           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1133-14



                          CODY WAYNE McKAY, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE SIXTH COURT OF APPEALS
                          HUNT COUNTY

       H ERVEY, J., filed a dissenting opinion in which K ELLER, P.J., K EASLER, J.,
and R ICHARDSON, J., joined.

                                DISSENTING OPINION

       I respectfully dissent. To begin with, I would agree with the conclusion of the

majority that “[w]ithout any showing that T. J. was often underfoot of Appellant or that

Appellant knew T. J. would likely be under his feet, the evidence is insufficient to support

Appellant’s conviction of negligently causing injury to a child,” if in fact there was no

such evidence. McKay v. State, No. PD-1133-14, slip. op. at 9 (Tex. Crim. App. Oct. 26,

2015). However, based on my reading of the record, coupled with those portions relied
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upon by the majority here and the dissenting opinion of the court of appeals, I would find

that the evidence was sufficient to support Appellant’s conviction, especially because we

“look at the evidence presented in the light most favorable to the verdict and determine

whether ‘any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” McKay, slip op. at 5 (citing Jackson v. Virginia, 443 U.S.

307, 318–19 (1979)).

                                            F ACTS

       I note the following facts from the record,1

       •      Appellant and Casteel had been dating for about five months at the
              time of the incident. During the first two months of their romantic
              relationship, Appellant and Casteel would spend the night together at
              their parents’ homes with her children, and during the three months
              leading up the incident, Appellant, Casteel, and her two children,
              including two-year-old daughter T.J., who was burned, lived in an
              apartment together.

       •      Appellant normally cooked meals for the children. Casteel said
              he regularly cooked for the family because he was the better
              cook, and she often worked late.

       •      She also said that, when she was home, she had personally
              observed Appellant cooking and preparing meals for the family,
              and that she had seen T.J. running around in the kitchen while
              he cooked.

       •      When Appellant cooked in the kitchen there was not much space
              for him to move around because he was bigger, and the apartment
              kitchen was a “narrow galley kitchen.”



       1
        Admittedly, most of these facts appear in the majority opinion. However, I have
highlighted additional relevant facts that I gleaned from my review of the record.
                                                                                       McKay–3

       •      The evening in question, Appellant was cooking dinner for himself
              and the kids, and Casteel was working. While Appellant was
              cooking, T.J. was playing in the apartment.

       •      After Appellant finished heating up green beans on the stove, he
              turned around with the hot pot to put it on the counter, but he tripped
              over T.J., who was behind him, and spilled the scalding water and
              hot green beans on her.

       •      As a result, T.J. sustained multiple second-degree burns, including
              four separate burns to her scalp, her entire back, and her left
              thigh. Appellant was charged with injury to a child causing serious
              bodily injury. The State later reduced the charge to injury to a child
              causing bodily injury.

       •      At trial, a report over 1,000 pages long from the Texas Department
              of Family and Protective Services (DFPS) regarding the incident and
              Casteel’s care of T.J. was admitted into evidence. In that report,
              Casteel said that T.J. was “always ‘up her butt.’”

       •      During deliberations, the jury sent a note asking for all of the
              evidence in the case and then spent an additional three hours
              deliberating before reaching a verdict.

       •      The jury convicted Appellant of injury to a child causing bodily
              injury. Based on its verdict, the jury believed that Appellant was
              criminally negligent when he moved a pot of boiling water and green
              beans around the kitchen, although he knew T.J. was playing in the
              apartment and was known to run around in the small kitchen while
              he was cooking.

                                    C OURT OF APPEALS

       On appeal, Appellant argued that there was insufficient evidence to sustain his

conviction, but the court of appeals affirmed the judgment of the trial court. McKay v.

State, No. 06-14-00003-CR, 2014 WL 3887777, at *3 (Tex. App.—Texarkana Aug. 8

2014, pet. granted) (mem. op.) (not designated for publication). It reasoned that, based on
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Casteel’s statement to a DFPS worker that T.J. was “always ‘up her butt,’” a rational jury

could have reasonably inferred that T.J. “was ‘always’ getting close at hand or under

foot”; therefore, Appellant should have known that she could be underfoot while he was

cooking. Id. Writing in dissent, Justice Moseley argued that the statement in question was

only one sentence in a lengthy DFPS report; that because of the special relationship

between children and their parents, the majority erred when it assumed that a child would

behave the same around his mother as he would around other people; and that there was

no evidence that T.J. was known to be under Appellant’s feet. Id. at 4 (Moseley, J.,

dissenting).

                                     T HE MAJORITY OPINION

       Turning to its own analysis, the majority states that:2

       [T]he only piece of evidence that the court of appeals found that could
       support this conviction was the statement from Casteel in the DFPS report.
       While the court of appeals held this statement to be sufficient to uphold
       Appellant’s conviction, we do not.
              We do not see how Casteel’s statement that T. J. was always “up her
       butt”–meaning that T. J. was often under her feet–is relevant. As Justice
       Moseley discussed, there is a special relationship between parents and
       children, and children do not necessarily behave in the same way with their
       parents as they do with others. Appellant was not T. J.’s parent–he was a
       friend who had lived with the family for less than three months. Casteel’s
       statement did not indicate that T. J. was often underfoot of Appellant or any
       other caretaker. Nor did Casteel state that it was ever communicated to
       Appellant that T. J. was commonly underfoot and that he should take extra
       care because of this. Casteel’s statement was only about herself and did not
       provide any evidence of T. J.’s behavior around any other individuals or of
       Appellant’s knowledge that the child was commonly underfoot.

       2
           McKay, slip op. at 7–8.
                                                                                        McKay–5

                                          *       *      *

       Essentially, there was no substantial and unjustifiable risk for Appellant to
       have perceived, and, therefore, he cannot be punished for not perceiving it.

                       T HE SUBSTANTIAL AND UNJUSTIFIABLE RISK

       Section 6.03(d) of the Texas Penal Code defines culpable mental states, including

criminal negligence, and it reads,

       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.

T EX. P ENAL C ODE § 6.03(d). Applying this definition to the case at hand, the first

question is whether “Appellant’s actions of cooking hot items and moving around the

kitchen with them created a substantial and unjustifiable risk to T. J.” that Appellant

ought to have been aware of. See McKay, slip. op. at 7. If so, the next question is whether

his failure to perceive that risk constituted a gross deviation from the standard of care an

ordinary person would have exercised when viewing all of the circumstances from

Appellant’s stand point. Id.

       Casteel testified that Appellant normally cooked meals for the family, and that she

had personally observed him doing so. She also testified that she had seen T.J. running

around the kitchen while Appellant was cooking for the family, and that, because of the

small area and the fact that Appellant was bigger, he did not have much room to move
                                                                                   McKay–6

around in the kitchen.

       Based on all of the evidence, I believe that the jury could have reasonably inferred

that Appellant ought to have been aware that his cooking created a substantial and

unjustifiable risk to T.J. because T.J. had been known to run around in the kitchen while

he was cooking. I further conclude that the jury could have found that Appellant’s failure

to perceive that risk was a gross deviation from the standard of care an ordinary person

would have exercised had they viewed all of the circumstances from Appellant’s stand

point. Because I believe the evidence supports Appellant’s conviction, I respectfully

dissent.

                                                        Hervey, J.


Filed: November 4, 2015

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