Dissenting Opinion Filed August 28, 2020




                                    S   In The
                          Court of Appeals
                   Fifth District of Texas at Dallas
                                No. 05-18-00884-CR

                MICHAEL SHANNON THEDFORD, Appellant
                                V.
                    THE STATE OF TEXAS, Appellee

                On Appeal from the 296th Judicial District Court
                             Collin County, Texas
                    Trial Court Cause No. 296-80655-2018

                         DISSENTING OPINION
                Before Justices Partida-Kipness, Nowell, and Evans
                       Dissenting Opinion by Justice Evans

      “Forgetting a baby in a car is not inherently sufficiently negligent to merit a

criminal sanction” is the thesis of appellant Michael Shannon Thedford’s brief.

Appellant does not contest he alone caused the death of his six-month-old child, F.T.,

by leaving her in the car for at least four hours on a hot day in late June in Texas

while he slept in his air-conditioned house. A jury convicted appellant of criminally

negligent homicide (count I) and criminally negligent child abandonment (count III).

The trial court entered judgment for criminally negligent homicide and sentenced

appellant to two-years’ confinement in the state jail, probated for five years, pursuant
to the agreement of the parties. Based on his thesis, appellant appeals his conviction

in one issue, that the evidence is insufficient to prove the culpable mental state to

convict him of criminally negligent homicide. The majority agrees with appellant

there is insufficient evidence, and judicially acquits him of the offense. Because the

evidence is sufficient to support his conviction, I would affirm. Accordingly, I

respectfully dissent.

                                                  I.
                                      BACKGROUND FACTS

       The following facts were admitted into evidence during the guilt/innocence

phase of trial. On June 21, 2016 in Melissa, Collin County, Texas, appellant placed

his three children into their car seats, buckling in F.T.,1 for the 2.1 mile drive from

his home to their day care. A mirror in the front and another at the top of F.T.’s car

seat allowed the driver to see F.T. in her car seat. In order for appellant to drop off

only his two older children, C.T. and H.T., appellant checked in only those two. To

do so, he applied his finger to the fingerprint reader attached to the computer used


   1
     State’s Exhibit 43, recorded interview with Investigators Mitch Selman and Danny Stasik on June 21,
2016, transcribed in relevant part:
   INVESTIGATOR SELMAN: So you dropped the kids off at daycare, the other two kids?
   MICHAEL THEDFORD: (Nods head up and down.) Yes.
   INVESTIGATOR SELMAN: Came back in the house, took a nap and –
   MICHAEL THEDFORD: And left [F.T.] —
   INVESTIGATOR SELMAN: And left [F.T.] in the car?
   MICHAEL THEDFORD: (Crying.)
   INVESTIGATOR SELMAN: Was she in the —-in the car seat?
   MICHAEL THEDFORD: She was in the caret, [sic] buckled in. (Inaudible.) (Crying.)
                                                 –2–
to check in children. The computer automatically displayed and selected the names

and photographs of all three of appellant’s children to be checked in. To indicate he

was not dropping off F.T., appellant deselected her name then approved the check-

in information as modified, leaving C.T. and H.T. at the day care at 8:28 a.m.

Appellant kept F.T. in her car seat and drove 2.1 miles home, arriving before 9:00

a.m. When appellant arrived home, he exited his car, entered his home and went to

sleep leaving F.T. in her diaper, buckled into her car seat, unattended in the car for

five hours. F.T. died.

         When appellant awoke, he removed F.T. from her car seat, removed drawers

from the refrigerator and put F.T. in the refrigerator.2 Appellant called 911, the

transcript of which was presented to the jury:

         MICHAEL THEDFORD: Hi. I just woke up from a nap and I found
         my baby dead.

         COLLIN COUNTY DISPATCHER: What was that?


   2
       Investigator Danny Stasik testified:
         So when I talked to him initially, that’s when he finally admitted that, yes, he did leave the
         child in the vehicle.
         Q. When the defendant spoke to you, did he say when he got [F.T.] out of the vehicle
         whether or not he knew she was deceased or not?
         A. Yeah. He -- yes, ma’am. He knew that the child was deceased or believed that the child
         was deceased, yes, ma’am.
         Q. And did he also admit to you that after he knew the child was deceased, that he had
         actually placed her in the refrigerator?
         A. That is correct.
         Q. And does he actually demonstrate that on the walk-through video, as the jury will be
         able to see when the video is available?
         A. That is also correct, ma’am.
                                                     –3–
MICHAEL THEDFORD: My baby. My six-month-old baby. I found
her dead.

....

MICHAEL THEDFORD: Oh, six months old. She’s completely stiff.
(Inaudible) — it’s awful.

COLLIN COUNTY DISPATCHER: How long — how log [sic] has it
been since you saw her?

MICHAEL THEDFORD: I fell asleep at around 9 o’clock in the
morning.

COLLIN COUNTY DISPATCHER: Okay. She was asleep?

MICHAEL THEDFORD: I didn’t mean to be asleep — she was. I
didn’t mean to sleep that long.

....

MICHAEL THEDFORD: Oh, that was awful. I’m sorry. Oh.

COLLIN COUNTY DISPATCHER: Okay. So no one was watching
her? You were asleep since 9:00 a.m.; is that right?

MICHAEL THEDFORD: She was in the bassinet beside me. Didn’t
make a noise, or if she did, I didn’t wake up.

COLLIN COUNTY DISPATCHER: Okay. She was in the bed right
beside you?

MICHAEL THEDFORD: In the bassinet ~

COLLIN COUNTY DISPATCHER: Okay.

MICHAEL THEDFORD: ~ she ~ the bassinet next to the bed.

COLLIN COUNTY DISPATCHER: Okay.

MICHAEL THEDFORD: Oh. I’m so...

....

                             –4–
MICHAEL THEDFORD: She’s stiff but not cold.

COLLIN COUNTY DISPATCHER: Okay. Is there any breaths at all?

(Inaudible voices on the phone.)

MICHAEL THEDFORD: No, not at all.

[EMT dispatcher added to call.]

MICHAEL THEDFORD: She’s burning hot to the touch. Burning hot.
She had a fever this morning.

COLLIN COUNTY DISPATCHER: I’ve got Mr. Thedford on the
phone with us. His six-month-old baby is stiff and — uh — purple in
the face. He said that she’s not cold.

AMR DISPATCHER: We’ve got a six-month-old baby. Okay.

COLLIN COUNTY DISPATCHER: Michael?

MICHAEL THEDFORD: Burning hot to the touch. Burning hot. She
had a fever this morning. Yes? Okay.

....

AMR DISPATCHER: Okay. Can you tell me exactly what happened?

MICHAEL THEDFORD: I put the baby in the bassinet beside me,
beside the bed. I sleep on the other side of the bed from that, but it’s
— still, she was in the room with me. And — oh, she’s so hot.

....

AMR DISPATCHER: Okay. I have the paramedics en route. We’re
going to get you some help. Okay?

MICHAEL THEDFORD: Ahhh.

AMR DISPATCHER: Is she breathing?

MICHAEL THEDFORD: That’s wonderful. No, not at all.

AMR DISPATCHER: No? Okay.
                                   –5–
      MICHAEL THEDFORD: No, not at all. Can’t feel anything moving
      down. I can’t feel anything. Well, I can feel heat coming off of her.

      COLLIN COUNTY DISPATCHER: You can feel heat coming off?
      Okay.

      MICHAEL THEDFORD: Heat. Yes.

      Melissa Firefighter Captain Alan Sheehy and paramedic David Weimer and

another paramedic arrived at approximately 1:30 p.m. passing the van with an open

door as they entered the house. F.T. was in the kitchen, and drawers with food in

them were removed from the refrigerator. The paramedics noticed lividity on F.T.’s

bottom (pooling of blood at the lowest point in a person’s body several hours after

her heart stops beating) and rigor mortis (muscle stiffening). Instead of being cold

to the touch as is normal with lividity, F.T.’s body was hot. Appellant told Sheehy

F.T. had a fever that morning, and she had been in her bassinet next to his bed while

he slept, but never told Sheehy about leaving F.T. in a hot vehicle. Had Weimer

known F.T. had been left in a hot car, he would have used different protocols to try

to save her. Appellant showed Sheehy the bassinet next to the bed. The bedroom

was a comfortable temperature. F.T. felt much warmer than the bedroom. The

paramedics in consultation with their medical director determined F.T. was dead and

stopped resuscitation efforts.

      At 2:27 p.m., thirty minutes after F.T. was pronounced dead, Weimer took her

core body temperature through her anus which measured 105.2° F. Sheehy testified

normal temperature was 98.6° and bodies cool down after death. The bedroom

                                        –6–
thermostat was set for 70° F. The base of F.T.’s car seat measured 112° F. Sheehy

further testified he did not think appellant provided accurate information and

informed the fire chief who relayed the information to the sheriff’s deputies at the

scene.

         F.T.’s mother told an investigator at the scene she had called appellant who

screamed and told her that F.T. “was cold and not breathing.”            A forensic

examination of appellant’s cell phone indicated he was actively using it before his

wife called. Appellant told Investigator Stasik the medication he took made him

tired so he went straight to bed when he arrived home from the day care. After his

recorded statement, appellant agreed to participate in a recorded walk-through,

during which he stated when he arrived home he checked his Skype and emails.

         The medical examiner testified he determined the cause of death was heat

stroke and the manner of death was “accident.” He further testified by “accident”

he meant “something transpired that was unforeseen and caused someone’s death.”

He explained he was “not saying the defendant didn’t recklessly or with criminal

negligence leave his child in a hot car.” And he further explained by analogy to

drunk driving deaths which he usually classifies as accidents unless it is a hit and

run in which case he classifies those as homicides. Even some of the ones he

classifies as accidents “go[] to court.”

         After the State rested and the trial court granted appellant’s motion for

instructed verdict on the first count, manslaughter, appellant called Amy Lindgren.
                                           –7–
Lindgren is a pediatric nurse practitioner who saw F.T. for a fever the day before her

death.     Lindgren described appellant’s interaction with his children and F.T.

specifically as very caring and involved. Lindgren also described the increased risk

of confusion, stroke, seizure, coma, and death when children are left in cars on hot

days from about 8:30 a.m. to 1:00 p.m. Lindgren testified she was aware a car could

reach its maximum temperature in the first hour and that “it’s never okay to leave

kids in a car for any amount of time.” Lindgren agreed with the prosecutor that

leaving a child in a “car even for a few minutes, that you run the risk that something

bad could happen to your child.” Lastly, Lindgren testified that people become

familiar with the effects on themselves of medicine they take frequently.

         Appellant called David Diamond, who earned his Ph.D. in biology in the

Department of Psychobiology and Center for the Neurobiology of Learning and

Memory. The majority opinion summarizes his testimony explaining how appellant

could forget he had F.T. in her car seat behind him. In addition, Diamond testified

43 children was the largest single year (2017) number of children that died of heat

stroke in the United States. Diamond testified vehicles left closed in sunlight can

increase 40º to 50º even when the outside temperature is in the 60’s, so a closed car

in the sunlight can quickly exceed 100º inside.

         Appellant also called two other witnesses who testified he loved and was

involved with his children. The State called a sheriff’s deputy as a rebuttal witness

to read the warning labels on three medications found at the scene:
                                         –8–
    “may cause drowsiness and doziness. Careful using vehicle, vessel, or

       machine,” and “take or use this medicine exactly as directed. Do not

       skip doses or discontinue”;

    “may cause dizziness”; and

    “may cause drowsiness, use care when operating a vehicle, vessel, or

       machine[.]”

There is no complaint about the charge which instructed the jury:

Our law provides that an actor commits the offense of “Criminally
Negligent Homicide” if he causes the death of an individual by
criminal negligence[.]

....

Our law provide [sic] that an actor commits the offense of
“Abandoning or Endangering a Child” if he intentionally,
knowingly, recklessly, or with criminal negligence, by act or omission,
engages in conduct that places a child younger than 15 years in
imminent danger of death, bodily injury, or physical or mental
impairment.

....

A person acts with “criminal negligence, or is criminally negligent”,
with respect to the result of his conduct when he ought to be aware of a
substantial and unjustifiable risk that 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.

A person is criminally responsible if the result would not have
occurred but for his conduct, operating either alone or concurrently with
another cause, unless the concurrent cause was clearly sufficient to
produce the result and the conduct of the actor clearly insufficient.

                                     –9–
      ....

                             COUNT I
                  CRIMINALLY NEGLIGENT HOMICIDE

      Now, if you find from the evidence beyond a reasonable doubt that on
      or about the 21st day of June, 2016, in Collin County, Texas, the
      defendant, MICHAEL SHANNON THEDFORD, did then and there,
      with criminal negligence, cause the death of an individual, namely,
      [F.T.], by leaving [F.T.] unattended in a motor vehicle without air
      conditioning or water, then you will find the defendant guilty of the
      offense of Criminally Negligent Homicide.

      ....

                       COUNT III
     ABANDON/ENDANGER A CHILD WITH IMMINENT DANGER
                   OF BODILY INJURY

      Now, if you find from the evidence beyond a reasonable doubt that on
      or about the 21st day of June, 2016, in Collin County, Texas, the
      defendant, MICHAEL SHANNON THEDFORD, did then and there,
      with criminal negligence, engage in conduct that placed [F.T.], a child
      younger than fifteen (15) years of age, in imminent danger of death,
      bodily injury, or physical or mental impairment, by leaving [F.T.]
      unattended in a hot vehicle, or by leaving [F.T.] in a vehicle without air
      conditioning then you will find the defendant guilty of
      Abandon/Endanger a Child with Imminent Danger of Bodily Injury as
      charged in Count III of the indictment.

(Emphasis added on the subject matter of the definitions). The jury answered

unanimously that appellant was guilty of counts I and III. The State announced its

intent to proceed to punishment on count I. The State and appellant then announced

their agreement to a sentence of two-years’ confinement in the state jail, probated

for five years. The trial court agreed and sentenced appellant according to the

parties’ agreement, then entered judgment on count I.

                                        –10–
                                          II.
                                  APPLICABLE LAW

      A. Standard of Review

      When an appellant challenges the sufficiency of the evidence supporting a

criminal offense on which the State has the burden of proof, we conduct our review

under the single sufficiency standard set forth in Jackson v. Virginia, 443 U.S. 307

(1979). See Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014). We

view the evidence in the light most favorable to the verdict and determine whether

any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2011). This standard accounts for the factfinder’s duty to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts. Id. Therefore, in analyzing legal sufficiency, we determine

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to the

verdict.   Id.   “When the reviewing court is faced with a record supporting

contradicting inferences, the court must presume that the jury resolved any such

conflicts in favor of the verdict, even if not explicitly stated in the record.” Queeman

v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017) (citing Montgomery v. State,

369 S.W.3d 188, 192 (Tex. Crim. App. 2012)). When the record supports conflicting

inferences, we presume the factfinder resolved the conflicts in favor of the verdict


                                         –11–
and therefore defer to that determination. Clayton, 235 S.W.3d at 778. Direct and

circumstantial evidence are treated equally: circumstantial evidence is as probative

as direct evidence in establishing the guilt of an actor, and circumstantial evidence

alone can be sufficient to establish guilt. Id.

      B. Criminally Negligent Homicide

      Section 6.03(d) of the penal code defines criminal negligence as follows:

      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.

TEX. PENAL CODE § 6.03(d). The legal sufficiency standard applied to criminally

negligent homicide “requires the State to prove that (1) the defendant’s conduct

caused the death of an individual; (2) the defendant ought to have been aware that

there was a substantial and unjustifiable risk of death from his conduct; and (3) his

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

ordinary person would have exercised under like circumstances.” Queeman, 520

S.W.3d at 622–23 (citing Montgomery, 369 S.W.3d at 193; TEX. PENAL CODE

§§ 6.03(d), 19.05(a)).     “Criminal negligence does not require proof of [a

defendant’s] subjective awareness of the risk of harm, but rather [the defendant’s]

awareness of the attendant circumstances leading to such a risk.” Id. (quoting


                                          –12–
Montgomery, 369 S.W.3d at 193). “The key to criminal negligence is not the actor’s

being aware of a substantial risk and disregarding it, but rather it is the failure of the

actor to perceive the risk at all.” Id. (quoting Montgomery, 369 S.W.3d at 193).

                                           III.
                                       ANALYSIS

      The jury heard all the testimony recited above and was instructed in the

definition of criminal negligence that, “[t]he 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.”     On this evidence, a reasonable juror could conclude

(1) appellant’s conduct caused F.T.’s death; (2) appellant ought to have been aware

that leaving F.T. in a closed car on a hot summer day in late June in Texas created a

substantial and unjustifiable risk of F.T.’s death from his conduct; and

(3) appellant’s failure to perceive the risk was a gross deviation from the standard of

care of ordinary parents even when taking prescribed medications. See Queeman,

520 S.W.3d at 622–23. As to the third element, the court of criminal appeals also

explained that,

      Criminal negligence does not require proof of appellant’s subjective
      awareness of the risk of harm, but rather appellant’s awareness of the
      attendant circumstances leading to such a risk. The key to criminal
      negligence is not the actor’s being aware of a substantial risk and
      disregarding it, but rather it is the failure of the actor to perceive the
      risk at all. Conduct that constitutes criminal negligence involves a
      greater risk of harm to others, without any compensating social
      utility, than does simple negligence.
                                          –13–
Montgomery, 369 S.W.3d at 193 (emphasis added). Here, a reasonable juror did not

have to conclude that appellant was aware F.T. was in her car seat and nevertheless

left her there to convict appellant of criminally negligent homicide. Id. Rather, a

reasonable jury could decide—even for the reasons espoused by Diamond—that

appellant forgot F.T. was in her car seat when he left her in the car. As to attendant

risks, on this evidence a reasonable juror could decide appellant was aware of the

attendant circumstances that: F.T. was in the car (appellant buckled her in, indicated

on the computer he was not leaving her), it was late June in Texas and would be a

hot day, and F.T. had no mental or physical ability to free herself from her car seat

to crawl down out of her car seat and open a window or car door. As to failure to

perceive the risk, a reasonable juror could decide appellant failed to perceive the risk

when he exited his car (consistent with Diamond’s testimony). As to the enormity

of the risk, a reasonable juror could decide appellant’s conduct of leaving F.T. in his

car had a greater risk of harm to others (F.T.), without any compensating social

utility. See id.

       In making these assessments from the evidence presented to the jury, I draw

all inferences from the evidence in favor of the verdict as we must do. Queeman,

520 S.W.3d at 622; Montgomery, 369 S.W.3d at 192; Clayton, 235 S.W.3d at 778.

In doing so, where there are two inferences that could be drawn from the evidence,

we are obligated to “presume that the jury resolved any such conflicts in favor of the

verdict, even if not explicitly stated in the record” and defer to its determination.
                                         –14–
Queeman, 520 S.W.3d at 622 (citing Montgomery, 369 S.W.3d at 192); see Clayton,

235 S.W.3d at 778. Significantly on this record, appellant lied about what happened

to his wife, the two 911 dispatchers, the paramedics, the fire chief, and the police in

an effort to conceal that appellant caused F.T.’s death by leaving her in the closed

vehicle. In this context, a reasonable juror could view appellant’s placing F.T. in the

refrigerator as connected to his lie to his wife that F.T. was cold indicating appellant

sought to cover up his guilt for F.T. death. So, a reasonable juror could weigh

appellant’s credibility and conclude appellant lied to six people to avoid the

consequences of his actions, that his story about being sleepy and being affected by

medications was also a lie, and the truth was what he said on the walk through video:

he exited the car and checked his Skype and emails. That is, a reasonable jury could

conclude appellant paid attention to his computer or social media at the cost of

failing to pay attention to his six-month-old child strapped into her car seat.

      The State points out the jury could have reached its conclusion relying in part

on a significant statistic Diamond testified to: the largest number of children in the

United States that died of heat stroke in a single year was 43 in 2017. I agree. The

only reasonable inference from Diamond’s testimony is that there were even fewer

hot-car deaths of children in 2016, the year of this offense, that is, it was an even

rarer occurrence. A reasonable juror could infer from Diamond’s testimony that out

of the of millions of parents in the United States who in the aggregate transported

their children in cars millions of times throughout 2016, there were still less than 43
                                         –15–
instances that resulted in a child’s heat-stroke death.      This evidence strongly

corroborates a favorable view of the jury’s verdict because so few deaths indicate

the conduct resulting in those deaths is “a gross deviation from the standard of care

that an ordinary [parent] would exercise.” TEX. PENAL CODE § 6.03(d)

      Appellant relies on Ives v. State, No. 08-16-00026-CR, 2017 WL 3887444, at

*6 (Tex. App.—El Paso Sept. 6, 2017, pet. ref’d) (not designated for publication).

Diamond also testified in Ives, and the court of appeals there acquitted the parent

who left her child in her car on the way to teach at school. In Ives, the El Paso Court

of Appeals relied on the New York Court of Appeals decision that,

      What, we believe, is abundantly clear from our decisions and from the
      governing statutory language is that criminally negligent homicide
      requires not only a failure to perceive a risk of death, but also some
      serious blameworthiness in the conduct that caused it. The risk
      involved must have been “substantial and unjustifiable”, and the failure
      to perceive that risk must have been a “gross deviation” from
      reasonable care.

Id. at *5 (emphasis in Ives’s quotation) (quoting People v. Boutin, 555 N.E.2d 253,

254 (N.Y. 1990)). The Ives court decided to not publish its opinion, and in criminal

cases “[o]pinions and memorandum opinions not designated for publication by the

court of appeals under these or prior rules have no precedential value.” TEX. R. APP.

P. 47.7. The Texas legislature controls the definition of criminal negligence, and it

chose not to include a generalized concept of “some serious blameworthiness” in the

text of the statute. See Queeman, 520 S.W.3d at 622–23; Montgomery, 369 S.W.3d

at 193; TEX. PENAL CODE §§ 6.03(d), 19.05(a).
                                         –16–
                                          III.
                                    CONCLUSION

       This jury’s verdict reflects its decision that a parent, when transporting a six-

month-old child in a car on a hot, Texas summer day, undertakes a well-known,

enormous risk: leaving a child in a hot car can result in the death of the child. That

risk is “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.” Until the Texas Court of

Criminal Appeals adopts a standard such as “[f]orgetting a baby in a car is not

inherently sufficiently negligent to merit a criminal sanction,” as appellant urges, on

this record and according to the applicable Texas statutes and decisions of the Texas

Court of Criminal Appeals, there was sufficient evidence for the jury to conclude

appellant was guilty of criminally negligent homicide when he alone caused the

death of his six-month-old child.

       There is pathos in this case that calls out for mercy. The mercy came in the

form of the prosecution’s agreement with appellant to a sentence of two-years’

confinement in the state jail, probated for five years. Appellant did not appeal his

sentence, just his guilt.




                                         –17–
      There is sufficient evidence to affirm his conviction. Because the majority

judicially acquits appellant, I dissent; I would affirm his conviction.




                                            /David Evans/
                                            DAVID EVANS
                                            JUSTICE


180884DF.P05




                                         –18–
