Plunkett v. State
| Decision Date | 15 November 1978 |
| Docket Number | No. 55078,55078 |
| Citation | 580 S.W.2d 815 |
| Parties | Larry PLUNKETT, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Ronald W. Aultman and Jerry J. Loftin, Fort Worth, for appellant.
Robert J. Glasgow, Dist. Atty. and William L. Martin, Jr., Asst. Dist. Atty., Stephenville, Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, PHILLIPS and DALLY, JJ.
This is an appeal from a conviction for murder in which the jury assessed punishment at fifty years.
It is only necessary to discuss one of appellant's grounds of error. In his third ground of error appellant contends the court erroneously charged the jury on the offense alleged.
The indictment in relevant part alleges that appellant did:
". . . intentionally and knowingly cause the death of an individual, April Dawn Peters, by striking her with his hands. . . ."
V.T.C.A., Penal Code Sec. 19.02, which defines the offense of murder, in relevant part provides:
Appellant was clearly charged under Sec. 19.02(a)(1), yet the trial court, in submitting the case to the jury, allowed them to find appellant guilty under either Sec. 19.02(a)(1) or Sec. 19.02(a)(2). Although the court first correctly applied the law to the facts of the case under the theory alleged in the indictment, it then immediately thereafter included this paragraph in its instructions to the jury:
We find the jury charge on a theory not alleged in the indictment was fundamental error requiring a new trial, and sustain appellant's third ground of error. In Morter v. State, Tex.Cr.App., 551 S.W.2d 715, the defendant was convicted of injury to a child on an indictment that alleged he had caused serious bodily injury. On appeal the conviction was reversed because the jury instructions authorized conviction if the evidence showed the defendant had caused serious physical deficiency or impairment, or deformity, which were means not alleged in the indictment. Robbery convictions were reversed for fundamentally defective jury charges authorizing convictions on theories not alleged in the indictments in Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Jones v. State, Tex.Cr.App., 566 S.W.2d 939, and Edmond v. State, Tex.Cr.App., 566 S.W.2d 609. In Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177, a conviction for burglary with intent to commit theft was reversed for fundamental error in the jury charge because it authorized a conviction for burglary with intent to commit a felony or theft even though no intent to commit a felony had been alleged in the indictment.
In this case the indictment alleged murder by intentionally or knowingly causing the deceased's death, but the jury charge expanded on those allegations and authorized a conviction if appellant intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the deceased's death. This was fundamental error 1 and the conviction must be set aside.
The judgment is reversed and the cause remanded.
Before the court en banc.
OPINION ON COURT'S OWN MOTION FOR REHEARING
Appeal is taken from a conviction for murder. V.T.C.A. Penal Code, Sec. 19.02. Punishment was assessed by the jury at fifty years.
Appellant initially challenges the sufficiency of the evidence to support the conviction.
The record reflects that April Dawn Peters, age two, died on January 7, 1975, at her home in Mineral Wells. Appellant lived with the child's mother at the time of the death of the deceased.
Dr. Charles Petty, Chief Medical Examiner for Dallas County, testified as to the cause of death of the child. His testimony was based on the results of an autopsy performed by Dr. Ross Zumwalt on January 8, 1975.
Dr. Petty testified that there were thirty to forty bruises on the body of the deceased. These bruises were from three-eighths of an inch to an inch at their greatest dimension. The bruises were found on the left forehead, both sides of the face, the chest, the abdomen, the back, the front surfaces of both thighs and lower legs, and the inner surface of one thigh. The bruises found on the buttocks were larger than the others and flowed together. Dr. Petty identified State's Exhibit No. 1 as a picture of the deceased depicting the bruises to her face and chest.
The inner surface of the scalp covering the left side of the back of the head was also bruised, and under it was a corresponding fracture of the skull. The fracture was described as "Y" shaped and three inches long at its greatest length. The depth of the fracture was the entire thickness of the skull. The witness observed that the edges of the fracture were not bent inward or depressed, indicating contact with a broad flat object rather than a narrow, more pointed object. The brain was described as swollen.
The autopsy revealed other internal injuries to the trunk of the body. The heart had a tear on its back portion. The sac surrounding the heart contained a considerable amount of blood. The liver, the spleen, and the pancreas had also been torn. There were tears in the tissue that holds the intestines in place, and blood was present in both the chest and abdominal cavities. In the doctor's opinion, each of the above injuries was caused by force either directly applied or indirectly applied, such as a blow or an impact with a fixed object.
When asked whether the internal injuries could have been the result of resuscitation or heart massage attempts, the witness stated that the injuries could have resulted from such actions. In his opinion, however, they were not caused by resuscitative measures. The doctor stated that a great or heavy force would be necessary to cause the injuries to the internal organs that the autopsy revealed. He further stated that no food material or vomitus was found anywhere in the respiratory track, as would be expected if a person had been choking on such material so as to require resuscitation.
Dr. Petty testified that the injury to the head was received approximately an hour before death. He further estimated that the head injury was "somewhat older than the injuries to the abdomen, thirty minutes, perhaps forty-five." An examination of some of the bruises revealed that they were received sometime within 24 hours of death.
The witness concluded that either the injuries to the head or the injuries to the internal organs would have been sufficient to cause the death independently of each other. He stated that in his opinion the injuries to the head were not those normally received when a child falls from an ordinary bed onto a carpeted floor.
Larry Watson, a Mineral Wells police officer, testified in regard to his investigation of the incident. Watson identified State's Exhibits Nos. 2-7 as pictures of the deceased taken at the hospital. These pictures depict the bruises covering the deceased's body as described above.
Gerald Seaman, an ambulance attendant, testified that he attempted to resuscitate the deceased. He found the airway was not blocked and that he was able to get air into the child's lungs. He also attempted to resuscitate the child's heart by external means, but was unsuccessful. Seaman also stated that he applied a suction apparatus to the airways of the victim and that a fluid containing food particles was removed by this method.
Gayle Peters, the mother of the deceased, testified that she left the child in the appellant's care about 6:00 p. m. on the day of the child's death. According to her testimony, earlier that day she had bathed the girl and noticed bruises on her buttocks and stomach only. Peters stated that the bruises on the buttocks were from a spanking administered by the appellant on the previous day. She further stated that when she left the house at 6:00 p. m. the child had no other bruises and seemed to be acting normally. Peters viewed State's Exhibit No. 1 and stated that the bruises depicted in that photo were not present when she last saw the child alive.
Cross-examination revealed that Peters had previously made a statement to police that conflicted with her testimony at trial. In that statement she recounted other injuries sustained by the child in the two weeks before her death. The extent and cause of these injuries mentioned in her statement were testified to in detail by defense witnesses and are set forth in this opinion. Letters written to the appellant by the witness were also somewhat inconsistent with her testimony at trial.
Sherrill Rogers testified that she accompanied Gayle Peters on the day of the child's death. She stated that at 6:00 p. m. when she and Peters left the house the child seemed normal. She related that when s...
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