             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. PD-0265-07



                                GERARDO FLORES, Appellant

                                                   v.

                                     THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE NINTH COURT OF APPEALS
                         ANGELINA COUNTY

             K ELLER, P.J., delivered the opinion of the Court in which M EYERS,
W OMACK, K EASLER, and H ERVEY, JJ., joined. C OCHRAN, J., filed a concurring opinion
in which J OHNSON, J., joined. P RICE, and H OLCOMB, JJ., concurred.

                                             OPINION

        Appellant was convicted of murdering his pregnant girlfriend’s twin fetuses by stepping on

her abdomen, though he maintains that she also took measures to cause the deaths. Appellant raises

three constitutional challenges to the capital murder statute. We hold that the statute is constitutional.

In addition, appellant contends that the court of appeals erred in ruling that he was not entitled to a

jury instruction on the lesser-included offense of deadly conduct. We disagree. Thus, we shall affirm

the court of appeals.
                                                                                        FLORES – 2

                                        I. BACKGROUND

       Appellant and his girlfriend Erica Basoria, aged 18 and 16 respectively, had been dating for

over a year when Ms. Basoria discovered sometime in February 2004 that she was pregnant. An

ultrasound later showed that she was carrying twins. At an April 30 appointment, Ms. Basoria told

her doctor, Jerry Johnson, that she was considering an abortion.1 Dr. Johnson informed her that the

pregnancy was at such a late stage that he could not perform an abortion safely and that no local

physicians performed abortions.

       According to Ms. Basoria’s testimony, she asked appellant to help her terminate the

pregnancy by stepping on her abdomen. He did so on two occasions: two weeks and one week

before the premature delivery. She had to ask him repeatedly before he agreed to step on her.

According to appellant’s statement to the police, he used a “slow, steady press” on her abdomen, and

stopped pressing once she asked him to stop.

       Ms. Basoria also testified that she took measures to induce the deaths of the fetuses. She

struck herself in the abdomen more than ten times. She began engaging in this behavior two weeks

before the premature delivery; by the last week of her pregnancy, she was striking herself every day.

After Dr. Johnson instructed her to refrain from jogging and going on walks, she took up jogging and

failed to limit her walking, in a deliberate attempt to endanger the pregnancy. Ms. Basoria further

testified that she had violated her doctor’s instructions to take prenatal vitamins, though her medical

records showed that she had reported taking them.

       On May 7, Ms. Basoria—then approximately 20 to 22 weeks pregnant—prematurely


       1
         On the other hand, Dr. Johnson also testified that Ms. Basoria refused to have the fetuses
tested for their risk of medical conditions such as Down’s syndrome because she was opposed to
abortion.
                                                                                         FLORES – 3

delivered the twins at home. They were stillborn. According to the doctor who conducted the

autopsies, the cause of the deaths appeared to be some sort of “blunt force trauma” that had occurred

sometime between May 4 and May 6. The twins had been dead in utero for at least one day before

they were delivered.

       Appellant was indicted for capital murder and murder for intentionally or knowingly causing

the deaths of “unborn child #1” and “unborn child #2.”2 Appellant pled not guilty and filed a pretrial

motion to dismiss the indictment on the grounds of due process, equal protection, and the

Establishment Clause. The trial court denied the motion, and appellant was tried by a jury.

       At trial, expert witnesses testified that either a pregnant woman striking herself repeatedly

or another person stepping on a pregnant woman’s abdomen could terminate a pregnancy. There was

no consensus among the witnesses on whether the striking, the stepping, or some genetic abnormality

caused the deaths.3

       Dr. Johnson and others who observed Ms. Basoria shortly after the premature delivery

observed bruises on her upper arms, a “small” bruise on her face, and “a line of purplish bruises”

roughly three inches long across her abdomen.4 When asked about the bruises, Ms. Basoria testified


       2
        T EX . PEN . CODE §§ 19.02(b)(1), 19.03.
       3
         For example, Dr. Steven Pulsinik, appellant’s expert witness, testified that any of these three
might have been the cause. On the other hand, one of the State’s expert witnesses noted that it is
controversial in the medical community whether a genetic abnormality poses a significant risk to a
pregnancy. Dr. Tommy J. Brown, who performed the autopsies, testified that if a foot were pressed
on a pregnant women’s abdomen and she were striking herself in the abdomen, the deaths could be
caused by either one, depending on which was exerting more force.
       4
        Dr. Johnson testified about the nurses’ and his own observations of Ms. Basoria on the day
she was admitted to the hospital after the premature delivery:
              Q: What was the nurses’ report to you about this?
              A: They were quite shocked because she had a very significant amount of
                                                                                      FLORES – 4

that appellant struck her in the face on the night of May 6, causing the bruise there.5 She also

testified that the bruises on her arms resulted when she and appellant were engaging in consensual,

playful roughhousing. Dr. Stephen Pustilnik, appellant’s expert witness, testified that the bruise on

her abdomen appeared to be “much more consistent” with the pregnant woman striking herself than

with a foot being pressed down on the abdomen. According to appellant’s statement to the police

and Ms. Basoria’s trial testimony, he stepped above her navel, whereas the bruises on her abdomen



       fresh bruising over her abdomen, face, arm; that she was pretty beat up.
               Q: Okay. And your—based on your observations of Ms. Basoria, what
       conclusions did you come to?
               A: Well, my conclusion was that she had suffered a significant amount of
       trauma. It did not appear to be a car wreck or anything like that. She did not elicit
       who or what had done any of the bruising or damage to her or her babies.
               Q: When you say “bruising and damage,” what—can you describe what it is
       you saw?
               A: Reading from my admission note under the heading, Examination: There
       was bruising over the right cheek bone. Her lip was cracked. There was blood
       apparent on both lips. The lips were swollen, but I did not see any lacerations or any
       tears in the lips.
               Both upper arms had bruising which, in my opinion, appeared to be consistent
       with injuries from a finger grasp around the arm. Generally you’ll see one circle
       that’s darkly bruised and then a clear area that’s not involved. And each finger
       will—the person was grabbed with will cause a bruise. And that’s very
       characteristic. That was present on both upper arms.
               Her back and buttocks had no evidence of any trauma. The left breast had an
       old bruise. There was no new bruising evidence on the left breast. Most of her
       bruising was over the abdomen and it was around the level of the umbilicus, or the
       belly button, from . . . side to side going all the way across the abdomen.
               And that would be—remember, she was postpartum. She had already
       delivered—the size of the uterus would be—that would be about the biggest bulge
       in where her stomach would be while the babies were inside.
               Legs and feet had no . . . evidence of trauma. There was no evidence of any
       kind of perineal or sexual assault present.

       5
        She maintained that he had never hit her before then and that he was not physically abusive
toward her.
                                                                                        FLORES – 5

were below her navel. Likewise, Ms. Basoria testified that she and not appellant caused those

bruises.

       To support the theory that Ms. Basoria wanted to have the children and was being abused by

appellant, the State presented an expert witness who testified about the dynamics that are typically

present in an abusive relationship. He observed that, if the abuser is arrested or charged with a

crime, the abused victim will commonly defend the abuser, such as by requesting that the charges

be dropped or refusing to testify against him. The State also attempted to impeach Ms. Basoria’s

credibility by presenting testimony of a teacher who testified that Ms. Basoria showed her the

ultrasound pictures and appeared happy and excited about the prospect of having children.

       The trial court submitted jury instructions on capital murder, injury to a child, and

manslaughter, but denied appellant’s request for an instruction on deadly conduct. The jury

convicted appellant of capital murder and sentenced him to life in prison.

       On direct appeal, appellant raised constitutional challenges to the statute under which he was

indicted and argued that the trial court erred in denying his request for a lesser-included offense

instruction. The court of appeals affirmed his conviction.

                                           II. ANALYSIS

                                           A. Due Process

       In his first ground, Appellant argues that the statute is unconstitutional because it allows the

State to prosecute him for killing an “unborn child.”6 Appellant claims that the statute thus

contravenes the restrictions announced in Roe v. Wade7 and subsequent abortion decisions of the


       6
           TEX . PEN . CODE §§ 1.07(a)(26), 1.07(a)(38), 19.03(a)(8).
       7
           Roe v. Wade, 410 U.S. 113 (1973).
                                                                                          FLORES – 6

United States Supreme Court by protecting the life of a fetus before the point of viability. We

recently rejected this claim in Lawrence v. State,8 and we reaffirm that holding today.

        Appellant also argues in his brief that the statute is unconstitutionally overbroad. Because

appellant did not raise this argument in his petition for discretionary review, it is not properly before

us. We overrule appellant’s first ground for review.

                                         B. Equal Protection

        In his second ground, appellant argues that the statute’s exception for pregnant women

terminating their own pregnancies violates equal protection in this case by exempting Ms. Basoria

from criminal prosecution while allowing him to be prosecuted.9 This argument depends on the

unusual facts of this case.10 Because Ms. Basoria was cooperating with appellant’s attempts to kill

the fetuses, he argues, the statute treated the two of them differently even though they were both

engaging in the same behavior. Both were attempting to cause the deaths, yet only appellant and not

Ms. Basoria could be prosecuted under the statute, because she was the pregnant woman carrying

the victims.

        In advancing this argument, appellant ignores significant evidence that Ms. Basoria did not,



        8
            __ S.W.3d __ (Tex. Crim. App. Nov. 21, 2007).
        9
         See TEX . PEN . CODE § 19.06. Because appellant does not specify whether this ground is
under the state or federal constitution, we will address the claim only under the U.S. Constitution.
See Black v. State, 26 SW3d 895, 896 n.4 (Tex. Crim. App. 2000) (holding that the court should
address only the federal constitutional claim if appellant offers no reason for construing the parallel
state constitutional provision as conferring greater protection).
        10
         We are aware of no other case from any jurisdiction in which a criminal defendant who has
been convicted of killing an unborn victim challenges the conviction on the grounds that the victim’s
mother was complicit in the killing. No such case has been cited in the briefs or the court of appeals
opinion.
                                                                                       FLORES – 7

in fact, consent to appellant’s stepping on her abdomen. She had bruises on her abdomen, arms, and

face, and her lips were swollen and bloody. Appellant admitted to hitting her in the face but argues

that the other bruises had innocent explanations—namely, that the bruises on her abdomen were

caused by her striking herself, and the bruises on her arms resulted from consensual roughhousing

between the two. Nevertheless, a jury could reasonably credit the simpler explanation of the bruises:

that all of them—not just the one on her face—resulted from abusive acts by appellant. The State

supported this inference through testimony on the general tendency of the victim in an abusive

relationship to try to protect the abuser from being criminally prosecuted and convicted. Finally, the

State presented evidence that Ms. Basoria seemed to be looking forward to carrying the twins to

term.

        A reasonable jury could conclude from the above evidence that appellant’s acts of stepping

on her abdomen were simply abusive rather than part of a plan to which she had agreed. Given that

appellant’s acts might not have been consensual, the very predicate for appellant’s equal protection

claim—that both he and Ms. Basoria were engaging in the same behavior—need not have been

found to be true by a rational trier of fact.11 Only if the acts were consensual could appellant argue

that the statute treated him and Ms. Basoria unequally by allowing the State to prosecute appellant

but not Ms. Basoria for the same acts.

        In short, appellant sought a pretrial dismissal of the prosecution based on a claim that, even

if it had been correct on the underlying merits, could have been resolved only by evidence adduced

at trial.12 That is not the purpose of a pretrial motion such as a motion to quash the indictment;


        11
             The jury did not make a finding on consent.
        12
             We express no opinion today as to those underlying merits.
                                                                                          FLORES – 8

rather, its purpose is to address “those issues that can be determined before there is a trial on the

general issue of the case.”13 Appellant’s equal protection argument, based on his allegation that Ms.

Basoria consented to the acts for which he was being prosecuted, did not present such an issue.14

The court of appeals thus did not err in affirming the trial court’s decision to deny the motion to

quash the indictment on this ground. We overrule appellant’s second ground for review.

                                      C. Establishment Clause

        In his third ground, appellant argues that the provision defining an “individual” to include

an “unborn child”15 violates the Establishment Clause of the U.S. Constitution by adopting “a


        13
             Woods v. State, 153 S.W.3d 413, 415 (2005).
        14
          The concurring opinion maintains that raising the issue at trial serves little purpose because
the trial court could have done nothing more or less than an appellate court. On the contrary,
requiring appellant to have raised the issue at trial serves two important purposes. First, timely
raising the issue would have given the trial court a chance to rule on it, potentially avoiding the need
to burden the court system with appeals. See Young v. State, 826 S.W.2d 141, 149 (Tex. Crim. App.
1991) (Campbell, J., dissenting) (“[I]f the issue had been timely raised in the trial court, it could have
been resolved there, and the parties and the public would have been spared the expense of an
appeal.”).
        Second, a trial court is more capable of addressing a fact-bound claim than an appellate court.
The concurring opinion itself examines the facts of this case and concludes that it is unclear whether
appellant was acting in concert with Ms. Basoria or abusing her. This question would have been
more usefully addressed by the jury based on its assessment of witness credibility and the like.
Because appellant raised the issue only before trial and on appeal, the jury never had the opportunity
to make such a finding. Even if we were to agree with appellant that the Equal Protection Clause
bars a prosecution of one who acts in concert with a pregnant woman to terminate her pregnancy,
the appropriate remedy would not be dismissal of the indictment, as the concurrence asserts, but a
new trial in which the jury could be instructed on the question of Ms. Basoria’s consent. Appellant
waived this remedy by neglecting to raise the issue at trial.
        In light of these considerations, we should not overturn the well-established requirement that
appellant must preserve an “as applied” constitutional challenge by raising it at trial. TEX . R. APP .
PROC. 33.1; see, e.g., Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995)(citing Garcia v.
State, 887 S.W.2d 846, 861 (1994))(holding that an “as applied” due process challenge is not
preserved for appeal if appellant did not raise a “specific, timely objection” at trial).
        15
             TEX . PEN . CODE § 1.07(a)(26).
                                                                                        FLORES – 9

religious point of view over a secular one.”

       To determine whether a statute violates the Establishment Clause, this Court has applied the

three-prong test from Lemon v. Kurtzman:

       First, the statute must have a secular legislative purpose; second, its principal or
       primary effect must be one that neither advances nor inhibits religion; finally, the
       statute must not foster an excessive government entanglement with religion.16

       Mere consistency between a statute and religious tenets, however, does not render a statute

unconstitutional.17 Otherwise, no law against theft or murder could pass constitutional muster,

because those laws are consistent with religious strictures such as the Ten Commandments.18

       Appellant has not met his burden to override the presumption that the statute is constitutional.

His argument that the statute has no secular purpose is based on the faulty assumption that only

religious views could motivate the legislature to protect a fetus from being killed. While some may

indeed view a fetus as a human being out of religious convictions, others may reach the same

conclusion through secular reasoning or moral intuition unconnected to religion. Moreover, even

those who do not view the fetus itself as a person may still want to protect fetal life simply because




       16
         Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), cited in Holberg v. State, 38 S.W.3d
137, 140 (Tex. Crim. App. 2000).
       17
          Harris v. McRae, 448 U.S. 297, 319 (1980) (“Although neither a State nor the Federal
Government can constitutionally pass laws which aid one religion, aid all religions, or prefer one
religion over another, it does not follow that a statute violates the Establishment Clause because it
happens to coincide or harmonize with the tenets of some or all religions.” (citations omitted));
Holberg v. State, 38 S.W.3d 137, 140 (Tex. Crim. App. 2000)(“[T]he mere fact that the statutes are
consistent with the tenets of a particular faith does not render the statutes in violation of the
Establishment Clause.”).
       18
            See McRae, 448 U.S. at 319.
                                                                                          FLORES – 10

it represents potential human life.19

        Applicant has similarly failed to show that the statute violates either of the remaining prongs

of the Lemon test. He states in the abstract that the statute’s effect is to advance religion, but he fails

to specify how it is that the statute does so. Finally, the statute does not entangle government with

religion merely by evincing a respect for fetal life that might find approval among many religious

adherents. For these reasons, we overrule appellant’s third ground for review.

                                     D. Lesser-Included Offense

        In his fourth ground, appellant contends that the trial court erred in refusing to charge the jury

on the lesser-included offense of deadly conduct. The court of appeals held that no error occurred

because there was no evidence that appellant “failed to perceive the risk involved in his conduct.”20

        A defendant is entitled to a jury charge on a lesser-included offense if two requirements are

met. First, the defendant must request an instruction on a lesser-included offense of the charged

offense under Article 37.09 of the Texas Code of Criminal Procedure.21 Second, there must be

“some evidence” that, if the defendant is guilty, he is guilty only of the lesser-included offense.22

Unlike the second step, the first step in this analysis is a pure question of law and does not depend


        19
           See Roe, 410 U.S. at 150 (“Logically, of course, a legitimate state interest in this area need
not stand or fall on acceptance of the belief that life begins at conception or at some other point prior
to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that
as long as at least potential life is involved, the State may assert interests beyond the protection of
the pregnant woman alone.”).
        20
        Flores v. State, 215 S.W.3d 520 (Tex. App. - Beaumont 2007)(citing Stadt v. State, 182
S.W.3d 360, 364 (Tex. Crim. App. 2005)).
        21
        Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)(citing Royster v. State,
622 S.W.2d 442 (Tex. Crim. App. 1981)(opinion on rehearing)).
        22
             Rosseau, 855 S.W.2d at 672 (citing Royster, 622 S.W.2d 442).
                                                                                     FLORES – 11

on evidence presented at trial.23

       A defendant does not satisfy the second prong of the Royster/Rousseau test if there is

evidence that he committed an offense that is a lesser-included of the charged offense but greater

than the requested lesser-included offense.24 For instance, in Jackson v. State, the defendant was

charged with capital murder and requested a jury charge on the lesser-included offense of aggravated

assault by recklessly causing serious bodily injury.25 The evidence clearly showed that the defendant

had caused not merely serious bodily injury but death; the only pertinent factual dispute was whether

he had acted recklessly or intentionally.26 Noting that he might have been entitled to an instruction

on the lesser-included offense of manslaughter based on the evidence that he recklessly caused death,

we held that he was not entitled to an instruction on aggravated assault for recklessly causing mere

serious bodily injury.27

       The same principle compelled our holding in Thomas v. State.28 Having been charged with

murder, the defendant in that case presented evidence of recklessness that might have supported an

instruction on the lesser-included offense of involuntary manslaughter.29 Yet the defendant instead

requested an instruction on the other lesser-included offense of criminally negligent homicide, which

       23
            Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007).
       24
        Jackson v. State, 992 S.W.2d 469, 474-75 (Tex. Crim. App. 1999); Thomas v. State, 699
S.W.2d 845, 845-52 (Tex. Crim. App. 1985).
       25
            992 S.W. 2d at 471, 474.
       26
            Id. at 475.
       27
            Id.
       28
            699 S.W.2d 845.
       29
            Id. at 847.
                                                                                        FLORES – 12

differs from involuntary manslaughter only in requiring a negligent rather than reckless mental

state.30 We held that the defendant was not entitled to the requested instruction because the evidence

relied on raised not mere negligence but recklessness.31 The analyses in Thomas and Jackson make

clear that a defendant is not entitled to a jury instruction on a lesser-included offense if the evidence

on which the defendant is relying raises another offense that “lies between” the requested and

charged offenses.32

        Applying the first prong of the Royster/Rousseau test to this case, we must determine whether

the offense for which appellant requested an instruction, deadly conduct, is a lesser-included offense

of the charged offense, capital murder. We have held that deadly conduct is a lesser-included

offense of attempted murder.33 Attempted murder is a lesser- included offense of capital murder.34

Therefore, deadly conduct is a lesser-included offense of capital murder.

        In addition to being consistent with our caselaw, this conclusion is supported by a

comparison of the elements of the two offenses. Deadly conduct differs from capital murder in both

its culpable mental state and its result. For each of these elements, the offense of deadly conduct

would be “established by proof of the same or less than all the facts required to establish the

commission of” capital murder, thus constituting a lesser-included offense under Article 37.09 of



        30
             Id. at 849.
        31
             Id. at 852.
        32
             Jackson, 992 S.W. 2d at 475.
        33
             Guzman v. State, 188 S.W.3d 185, 190 (Tex. Crim. App. 2006).
        34
           See TEX . CODE CRIM . PROC. art. 37.09(4) (“An offense is a lesser included offense if . . .
it consists of an attempt to commit the offense charged or an otherwise included offense.”).
                                                                                       FLORES – 13

the Texas Code of Criminal Procedure.35

       First, deadly conduct requires a reckless mental state, whereas capital murder requires

knowledge or intent. Intent is a higher degree of culpability than recklessness.36 The Texas Penal

Code states, “Proof of a higher degree of culpability than that charged constitutes proof of the

culpability charged.”37 Therefore, proof of intent would, as a matter of law, establish recklessness

as well.

       Second, the result required for deadly conduct is “plac[ing] another in imminent danger of

serious bodily injury,”38 whereas the result required for capital murder is “caus[ing] the death of an

individual.”39 Any proof that would have established that appellant had caused the deaths of the

fetuses would have also established, a fortiori, that he had placed them in imminent danger of

serious bodily injury. Because a comparison of the elements of the two offenses, as well as our

caselaw, demonstrates that deadly conduct is a lesser-included offense of capital murder, appellant

has satisfied the first of the two prongs of the Royster/Rousseau test.

       The next step in this analysis is to determine whether there is some evidence that, if appellant

is guilty, he is guilty only of deadly conduct, and not capital murder.40 Appellant argues that he

meets this requirement because there was evidence that he did not cause the twins’ deaths.


       35
            Id. art. 37.09(1).
       36
           T    EX . PEN . CODE   § 6.02(d).
       37
            Id. § 6.02(e).
       38
            Id. § 22.05(a).
       39
               Id. § 19.02(b)(1).
       40
            Stadt, 182 S.W.3d at 363.
                                                                                       FLORES – 14

       Appellant is correct that there was some evidence that the deaths were actually caused by

their own mother. Ms. Basoria testified that she repeatedly struck herself in the abdomen, and expert

witnesses testified that these blows might have caused the deaths. Moreover, the autopsy showing

that the cause of deaths occurred one to three days before the premature delivery supported the

defense’s theory that the deaths were caused by her striking herself (which she claimed to have done

every day during the last week of the pregnancy) rather than by his stepping on her (which she

claimed he last did one week before the premature delivery). Also, there was testimony that the

deaths could have been caused by a genetic disease.

       This evidence could have convinced a rational jury that appellant did not cause the deaths

but merely intended to do so. Yet appellant has not presented any evidence that he acted merely

recklessly rather than intentionally. Indeed, appellant’s own statement to the police and Ms.

Basoria’s testimony indicate that he committed the acts in question in a conscious attempt to end the

lives of the fetuses. By marshaling evidence that he might not have caused the deaths, without

disputing the evidence that he acted intentionally, appellant might have raised, and been entitled to,

an instruction on an offense that lies between the requested and charged offenses—namely,

attempted murder.41 Deadly conduct differs from attempted murder only in requiring a reckless

rather than intentional mental state. Because appellant has presented no evidence that his acts were

reckless rather than intentional, there is no evidence raising deadly conduct.

       While appellant has satisfied the first prong of the Royster/Rousseau test, he has failed to

satisfy the second prong because he has not presented some evidence that, if he is guilty, he is guilty


       41
         Deadly conduct is a lesser-included offense of attempted murder, see Guzman, 188 S.W.3d
at 190, which is, in turn, a lesser-included offense of capital murder, see TEX . CODE CRIM . PROC. art.
37.09(1), (4). Appellant did not request a jury instruction on attempted murder.
                                                                                       FLORES – 15

only of the requested lesser-included offense of deadly conduct. Appellant was thus not entitled to

an instruction on deadly conduct.

       In light of this analysis, we conclude that the court of appeals did not err in holding that the

trial court did not err in refusing to instruct the jury on deadly conduct. Consequently, we overrule

appellant’s fourth ground for review.

                                        III. CONCLUSION

       We affirm the judgment of the court of appeals.

Filed: February 13, 2008
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