









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0236-07


TERENCE CHADWICK LAWRENCE, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY


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

O P I N I O NThe issue in this case is whether the provisions of the Texas Penal Code that prohibit the murder
of an unborn victim violate due process. The answer is "no." Consequently, we shall affirm the judgment
of the court of appeals.    

I. BACKGROUND
A. Trial

Viewed in the light most favorable to the verdict, the evidence shows that appellant dated
Antwonyia Smith and another woman during the summer of 2004.  Upon learning that Smith was pregnant
with his child, he told the other girlfriend that he would "take care of" the problem.  He then shot Smith
three times with a shotgun, causing her death and the death of her four-to-six week old embryo.  
Appellant was charged with capital murder for intentionally or knowingly killing Ms.  Smith and her
unborn child.  Before trial, appellant filed a motion to quash the indictment, arguing that both the statute and
indictment were unconstitutional.  The trial court denied the motion.  At trial, the State argued that appellant
intentionally or knowingly shot Ms. Smith three times with a shotgun, causing the death of both her and her
approximately four-to-six-week-old embryo.  Appellant was convicted of capital murder and sentenced
to life in prison.
B. Appeal
Appellant complained on direct appeal that the trial court erred in denying the motion to quash the
indictment.  The court of appeals affirmed the judgment of the trial court, holding that the statute and
indictment pass constitutional muster. (1)  On discretionary review to this Court, appellant raises two grounds
for review, comprising three distinct arguments.  

II. ANALYSIS
A. Void for Vagueness
Appellant first argues that the definition of an "individual" in the statute under which he was
prosecuted is void for vagueness.  
When reviewing a trial court's decision to deny a motion to quash an indictment, we apply a de
novo standard of review. (2)  Whenever we consider the constitutionality of a statute, we begin with the
presumption that the legislature has not acted unconstitutionally. (3)
A statute is void for vagueness if it fails to define the criminal offense "with sufficient definiteness
that ordinary people can understand what conduct is prohibited and in a manner that does not permit
arbitrary and discriminatory enforcement." (4)  If, as in this case, a statute does not substantially implicate
constitutionally protected conduct or speech, it is valid unless it is "impermissibly vague in all applications"
or as applied to the defendant. (5) 
Under the Texas Penal Code, a person commits capital murder if he intentionally or knowingly
causes the death of "more than one person . . . during the same criminal transaction." (6) A "person" includes
an "individual." (7)  The Penal Code in turn defines an "individual" as "a human being who is alive, including
an unborn child at every stage of gestation from fertilization until birth." (8)  It follows from these provisions
that a person who intentionally or knowingly causes the death of a woman and her unborn child, at any
stage of gestation, commits capital murder.  The statute exempts conduct committed by a woman who
chooses to terminate her own pregnancy or a health care provider performing an abortion on a consenting
patient. (9) 
By expressly defining capital murder such that one of the victims may be any unborn child from
fertilization throughout all stages of gestation, the statute leaves no ambiguity as to what conduct is
proscribed.  In particular, the plain language of the statute prohibits the intentional or knowing killing of any
unborn human, regardless of age.  No ordinary person reading the statute would have any doubt as to
whether it encompasses victims at all stages of gestation.  
Appellant argues, however, that it would be scientifically impossible to know whether the embryo
that was extracted from Ms. Smith's body after her death either "was alive" or "would survive." In support
of this argument, appellant asserts that, given its stage of development, the embryo had a thirty percent
chance of dying as the result of a miscarriage. (10)
But this kind of argument cannot show that a trial judge erred in denying a motion to quash an
indictment.  Such a motion, like any pre-trial motion, cannot be used to "argue that the prosecution could
not prove one of the elements of the crime." (11)  That is, a pre-trial proceeding should not be a "'mini-trial'
on the sufficiency of the evidence to support an element of the offense." (12)
Because appellant raised his void-for-vagueness challenge in a motion to quash the indictment, it
is immaterial whether a miscarriage, rather than the shooting, might have been the real cause of death.  The
jury was charged with determining whether appellant had intentionally or knowingly caused the death of
the embryo beyond a reasonable doubt.  The jury found that he had.  By implicitly disputing this finding,
appellant is actually attacking the sufficiency of the State's evidence to support the result element of the
charged offense.  Such an attack on the evidence cannot support the granting of a motion to quash the
indictment on the grounds that the statute was impermissibly vague. (13) 
In sum, we hold that, because the statute in question clearly specifies who constitutes an
"individual," the statute is not impermissibly vague.
B. Notice
Second, appellant argues that the indictment failed to provide him with constitutionally sufficient
notice.  
A criminal defendant has a right to notice under the United States and Texas Constitutions. (14)  To
satisfy this notice requirement, an indictment must be "specific enough to inform the accused of the nature
of the accusation against him so that he may prepare a defense." (15)  An indictment is generally sufficient as
long as it tracks the language of a penal statute that itself satisfies the constitutional requirement of notice. (16)
In this case, the indictment alleged that appellant
did unlawfully then and there intentionally and knowingly cause the death of an individual,
to-wit: ANTWONYIA SMITH, by shooting ANTWONYIA SMITH with a firearm, a
deadly weapon, and during the same criminal transaction said defendant did then and there
intentionally and knowingly cause the death of another individual, to-wit: an unborn child
of ANTWONYIA SMITH while said unborn child was in gestation of said
ANTWONYIA SMITH.

	The indictment language describing the embryo precisely tracks the applicable statutory language. (17) 
Just as the statute provides notice to the ordinary citizen of what conduct is prohibited, the indictment
provided notice of the offense with which appellant was being charged so that he could prepare a defense. 
Having held that the statute is not unconstitutionally vague for the reasons stated above, we consequently
hold that the indictment provided adequate notice to appellant.
C. Substantive Due Process
	Finally, appellant argues that the statute under which he was charged violates the substantive
component of the Due Process Clause of the United States Constitution as the Supreme Court has
interpreted it in the line of abortion cases beginning with Roe v. Wade. (18)  In particular, appellant argues that
prosecuting him for intentionally or knowingly killing the embryo violated substantive due process because
the embryo had not yet reached "viability"-that is, the ability to survive outside the womb.  Appellant
focuses on viability because the Supreme Court has held that prohibitions on abortion before viability lack
a "compelling state interest" and are thus unconstitutional. (19)
	The reasoning articulated in Roe and its progeny for affording substantive due process protection
to the decision to have an abortion presupposes that the mother wants to have an abortion. (20)  Only then
will a statute implicate a woman's liberty interest in exercising the choice to do so.  It follows that the Roe
framework-including the "compelling state interest" test-has no application to a case that does not involve
the pregnant woman's liberty interest in choosing to have an abortion.  
	The instant case implicates no such liberty interest.  The State was prosecuting a third party who
ended the life of the embryo by fatally shooting the mother.  The "compelling state interest" test, along with
the accompanying "viability" threshold, has no application to a statute that prohibits a third party from
causing the death of the woman's unborn child against her will.
	The Supreme Court has emphasized that states may protect human life not only once the fetus has
reached viability but "from the outset of the pregnancy." (21)  In the absence of a due process interest
triggering the constitutional protections of Roe, the Legislature is free to protect the lives of those whom it
considers to be human beings. (22)  This is a policy decision that is properly reserved to the democratic
process, and should not be subject to judicial second-guessing. (23)
	For the above reasons, we cannot agree with appellant's position that the statute under which he
was indicted violated substantive due process. (24)
	We affirm the judgment of the court of appeals.
Filed: November 21, 2007
Publish    
1.   Lawrence v. State, 211 S.W.3d 883, 884-85 (Tex. App. - Dallas 2006).
2.   See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) ("When the resolution of a
question of law does not turn on an evaluation of the credibility and demeanor of a witness, then the trial
court is not in a better position to make the determination, so appellate courts should conduct a de novo
review of the issue. . . .  The trial court's decision in this case was based only on the indictment, the motion
to quash, and the argument of counsel, so the trial court was in no better position than an appellate court
to decide this issue.").
3.   See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Ex parte Granviel, 561
S.W.2d 503, 511 (Tex. Crim. App. 1978).
4.   State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006).
5.   Id.
6.   Tex. Pen. Code §§ 19.02(b)(1), 19.03(a)(7)(A).
7.   Id. § 1.07(a)(38).
8.   Id. § 1.07(a)(26).  
9.   Id. § 19.06.
10.   We express no view on the accuracy of these medical propositions.
11.   Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005).
12.   Id.
13.   We refused review of the court of appeals' holding that the evidence was sufficient.
14.   U.S. Const. amend. VI; Tex. Const. art. I, § 10.
15.   Moff, 154 S.W.3d at 601.
16.   See State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).
17.   Tex. Pen. Code § 1.07(a)(26).
18.   410 U.S. 113 (1973).  Appellant also contends that the statute and indictment violate the Equal
Protection Clause of the Fourteenth Amendment.  Because appellant did not raise this objection on appeal
to the court of appeals or in his Petition for Discretionary Review, we do not address it today.
19.   See Gonzales v. Carhart, 127 S. Ct. 1610, 1626 (2007) ("Before viability, the State's interests
are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the
woman's effective right to elect the procedure." (quoting Planned Parenthood of Se. Pa. v. Casey, 505
U.S. 833, at 846 (1992) (plurality opinion))). 
20.   See Maher v. Roe, 432 U.S. 464, 473-74 (1977) ("[T]he right in Roe v. Wade can be
understood only by considering both the woman's interest and the nature of the State's interference with
it." (emphasis added)); Roe v. Wade, 410 U.S. at 177 ("Th[e] right of privacy, . . . founded in the
Fourteenth Amendment's concept of personal liberty and restrictions upon state action . . . , is broad
enough to encompass a woman's decision whether or not to terminate her pregnancy." (emphasis added)).
21.   Carhart, 127 S. Ct. at 1626 ("[T]he State has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the fetus that may become a child."); see
also Coleman v. Dewitt, 282 F.3d 908, 912 (6th Cir. 2002) ("The Court's creation of this right under
the Fourteenth Amendment was not . . . a determination that the state has no prescriptive interest in matters
involving the unborn.  Quite to the contrary, the Court in Roe recognized that the state had important
interests in protecting fetal life." (citing Roe, 410 U.S. at 162-62)).
22.   See Carhart, 127 S. Ct. at 1633 ("The government may use its voice and its regulatory
authority to show its profound respect for the life within the woman."); Webster v. Reprod. Health Servs.,
492 U.S. 490, 503 (1989) ("Roe v. Wade 'implies no limitation on the authority of a State to make a value
judgment favoring childbirth over abortion . . . .'" (quoting Maher v. Roe, 432 U.S. at 474)). 
23.   See Poelker v. Doe, 432 U.S. 519 (1977) ("[T]he Constitution does not forbid a State or city,
pursuant to democratic processes, from expressing a preference for normal childbirth . . . .").
24.   Numerous decisions of other appellate courts, including Texas courts of appeals and courts of
other jurisdictions, are in accord with our holdings on both the void-for-vagueness question, see, e.g.,
Smith v. Newsome, 815 F.2d 1386, 1387-88 (11th Cir. 1987); People v. Davis, 872 P.2d 591, 598-99
(Cal. 1994); Brinkley v. State, 322 S.E.2d 49, 51-53 (Ga. 1984); State v. Merrill, 450 N.W.2d 318,
324 (Minn. 1990); State v. Alfieri, 724 N.E.2d 477, 483 (Ohio Ct. App. 1998), appeal dismissed, 709
N.E.2d 849 (Ohio 1999); Commonwealth v. Bullock, 913 A.2d 207, 212-13 (Pa.  2006); State v.
MacGuire, 84 P.3d 1171, 1177 (Utah 2004); People v. Ford, 581 N.E.2d 1189, 1200-02 (Ill. App. Ct.
1991); Flores v. State, 215 S.W.3d 520, 527-28 (Tex. App. - Beaumont 2007), pet. granted, and the
question of consistency with Roe v. Wade, see, e.g., Coleman, 282 F.3d at 911-13; Smith, 815 F.2d at
1388; Davis, 872 P.2d at 59; Brinkley, 322 S.E.2d at 53; Merrill, 450 N.W.2d at 324; Alfieri, 724
N.E.2d at 483; Flores, 215 S.W.3d at 526.  Indeed, we have found no case from any state supreme court
or federal court that has struck down a statute prohibiting the murder of an unborn victim, and appellant
cites none.  
In addition, scholarly commentary has defended the constitutionality of statutes like the one in this
case.  See, e.g., Daniel J.H. Greenwood, Beyond Dworkin's Dominions: Investments, Memberships,
the Tree of Life, and the Abortion Question, 72 Tex. L. Rev. 559, 589 & n.137 (1994) (book review);
Jeffrey A. Parness, Pregnant Dads: The Crimes and Other Misconduct of Expectant Fathers, 72 Or.
L. Rev. 901 (1993); Michael S. Robbins, The Fetal Protection Act: Redefining "Person" for the
Purposes of Arkansas' Criminal Homicide Statutes, 54 Ark. L. Rev. 75 (2001); Alison Tsao, Note,
Fetal Homicide Laws: Shield Against Domestic Violence or Sword to Pierce Abortion Rights?, 25
Hastings Const. L.Q. 457 (1998).
