Tenner v. State

• Decision Date: 23 December 1988
• Docket Number: No. 2-86-285-CR,2-86-285-CR
• Citation: 763 S.W.2d 877
• Parties: James Earl TENNER, Appellant, v. STATE of Texas, State.
• Court: Texas Court of Appeals

Page 877

763 S.W.2d 877

James Earl TENNER, Appellant, v. STATE of Texas, State.

No. 2-86-285-CR.

Court of Appeals of Texas Fort Worth.

Dec. 23, 1988.

Michael Logan Ware, Law Offices of Lane, Lane & Ware, Fort Worth, for appellant.

Tim Curry, C. Chris Marshall, Criminal Dist. Attys., Ken Dies, Robert Mayfield, Darrell Adkerson, Asst. Criminal Dist. Attys., for State.

Before BURDOCK, HILL and LATTIMORE, JJ.

OPINION

HILL, Justice.

James Earl Tenner appeals his conviction by a jury of the offense of murder. See TEX.PENAL CODE ANN. sec. 19.01 (Vernon 1974). The jury answered true to three enhancement paragraphs and assessed Tenner's punishment at ninety-nine years in the Texas Department of Corrections. In five points of error, Tenner asserts the trial court erred in failing to submit to the jury the lesser-included offenses of negligent homicide and involuntary manslaughter, and in overruling his objection to arguments by the prosecutor which he characterizes as comments on Tenner's failure to testify, in violation of his rights under the Fifth Amendment to the United States Constitution, article I, section 10 of the Texas Constitution, and article 38.08 of the Texas Code of Criminal Procedure.

We affirm, because we find the evidence does not establish that if Tenner were guilty at all, he was guilty only of the offense of negligent homicide or of involuntary manslaughter; and because we find the argument of the prosecutor could not necessarily be construed as a comment on Tenner's failure to testify due to the fact that there were other persons present at the time of the offense.

In point of error number one, Tenner urges the trial court erred by not submitting to the jury a charge on the lesser-included offense of negligent homicide.

Tenner was upset because his daughter, Erica, had gotten into trouble at school for taking an extra milk at lunch.

Tenner's son testified that Tenner first whipped Erica with a belt. After giving her several licks, he went out the front door. When he came back, he slammed Erica to the middle of the floor. She hit the floor, then rolled over. Tenner started whipping her with the belt again. He then put down the belt, grabbed a paint stick, and started hitting the child on her back, buttocks, and leg until the stick broke. The child turned over on her back. Tenner got down on his knees, grabbed the child by her pigtails, and banged her head on the floor three times. When the child got up, she was staggering. Tenner hit her with the belt again, this time on the shoulder. She then fell over the coffee table, with her stomach and legs hitting the coffee table and her forehead striking the front cushion part of an adjacent couch.

A child protective services worker testified that Tenner told him that Erica was injured when she fell over a coffee table while he was spanking her.

The deputy chief medical examiner testified that an examination revealed multiple blunt-type injuries over the body. There were injuries to the back and top of the head that could have been caused by a carpeted floor. He expressed his opinion that the injuries to the back and top of the head were caused by a flat surface. He said that in his opinion the cause of death was a blunt injury to the head.

We must determine whether the evidence raises the issue of a lesser-included offense and whether there is testimony that, if guilty at all, the defendant is only guilty of the lesser-included offense. See Hunter v. State, 647 S.W.2d 657, 658 (Tex.Crim.App.1983).

Texas Penal Code section 19.07(a) provides for the offense of criminally negligent homicide by stating that, "[a] person commits an offense if he causes the death of an individual by criminal negligence." TEX.PENAL CODE ANN. sec. 19.07(a) (Vernon 1974).

Section 6.03(d) of the Penal Code provides:

(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

TEX.PENAL CODE ANN. sec. 6.03(d) (Vernon 1974).

There were only two theories presented by the evidence as to how Erica suffered the injuries that caused her death. One theory was that Tenner caused it by grabbing the victim's hair and slamming her head against the floor. The other theory was that the injury might have been caused when the child fell over the coffee table and hit her head on the couch.

The jury found that Tenner intentionally, with intent to cause serious bodily injury, committed an act clearly dangerous to human life, which caused the child's death.

If the child's death were caused by his slamming the child's head against the floor, Tenner would not be entitled to an instruction on criminally negligent homicide because those facts are consistent with the offense of murder as found by the jury. Nothing in the record reflects a lack of intent on Tenner's part to cause the child serious bodily injury.

Since the evidence in that event is consistent with the offense of murder as found by the jury, and since there is no evidence reflecting a lack of intent to cause serious bodily injury, it follows that the evidence would not then establish that if Tenner were guilty at all he would only be guilty of criminally negligent homicide. See Johnson v. State, 681 S.W.2d 648, 651 (Tex.App.--Houston [14th Dist.] 1984, pet. ref'd).

We note also that in the Practice Commentary following section 6.03 of the Penal Code, the examples given of criminal negligence are limited to conduct which, although dangerous, creates only a risk of harm which the actor ought to have perceived. None of the examples cited relate to conduct which directly causes harm.

On the other hand, if we assume death occurred as a result of the child falling over the coffee table and hitting her head on the front cushion part of the couch, Tenner would not be entitled to the charge for the reason that under the circumstances the risk of the child falling over a coffee table and suffering death or other serious bodily injury would not have been a substantial risk of which Tenner ought to have been aware. Consequently, the failure to perceive such a risk would not constitute a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as seen from the actor's standpoint. Therefore, assuming this alternative, Tenner would not be entitled to a charge on criminally negligent homicide.

Tenner relies on the cases of McKenzie v. State, 521 S.W.2d 637 (Tex.Crim.App.1975) and Stiles v. State, 520 S.W.2d 894 (Tex.Crim.App.1975). Neither case is applicable to the facts before us in this case, regardless of which way the child suffered the injuries which caused her death. First, the injuries suffered by the victims in those two cases were caused by an intentional act of the defendant. In this case there is no indication that the child's fall over the coffee table was caused by the intentional act of Tenner. Second, in neither of those cases was the action relied upon by the defendant an action which was directly harmful to the child. In McKenzie, the defendant insisted that he and the child were playing and the child was doing "flips." In Stiles, the defendant insisted that he was dropping a baby on a bed. In this case Tenner's act of slamming the child's head against the floor was an act which was directly harmful to the child. We find these cases to be distinguishable from this case for the reasons which we have stated. We overrule point of error number one.

In point of error number two, Tenner argues that the trial court erred by failing to charge the jury on the lesser-included offense of involuntary manslaughter.

Again, Tenner would have been entitled to such a charge only if there were evidence showing that if Tenner were guilty at all he was only guilty of the offense of involuntary manslaughter.

Section 19.05(a) of the Texas Penal Code provides, among other things which are not applicable here, that, "[a] person commits an offense if he: 1) recklessly causes the death of an individual." TEX.PENAL CODE ANN. sec. 19.05(a) (Vernon Supp.1988).

Section 6.03(c) of the Texas Penal Code provides as follows:

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

TEX.PENAL CODE ANN. sec. 6.03(c) (Vernon 1974).

Under the facts before us, regardless of whether the child's death was caused by her falling over the coffee table or by Tenner's action in banging her head against the floor, Tenner would not be entitled to such a charge.

As we have previously stated in our discussion of point of error number one, if we assume that death occurred as a result of the child falling over the table and hitting her head on the couch, there would have been no substantial risk of the child suffering death or serious bodily injury for Tenner to have been aware of but consciously disregard.

If, on the other hand, the child's death was caused by Tenner's act of banging her head on the floor, such an action is consistent with the offense of murder as found by the jury, and since there is no evidence reflecting a lack of intent to cause serious bodily injury, the evidence does not show that if Tenner were guilty...