Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 19th District Court McLennan County, Texas
Trial Court No. 2014-158-C1; Honorable Ralph T. Strother,
QUINN, C.J., and PIRTLE and PARKER, JJ.
OPINION ON REMAND
PATRICK A. PIRTLE JUSTICE
Marian Fraser, was convicted of the offense of
murder and sentenced to fifty years confinement
and was assessed a $10, 000 fine. On direct appeal, this
court found that because her conviction was potentially based
on the underlying felony offenses of reckless or criminally
negligent injury to a child, or reckless or criminally
negligent child endangerment, theories we believed would not
support a felony murder conviction, her conviction was
reversed. See Fraser v. State, 523 S.W.3d 320 (Tex.
App.-Amarillo 2017), rev'd, 583 S.W.3d 564 (Tex.
Crim. App. 2019). On the State's Petition for
Review, the Court of Criminal Appeals reversed the
judgment of this court and remanded the matter in order that
we might address Appellant's claim that the definition of
"reckless" contained in the Charge of the
Court was overly broad. See Fraser v. State, 583
S.W.3d 564, 571, n.41 (Tex. Crim. App. 2019).
remand, we find the trial court erred in its charge to the
jury. We further find that, under the facts of this case,
such error was egregious in that it (1) deprived Appellant of
her right to a fair trial and (2) vitally affected a
defensive theory. Accordingly, for the reasons that follow,
we reverse and remand.
background facts of this case are well-stated in our original
opinion and they are further discussed in each of the four
separate opinions issued by the Court of Criminal Appeals.
Accordingly, we refer the reader to the opinions cited above
for a full discussion of the underlying facts. Suffice it to
say that, in an unfortunate series of events, a four-month
old infant died while in Appellant's care. The medical
examiner's conclusion as to the cause of death was that
the infant died as the result of being given a toxic amount
of diphenhydramine, the active ingredient in Benadryl. Based
on those facts, the State indicted Appellant for the
first-degree felony offense of murder, pursuant to section
19.02(b)(3) of the Texas Penal Code, relying, in part, on the
theory that Appellant committed the underlying felony
offenses of reckless or criminally negligent injury to a
child or reckless or criminally negligent child
endangerment; and, in the course of and in furtherance
of the commission of one of those offenses, she committed an
act clearly dangerous to human life, namely, administering
diphenhydramine to the victim or causing the victim to ingest
diphenhydramine, that caused the infant's death. Based on
the remand from the Court of Criminal Appeals, we will limit
our analysis to the question of whether the trial court's
definition of reckless (and criminally negligent conduct) was
error, and, if so, whether that error was egregious.
36.14 of the Texas Code of Criminal Procedure mandates that
the trial court "shall deliver to the jury . .
. a written charge distinctly setting forth the law
applicable to the case . . . ." Tex. Code Crim.
Proc. Ann. art. 36.14 (West 2007). (Emphasis added). A proper
definition of statutorily defined terms applicable to the
prosecution is considered to be "law applicable to the
case." "The purpose of the jury charge is to inform
the jury of the applicable law and guide them in its
application to the case." Beltran De La Torre v.
State, 583 S.W.3d 613, 617 (Tex. Crim. App. 2019)
(quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex.
Crim. App. 1996)). Therefore, a proper charge consists of an
abstract statement of the law applicable to the case and such
application paragraph or paragraphs as are necessary to apply
that law to the facts. Ramirez v. State, 336 S.W.3d
846, 851 (Tex. App.-Amarillo 2011, pet. ref'd). The
abstract paragraph of a jury charge serves as a glossary to
help the jury understand the meaning of concepts and terms
used in the application paragraph of the charge. Arteaga
v. State, 521 S.W.3d 329, 338 (Tex. Crim. App. 2017).
The failure to give an abstract instruction is reversible
error when such an instruction is necessary to correct or
complete the jury's understanding of concepts or terms in
the application part of the charge. Malik v. State,
953 S.W.2d 234, 235 (Tex. Crim. App. 1997).
"[a] trial judge must maintain neutrality in providing
such information and guidance." Beltran De La
Torre, 583 S.W.2d at 617 (citing Brown v.
State, 122 S.W.2d 794, 798 (Tex. Crim. App. 2003)).
Accordingly, the jury charge should avoid any allusion to a
particular fact in evidence, "as the jury might construe
this as judicial endorsement or imprimatur."
Id. Furthermore, an instruction is improper if it
"impermissibly guide[s]" a jury's consideration
of the evidence and "improperly focuses the jury"
on certain evidence because such an instruction would amount
to an impermissible comment on the weight of the evidence.
Brown, 122 S.W.2d at 802. To accomplish these
purposes, article 36.14 provides that a jury charge: (1) must
be in writing; (2) must "distinctly set forth the law
applicable to the case"; (3) cannot "express any
opinion as to the weight of the evidence"; (4) may
"not sum up the testimony"; and (5) cannot
"discuss the facts or us[e] any argument in [the]
charge calculated to arouse the sympathy or excite the
passions of the jury." Tex. Code Crim. Proc. Ann. art.
review of claimed jury-charge error involves a two-step
process. See Cortez v. State, 469 S.W.3d 593, 598
(Tex. Crim. App. 2015). See also Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985). A reviewing court
must initially determine whether charge error occurred.
Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App.
2015). If an appellate court finds charge error, the next
step requires the reviewing court to analyze that error for
harm. Kirsch v. State, 357 S.W.3d 645, 649 (Tex.
Crim. App. 2012).
error requires reversal when a proper objection has been made
and a reviewing court finds "some harm," i.e.,
error that is calculated to injure the rights of the
defendant. Barrios v. State, 283 S.W.3d 348, 350
(Tex. Crim. App. 2009). Where, as here, the alleged
error was not preserved by objection, Appellant can prevail
only if she was egregiously harmed by an erroneous charge.
Arteaga, 521 S.W.3d at 338. Jury charge error is
egregious if it affects the very basis of the case, deprives
the defendant of a valuable right, or vitally affects a
defensive theory. Id. Egregious harm is a "high
and difficult standard which must be borne out by the trial
record." Reeves v. State, 420 S.W.3d 812, 816
(Tex. Crim. App. 2013).
reviewing harm resulting from charge error, an appellate
court must determine harm in light of (1) the jury
instructions, (2) the state of the evidence, (3) the
arguments of counsel, and (4) any other relevant information
revealed by the record of the trial as a whole. See Anaya
v. State, 381 S.W.3d 660, 665 (Tex. App.-Amarillo 2012,
pet. ref'd) (citing Almanza, 686 S.W.2d at 174).
Also, there is no burden of proof or persuasion in a harm
analysis conducted under Almanza. See
Anaya, 381 S.W.3d at 665.
Law-Elements of the Offense and Statutory
Definitions (1) Felony Murder
to the relevant theory of the State's case, the
prosecution was required to establish the following elements:
(1) the death of an individual;
(2) caused by an act;
(3) that was clearly dangerous to human life;
(4) committed in the course of and in furtherance of reckless
or criminally negligent injury to a child or reckless or
criminally negligent child endangerment.
See Tex. Penal Code Ann. § 19.02(b)(3).
Injury to a Child
the underlying felony offense of reckless or criminally
negligent injury to a child, the prosecution was required ...