Fraser v. State

593 S.W.3d 883

Marian FRASER, Appellant

v.STATE of Texas, Appellee

No. 07-15-00267-CR

Court of Appeals of Texas, Amarillo.

December 20, 2019

Discretionary Review Refused April 8, 2020

E. Alan Bennett, Waco, for Appellant.

David L. Richards, Fort Worth, for Appellee.

Before QUINN, C.J., and PIRTLE and PARKER, JJ.

OPINION ON REMAND

Patrick A. Pirtle, Justice

Appellant, Marian Fraser, was convicted of the offense of murder¹ and sentenced to fifty years confinement and was assessed a $10,000 fine. On direct appeal, this court found that because her conviction was potentially based on the underlying felony offenses of reckless or criminally negligent injury to a child, or reckless or criminally negligent child endangerment, theories we believed would not support a felony murder conviction, her conviction was reversed. See Fraser v. State , 523 S.W.3d 320 (Tex. App.—Amarillo 2017), rev'd , 583 S.W.3d 564 (Tex. Crim. App. 2019). On the State's Petition for Review , the Court of Criminal Appeals reversed the judgment of this court and remanded the matter in order that we might address Appellant's claim that the definition of "reckless" contained in the Charge of the Court was overly broad.² See Fraser v. State , 583 S.W.3d 564, 571, n.41 (Tex. Crim. App. 2019).

On remand, we find the trial court erred in its charge to the jury. We further find that, under the facts of this case, such error was egregious in that it (1) deprived Appellant of her right to a fair trial and (2) vitally affected a defensive theory. Accordingly, for the reasons that follow, we reverse and remand.

BACKGROUND

The background facts of this case are well-stated in our original opinion and they are further discussed in each of the four separate opinions issued by the Court of Criminal Appeals. Accordingly, we refer the reader to the opinions cited above for a full discussion of the underlying facts. Suffice it to say that, in an unfortunate series of events, a four-month old infant died while in Appellant's care. The medical examiner's conclusion as to the cause of death was that the infant died as the result of being given a toxic amount of diphenhydramine, the active ingredient in Benadryl. Based on those facts, the State indicted Appellant for the first-degree felony offense of murder, pursuant to section 19.02(b)(3) of the Texas Penal Code, relying, in part, on the theory that Appellant committed the underlying felony offenses of reckless or criminally negligent injury to a child³ or reckless or criminally negligent child endangerment;⁴ and, in the course of and in furtherance of the commission of one of those offenses, she committed an act clearly dangerous to human life, namely, administering diphenhydramine to the victim or causing the victim to ingest diphenhydramine, that caused the infant's death. Based on the remand from the Court of Criminal Appeals, we will limit our analysis to the question of whether the trial court's definition of reckless (and criminally negligent conduct) was error, and, if so, whether that error was egregious.

APPLICABLE LAW—CHARGE ERROR

Article 36.14 of the Texas Code of Criminal Procedure mandates that the trial court "shall deliver to the jury ... a written charge distinctly setting forth the law applicable to the case ...." TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). (Emphasis added). A proper definition of statutorily defined terms applicable to the prosecution is considered to be "law applicable to the case." "The purpose of the jury charge is to inform the jury of the applicable law and guide them in its application to the case." Beltran De La Torre v. State , 583 S.W.3d 613, 617 (Tex. Crim. App. 2019) (quoting Hutch v. State , 922 S.W.2d 166, 170 (Tex. Crim. App. 1996) ). Therefore, a proper charge consists of an abstract statement of the law applicable to the case and such application paragraph or paragraphs as are necessary to apply that law to the facts. Ramirez v. State , 336 S.W.3d 846, 851 (Tex. App.—Amarillo 2011, pet. ref'd). The abstract paragraph of a jury charge serves as a glossary to help the jury understand the meaning of concepts and terms used in the application paragraph of the charge. Arteaga v. State , 521 S.W.3d 329, 338 (Tex. Crim. App. 2017). The failure to give an abstract instruction is reversible error when such an instruction is necessary to correct or complete the jury's understanding of concepts or terms in the application part of the charge. Malik v. State , 953 S.W.2d 234, 235 (Tex. Crim. App. 1997).

Furthermore, "[a] trial judge must maintain neutrality in providing such information and guidance." Beltran De La Torre , 583 S.W.3d at 617 (citing Brown v. State , 122 S.W.3d 794, 798 (Tex. Crim. App. 2003) ). Accordingly, the jury charge should avoid any allusion to a particular fact in evidence, "as the jury might construe this as judicial endorsement or imprimatur." Id. Furthermore, an instruction is improper if it "impermissibly guide[s]" a jury's consideration of the evidence and "improperly focuses the jury" on certain evidence because such an instruction would amount to an impermissible comment on the weight of the evidence. Brown , 122 S.W.3d at 802. To accomplish these purposes, article 36.14 provides that a jury charge: (1) must be in writing; (2) must "distinctly set[ ] forth the law applicable to the case"; (3) cannot "express[ ] any opinion as to the weight of the evidence"; (4) may "not sum[ ] up the testimony"; and (5) cannot "discuss[ ] the facts or us[e] any argument in [the] charge calculated to arouse the sympathy or excite the passions of the jury." TEX. CODE CRIM. PROC. ANN. art. 36.14.

Appellate review of claimed jury-charge error involves a two-step process. See Cortez v. State , 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). See also Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). A reviewing court must initially determine whether charge error occurred. Price v. State , 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If an appellate court finds charge error, the next step requires the reviewing court to analyze that error for harm. Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

Charge error requires reversal when a proper objection has been made and a reviewing court finds "some harm," i.e., error that is calculated to injure the rights of the defendant. Barrios v. State , 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Where, as here, the alleged error was not preserved by objection, Appellant can prevail only if she was egregiously harmed by an erroneous charge. Arteaga , 521 S.W.3d at 338. Jury charge error is egregious if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Id. Egregious harm is a "high and difficult standard which must be borne out by the trial record." Reeves v. State , 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).

When reviewing harm resulting from charge error, an appellate court must determine harm in light of (1) the jury instructions, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. See Anaya v. State , 381 S.W.3d 660, 665 (Tex. App.—Amarillo 2012, pet. ref'd) (citing Almanza , 686 S.W.2d at 174 ). Also, there is no burden of proof or persuasion in a harm analysis conducted under Almanza. See Anaya , 381 S.W.3d at 665.

APPLICABLE LAW—ELEMENTS OF THE OFFENSE AND STATUTORY DEFINITIONS

(1) FELONY MURDER

According to the relevant theory of the State's case, the prosecution was required to establish the following elements:

(1) the death of an individual;

(2) caused by an act;

(3) that was clearly dangerous to human life;

(4) committed in the course of and in furtherance of reckless or criminally negligent injury to a child or reckless or criminally negligent child endangerment.

See TEX. PENAL CODE ANN. § 19.02(b)(3).

(2) INJURY TO A CHILD

As to the underlying felony offense of reckless or criminally negligent injury to a child, the prosecution was required to establish the following elements:

(1) Appellant;

(2) recklessly or by criminal negligence;

(3) caused bodily injury;

(4) to the victim; and

(5) the victim was fourteen years old or younger.

See TEX. PENAL CODE ANN. § 22.04(a) (West 2019).

(3) CHILD ENDANGERMENT

As to the underlying felony offense of reckless or criminally negligent child endangerment, the prosecution was required to establish the following elements:

(1) Appellant;

(2) recklessly or by criminal negligence;

(3) engaged in conduct;

(4) that placed a child in imminent danger of death, bodily injury, or physical or mental impairment ; and,

(5) that child was younger than fifteen years of age.

See TEX. PENAL CODE ANN. § 22.041(c).

(4) RECKLESS CONDUCT

Section 6.03(c) of the Texas Penal Code defines "recklessly" as follows:

[a] person acts recklessly, or is reckless, with respect to the 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. § 6.03(c). (Emphasis added).

ANALYSIS—CHARGE ERROR

In Texas, there are three statutorily-defined ways to commit the first-degree felony offense of murder. First, a person commits the offense of murder if she intentionally or knowingly causes the death of an individual. See TEX. PENAL CODE ANN. § 19.02(b)(1). Secondly, a person commits the offense of murder if she intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(2). Thirdly, a person commits the offense of murder if she commits or attempts to commit a felony,...