








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1189-13


Nilda Iliana Rodriguez, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS

BELL COUNTY



 Meyers, J., delivered the opinion of the Court, in which Keller, P.J.,
and Price, Womack, Keasler, Hervey, and Cochran, JJ., joined. Alcala, J.,
filed a dissenting opinion, in which Johnson, J., joined.

O P I N I O N



	Appellant, Nilda Rodriguez, was charged with felony murder for the death of her
two-month-old son. She was convicted and sentenced to 30 years in prison. Appellant
appealed, initially challenging the validity of the indictment. The court of appeals,
however, determined that she had not preserved this issue for appellate review. Rodriguez
v. State, 408 S.W.3d 628, 631 (Tex. App.-Austin 2013). Instead, the court of appeals
requested supplemental briefing on whether it should analyze the sufficiency of the
evidence to prove that Appellant committed "an act clearly dangerous to human life in the
course of committing the felony of injury to a child." Id. Concluding that the jury could
have reasonably inferred that Appellant committed acts that were clearly dangerous to
human life in the process of starving her son, the court of appeals held the evidence to be
legally sufficient to support the conviction. Id. at 633-34. We granted Appellant's petition
for discretionary review to determine whether the court of appeals erred in holding that
the evidence was sufficient to prove that Appellant committed an act clearly dangerous to
human life.
FACTS
	On October 8, 2008, Appellant gave birth to twins, one male and one female.
Seven weeks later, EMS was called to Appellant's home when she found the male twin
unconscious and unresponsive. He was taken to the hospital where he was pronounced
dead. An autopsy indicated that the infant died from malnutrition and dehydration. He had
gained only ten ounces since birth and was described by a medical expert as having
wrinkled, tenting skin, no subcutaneous fat, and no fluid in his body that could be drawn
for testing. The expert also explained that this condition was not normal and would be one
that progressed over time, possibly after the child's being provided with small, but not
adequate, amounts of food. Appellant was the only adult responsible for the baby's care,
and the child had not seen a doctor since the time he was born. The other children in
Appellant's care, including the victim's twin sister, seemed to have been fed and had no
health issues related to nutrition.
	At trial, an expert for the State testified that the victim's condition would have
been "apparent to anybody who was taking care of him." This was supported by the
child's great-grandmother, who testified that when she saw him five days prior to his
death, she thought that he looked like a kitten whose mother would not nurse it. She even
told Appellant that the child looked sick and that he would not last another two weeks
until his scheduled check-up with a doctor. Appellant testified, however, that she fed the
child the same as his siblings and that she did not find his lack of weight gain alarming
because he had been born small. Although Appellant asserted that the child did have
trouble taking bottles, she also confirmed that there was no medical reason, such as
chronic vomiting or diarrhea, that would explain the victim's dehydration and
malnutrition. 
	Appellant was charged with murder during the course of and in furtherance of the
commission of the felony offense of injury to a child. The indictment alleged that her acts
of withholding sufficient nutrition and fluid in order for the infant to sustain life and of
starving him were clearly dangerous to human life and caused the child's death. The jury
found Appellant guilty of the felony murder charge and sentenced her to 30 years
imprisonment. 
COURT OF APPEALS
	Appellant appealed, initially challenging the indictment as invalid for not
supporting the conviction because it alleged only injury to a child by omissions, not
affirmative acts, as required by Section 19.02(b)(3). See id. at 631; See also Tex. Penal
Code §§ 19.02(b)(3), 22.04(1). The court of appeals determined that she did not preserve
this issue for appellate review. Rodriguez, 408 S.W.3d at 631. However, the court did
request, on its own motion, that the parties file supplemental briefing on whether the
evidence was sufficient to prove that Appellant committed an act clearly dangerous to
human life in the course of the felony of injury to a child. Id. 631-32.
	After the additional briefing was submitted, the court of appeals then addressed
Appellant's legal sufficiency challenge raised in her supplemental brief where she again
asserted "that the conduct alleged in the indictment and proven at trial-'starvation and
neglect'-were 'omissions.'" Id. at 633. The felony offense of injury to a child by
omission, she argued, could not support her conviction because felony murder requires an
affirmative act. Id. 
	The court of appeals asserted that, while injury to a child can serve as the
underlying felony for felony murder, the State did have to prove an act clearly dangerous
to human life. Id. The court decided that the jury could have inferred from the evidence
that Appellant committed acts in starving the child, such as feeding him far less than he
needed, that were clearly dangerous to human life. Id. Viewing the evidence in the light
most favorable to the verdict, the court of appeals concluded that the evidence was legally
sufficient to support the conviction. Id. at 634.
	Chief Justice Jones dissented, asserting that all of the Appellant's conduct alleged
in the indictment were omissions, or  "instances of failing to act or take some action." Id.
at 636 (emphasis in original). Because the State did not prove that Appellant committed
any "act" at all, let alone an act that caused the victim's death, Chief Justice Jones
concluded that the evidence was insufficient to support Appellant's conviction. Id. at 639.
ARGUMENTS OF THE PARTIES
	Appellant asserts that in order for injury to a child to be the underlying crime for
felony murder, the injury must have been inflicted by an affirmative act. She contends
that her prosecution is based entirely on omissions and, therefore, cannot support her
conviction. She disagrees with the court of appeals, stating that it is just as reasonable for
a jury to infer that continuously feeding an infant less than needed is an omission. Further,
she argues that multiple omissions over time cannot be linked together to become an act.
	As an example of where a defendant's conduct fit the definition of an "act,"
Appellant points to Johnson v. State, 4 S.W.3d 254 (Tex. Crim. App. 1999), in which it
was determined that injury to a child can be the underlying offense for felony murder and
that hitting a child with a blunt object is an act clearly dangerous to human life. Appellant
states that Villanueva v. State, 227 S.W.3d 744 (Tex. Crim. App. 2007), further illustrates
her point because it was decided that convicting a defendant of two counts of injury to a
child, one by an act of striking the infant and one by an omission of not seeking medical
attention for the infant after he was injured, violated double jeopardy. Finally, Appellant
looks to Hill v. State, 881 S.W.2d 897 (Tex. App. - Ft. Worth 1994, pet. granted), in
which a child died from starvation and the defendant was charged with injury to a child
by omission, in order to demonstrate that the process of starvation is an omission, not an
act.
	The State asserts that the question in this case is whether the reasonable inferences
that the jury presumptively made were sufficient to prove the elements of the offense.
Here, the State argues, it was reasonable for the jury to infer that the victim was
consistently fed less than necessary to sustain life and that this constituted an affirmative
act clearly dangerous to life. The State contends that Appellant had to have acted
habitually in under-feeding her infant and criticizes the dissent as not only not viewing
the evidence in a light favorable to the verdict but also refusing to draw even reasonable
inferences, as the jury was allowed to do.
	The State argues that, while starving the child and not getting him medical
attention sooner are omissions, they are also acts. To illustrate this, the State points to
Driver v. State, 358 S.W.3d 270 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd), in
which it was held that a defendant's possession of cocaine, together with placing his son
in a circumstance where he could ingest that cocaine, was conduct sufficient to prove acts
dangerous to life. Similar to Driver, the jury here could have found that Appellant placed
her child in the circumstance that caused starvation and provided him with inadequate
care, constituting affirmative acts.
	The State goes on to assert that the cases Appellant cites do not support her
position. For example, the State says, Hill actually states that the actions the defendant
took in chaining his child in order to deprive him of food supported the deadly weapon
finding, not that starving does not imply action. Further, Villanueva deals only with
double jeopardy and does not address the issue in this case.
ANALYSIS
	Felony murder is, essentially, "an unintentional murder committed in the course of
committing a felony." Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999).
More specifically, the Penal Code provides that felony murder is committed where a
person "commits or attempts to commit a felony, other than manslaughter, and in the
course of and in furtherance of the commission or attempt . . . he commits or attempts to
commit an act clearly dangerous to human life that causes the death of an individual."
Tex. Penal Code § 19.02(b)(3). It is established that an injury to a child offense may
serve as the underlying crime in a felony murder prosecution. Johnson v. State, 4 S.W.3d
254, 258 (Tex. Crim. App. 1999); Contreras v. State, 312 S.W.3d 566, 584 (Tex. Crim.
App. 2010). However, while an injury to a child offense can be based on an act or
omission, the felony murder statute makes clear that an "act clearly dangerous to human
life" must be the cause of the death of the victim. Tex. Penal Code §§ 19.02(b)(3),
22.04(a). 
	An "act" is a voluntary or involuntary bodily movement, while an "omission" is a
"failure to act." Id. at § 1.07(a)(1), (a)(34). The evidence presented at trial showed that
Appellant's infant died of malnutrition and dehydration, that Appellant was the child's
sole caregiver, that the child's condition would have been apparent to anyone caring for
him, and that Appellant should have sought medical care for him. The indictment
specifically alleged that Appellant (1) starved the infant, and (2) withheld from him
sufficient nutrition and fluids to maintain life. All of this conduct involves the Appellant
not performing some act that was required of her, which forces each allegation squarely
within the definition of an omission. Id. at § 1.07(a)(34).
	We disagree with the court of appeals' conclusion that the jury could have
reasonably inferred that Appellant committed acts, rather than omissions, in starving her
son where there was no evidence of any such acts. While the jury is allowed to draw
reasonable inferences, it cannot simply speculate or theorize about the possible meaning
of the evidence. Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). Here, there
was no evidence presented that Appellant committed any affirmative acts in causing the
death of her son. While the State argues that Appellant acted in giving her son some food,
but not enough for him to survive, the criminal conduct lies in her failure to provide a
sufficient amount of food. As Chief Justice Jones pointed out, the act of giving the child
some amount of food, however small, would actually serve to prolong his life, rather than
be the "clearly dangerous act" that caused the child's death. Rodriguez,  408 S.W.3d at
639 (Jones, C.J., dissenting).
	In addition, supporting the court of appeals' conclusion would gut the statutory
distinction between "acts" and "omissions." It would allow for acts to be "reasonably
inferred" where practically any omission has occurred. For example, if a child were to
injure himself and the parent never sought medical care, under the court of appeals' logic,
it would be reasonable for the jury to infer that the parent acted when he or she sat down
on the couch instead of taking the child to the hospital. Or if a parent did not provide a
child with adequate clothing for cold weather, the jury could infer that the parent
affirmatively acted by providing some clothing, but not a coat. Both of these are examples
of omissions-failures to act-but the court of appeals' conclusion renders any distinction
between the two words meaningless, and would turn each case like this into a simple
semantic argument where both sides are correct.
CONCLUSION
	There was no evidence presented in this case that Appellant committed any
affirmative "act" in the starvation of her child. The evidence showed only her omissions
caused the infant's death, rather than any act clearly dangerous to human life, as required
by the statute. Therefore, the evidence was insufficient to support Appellant's felony
murder conviction and it must be overturned. However, because the jury necessarily
found Appellant guilty of the underlying felony of injury to a child and the evidence is
sufficient to support this finding of guilt, the judgment must be reformed to reflect this.
Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim. App. 2012). The judgment of the court
of appeals is reversed and the case is remanded to the trial court to reform the judgment to
reflect a conviction for injury a child and for a new punishment hearing on this
conviction.

Delivered: June 18, 2014
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