, appellant urges that the court improperly charged the jury, over his objection, in its application of Article 42, V.A.P.C., in conjunction with Art. 1148a, V.A.P.C., in paragraphs V, VI, VII, VIII, and IX of the charge. Appellant contends that article 42 cannot be used to eliminate the gradation of assaultive offenses, and argues that this Court should hold that such article has no application in instances, such as the instant situation, where the only act committed was the single felonious assault and battery on the deceased.

Appellant refers to Article 42, V.A.P.C. as the 'felony-murder statute,' ³ and concedes that where the felony intended to be committed, and which the accused is in the act of preparing for or executing, is other than the assault upon the deceased which directly causes the death, such as, 'in robbery, rape, or arson,' Article 42 'may be invoked to effectuate the Legislature's intent to be serve with such felons.' However, he contends that if the only act involved was the direct assault upon the deceased, 'Article 42 should not apply, so that the issues of accident, mistake, and intent, which the Legislature has deemed normally relevant in deciding the accused's fate, may be considered by the jury.'

In support of his contentions, appellant relies on a number of out of state cases, such as, People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 (1969); People v. Moran, 246 N.Y. 100, 158 N.E. 35; State v. Branch, 244 Or. 97, 415 P.2d 766; Tarter v. State, 359 P.2d 596 (Okl.Cr.); State v. Severns, 158 Kan. 453, 148 P.2d 488, and others, most of which are cited in the articles named in footnote 2. These cases, for the post part, construe State statutes which differ from our Article 42, V.A.P.C. Insofar as any of such cases may be applicable to the facts of the instant case, we do not feel inclined to be influenced by them.

Appellant argues that Article 42, supra, cannot be utilized to eliminate the legislatively created gradation of assaultive offenses, and in his brief says:

'Squarely before this Court is the issue of whether Article 42 of the Texas Revised Penal Code shall be interpreted as eliminating grades of homicide less than murder. The Legislature of this State has made it clear that it intends for these to be various categories of homicide, distinguishable by the mental state of the accused at the time of the killing. This concept of graded homicide carries the necessary implication that lesser assaultive felonies may not be used for the purpose of Article 42.'

We agree that the Legislature intended that there by distinct categories of homicide and assaultive offenses. Article 42, V.A.P.C., does not eliminate gradation of homicide; it adds another manner of showing murder; that is, murder committed while in the act of committing another felony.

The act of maiming, disfiguring or battering a child 14 years of age or younger with the intent to cause physical injury to or deformity or deficiency in said child is made a felony by Article 1148a, V.A.P.C. Article 42, V.A.P.C., has been consistently construed by this Court to mean that the defendant is actually guilty of the offense that was committed by the mistake during the preparation or execution of another felony. Crawford v. State,511 S.W.2d 14 (Tex.Cr.App.1974); Lopez v. State, Tex.Cr.App., 482 S.W.2d 179. The evidence in the instant case is sufficient to sustain a finding that appellant while committing the felony prohibited by Article 1148a, supra, by mistake caused the death of deceased.

In Crawford v. State, supra, we held that in a murder case the court properly instructed the jury on the felony offense of assault with a prohibited weapon in conjunction with Article 42, saying:

'The trial court in applying Article 42 properly charged the...