Thetford v. State
| Decision Date | 28 January 2021 |
| Docket Number | No. 02-18-00488-CR,02-18-00488-CR |
| Parties | DANITA CAROL THETFORD, Appellant v. THE STATE OF TEXAS |
| Court | Texas Court of Appeals |
On Appeal from the 432nd District Court Tarrant County, Texas
Before Sudderth, C.J.; Womack and Wallach, JJ.
Danita Carol Thetford appeals her convictions for attempted murder and injury to her son, C.T., allegedly due to Munchausen syndrome by proxy.1 Thetford raises three points on appeal: (1) whether the trial court erred by denying her motion to quash her attempted-murder indictment for failure to state an offense; (2) whether Thetford's punishments for attempted murder and injury to a child violate the federal Double Jeopardy Clause; and (3) whether the trial court erred by instructing the jury with a coercive Allen charge. Because Thetford failed to preserve her complaint as to the indictment, because multiple punishments are authorized under express statutory language, and because the trial court's Allen charge was not coercive under the circumstances of this case, we will affirm the judgments of conviction.
It is undisputed that, during the first five years of his life, C.T. suffered from numerous medical conditions, including difficulty eating and constipation, due in part to his premature birth. But according to Thetford, these conditions lingered well beyond his fifth year, hindering his ability to properly eat, digest, and excrete food.
In 2012, Thetford took then-10-year-old C.T. to Cook Children's Medical Center and reported that he was constipated, was retching and gagging after eating, and was not gaining weight. Over the next four years, doctors prescribed numerous medications for C.T. and performed multiple surgeries to address the gastrointestinal issues Thetford reported.
Initially, the doctors at Cook Children's attempted to treat C.T.'s reported constipation with prescription medications. But in 2013, after Thetford claimed the drugs were not working, C.T. underwent an appendicostomy.2 And in 2015, after Thetford continued to report that C.T. was painfully constipated, medical providers performed an ileostomy on C.T.3 During this same time period, Thetford began reporting that C.T. refused to eat and again complained that he was retching and gagging after eating. Ultimately, these reports led C.T.'s doctors to place a gastrostomy button ("g-button") on C.T. to allow direct feedings into C.T.'sstomach.4 C.T. gained approximately six pounds in his three-day stay in the hospital following placement of his g-button. But after C.T. returned home, Thetford continued to report that her son could not tolerate food—even through the g-button—and that eating caused him pain. Consequently, C.T.'s doctors placed "a special IV called a central line"—known as total parenteral nutrition ("TPN")5—to provide C.T. with intravenous sustenance. But because Thetford still claimed C.T. was retching and that, despite the g-button and central line, feedings caused C.T. pain, his doctors recommended hospice care—not because C.T. was dying but so that C.T.'s insurance would pay for at-home assistance with his feedings.6
In early March 2016, Angel Unaware began providing hospice care to C.T. At that time, C.T. was 13 years old but weighed only 51 pounds. While receiving help from Angel Unaware, Thetford continued to claim that the intravenous TPN and g-button feeds were making C.T. retch in pain, although Angel Unaware staff witnessed no retching and minimal pain. But since C.T. was a child and Angel Unaware staff did not live with him, they trusted Thetford's reports of C.T.'s condition.
Angel Unaware staff also noticed that Thetford shortened C.T.'s TPN feedings due to his alleged pain, and Thetford began requesting increases in the strengths and dosages of C.T.'s pain medications, claiming C.T. could not even walk, get a sponge bath, or be repositioned during his sleep—much less eat or digest food—without pain.
In April, C.T. was transferred to Angel Unaware's inpatient suite at the Ronald McDonald House. Thetford had discontinued C.T.'s TPN and g-button feedings prior to the transfer, and C.T. did not receive any such feedings while there. While C.T. was at the Ronald McDonald House, Thetford took steps to prevent C.T. from receiving solid food, claiming that she discouraged feeding C.T. because it caused him pain and would "prolon[g] the inevitable." Thetford requested a sign to be placed on C.T.'s door indicating that no food or drink should be brought into his room. She also asked Angel Unaware staff members to "give [C.T.] something that [would] make him go to sleep and not wake up." By this point, the Angel Unaware staff had grownconcerned that they had not witnessed the symptoms Thetford reported, noticing that C.T.'s alleged outcries of pain were consistently relayed through or prompted by Thetford, while C.T.'s vital signs and facial expressions rarely indicated pain. Because C.T. was due for hospice recertification, the Angel Unaware staff told Thetford that they needed to evaluate C.T.'s symptoms for several days without any family members present. According to Angel Unaware staff, during the evaluation period, C.T. asked for and "devoured" a variety of food—including a bean and cheese burrito—without retching or vomiting; he urinated without pain or alarming discharge; he slept and was repositioned during his sleep without incident; and he got out of bed and walked to the television. These actions contradicted Thetford's claims as to C.T.'s abilities, limitations, and conditions.
But Thetford, unhappy with the evaluation procedure, promptly removed C.T. from the Ronald McDonald House and took him back home with plans to procure hospice care from another provider.7 Within a day, Child Protective Services removed C.T. from Thetford's care and took him to Cook Children's.
Upon arrival at the hospital, C.T. was extremely malnourished and weighed only 53 pounds. Once admitted, he began eating large portions of food, experienced no abdominal issues, and gained 20 pounds in approximately two months. C.T.'s pediatric surgeon reversed his ileostomy, and his intestines immediately started working again.8 C.T.'s central line and g-button were also removed, as he no longer required intravenous nutrition or direct feedings through his stomach, and C.T. gladly ate his food without needing pain medications.9
Ultimately, many of C.T.'s doctors, including his surgeon, concluded that the ileostomy and gastrostomy procedures had been unnecessary.
Thetford was indicted on five counts: (1) injury to a child by providing false information to medical professionals causing an unnecessary ileostomy; (2) injury to a child by providing false information to medical professionals causing an unnecessary gastrostomy; (3) injury to a child by failing to provide adequate food, adequatenutrition, or both; (4) attempted murder by failing to provide adequate food, adequate nutrition, or both; and (5) exploitation by using fabricated symptoms of C.T. as the basis for a charity fundraiser. Thetford filed a broad motion to quash her indictment, and the trial court held a hearing on the motion.
At the hearing, Thetford focused her arguments on counts one, two, and five of the indictment.10 She made only a short argument regarding counts three and four, claiming that because the counts were "both specific intent offenses . . . alleged [] by omission," and because the State is not bound by the dates in the indictment, then "it's just so vague" and "need[s] more particularity." The trial court took the motion under advisement but tentatively denied the motion as to counts three and four.
Thetford was subsequently reindicted to clarify that the State charged Thetford with a failure to act when she had a duty to do so. As amended, count four charged Thetford with attempted murder by failing to provide adequate food, adequate nutrition, or both, "at a time when the defendant had assumed care, custody[,] orcontrol of [C.T.] or had a legal duty to act because the defendant was the mother of [C.T.]."11 See Tex. Penal Code Ann. § 6.01(c) (). Thetford then re-urged her previously filed motion to quash "because all of the allegations that [she] made and the arguments that [she] made when [she] argued the motion to quash[] equally appl[ied] to this new indictment." The trial court denied the motion.
The State then waived count five and proceeded to trial on the remainder of the indictment.
The guilt—innocence phase of Thetford's trial took nearly three weeks.12 The jury began deliberating at approximately 4:00 p.m. on Monday, October 15, 2018. By the time the court recessed for the day at 6:30 p.m., the jury had already sent the trial court five notes requesting copies of the evidence and other documents referenced during the attorneys' closing arguments. On the following day, the jury deliberatedfor more than five hours13 and sent two notes requesting specific exhibits as well as a list of exhibits. Just after 5:00 p.m. that day, the jury indicated it was "unable to come to unanymous [sic] decision on any of the four (4) counts" and "request[ed] to be on recess until to [sic] tomorrow." The trial court obliged.
Deliberations continued Wednesday morning. However, within 30 minutes, the jury sent a note stating, The trial court considered issuing an Allen charge but ultimately decided that such a charge would be premature because "the trial took three full weeks" and the jury had been deliberating ...
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