      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00715-CR



                               Nilda Iliana Rodriguez, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
          NO. 65241, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                                          OPINION


               Appellant Nilda Iliana Rodriguez appeals from a judgment convicting her of the

offense of felony murder for the death of her seven-week-old son. See Tex. Penal Code

§ 19.02(b)(3). For the reasons that follow, we affirm the judgment of conviction.


                                        BACKGROUND

               Rodriguez gave birth to her son on October 8, 2008. She had other children at the

time. After her son was discharged from the hospital, Rodriguez was responsible for his care

as well as her other children’s care. Her husband was overseas at the time. Her son died on

December 3, 2008, as a result of malnutrition, dehydration, and medical neglect. Rodriguez did not

take her son to see a doctor from the day that he went home from the hospital until the day he died.

On that day, EMS was called to Rodriguez’s home. Her son was taken to the hospital where he was

pronounced dead.
               In two paragraphs, the State charged Rodriguez with felony murder. The State

alleged that Rodriguez committed and attempted to commit the felony offense of injury to a child

and “in the course of and in furtherance of the commission and attempted commission of the said

felony, Nilda Iliana Rodriguez, did attempt to commit and commit an act clearly dangerous to

human life which caused the death of [her child].”

               In Paragraph I, the indictment named the following “act[s] clearly dangerous to

human life”: (1) “starving” the said child, and (2) “withholding from” the said child “sufficient

nutrition and fluids to maintain life.” In Paragraph II, the indictment named the following “act[s]

clearly dangerous to human life”:


       Nilda Iliana Rodriguez did then and there fail to insure that the said [child] ingested
       and benefitted from sufficient nutrition and fluids; and, did then and there fail to
       seek medical care when it was apparent that the said [child] needed medical care and
       the said Nilda Iliana Rodriguez was then and there a person (1) having the legal and
       statutory duty to [the child]; and (2) having assumed care, custody, and control over
       [the child] had the duty to [the child] to provide protection, food, and medical care.


               Rodriguez testified that she was responsible for her son’s care during his life. She

does not dispute that her son died of starvation, and the evidence established that the child’s

condition and need for medical treatment were readily apparent. An expert for the State opined that

the child was malnourished and dehydrated and that “his condition would have been apparent to

anybody who was taking care of him on a routine basis.” He also testified that the malnutrition and

dehydration were a result of inadequate nutrition over a period of days, “that this child wasn’t

getting enough nutrition,” and that this type of condition “progresses over time.” The coroner who

performed the autopsy on the child similarly concluded that the cause of death was malnutrition and


                                                 2
dehydration. The great-grandmother of the child also testified that she told Rodriguez five days

before the child died that the child “looks sick,” he “don’t look like he will make it two weeks” and

that Rodriguez needed “to be calling 911 looks like.” Rodriguez did not take her son to the doctor

until the day of his death, but she answered “yes, sir” when asked whether she fed him and whether

she treated him like all of her other children. The evidence also showed that there was no medical

reason for her son’s condition, such as vomiting or diarrhea or other medical problems, except the

withholding of sufficient nutrition and fluids.

                The jury found Rodriguez guilty and assessed punishment at thirty years’

confinement in the Texas Department of Criminal Justice. The trial court thereafter entered a

judgment of conviction by jury.


                                            ANALYSIS

Appellant’s Initial Brief

                In the sole issue raised in her appellant’s brief, Rodriguez challenges the validity of

the indictment. She contends: “The indictment does not support appellant’s conviction for felony

murder because the predicate felony of injury to child, as alleged in each paragraph of the

indictment, [is] committed by omission, not acts, as required by section 19.02(b)(3) [of the Texas

Penal Code].” See Tex. Penal Code §§ 19.02(b)(3), 22.04.1 Rodriguez contends that the State



       1
           Section 19.02(b)(3) of the Penal Code states the elements of felony murder as follows:

       (b)      A person commits an offense if he: . . .

       (3)      commits or attempts to commit a felony, other than manslaughter, and in the
                course of and in furtherance of the commission or attempt, or in immediate

                                                  3
prosecuted her under the wrong statute and theory of law. She argues that the indictment only

alleged omissions, not affirmative acts, and that injury to a child by omission cannot support the

offense of felony murder.

                Rodriguez, however, did not file a motion to quash the indictment, object to the

indictment at any time during the trial, or otherwise raise this argument with the trial court. She,

therefore, failed to preserve this issue for appellate review. See Tex. Code Crim. Proc. art. 1.14(b)

(“If the defendant does not object to a defect, error, or irregularity of form or substance in an

indictment or information before the date on which the trial on the merits commences, he waives

and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection

on appeal or in any other postconviction proceeding.”); Teal v. State, 230 S.W.3d 172, 176–77, 182

(Tex. Crim. App. 2007) (discussing article 1.14(b) and holding that defendant waived right to object

to indictment defects).

                To the extent that Rodriguez’s complaint is that the indictment failed to charge an

offense and, therefore, the trial court did not have subject matter jurisdiction, we may consider this

complaint for the first time on appeal. See Teal, 230 S.W.3d at 178–79. “The proper test to

determine if a charging instrument alleges ‘an offense’ is whether the allegations in it are clear

enough that one can identify the offense alleged.” Id. at 180. “If they are, then the indictment is


                flight from 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). Section 22.04 of the Penal Code provides the elements for the
offense of injury to a child. Id. § 22.04. This offense may be committed by “act” or by “omission.”
Id. § 22.04(a). The elements for the offense of injury to a child based upon “omission” require the
actor to have “a legal or statutory duty to act” or to have “assumed care, custody, or control of a
child.” Id. § 22.04(b).

                                                    4
sufficient to confer subject matter jurisdiction.” Id. Applying this test here, we conclude that the

allegations in the indictment “are clear enough that one can identify” that the offense alleged is

felony murder under section 19.02(b)(3) of the Penal Code based upon the underlying felony of

injury to a child. See id. We overrule Rodriguez’s sole issue raised in her appellant’s brief.


Appellant’s Supplemental Brief

                Although our analysis should be complete, this Court requested supplemental briefing

from the parties. We asked whether we can and should raise, on our own motion, the sufficiency of

the evidence to support the conviction and “whether the evidence was sufficient to prove that, as

alleged, the appellant committed an act clearly dangerous to human life in the course of committing

the felony of injury to a child.” In response, both parties filed supplemental briefs that addressed

both issues.

                In this context, we address Rodriguez’s challenge in her supplemental brief to the

legal sufficiency of the evidence to support the judgment of conviction. See Tex. R. App. P. 38.7

(“A brief may be amended or supplemented whenever justice requires, on whatever reasonable terms

the court may prescribe.”); Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. App. 2008) (“Appellate

courts have the jurisdiction and authority to review unassigned error.”) (citations omitted); Carroll

v. State, 101 S.W.3d 454, 456 (Tex. Crim. App. 2003) (“Once jurisdiction of an appellate court is

invoked, exercise of its reviewing function is limited only by its own discretion or a valid restrictive

statute.” (quoting Carter v. State, 656 S.W.2d 468, 469 (Tex. Crim. App. 1983)).2


       2
          Whether we must address in this opinion the issues raised in the supplemental briefs is
debatable. See Tex. R. App. P. 38.1(f) (appellant’s brief must contain issues presented for review);
Garrett v. State, 220 S.W.3d 926, 928–29 (Tex. Crim. App. 2007) (concluding that court of appeals

                                                   5
       Standard of Review

                When reviewing the sufficiency of the evidence to support a conviction, we consider

all of the evidence in the light most favorable to the verdict to determine whether any rational trier

of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.

2010). We measure the sufficiency of the evidence by the elements of the offense as defined in a

hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011);

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge is one that “accurately

sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden

of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried.” Byrd v. State, 336 S.W.3d 242, 246 (Tex.

Crim. App. 2011) (quoting Malik, 953 S.W.2d at 240).3


was not required to address factual sufficiency of evidence in its opinion even though court requested
supplemental briefing on its own motion).
       3
           Rodriguez did not object to the charge of the court. The jury was instructed:

       A person commits the offense of murder if she commits or attempts to comment a
       felony, other than manslaughter, and in the course of and in furtherance of the
       commission or attempt, or in immediate flight from the commission or attempt, she
       commits or attempts to commit an act clearly dangerous to human life that causes the
       death of an individual.

       ...

       A person commits the felony offense of injury to a child if she intentionally,
       knowingly, recklessly or with criminal negligence by act or intentionally, knowingly
       or recklessly by omission causes a child serious bodily injury or bodily injury.

       An omission that causes serious bodily injury is conduct constituting an offense if the

                                                  6
               In assessing the legal sufficiency of the evidence, we have a duty “to ensure that the

evidence presented actually supports a conclusion that the defendant committed the crime that was

charged.” Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see Winfrey v. State,

323 S.W.3d 875, 882 (Tex. Crim. App. 2010).


       Act or Omission

               Similar to her challenge to the indictment raised in her appellant’s brief, Rodriguez

urges that the conduct alleged in the indictment and proven at trial—“starvation and neglect”—were

“omissions,” and that the felony offense of injury to a child by omission cannot support felony

murder because felony murder requires an “act.” See Tex. Penal Code §§ 19.02(b)(3), 22.04; see

also id. § 1.07(a)(1) (defining “Act” to mean “bodily movement, whether voluntary or involuntary,

and includes speech”), (a)(34) (defining “Omission” as “failure to act”).

               “Felony murder is an unintentional murder committed in the course of committing

a felony.” Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004) (citation omitted). The

only felony expressly excluded from felony offenses that may serve as the underlying felony is

manslaughter. See Tex. Penal Code § 19.02(b)(3); Spence v. State, 325 S.W.3d 646, 650 (Tex.

Crim. App. 2010) (focusing on “literal text to determine the objective meaning of that text at the



       actor has a legal or statutory duty to act or the actor has assumed care, custody or
       control of a child. A person has assumed care, custody or control of a child if she by
       act, words or course of conduct acted so as to cause a reasonable person to conclude
       that she has accepted responsibility for protection, food, shelter and medical care for
       the child.

The State’s theory at trial was that Rodriguez committed the offense of injury to a child by acts and
omissions. See Tex. Penal Code § 22.04.

                                                 7
time of its enactment” when interpreting statutes). Informed by the text of section 19.02, we

conclude that felony murder may be based upon the underlying offense of injury to a child whether

by act or omission. See, e.g., Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999)

(affirming felony murder conviction premised on underlying offense of injury to child); Hopper

v. State, No. 03-03-00508-CR, 2004 WL 2108665, at *1 (Tex. App.—Austin Sept. 23, 2004,

pet. ref’d) (mem. op., not designated for publication) (same); see also Villanueva v. State,

227 S.W.3d 744, 747–48 (Tex. Crim. App. 2007) (concluding that act and omission are two means

of proving offense of injury to a child); Baldwin v. State, 264 S.W.3d 237, 242–43 (Tex.

App.—Houston [1st Dist.] 2008, pet. ref’d) (noting that jury was instructed to convict based upon

“act or omission” and upholding sufficiency of evidence to support convictions for injury to child).

               We agree with Rodriguez, however, that the State had to prove “an act clearly

dangerous to human life” to support the conviction of felony murder. See Tex. Penal Code

§§ 19.02(b)(3). One of the State’s allegations was “starving [the child].” The evidence at trial

established that Rodriguez’s son starved to death over a period of time, that Rodriguez was

responsible and primarily cared for him during that period of time, including feeding him, and that

the child’s condition was apparent. The expert for the State and the coroner testified that the child

died as a result of malnutrition and dehydration, and the expert testified that the condition

“progresses over time.” After seeing the child five days before he died, the great-grandmother told

Rodriguez that she needed “to be calling 911 looks like.”

               The jury could have reasonably inferred from this evidence that Rodriguez

committed acts—such as continuously feeding her son far less than he needed—in starving her son



                                                 8
that were “clearly dangerous to human life.” See Jackson, 443 U.S. at 319 (in sufficiency review,

assume that the trier of fact drew reasonable inferences in a manner that supports the verdict and

responsibility of trier of fact “to draw reasonable inferences from basic facts to ultimate facts”); see

also Driver v. State, 358 S.W.3d 270, 276–77 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)

(disagreeing with the defendant that “possession of cocaine as an underlying felony to felony

murder forecloses proof of bodily movement that constitutes an act clearly dangerous to human life,

or as the State charged in this case, ‘allowing’ a child to ingest cocaine” and holding “the evidence

was legally sufficient to support the jury’s findings that [the defendant’s] possession of cocaine,

together with his placing his son in circumstances that allowed his son to ingest it, constitute actions

that were clearly dangerous to his son’s life”); Hill v. State, 881 S.W.2d 897, 902–03 (Tex.

App.—Fort Worth 1994), aff’d, 913 S.W.2d 581 (Tex. Crim. App. 1996);4 DePauw v. State,

658 S.W.2d 628, 633, 635 (Tex. App.—Amarillo 1983, pet. ref’d) (noting that phrase “an act

clearly dangerous to human life” not defined in Penal Code and that phrase has a “common and

ordinary meaning so that a juror could properly understand such term”).

                Viewing the evidence in the light most favorable to the verdict, we conclude that the

evidence was legally sufficient to support the conviction. See Jackson, 443 U.S. at 319; see also



        4
          In Hill, the State charged the appellants with injury to a child based upon “omission” and
the appellants argued—opposite to Rodriguez’s position here—that failing to provide appropriate
food and medical care when they had a legal duty to do so was “a course of affirmative action, not
a course of omission.” 881 S.W.2d 897, 902 (Tex. App.—Fort Worth 1994), aff’d, 913 S.W.2d 581
(Tex. Crim. App. 1996). Appellants stated that they “‘acted in’ starving [the child]” and “depriving
[the child] of food.” Rejecting this argument, the court noted that it was “simply a battle waged in
semantics.” Id. The court also noted that the evidence at trial may well have supported the
convictions for acts as well as omissions. Id.


                                                   9
Garcia v. State, 16 S.W.3d 401, 405 (Tex. App.—El Paso 2000, pet. ref’d) (“Texas case law is

replete with holdings that when an adult defendant has had sole access to a child at the time its

injuries are sustained, the evidence is sufficient to support a conviction for injury to a child, or

murder if the child dies.”) (collecting cases).


                                          CONCLUSION

               For these reasons, we affirm the judgment of conviction.



                                       __________________________________________

                                       Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Goodwin and Field
 Concurring Opinion by Justice Field;
 Dissenting Opinion by Chief Justice Jones

Filed: July 31, 2013

Publish.




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