Morter v. State
| Decision Date | 25 May 1977 |
| Docket Number | No. 52712,52712 |
| Citation | 551 S.W.2d 715 |
| Parties | Donald MORTER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This is an appeal from a conviction for injury to a child. The court assessed punishment at three years' confinement in the Texas Department of Corrections.
The record reflects that on May 3, 1975, the appellant went to the trailer house where he lived with a woman and her three children. As he approached the door, one of the children, Mark, was in the kitchen alone cooking or toasting some bread. Mark was six years old. Appellant knocked on the door and, when he finally entered, the kitchen was full of smoke and Mark had thrown the bread out the back door. In order to punish Mark for cooking in the kitchen alone, appellant picked up the hot skillet that Mark was using and applied it to the child's stomach, causing a severe burn. Photographs of this injury were admitted into evidence and are in the record.
Appellant's version of the incident is contained in his voluntary statement which was admitted into evidence:
Appellant further testified that, while he threatened Mark with the pan he didn't have any intention of burning him, and that the injury occurred as the result of an accident when Mark fell forward as appellant was approaching him with the hot skillet.
Mark testified that appellant ". . . sticked the skillet to my stomach with the handle . . . because he don't want me cooking bread."
Two lay witnesses testified that the burn was bad and one thought it needed medical attention.
The only expert testimony on the seriousness of Mark's injury came from Dr. John Merrick, the physician who treated him. He testified, in pertinent part, as follows:
V.T.C.A., Penal Code, Sec. 22.04, entitled "Injury to a Child," provides that:
Omitting the formal parts, appellant was indicted as follows:
". . . did then and there knowingly and intentionally engage in conduct that caused serious bodily injury to Mark Russell, a child less than 15 years of age;"
V.T.C.A., Penal Code, Sec. 1.07(34), states that:
" 'Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."
The trial court gave this definition of serious bodily injury in its charge. It also charged the jury as follows:
"NOW, THEREFORE, if you believe from the evidence beyond a reasonable doubt, that the Defendant, Donald Morter, on or about the 3rd day of May, 1975, in the County of Parker, and State of Texas, as alleged in the Indictment, did then and there intentionally or knowingly engage in conduct that caused serious bodily injury, serious physical deficiency or impairment, or deformity to Mark Russell, a child younger than 15 years of age by then and there applying a hot skillet to his body, you will find the Defendant guilty of the offense of injury to a child, and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the Defendant of the offense of injury to a child and proceed to consider whether the Defendant is guilty of the lesser included offense of assault."
This record presents fundamental error of which we must take cognizance and review in the interest of justice under the provisions of Article 40.09, Section 13, V.A.C.C.P. See, Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975).
While the indictment...
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