                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-18-00315-CR


                        CORAIMA RODRIGUEZ, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 286th District Court
                                  Cochran County, Texas
                Trial Court No. 16-04-1519, Honorable Pat Phelan, Presiding

                                    March 28, 2019

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

      Coraima Rodriguez, appellant, appeals her final conviction for manslaughter. Her

sole issue involves the sufficiency of the evidence supporting the jury’s verdict and

conviction.   She believes that the evidence was insufficient to establish, beyond

reasonable doubt, the culpable mens rea of recklessness. That is, “the State failed to

prove that [appellant’s] actions—overcorrecting when she drifted off the roadway and

failing to secure her children in the vehicle—constituted the extreme degree of risk

necessary to prove recklessness. Particularly, the risk posed did give rise to a likely or
imminent probability that death would occur from her actions. At best, the evidence at

trial demonstrates that [appellant] was negligent.” The State did not favor us with a brief

replying to appellant’s contention. Nonetheless, we affirm the conviction given the facts

and law involved.

       The underlying facts involved appellant placing her two children in a Chevy Tahoe,

failing to secure their movement via seatbelts or other physical restraints such as child

safety seats, driving the vehicle down a rural road, approaching a curve at around 67

mph, running off the road, and overcorrecting the vehicle. Overcorrecting the vehicle

resulted in the Tahoe flipping several times and stopping within a cotton field about 100

feet from the roadway. As the vehicle flipped, the two children were thrown from it. One

died as a result of being thrown from the vehicle. The children were two and three years

old at the time. Some evidence indicates that appellant’s own seatbelt had been fastened

when she lost control of the Tahoe.

       Despite the evidence that her own seatbelt was fastened, appellant explained to

the investigating trooper that:

              the only reason the kids weren’t buckled up was because it
              was Morton, Texas, and she generally didn’t buckle the
              children in safety belts. She also advised that she was
              borrowing the vehicle from a friend and stated that the child
              safety seats were in her vehicle, who [sic] she was allowing
              another individual to borrow.

       Via the amended indictment, the State charged appellant with “recklessly caus[ing]

the death of an individual, namely, [C.R.], by failing to negotiate a curve in the roadway

while operating a vehicle occupied by [C.R.] while [C.R.] was not secured in a child safety




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seat, as required by Section 545.412, Texas Transportation Code.”1                         As previously

mentioned, the jury found appellant guilty of the charge.

        The pertinent standard of review was recently described in Johnson v. State, 560

S.W.3d 224 (Tex. Crim. App. 2018) and need not be reiterated. Furthermore, one

commits manslaughter “if he recklessly causes the death of an individual.” TEX. PENAL

CODE ANN. § 19.04 (West 2011). For purposes of manslaughter, one “‘acts recklessly, or

is reckless, with respect to . . . the result of his conduct when he is aware of but

consciously disregards a substantial and unjustifiable risk that . . . the result will occur.’”

Schroeder v. State, 123 S.W.3d 398, 400-401 (Tex. Crim. App. 2003), (quoting TEX.

PENAL CODE § 6.03(c)); Mornes v. State, No. 05-17-00289-CR, 2018 Tex. App. LEXIS

6223, at *35 (Tex. App.—Dallas Aug. 18, 2018, pet. ref’d) (mem. op., not designated for

publication); accord, Suarez v. State, No. 05-03-00096-CR, 2003 Tex. App. LEXIS 10799,

at *10 (Tex. App.—Dallas Dec. 30, 2003, pet. ref’d) (not designated for publication)

(involving the charge of reckless endangerment arising from the failure to assure that a

child’s seatbelt was engaged and stating that “recklessness would exist if [appellant] was

aware of, but consciously disregarded, a substantial and unjustifiable risk that her failure

to supervise A.E. placed A.E. in imminent danger of death, bodily injury, or physical or

mental impairment”).

        In Suarez, appellant’s child fell from the window of a vehicle stopped at a red light,

which vehicle was being operated by her mother, Suarez. Suarez, 2003 Tex. App. LEXIS

10799, at *1. That resulted in another car hitting and killing the child. Id. at *2. The


        1 Section 545.412 of that Code states that a “person commits an offense if the person operates a

passenger vehicle, transports a child who is younger than eight years of age, unless the child is taller than
four feet, nine inches, and does not keep the child secured during the operation of the vehicle in a child
passenger safety seat system . . . .” TEX. TRANSP. CODE ANN. § 545.412(a) (West Supp. 2018).

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record illustrated that Suarez had not utilized either a seatbelt or a child safety seat to

restrain the youth’s movements while in the car. The incident resulted in the State

prosecuting appellant for recklessly endangering the child. At trial, an investigating officer

opined that fastening the seatbelt would have prevented one from falling from the moving

vehicle. Id. at *10. Nonetheless, Suarez attacked her eventual conviction by contending

that the State failed to prove she 1) committed a reckless act or recklessly omitted to do

an act or 2) engaged in conduct placing the child in imminent danger. The reviewing court

rejected the contention. It began by alluding to the general duty of a parent to care,

control, and protect his child imposed by the Texas Family Code. Id. at *9-10; see TEX.

FAM. CODE ANN. § 151.001(a)(2) (West 2014) (stating that a parent has such a duty). This

duty, coupled with the effect of § 545.412(a) of the Transportation Code, obligated Suarez

to secure the child by either a safety seat or seatbelt, the court continued. Suarez v.

State, 2003 Tex. App. LEXIS 10799, at *8. Given that she failed to do that, the reviewing

court opined that “Suarez is guilty if she was reckless” in committing the omission. Id. at

*10.

       The aforementioned law coupled with the aforementioned evidence then led to the

reviewing court to find evidence of recklessness. It concluded that “[i]f the trial court

believed that A.E. was not secured in a seatbelt after the car left Corral’s house, then

Suarez’s failure to observe that A.E. was not belted when Suarez stopped at the red light

constitutes reckless conduct within the allegations of the indictment.” Id. at *11-12

(emphasis added). Thus, “a rational trier of fact could have found that Suarez’s reckless

failure to supervise A.E. as to her seatbelt, an omission, placed A.E. in imminent danger




                                              4
of death, bodily injury, or physical or mental impairment beyond a reasonable doubt.” Id.

at *12 (emphasis added). We deem Suarez particularly instructive.

       Like in Suarez, we have testimony that appellant’s failure to secure her children

within the Tahoe contributed to the death of her child. Other evidence indicated that

because no two accidents are alike, unsecured children within a vehicle may survive a

crash. Yet, the trooper who provided the foregoing statement followed that with “I think

we can say if they were buckled up the way they should have, there is a very much higher

probability that they would have lived.” The same trooper also testified, without objection,

that “ knowing that she is not going to buckle up her kids and knowing that her kids weren’t

buckled is a reckless act in itself.”

       Other evidence indicated appellant approached the curve in question at 67 mph.

The trooper indicated that before the curve appeared a yellow cautionary sign advising

drivers to slow to 55 mph. Though appellant questioned whether this sign was placed at

the locale after the accident and the trooper’s response may have created some

uncertainty, the jury remained free to conclude the sign was present given the initial

testimony about it being there. See Cagle v. State, 976 S.W.2d 879, 882 (Tex. App.—

Tyler 1998, no pet.) (stating that contradictions or conflicts in a witness’ own testimony or

in the testimony of several witnesses do not destroy the sufficiency of the evidence; the

contradictions relate to the weight of the evidence and the credibility given the witness by

the factfinder). It also allowed the jury to accept the trooper’s comment that the “safe”

speed for traversing the curve was 55 mph.

       That appellant acquired car seats for the children is clear from the record. Thus,

a factfinder could reasonably infer that she knew of their purpose and the purpose of her



                                             5
own seatbelt which had been fastened. Yet, she opted to forego utilizing the car child

seats simply because she was driving someone else’s car.

       Like Suarez, appellant had the duty to care and protect her children. That duty

coupled with § 545.412(a) of the Transportation Code obligated her to do more than

simply place her children within the Tahoe; instead, she was obligated to secure her

children via a seatbelt or safety seat. Suarez v. State, supra. A factfinder “need not check

. . . common sense at the door” when called to serve on a jury. Arteaga v. State, 521

S.W.3d 329, 336 n.11 (Tex. Crim. App. 2017). The jury was free to reasonably infer that

allowing small children to remain unrestrained within a moving car traveling at a high rate

of speed posed a substantial and unjustifiable risk of harm to the children and that a

parent who had safety seats for her children (like appellant) understood that. Driving 67

mph posed a grave likelihood that unsecured children would be thrown around the vehicle

should it come to a sudden stop, strike another vehicle, be struck by another vehicle, or

fail to negotiate a curve having a posted cautionary safe speed of 55 mph. They may not

die, according to the trooper, but the probability of their survival grows through the use of

child restraints, according to the same witness. And, it is that witness who expressly

characterized appellant’s decision as reckless, which characterization the jury was free

to accept in assessing if appellant was reckless. See Delgado v. State, 235 S.W.3d 244,

251 (Tex. Crim. App. 2007) (stating that “[o]nce evidence has been admitted without a

limiting instruction, it is part of the general evidence and may be used for all purposes”);

see also Thornton v. State, 425 S.W.3d 289, 305 n.82 (Tex. Crim. App. 2014) (stating

that “‘a reviewing court is permitted to consider all evidence in the trial-court record,

whether admissible or inadmissible, when making a legal-sufficiency determination’”).



                                             6
That the trooper, and apparently the jury, so concluded is not novel given Suarez and its

conclusion there that the parent’s failure to see that her child was properly restrained

constituted recklessness.

        So, in presenting evidence of appellant driving as and where she did without

securing her children, the State presented to a rational factfinder more than some

evidence to conclude, beyond reasonable doubt, appellant consciously disregarded a

substantial and unjustifiable risk that the death of her young kids would result.2 Such

leads us to overrule appellant’s argument that the State failed to prove appellant

recklessly caused the death of C.R.

        The judgment is affirmed.


                                                                      Brian Quinn
                                                                      Chief Justice


Do not publish.




          2 In so holding, we do not ignore appellant’s argument that the failing to secure a child is not reckless

conduct in Tennessee. Aside from the fact that Texas is not Tennessee, the opinion to which she cited,
State v. Jones, 151 S.W.3d 494 (Tenn. 2004), illustrates that at the time of its rendition the law there was
quite different from that here. As the Tennessee Supreme Court observed, the Tennessee statute permitted
“a mother to remove her child from its car seat to nurse the child or to ‘attend[] to its other physiological
needs’” when the accident happened. Id. at 503. This swayed the court’s decision as exemplified when it
stated: “[t]he legislative determination that it was permissible for a mother to hold a child for such non-
emergency purposes, rather than keeping the child in a restraint” militated “against a finding that it was a
gross deviation from the standard of care for Ms. Jones to do so in this case.” Id. In other words, the
Tennessee court hesitated to characterize the mother’s action in Jones as a deviation from the standard of
care when the Tennessee statute permitted such conduct. Unlike Tennessee’s, Texas statute required
then and now the child to be restrained. Again, this is Texas, not Tennessee.

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