THEDFORD v. STATE (2020)

MEMORANDUM OPINION

On June 21, 2016, Michael Thedford dropped his two oldest children off at daycare and drove home with his six-month-old daughter, Fern, who had been sick with a fever and was staying home that day. Sadly, Michael forgot Fern was still in the vehicle and left her in the back seat. When he arrived home, he went inside and fell asleep. Michael woke up four hours later and found Fern in the vehicle. Tragically, Fern died of hyperthermia. The sole issue before us is the sufficiency of the evidence to support the jury's guilty verdict for criminally negligent homicide. We reverse the conviction and render a judgment of acquittal.

BACKGROUND

When this tragedy occurred, Jennifer and Michael Thedford were married and had three children together. Jennifer was a veterinarian, and Michael was a high school physics teacher. The Thedfords’ oldest child was five years old and had recently finished kindergarten, their second child was three years old, and their youngest child, Fern, was six months old. The two youngest children attended daycare at MudPies and Lullabies, a daycare and preschool near the Thedfords’ home, and the oldest child was attending the preschool during summer vacation.

On June 21, 2016, Michael was on summer vacation from his teaching job and was responsible for taking the children to school. Michael's three-year-old daughter woke him up at 7:30 a.m. Michael had the children ready to go to school by 8:15 a.m., put them into the family minivan, and made the short trip to the school. Because Fern had been sick with a fever, he intended to drop the two oldest children at school and bring Fern home with him for the day. The school has two buildings. Fern and her older sister were in the building that housed the infant through three-year-old classes. When he arrived at school, Michael parked the car, walked his older daughter into the school, and took her to her classroom. His son and Fern remained in the minivan. Next, he drove to the other building and walked his son inside. Fern remained in the minivan. While inside, Michael logged into the school's check-in system, checked in the two older children, and clicked on Fern's picture to indicate she was not being checked in to school that day. Michael then left the building, returned to the minivan, and drove away.

Michael drove straight home after dropping the children off at school, and the drive took only a few minutes. When he arrived home, he exited the minivan, went inside, got in bed, and fell asleep. Michael told investigators that he fell asleep at about 9:00 a.m. and woke up at 1:00 p.m. His wife, Jennifer, called him after he woke up. He was talking with Jennifer and walking to the living room when he saw the minivan out of the corner of his eye through the front door and he realized Fern was not in the house. He panicked and ran outside to the minivan. He found Fern in the minivan still sitting in her car seat. One side of her face was discolored, and she was very hot. Cell phone records show that Jennifer called Michael at 1:25 p.m. Jennifer told a sheriff's office investigator that while she was on the phone with Michael, he screamed and told her that Fern was cold, not breathing, and was dead. Jennifer told Michael to call 9-1-1, which he did within two minutes of getting Jennifer's call. Before calling 9-1-1, however, Michael carried Fern into the house. He placed Fern in the refrigerator with the door open where he could still see her as he called 9-1-1. He removed her from the refrigerator and placed her on the floor when the 9-1-1 dispatcher gave him instructions on how to administer CPR to Fern.

Michael told the 9-1-1 dispatcher that he had woken up from a nap and found his infant daughter dead in her bassinet. He described Fern as “burning hot to the touch” and told the dispatcher Fern had a fever that morning. When he was transferred to the American Medical Response (AMR) Dispatcher, Michael also told that dispatcher he had put the baby in the bassinet beside his bed and then took a nap. He told the AMR dispatcher that Fern was hot to the touch, not awake, completely stiff, not breathing, and that he could feel the heat coming off of her. The AMR dispatcher talked Michael through starting CPR, and he repeated the instructions back as he completed mouth to mouth breathing and chest compressions on Fern. The paramedics arrived as Michael was doing chest compressions. Michael also told the paramedics he had fallen asleep, but didn't mean to sleep that long, and that he found the baby in her bassinet next to the bed when he woke up. The following exchange could be heard on the 9-1-1 call:

UNIDENTIFIED VOICE: Those van doors are open.

UNIDENTIFIED VOICE: Huh?

(Unintelligible voices in the background.)

MICHAEL THEDFORD: Oh, no.

UNIDENTIFIED VOICE: Where was this—the bassinet was in there?

THE DEFENDANT: (Inaudible) ~ it's not like I left her in the car, or anything.

UNIDENTIFIED VOICE: Where do you ~ where did — did you open the car door to take her to the hospital?

MICHAEL THEDFORD: What? The car's open?

UNIDENTIFIED VOICE: Yes.

MICHAEL THEDFORD: Yes. I was in this -- yes. When I found her, that's the first thing I did. I already had taken inside. I brought this in to take her to the hospital, but this — (inaudible) —

(Unintelligible voices in the background.)

UNIDENTIFIED VOICE: Sir, do you have a blanket?

UNIDENTIFIED VOICE: I'll get it.

UNIDENTIFIED VOICE: All right. We'll both move our stuff. We're going together — uh — leave our stuff here — (inaudible) —

(Unintelligible voices in the background.)

MICHAEL THEDFORD: Uh -- it could be, because I didn't take it out.

UNIDENTIFIED VOICE: How did it get out? How did it get out?

(Unintelligible voices in the background.)

MICHAEL THEDFORD: I ~

(End of 911 call.).

Paramedics pronounced Fern dead shortly after arriving on scene and reporting her condition to the department's medical director.

Collin County Sheriff's Office Investigator Danny Stasik arrived on scene at 1:40 p.m. He spoke with Michael inside the house, and Michael admitted he forgot Fern in the minivan when he returned from dropping the other children off at school that morning and he found Fern in the minivan after waking up. Michael said when he returned home that morning, he was feeling “very woozy,” wandered into the house, and fell asleep immediately. He thought he would lie down for a few minutes, but ended up sleeping until 1:00 p.m. Michael said he completely forgot about Fern. Michael also told Stasik that when he found Fern, she was stiff and “so hot,” and his “panic brain” told him he should try to bring her body temperature down as quickly as possible. So, he put her in the refrigerator as he was dialing 9-1-1, but removed her to start following the 9-1-1 dispatcher's instructions. Michael said he was on the phone with Jennifer when he found Fern and removed her from the minivan.

Stasik transported Michael to the sheriff's office for questioning. During that interview, Michael again told Stasik he found Fern in the minivan after he woke up. Michael told investigators he had taken his other two kids to the preschool that morning but not Fern because she had been sick and was going to stay home. Michael explained he took Fern with him in the minivan to drop the other children off at school. He returned home around 9:00 a.m., fell asleep, and woke up around 1:00 p.m. When he awoke, he realized Fern was not in the bassinet by the bed, and he found her in the minivan. He stated he must have forgotten her in the minivan when he returned home because he was very sleepy that morning. He also told investigators he takes several prescription medications to treat his bipolar disorder. The one medication discussed in detail was Seroquel, which Michael described as a sedative and “mood leveler.” Michael said his prescribed dose was 600 milligrams and, within forty minutes of taking that dose, he would be out for eight to nine hours. He told investigators he took his prescribed dose of Seroquel at 12:30 a.m., which was later than normal. Michael also explained that he put Fern in the refrigerator as he was calling 9-1-1 because she was so hot and, even though he knew she was dead, he thought there might be some hope to bring her back. Michael told investigators his normal routine is to drop all three kids off at the preschool and then “there's nothing to do” when he returns home on a normal day. He usually checks email and maybe works on hobbies when he gets home. But that day, he “just stumbled into bed” because he was so sleepy.

THE TRIAL

The State indicted Michael on one count of manslaughter, one count of tampering with or fabricating physical evidence, and one count of abandoning or endangering a child. The State's witnesses included the dispatcher from the sheriff's office, the preschool director, two paramedics who first arrived on scene, three sheriff's office investigators who dealt with crime scene evidence and witness interviews, the medical examiner, and Stasik. The State also presented video interviews of Jennifer and Michael and a video of Michael doing a walk-through with Stasik showing what happened from the time he returned home that morning to the time paramedics arrived. In addition, the jury heard the 9-1-1 call and saw videos from the school of Michael dropping his son and daughter off that morning. After the State rested, the trial court determined there was insufficient evidence to go to the jury on manslaughter.

Michael did not testify. He did, however, present several witnesses for his defense. Four of those witnesses, the pediatric nurse practitioner who treated Fern for her fever, two teachers from the preschool, and one of Michael's long-time friends, testified that Michael was a loving and attentive father. The teachers also testified they watched the videos of Michael dropping the children off that morning, did not see anything unusual in the videos, and many parents leave one child in the car while they drop another child off in the other building.

Michael's primary witness was Dr. David Diamond, a professor who lectures undergraduate and graduate students and health professionals on brain and memory function. Dr. Diamond testified he had been studying why parents forget kids in cars for fourteen years to try to understand how this can happen and why it happens so often. Dr. Diamond first explained that this can happen to anyone and it cuts across society:

It happens to mothers, fathers, grandmothers, grandfathers. It happens to people of all occupations -- blue collar, white collar. It happens to professors, doctors, lawyers, teachers. There appear to be – there's no restriction. Essentially, the only requirement is this can happen to anyone. It's part of being human.

Dr. Diamond then described three areas of the brain that are active when performing a task such as driving. The basal ganglia engage when a person performs a task out of habit or routine, allowing a person to drive a familiar route without having to think about which turn to take. The frontal cortex allows a person to plan for future action. The hippocampus allows people to learn new information and to store memories. These areas can work together, but they also can work against each other. According to Dr. Diamond, the competition between these parts of the brain explains why a parent might forget his child is still in the car.

Dr. Diamond explained there are two types of memory — memories for facts and prospective memory. Prospective memory is planning to do something in the future and expecting that we will remember to do it at the right time. He testified prospective memory is most vulnerable and can lead to catastrophe. Some benign examples are forgetting to call someone you intended to call or forgetting about an appointment. But other examples can result in tragedies, such as when a surgeon leaves a surgical tool inside the body during surgery, a plane crash results from pilot error, or a parent leaves a child in the car seat, instead of getting the child out of the car upon arrival at their destination.

Dr. Diamond explained there are also competing memory systems. The habit memory system, such as driving home from work each day, competes with the fresh memory system, such as when you tell yourself you need to stop at the store on the way home to pick up medication. The habit memory system is often so powerful that it dominates and suppresses the memory of needing to stop at the store such that you get home without realizing you forgot to go to the store. According to Dr. Diamond, these competing systems are what causes a parent to forget his child in a car. The parent puts the child in a car seat with every intention to retrieve the child when the parent arrives at home, but during the drive, the parent loses awareness of the child in the car and, as a result, leaves the child in the car. He testified that in cases where a parent left a child in the car, every parent interviewed afterward said they had been driving a route they had taken many times and lost awareness that the child was in the car. Dr. Diamond further explained that when you are sleep deprived or sleep impaired, you have impaired memory for new information and, even after a poor night's sleep, the likelihood is dramatically increased you will follow a habit or routine. Sleep deprivation does not affect all areas of the brain. It impairs the frontal cortex but does not impair the habit system. And the basal ganglia do not keep track of who is in the car. The basal ganglia only get us from Point A to Point B. They do not keep track of any new information. They only keep track of our habits.

Dr. Diamond theorized that after Michael dropped his older children off at school, two ingrained habits competed with new memory information in Michael's brain the day Fern died. First, Michael spent years driving only two kids to day care each day and, because Fern was only six months old, taking three kids to school was a relatively new habit. Second, it was not a habit to take the older kids to school and then return home with Fern. Rather, the most recent habit for Michael was to drop all three children at school and then return home alone. According to Dr. Diamond, it was that new habit Michael followed on the day of Fern's death; namely, “arrive home, exit the car, go into the house.” This habit would not have included “look in the back seat for Fern.” Because of the routine, Michael's hippocampus was no longer retaining the awareness of Fern in the car. The routine was reinforced that day because Michael had not brought Fern's diaper bag with him. The diaper bag would normally be in the front seat with Michael if Fern was in the car. But Michael did not bring the bag that morning because Fern was not being left at school. When Michael arrived home, the car appeared empty as usual, so he exited the car and went inside according to his usual routine.

Dr. Diamond believes if Fern had made noise or had been fussy in the back seat, this would not have happened, because the sounds would have triggered the memory the child was in the car. He testified it is important in these cases to know whether the child was quiet or not because a sleeping or quiet child is not giving a cue to the driver of the child's presence. According to Dr. Diamond, Michael was very precise in his answer to Dr. Diamond when asked whether Fern was quiet or asleep during the drive home; Michael was certain she was quiet, but he was not certain that meant she was sleeping. Dr. Diamond also testified Michael was much more likely to follow a habit than new information because he was sleep deprived and tired.

The charges submitted to the jury were criminally negligent homicide, tampering with or fabricating physical evidence, and abandoning or endangering a child. The charge instructed the jury to find Michael guilty of criminally negligent homicide if they found from the evidence beyond a reasonable doubt that Michael, with criminal negligence, caused the death of Fern “by leaving [her] unattended in a motor vehicle without air conditioning or water.”

The State's theory of the case was that Michael was criminally negligent because he took Seroquel less than nine hours before he knew he would need to take the children to school, knew the medication knocked him out for eight or nine hours, and had a duty as a parent to recognize taking that medication at that time posed an unreasonable risk he would act in a way that Fern would die. The State urged the jury to look at everything that happened the day Fern died to find Michael guilty of criminally negligent homicide. During closing argument, the prosecutor pointed to Michael's statements to the 9-1-1 dispatchers and the paramedics that he found Fern dead in the bassinet and to Michael's decision to put Fern in the refrigerator as evidence Michael knew he had acted with criminal negligence.

The prosecutor told the jury that “Criminal negligence has to do with whether or not you should have remembered;” and “A person is criminally negligent if they should be aware of a big, bad, scary risk ․ not being aware of the risk is what constitutes the crime if it is a risk that someone should be aware of.” The prosecutor argued that the jury should ask “Is this risk so big and so bad that we, as a society, say, Hey, look, you've got a duty to recognize that risk. And, ladies and gentleman, there is no bigger risk than the loss of a child. This is the tiptop of the priority list. He had every duty in the world to recognize this as a risk as he is a father.”

The State argued Michael was guilty of criminally negligent homicide because: (1) he decided to take Seroquel the night before knowing it would knock him out; (2) the next morning, he left Fern in the car twice at school when he took the other children into the school “knowing that he was extraordinarily sleepy and that he might very well forget later on in the day”; (3) “he failed to realize every single reminder that was put in place that could have reminded him of the fact that Fern was in the back of the car”; (4) he failed to look in the rearview mirror or the mirror on the backseat looking into the car seat before exiting the minivan; (5) “he passed up every single opportunity he had to realize that she was in the back of the car”; (6) “he walked by a sea of reminders” in the house that should have reminded him that Fern was in the car; and (7) he “slept the day away” next to the bassinet “that he was subsequently going to lie about to try to sell this baby's death.” The State told the jury if they believed Michael acted with criminal negligence in killing his daughter, then the jury must also find him guilty of abandoning or endangering a child with criminal negligence.

The tampering charge was based on the State's theory that Michael tampered with Fern's body by placing her in the refrigerator and reducing her body temperature. The State argued if Michael knew Fern was dead when he removed her from the minivan, then the jury must find him guilty of tampering with her body because the only reason to put her in the refrigerator was to bring her temperature down enough so that he could “sell” the lie he was telling to 9-1-1 and the paramedics that Fern happened to die from a fever.

The jury asked three questions during deliberations: (1) can criminal negligence occur without intent; (2) could an accident be homicide; and (3) what does “criminal” in “criminal negligence” mean? The trial court referred the jury back to the jury instructions and told the jury “[a]ll the law you need is contained within [your jury instructions].”

The jury unanimously found Michael guilty of criminally negligent homicide and of abandoning or endangering a child with imminent danger of bodily injury. The jury unanimously found Michael not guilty of tampering with or fabricating physical evidence. After the jury returned its guilt–innocence verdict, the State elected to go forward on the criminally negligent homicide conviction only. Michael then waived his right to have the jury decide punishment and elected to accept the State's punishment offer of a two-year sentence probated for five years, which the trial court approved. The trial court entered a judgment of conviction for criminally negligent homicide, sentenced Michael to two years’ confinement, and suspended that confinement in favor of placing Michael on community supervision for five years. The trial court also entered a judgment of acquittal as to the charge of tampering with or fabricating physical evidence.

Michael appealed. The trial court denied Michael's amended motion for new trial. On appeal, Michael challenges the sufficiency of the evidence to support the jury's finding on criminally negligent homicide.

STANDARD OF REVIEW

When reviewing a challenge to the sufficiency of the evidence supporting a criminal conviction, we view the evidence in the light most favorable to the verdict and determine whether a 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). We do not resolve conflicts of fact, weigh evidence, or evaluate the credibility of the witnesses as this is the function of the trier of fact. Williams v. State, 301 S.W.3d 675, 684 (Tex. Crim. App. 2009) (“The Jackson standard of review gives full play to the jury's responsibility to fairly resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from the evidence.”); Little v. State, 246 S.W.3d 391, 398 (Tex. App.—Amarillo 2008, no pet.). Instead we determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the adjudication. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992). The factfinder may choose to disbelieve all or any part of a witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Each fact need not point directly and independently to the guilt of the appellant as long as the cumulative force of all the incriminating circumstances is enough to warrant conviction. Kennemur v. State, 280 S.W.3d 305, 313 (Tex. App.—Amarillo 2008, pet. ref'd). Circumstantial evidence is as probative as direct evidence and can be sufficient alone to establish an accused's guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). “A court's role on appeal is restricted to guarding against the rare occurrence when the factfinder does not act rationally.” Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018).

In making our review, we have an obligation and responsibility “to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged.” Ross v. State, 543 S.W.3d 227, 234 n.14 (Tex. Crim. App. 2018). Under the Jackson standard, evidence may be insufficient when the record contains no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes reasonable doubt. Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013).

APPLICABLE LAW

A person commits criminally negligent homicide if he causes the death of an individual by “criminal negligence.” Tex. Penal Code § 19.05(a). Texas defines the mental state for criminal negligence as:

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).

A legally sufficient showing of 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 the conduct created a substantial and unjustifiable risk of death; and (3) his failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exercised under similar circumstances. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017) (citing Tex. Penal Code §§ 6.03(d), 19.05(a)). The circumstances must be viewed from the standpoint of the defendant at the time the allegedly negligent act occurred. Id. at 623.

Criminal negligence is not simply the criminalization of ordinary civil negligence. Id. The “carelessness required for criminal negligence is significantly higher than that for civil negligence” and the conduct “involves a greater risk of harm to others, without any compensating social utility” than does conduct that constitutes ordinary civil negligence. Id. (quoting Montgomery v. State, 369 S.W.3d 188, 193 (Tex. Crim. App. 2012)). For conduct to constitute criminal negligence, it must be “egregious” and there must be some “serious blameworthiness” attached to the conduct. Harber v. State, 594 S.W.3d 438, 448 (Tex. App.—San Antonio 2019, pet. ref'd) (quoting Queeman, 520 S.W.3d at 629, 630). The risk created by the conduct must be “substantial and unjustifiable,” and we determine whether the conduct involves such an extreme degree of risk by examining the conduct itself, not the resultant harm. Queeman, 520 S.W.3d at 623. Finally, the defendant's “failure to perceive [the risk] must be a ‘gross deviation’ from reasonable care as judged by general societal standards by ordinary people.” Id. (quoting Montgomery, 369 S.W.3d at 193).

To determine whether the State presented sufficient evidence such that a reasonable jury could find the “serious blameworthiness” that elevates tortious conduct to a gross deviation from the ordinary standard of care, we must look at the antecedent circumstances that culminated in Michael leaving the child in the car. See Ives v. State, No. 08-16-00026-CR, 2017 WL 3887444, at *8 (Tex. App.—El Paso Sept. 6, 2017, pet. ref'd) (not designated for publication); see also Tello v. State, 180 S.W.3d 150, 158 (Tex. Crim. App. 2005). As our sister court noted in Ives, the negligence standard that a parent may breach in these cases is failing to look out for the safety of his child, and that standard can be breached “in any number of ways, some minor, and some gross, either of which might lead to an accidental death.” Ives, 2017 WL 3887444, at *8. The Ives court used a child's death on a playground swing set following a parent's failure to watch their child as an example. If the parent momentarily failed to watch his child but the child died on the swing set, the parent would be merely negligent. Id. But if the parent failed to know where his child was for a number of days, and the child died unsupervised on the same swing set, the parent's conduct would likely be found sufficiently blameworthy to merit a criminal sanction. Id. This is because “the circumstances surrounding both situations will define” the parent's culpability. Id. “Otherwise, the focus becomes the death of a child, which post hac might always appear to arise from a gross departure of the duty of care.” Id. In other words, “it is not leaving the child in the car that defines the blameworthiness, but how that event came to pass.” Id.

For example, in Ives, the appellant was convicted of criminally negligent homicide after forgetting to drop her five-month-old daughter off at daycare and tragically leaving the infant in her vehicle outside of her workplace. Ives, 2017 WL 3887444, at *1. Ives found her daughter in the vehicle at the end of the workday, and the infant had died of heat exposure. Id. The evidence at trial showed that Ives recently changed medication to treat her uncontrolled high blood pressure, slept poorly the night before her daughter's death, and woke up feeling groggy, but still drove her children to daycare that morning. Id. at *2. She also changed her normal routine when she decided to go to McDonald's after dropping her four-year-old daughter at daycare but before taking the infant to her daycare location. Id. Since the infant's birth, Ives had also become forgetful, irritable, emotional, tired, and stressed. Id. at *1. The Ives court noted that these were the antecedent circumstances that culminated in Ives leaving the child in the car, and conceded that, “[a]t least in hindsight, each of these might be viewed as a departure from the standard of care for a parent.” Id. at *8. The court concluded, however, that no rational jury could conclude that those circumstances were “gross departures from conduct expected by general societal expectations.” Id. The court noted that any other conclusion would have Draconian results not supported by the facts of that case:

Otherwise, we would effectively require any parent who was fatigued, under stress, or had experienced some forgetfulness to defer any parenting duty that might conceivably place their child at risk. Such a verdict would effectively require any person whose high blood pressure medicine was being adjusted to refrain from transporting or caring for children. Nor is it rationale [sic] to conclude that a parent, who alters their route while driving children back and forth, has committed morally blameworthy conduct.

Id. The Ives court noted that the only example of Ives's forgetfulness prior to her daughter's death was that Ives forgot to pack diapers in her diaper bag several weeks prior. Id. The court concluded that example was “hardly the sort of warning sign that would cause Appellant to turn over her parenting duties to another.” Id.

ANALYSIS

We conclude the reasoning of Ives is equally applicable here. The antecedent circumstances that culminated in Michael leaving the child in the minivan include: (1) taking his normal, prescribed dose of Seroquel later than usual the night before Fern's death, (2) taking his children to daycare less than nine hours after taking the Seroquel, (3) driving home with Fern when he felt very sleepy, and (4) departing from his usual routine by dropping only two of the children off at daycare and failing to put the diaper bag in the minivan for the trip to school. No rational jury could conclude that these circumstances constitute gross departures from conduct expected by general societal expectations.

We determine whether the conduct involves “an extreme degree of risk” by looking at the conduct itself, not the resultant harm. Queeman, 520 S.W.3d at 623. Michael's conduct here does not involve such risk. Many medications cause drowsiness. Michael knew his prescribed dose of medication knocks him out within forty minutes of taking it and allows him to sleep for eight to nine hours, which is likely why he takes it at night. Although he admittedly took the medication at 12:30 a.m., which was later than usual, the evidence showed that his daughter woke him up seven hours later and he was able to get the kids ready for school and drop them off without raising any concerns with the preschool staff within eight hours of taking the medication. The record does not support a finding that Michael had any reason to suspect that taking the medication late and driving the children to daycare anyway would create a substantial and unjustifiable risk of death to Fern, or that his failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exercised under similar circumstances. The same is true for Michael's decision to make the three-minute drive home with Fern when he felt very sleepy. As for the departures from his usual routine, although not bringing the diaper bag and returning home with Fern instead of returning home alone contributed to Michael forgetting Fern in the vehicle, they do not constitute deviations from any standard of care owed by Michael as a parent. The same is true for the State's unsubstantiated arguments to the jury that Michael failed to “realize every single reminder that was put in place” to remind him Fern was in the car and passed up “every single opportunity” to realize she was in the car. The State presented no evidence of what those reminders and opportunities were or how missing them constitute deviations from any standard of care owed by Michael as a parent or rises to the level of serious blameworthiness necessary to establish criminal negligence. In examining the conduct itself and not the resultant harm, we conclude the evidence is legally insufficient to support the jury's finding Michael acted with criminal negligence when he left the child in the minivan.

The State maintains Ives does not apply because Michael was taking multiple medications that negatively impacted his ability to care for Fern. The State further argues that Ives is distinguishable because the blood pressure medication at issue in Ives “was not one of the four key facts the court held insufficient,” and Michael was far more sleep deprived than Ives because he took Seroquel the night before, which knocked him out and made him groggy the next day. These are distinctions without meaning because Michael took his normal prescribed dose of Seroquel and, although he was very tired the morning in question, there is no evidence that Michael was functioning abnormally or presented any warning signs to make Michael turn over his parenting duties that morning. The teacher who interacted with Michael at drop off that morning testified she had no concerns with his ability to function normally, and the witnesses who knew Michael before this tragedy testified there was nothing unusual about his actions on the videos of him dropping the children off at the preschool. At most, these antecedent circumstances show a parent who took a medication later than normal, knew the effects, and then drove his children to school more than eight hours later when he was still tired. This case presents no legally significant differences from a situation where a parent drives his child to day care after being up all night with a teething or colicky infant or after taking cold medicine. Sleep deprivation goes hand in hand with parenting young children. We conclude it is unrealistic and irrational to conclude a parent commits criminally blameworthy conduct when he fails to defer any parenting duty that might conceivably place his child at risk whenever the parent is tired, fatigued, or taking prescription medications, either on time or off-schedule. See Ives, 2017 WL 3887444, at *8; see also Queeman, 520 S.W.3d at 631; see also Harber, 594 S.W.3d at 453.

The State also relies on Vreeland v. State, to support its contention that the conviction should be affirmed. See Vreeland v. State, No. 13-04-00368-CR, 2006 WL 3028065 (Tex. App.—Corpus Christi–Edinburg, Oct. 26, 2006, no pet.) (mem. op., not designated for publication). In Vreeland, a mother was found guilty of endangering a child after she left her two-month-old daughter in her car seat for seven hours and the infant died. Id. at *2. There, the defendant loaded her infant into a car seat to run an errand in the early morning hours. Id. She returned to her house around 6:50 a.m., and went inside until she left the house around lunchtime and ran several more errands. Id. Around 2:00 p.m., she discovered her then-deceased infant still strapped in the car seat. Id. The court affirmed the conviction, noting that she had entered and left the small vehicle nine times without noticing the child. Id. at *5 The defendant claimed she thought she had dropped the child off at daycare on her first errand of the day. Id. at *2. Her routine, however, was to drop the child's car seat at the day care with the child, and that day the car seat was “immediately obvious” and “clearly” visible from outside of the vehicle. Id. at *5. Calling the circumstances suspicious, the court found a rational jury could have concluded that the mother recklessly or with criminal negligence placed the infant in imminent danger of death or bodily injury. Id.

We find Vreeland distinguishable because Vreeland's failure to realize her child was in the car despite multiple opportunities to discover either the child or the clearly visible car seat when she entered and exited the vehicle during the day provided legally sufficient proof of culpability. No such evidence is present here. On the contrary, Michael lost awareness that Fern was in the vehicle with him on the drive home and, regrettably, forgot about her when he entered the house and fell asleep. Unlike the parent in Vreeland, the first time Michael saw the vehicle after waking up, he realized Fern's absence in the house, realized what he had done, and immediately ran to the vehicle to remove Fern. Vreeland is distinguishable and inapplicable here.

The State also contends Ives is distinguishable because Michael “told a series of lies and made other efforts to conceal the true manner of [Fern's] death.” We disagree. “[I]t is not leaving the child in the car that defines the blameworthiness, but how that event came to pass.” Ives, 2017 WL 3887444, at *8. Likewise, it is not Michael's initial reaction upon realizing he had forgotten his daughter and finding her deceased in the minivan or his false statements to the 9-1-1 dispatchers and first responders that provide legally sufficient support for a criminal negligence finding. Michael's reactions and statements after finding Fern are irrelevant to the question of how “the event” of Michael leaving Fern in the minivan “came to pass” because those reactions and statements occurred hours after the event itself, and the State presented no evidence the reactions or statements were connected in any way to the event. Michael's initial failure to admit he found Fern in the minivan could support a finding he had a guilty conscience after discovering he had accidently left his daughter in the car and she had died, a finding he was ashamed or scared to admit the truth, or even a finding that he displayed an atypical reaction to trauma. Michael's statements do not, however, support the finding he acted with criminal negligence when he left his child in the car. The relevant facts and circumstances to determine Michael's criminal liability are those circumstances leading to Michael leaving Fern in the minivan. See Queeman, 520 S.W.3d at 623 (the focus is on the defendant's “failure to perceive the risk” “at the time that the allegedly negligent act occurred”). His actions thereafter are irrelevant to the question of whether he was criminally negligent at the time he left her in the vehicle. See Ives, 2017 WL 3887444, at *8.

CONCLUSION

The tragedy of this case is undeniable. A child's life is over too soon and a family has been impacted in unimaginable ways. Tragic consequences such as these, under this set of facts and circumstances, however, do not elevate ordinary negligence to criminal negligence. Because the evidence does not rise to the level of serious blameworthiness necessary to establish criminal negligence, we sustain Michael's sole issue. Accordingly, we reverse the judgment of conviction and render judgment of acquittal. Having to live with this for the rest of his life is the real punishment.

DISSENTING OPINION

Dissenting Opinion Filed August 28, 2020

“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 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?

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․

․

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.

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 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. 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:

• “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.

․

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.

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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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. 2007). 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 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 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.

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. 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 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, 75 N.Y.2d 692, 556 N.Y.S.2d 1, 555 N.E.2d 253, 254 (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).

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.

There is sufficient evidence to affirm his conviction. Because the majority judicially acquits appellant, I dissent; I would affirm his conviction.

FOOTNOTES

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.   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.

Opinion by Justice Partida-Kipness

Evans, J., dissenting