Petition for Writ of Certiorari — Teubner v. Texas

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

JOHN MICHAEL TEUBNER and

VICTORIA ANITA TEUBNER,

Petitioners

We

THE STATE OF TEXAS,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS FOR THE

FOURTEENTH SUPREME JUDICIAL

DISTRICT OF TEXAS

DONALD W. ROGERS, JR.

770 South Post Oak Lane

Suite 620

Houston, Texas 77056

(713) 236-1276

Attorney for Petitioner

Alpha Law Brief Co., Inc. — 8748 Westpark — Houston, Texas 77063 — 789-2000

I

QUESTION PRESENTED FOR REVIEW

i

WHETHER SECTION 22.04(a)(4) OF THE TEXAS

PENAL CODE, WHICH DEFINES THE OFFENSE OF

INJURY TO A CHILD BY INFLICTION “BODILY

INJURY,” WHICH IN TURN UNDER SECTION 1.07

(a)(7) OF THE TEXAS PENAL CODE “MEANS

PHYSICAL PAIN, ILLNESS, OR ANY IMPAIRMENT

OF PHYSICAL CONDITION,” IS AS APPLIED TO

A PARENT OR PERSON ACTING IN PLACE OF A

PARENT WHO ADMINISTERS CORPORAL PUN-

ISHMENT TO A CHILD UNCONSTITUTIONAL AS

IN VIOLATION OF THE FAIR NOTICE REQUIRE-

MENTS OF DUE PROCESS OF LAW AS GUAR-

ANTEED BY THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ I

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CIEATION TO GPENTON BELOW qn. cc ccccccdcnccs 2

FURESIPECTRORIAL GRAFUINENG oon cc cacccccccscxcaas 2

CONSTITUTIONAL PROVISION AND STATUTES ... 2

PERCE Ce Ree GE ii cakaiuangecnsdedanenas 5

REASON FOR GRANTING THE WRIT .............. 7

i et | rn ew Mr mime tik TENT 13

CAREER MALMUD 5s 00000054 nekaneeedun angen if

III

TABLE OF AUTHORITIES

CASES Page

Bouie v. Cotumbia, 378 U.S. 347, 12 L.Ed.2d 894, 84 S. Ct.

ss can iansuedee 11

Giaccio v. Pennsylvania, 382 U.S. 399, 15 L.Ed.2d 447, 86

i hh vecgeeeeeeeseéassacaesacweses 11

Raley v. Ohio, 360 U.S. 423, 3 L.Ed.2d 1344, 79 S. Ct. 1257

ga GR er 11

United States v. Cardiff, 344 U.S. 174, 97 L.Ed. 200, 73

ee ce eb ees Gane vanes cencaensees 11

United States v. Harriss, 347 U.S. 612, 98 L.Ed. 989, 74

nS cdc ceed ab sanesnansecneeessees 11

Wright v. Georgia, 373 U.S. 284, 10 L.Ed.2d 349, 83 S. Ct.

ee eek habe th ead bs hae tadeechanseas 11

UNITED STATES CONSTITUTION

i i EE peewee tivsesodteeceuswaees 3,7, 88505

TEXAS PENAL CODE

TPT ETERECT CTT TCELORT eee ee 3,6,7,9

ES EEC EE Pee PPE T TET 3,6,9

Tee esses ene ek eas saab ets 3, 8,11

eee oe ches eheeeneevbeeensess 4,5, 7,9, 10, 11,12

TEXAS FAMILY CODE

Se eee ee 4,8

NO.

IN THE

Supreme Court of the Mnited States

OCTOBER TERM, 1987

JOHN MICHAEL TEUBNER and

VICTORIA ANITA TEUBNER,

Petitioners

V.

THE STATE OF TEXAS,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS FOR THE

FOURTEENTH SUPREME JUDICIAL

DISTRICT OF TEXAS

Petitioners pray that a writ of certiorari issue to review

the judgment of the Court of Appeals for the Fourteenth

Supreme Judicial District of Texas entered on October

29, 1987. No Motion for Rehearing was filed. A Petition

for Discretionary Review on behalf of each Petitioner

herein was filed with the Court of Criminal Appeals of

Texas, and denied as to each Petitioner on February 17,

1988.

2

CITATION TO OPINION BELOW

The opinion of the Court of Appeals for the Four-

teenth Supreme Judicial District of Texas herein is re-

ported at 742 S.W.2d 57, and appears in the Appendix,

Exhibit A.

JURISDICTIONAL GROUNDS

The Court of Appeals for the Fourteenth Supreme

Judicial District of Texas affirmed the judgment of con-

viction as to each Petitioner herein by written opinion

dated October 29, 1987. No Motion for Rehearing was

filed with the Court of Appeals; however, a Petition for

Discretionary Review was as to each Petitioner timely

filed with the Court of Criminal Appeals of Texas, and

said Petitions for Discretionary Review were refused by

the Court of Criminal Appeals of Texas on February 17,

1988. Appendix, Exhibit B. This Petition was filed within

60 days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C., Section 1257(3).

CONSTITUTIONAL PROVISIONS AND STATUTES

Constitution, Amendment 14, Section 1:

All persons born or naturalized in the United States

and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they

reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of law.

3

Texas Penal Code, Section 1.07(a)(7):

§ 1.07. Definitions

(a) In this code:

* x *

(7) “Bodily injury” means physical pain, ill-

ness, Or any impairment of physical con-

dition.

Texas Penal Code, Section 1.07(a) (34):

§ 1.07. Definitions

~ (1) In this code:

* * *

(34) “Serious bodily injury” means bodily in-

jury that creates a substantial risk of

death or that causes death, serious perma-

nent disfigurement, or protracted loss or

impairment of the function of any bodily

member or organ.

Texas Penal Code, Section 9.61:

§ 9.61. Parent-Child

(a) The use of force, but not deadly force, against

a child younger than 18 years is justified:

(1) if the actor is the child’s parent or step-

parent or is acting in ioco parentis to the

child; and

(2) when and to the degree the actor reason-

ably believes the force is necessary to dis-

cipline the child or to safeguard or pro-

mote his welfare.

(b) For purposes of this section, “in loco parentis”

includes grandparent and guardian, any person act-

ing by, through, or under the direction of a court

4

with jurisdiction over the child, and anyone who has

express or implied consent of the parent or parents.

Texas Penal Code, Section 22.04:

§ 22.04. Injury to a Child or an Elderly Individual

(a) A person commits an offense if he intentionally,

knowingly, recklessly, or with criminal negligence,

by act or omission, engages in conduct that causes

to a child who is 14 years of age or younger or to

an individual who is 65 years of age or older:

(1) serious bodily injury;

(2) serious physicai or mental deficiency or

impairment;

(3) disfigurement or deformity; or -

(4) bodily injury.

(b) An offense under Subsection (a)(1), (2), or

(3) of this section is a felony of the first degree

when the conduct is committed intentionally or know-

ingly. When the conduct is engaged in recklessly

it shall be a felony of the third degree.

(c) An offense under Subsection (1)(4) of this

section is a felony of the third degree when the -

conduct is committed intentionally or knowingly.

When the conduct is engaged in recklessly it shall

be a Class A misdemeanor.

(d) An offense under Subsection (a) of this section

when the person acts with criminal negligence shall

be a Class A misdemeanor.

Texas Family Code, Section 12.04(2):

§ 12.04. Rights, Privileges, Duties, and Powers of

Parent

Except as otherwise provided by judicial order or

by an affidavit of relinquishment of parental rights

a

5

executed under Section 15.03 of this code, the parent

of a child has the following rights, privileges, duties,

and powers.

* * *

(2) The duty of care, control, protection, moral

and religious training, and reasonable dis-

cipline of the child;

STATEMENT OF THE CASE

Petitioner, John Michael Teubner was indicted, tried,

and convicted in Cause No. 449,601 in the 262nd District

Court of Harris County, Texas. Petitioner, Victoria Anita

Teubner was indicted, tried, and convicted in Cause No.

449,600 in the 262nd District Court of Harris County,

Texas. Each Petitioner was sentenced to the maximum

penalty allowed of confinement in the Texas Department

of Corrections for ten years and a fine in the amount of

Five Thousand Dollars ($5.000.00). Both Petitioners

were charged with the same offense, namely injury to

a child by infliction of bodily injury as is proscribed by

Section 22.04(a)(4) of the Texas Penal Code, and were

tried together in a joint proceeding. The indictments in

said causes alleged essentially that each Petitioner on

September 24, 1985, intentionally and knowingly engaged

in conduct that caused bodily injury to a child, namely

Sophia Teubner, under the age of 15 years by striking

said child with a belt. (R. 449,600-10; R. 449,601-5).

The federal question presented for review herein was

raised before the Court of Appeals for the Fourteenth

Supreme Judicial District of Texas by Petitioner Victoria

Anita Teubner in Cause No. 14-86-00445-CR in said

Court, and by Petitioner John Michael Teubner in Cause

No. 14-86-00446-CR in said Court, both appeals having

6

been considered together by said Court and ruled upon

in the joint opinion heretofore referred to. The federal

question presented herein was also presented to the Court

of Criminal Appeals of Texas as to each Petitioner by a

timely filed Petition for Discretionary Review filed on

behalf of each Petitioner, same being denied by the

Court of Criminal Appeals of Texas on February 17,

1988 in Cause No. 1310-87 and Cause No. 1311-87,

respectively. Appendix, Exhibit B. A full discussion of the

evidence presented by the State of Texas at the trial

herein is unnecessary in light of the nature of the Peti-

tioners’ contention herein with the exception of the fol-

lowing considerations. The primary evidence offered by

_the State of Texas was the undisputed testimony of the

Complainant, Sophia Teubner, (Statement of Facts, Vol.

4, Pages 8-88), which established that Petitioner John

Michael Teubner was the natural father of the Com-

plainant and that Petitioner Victoria Anita Teubner was

the step-mother of the Complainant at the time of the

offense, and that the Complainant was living with both

Petitioners at the time of the offense. The testimony of

the Complainant further established that over a two day

period the Petitioners inflicted “bodily injury” upon the

Complainant as said term is defined by Section 1.07

(a)(7) of the Texas Penal Code by inflicting bodily

pain by striking the Complainant upon the buttocks

with a belt some one hundred to two hundred (100 to

200) times over said period. The spankings administered

to the Complainant by the Petitioners resulted in bruising,

but there was no evidence of any other type of injury.

The injuries suffered by the Complainant did not amount

to “serious bodily injury” as said term is defined in

Section 1.07(a)(34) of the Texas Penal Code in the

7

sense that there was no evidence of any injury that

created a substantial risk of death, caused serious perma-

nent disfigurement, or caused the protracted loss or im-

pairment of the function of any bodily member or organ.

Had “serious bodily injury” as heretofore defined resulted,

the Petitioners most likely would have been prosecuted

for injury to a child by infliction of serious bodily injury

as is proscribed by Section 22.04(a)(1) of the Texas

Penal Code, which would have the effect of making the

offense a first degree felony under Texas law rather than

a third degree felony. It should be noted that Section

22.04 of the Texas Penal Code, dealing with injury to

a child or an elderly individual, does not make any

exception within its terms for a parent or person acting

in place of a parent.

REASON FOR GRANTING THE WRIT

WHETHER SECTION 22.04(a)(4) OF THE TEXAS

PENAL CODE, WHICH DEFINES THE OFFENSE OF

INJURY TO A CHILD BY INFLICTION “BODILY

INJURY,” WHICH IN TURN UNDER SECTION 1.07

(a)(7) OF THE TEXAS PENAL CODE “MEANS

PHYSICAL PAIN, ILLNESS, OR ANY IMPAIRMENT

OF PHYSICAL CONDITION,” IS AS APPLIED TO

A PARENT OR PERSON ACTING IN PLACE OF A

PARENT WHO ADMINISTERS CORPORAL PUN-

ISHMENT TO A CHILD UNCONSTITUTIONAL AS

IN VIOLATION OF THE FAIR NOTICE REQUIRE-

MENTS OF DUE PROCESS OF LAW AS GUAR-

ANTEED BY THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION.

As heretofore stated, the evidence showed that Peti-

tioner John Michael Teubner is the natural father of the

8

Complainant, Sophia Teubner, and that Petitioner Vic-

toria Anita Teubner is the step-mother of the Complain-

ant. Both Petitioners in this regard under Texas law

are guaranteed certain rights, privileges, duties, and

powers as parents of the Complainant. In this regard,

Section 12.04(2) of the Family Code of the State of

Texas allows a parent “the duty of care, control, pro-

tection, moral and religious training, and reasonable dis-

cipline of the child.” Further, Section 9.61 of the Texas

Penal Code provides the following with regard to the

parent-child relationship:

(a) The use of force, but not deadly force, against

a child younger than 18 years is justified:

(1) if the actor is the child’s parent or step-

parent or is acting in loco parentis to the

child;

(2) when and to the degree the actor reason-

ably believes the force is necessary to dis-

cipline the child or to safeguard or pro-

mote his welfare.

(b) For purposes of this section, “in loco parentis”

includes grandparents and guardian, any person act-

ing by, through, or under the direction of a court

with jurisdiction over the child, and anyone who

has express or implied consent of the parent or

parents. Acts 1973, 63rd Leg., p. 883, ch. 399,

§ 1, eff. Jan. 1.

Reasonable discipline of a child in the context of the

aforementioned statutes allow for the use of force where

necessary or the infliction of corporal punishment upon

the child. Corporal punishment by definition necessarily

involves the infliction of pain upon another. Section

9

22.04(a)(4) of the Texas Penal Code, the statute under

which Petitioners were convicted, defines the offense of

injury to a child as follows:

(a) “a person commits an offense if he intention-

ally, knowingly, recklessly, or with criminal negli-

gence, by act or omission, engages in conduct that

causes to a child who is 14 years of age or younger

or to an individual who is 65 years of age or older:

* * *

(4) bodily injury.”

In connection with Section 22.04(a)(4) of the Texas

Penal Code no exemption or distinguishing definition is

made with respect to the proscribed conduct vis-a-vis a

parent or person entitled to act as a parent. In this

regard, “bodily injury” is defined by Section 1.07(a) (7)

of the Texas Penal Code as follows:

“ ‘bodily injury’ means physical pain, illness or any

impairment of physical condition.” [Emphasis sup-

plied. ]

Serious bodily injury, on the other hand, is defined by

Section 1.07(a) (34) of the Texas Penal Code as follows:

“(34) ‘serious bodily injury’ means bodily injury

that creates a substantial risk of death or that causes

death, serious permanent disfigurement, or protracted

loss or impairment of the function of any bodily

member or organ.”

Infliction of corporal punishment by a parent would

necessarily involve infliction of physical pain and thus

“bodily injury” as said term is used in the context of

es

10

Section 22.04(a)(4) of the Texas Penal Code. In the

context of a parent or person lawfully empowered to

act in place of a parent, Section 22.04(a)(4) of the

Penal Code insofar as it defines the offense of injury

to a child by infliction of “bodily injury” or physical

pain does not describe with sufficient particularity in }

the sense of infliction “bodily injury” upon a child the fi

precise conduct on the part of a parent or person acting

in place thereof which could be construed to be in violation

of said penal statute. Certainly, “reasonable people”

could reach vastly different conclusions over the question

of to what degree infliction of mere physical pain upon

a child would constitute reasonable discipline. For ex-

ample, one to two hundred swats with a belt, lightly

adininistered, might cause less damage and physical pain

than ten swats with a heavy paddle, and bruising might

result in either instance. There was in the instant case

no evidence of the relative power behind each of the

swats with the belt, other than bruising resulted. The

Texas statutes heretofore referred to empowering a parent

to use force or inflict corporal punishment upon a child

are not drafted in the context of a “reasonable man”

standard or what an ordinary reasonable and prudent

person would do under similar circumstances, but are

drafted in terms of what the actor personally believes to

be reasonable under the circumstances. The effect of the

language of Section 22.04(a)(4) of the Texas Penal .

Code is that a parent or person acting in place thereof

must necessarily guess at what degree of infliction of

physical pain, short of infliction of serious bodily injury,

is proscribed. Additionally, the finder of fact, be it the

Court or a jury, is not in the context of said statute

provided with any guidelines as to what degree of in-

11

fliction of corporal punishment, short of the infliction

of serious bodily injury, as said term is defined, would

be proscribed, with the result that the factual determina-

tion of the question would be based upon an arbitrary

conclusion on the part of the trier of fact. Insofar as

Section 22.04(a) (4) of the Texas Penal Code proscribes

conduct which is otherwise authorized by Section 12.04

(2) of the Texas Family Code and Section 9.61 of the

Texas Penal Code, it would appear that such conflict

would in and of itself cause Section 22.04(a)(4) of the

Texas Penal Code to be as applied to a parent or person

acting in the place thereof unconstitutional in violation

of the due process clause of the Fourteenth Amendment

to the United States Constitution. See in this regard:

Raley v. Ohio, 360 U.S. 423, 3 L.Ed.2d 1344, 79 S. Ct.

1257 (1959). Nevertheless, the general rule in this regard

is that a statute is void for vagueness if it fails to give

a person of ordinary intelligence notice that his conduct

or contemplated conduct is forbidden by statute, or if

the statute by its wording and vagueness necessarily

encourages arbitrary and erratic convictions or arrests.

See in this regard: Giaccio v. Pennsylvania, 382 U.S.

399, 15 L.Ed.2d 447, 86 S. Ct. 518 (1965); Bouie v.

Columbia, 378 U.S. 347, 12 L.Ed.2d 894, 84 S. Ct.

1697 (1964); Wright v. Georgia, 373 U.S. 284, 10

L.Ed.2d 349, 83 S. Ct. 1240 (1963); United States v.

Harriss, 347 U.S. 612, 98 L.Ed. 989, 74 S. Ct. 808

(1954); United States v. Cardiff, 344 U.S. 174, 97 L.Ed.

200, 73 S. Ct. 189 (1952). In the context of a parent

or one acting in the place thereof inflicting pain and

therefore “bodily injury” upon a child in a course of

administering corporal punishment, Section 22.04(a) (4)

of the Texas Penal Code does not give such person

es

12

reasonable notice of the exact conduct which is proscribed

in the sense of infliction of “bodily injury”. Moreover,

application of the statute in question would leave the

trier of fact free to apply its own standard of whether

conduct is “reasonable” or “excessive” in the context of

disciplining a child without sufficient statutory guidelines

as to what conduct on the part of a parent or person

acting in place thereof constitutes an offense. Moreover,

a parent or person acting in the place thereof administer-

ing corporal punishment as proscribed by Section 22.04

(a)(4) of the Texas Penal Code would necessarily be

placed in a position of having to guess what degree

of infliction of pain would constitute a proscribed instance

of conduct in violation of the statute, with the result that

insofar as said statute is applied to a parent, it must be

necessarily deemed unconstitutionally vague because per-

sons of ordinary intelligence might reasonably differ as

to what conduct or degree thereof is proscribed by said

statute. It is therefore submitted that Section 22.04(a) (4)

of the Texas Penai Code is void for vagueness under the

fair notice requirement of due process of law guaranteed

by the Fourteenth Amendment to the United States

Constitution as applied to a parent or person acting in

the place of a parent, and that this Honorable Court

should accordingly declare said statute unconstitutional

as in violation of the requirements of due process of law

guaranteed under the Fourteenth Amendment to the

United States Constitution in that context.

13

CONCLUSION

For these reasons a writ of certiorari should issue to

review the judgment and opinion of the Court of Appeals

for the Fourteenth Supreme Judicial District of Texas.

Respectfully submitted,

DONALD W. ROGERS, JR.

770 South Post Oak Lane

Suite 620

Houston, Texas 77056

(713) 236-1276

Attorney for Petitioner

ii

14

CERTIFICATION

I, Donald W. Rogers, Jr., hereby certify that three

true and correct copies of this Petition were mailed,

postage prepaid, to Hon. Jim Mattox, Attorney General

of Texas, Supreme Court Building, Austin, Texas 78711,

on this the ____. day of April, 1988.

DONALD W. ROGERS, JR.

la

APPENDIX

EXHIBIT A

OCTOBER 29, 3987.

JUDGMENT

FOURTEENTH COURT OF APPEALS

NO. A14-86-445-CR

A14-86-446-CR

VICTORIA ANITA TUEBNER, Appellant

and

JOHN MICHAEL TUEBNER, Appellant

V.

THE STATE OF TEXAS, Appellee

This cause came on to be heard on the transcript of

the record of the court below, and the same being con-

sidered, because it is the opinion of this Court that there

was no error in the judgment, it is ordered by the Court

that the judgment be in all things affirmed, and that

the appellant pay all costs in this behalf expended, and

that this decision be certified below for observance.

2a

Affirmed and Opinion filed October 29, 1987.

In The

FOURTEENTH COURT OF APPEALS

NO. A14-86-445-CR

VICTORIA ANITA TEUBNER, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 449,600

No. A14-86-446-CR

JOHN MICHAEL TEUBNER, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 449,601

OPINION

Appellants appeal their convictions for bodily injury

to a child. Both appellants were charged with the same

ia etieieeeill

3a

offense and tried jointly. Their appeals are considered

together.

John and Victoria Teubner were indicted and pled

not guilty to the charge of bodily injury to a child. A

jury found them guilty, and the court assessed punish-

ment at ten years confinement and a $5,000 fine for each

appellant. Appellants appeal from their convictions. We

affirm.

The trial evidence showed that the appellants, the

victim’s father and stepmother, subjected the victim, an

eleven-year-old girl, to be series of severe beatings with

a leather belt.

The appellants’ first point of error contends that the

trial court erred in denying each appellant the right to

have a jury assess punishment, pursuant to article 37.07,

section 2(b) of the Texas Code of Criminal Procedure.

It is the trial judge’s responsibility to assess punishment

following a guilty verdict by a jury, unless a defendant

files a motion for probation before the trial begins or

the defendant elects in writing. to have the jury assess

punishment. Toney v. State, 586 S.W.2d 856, 858 (Tex.

Crim. App. [Panel Op.] 1979). The written election

must be made “before the commencement of the voir

dire examination of the jury panel.” Tex. Code Crim.

Proc. Ann. art. 37.07 §2(b) (Vernon 1981 & Supp.

1987). This is a change from the former language of

section 2(b), which stated that the election had to be

made at the time the defendant entered his plea in open

court.

The record shows that appellants’ election for jury

punishment was not filed until after the jury was selected,

and both appellants had pled not guilty. Therefore, it

—————

4a

was not timely, and the trial court properly assessed

punishment.

Appellants urge this court to follow the holding of the

First Court of Appeals in Pace v. State, 630 S.W.2d 765

(Tex. App.—Houston [Ist Dist.] 1982, pet. dism’d).

Pace held that the filing of a written election immediately

following the defendant’s plea before the jury satisfied

article 37.07, and entitled the defendant to jury punish-

ment. We note that Pace was decided under the former

article 37.07, and is not applicable to the present case.

The language of article 37.07 now states clearly that a

defendant must elect jury punishment before jury voir

dire. Appellants’ first point of error is overruled.

In appellants’ second point of error, they claim that

the injury to a child statute, Texas Penal Code section

22.04, violates the fair notice requirements of due process,

as guaranteed by the Fourteenth Amendment to the

United States Constitution and article 1, section 10 of

the Texas Constitution.

Appellants base this claim on their belief that section

22.04 does not give a parent or person acting in place

of a parent reasonable notice of the exact conduct or

degree of conduct constituting “serious bodily injury”

under the statute, and is therefore void for vagueness.

Appellants fear that the statute as written will leave the

trier of fact free to apply its own standard of “reasonable”

or “excessive” conduct. We disagree.

The Penal Code defines “bodily” injury as “physical

pain, illness, or any impairment of physical condition.”

Tex. Penal Code Ann. § 1.07(a)(7) (Vernon 1974).

As common sense and childhood memory teaches, spank-

ing involves some degree of physical pain. However, the

Sa

Penal Code limits the degree of force a parent or step-

parent may use against a child to that which is reasonably

believed “necessary to discipline the child or to safeguard

or promote his welfare.” Tex. Penal Code Ann. § 9.61 (a)

(Vernon 1974).

The various sections of the Penal Code do not stand

in isolation, but are part of an integrated statute. It is

presumed that the appellants were aware of all provisions

of the Penal Code which were in effect at the time of

the offense. Tex. Penal Code Ann. § 8.03(a) (Vernon

1974).

Moreover, in previous cases, the courts have upheld

Penal Code section 22.04 where it has been attacked

as unconstitutionally vague. See, e.g., Phillips v. State,

588 S.W.2d 378 (Tex. Crim. App. 1979); Nabors vy.

State, 508 S.W.2d 650 (Tex. Crim. App. 1974).

Texas Penal Code section 9.61 permits the use of force

against a child under a “reasonable belief” standard.

However, force going beyond that which is necessary

for discipline is prohibited. The question in this case is

whether the appellants reasonably believed their use of

force was necessary to discipline their child.

From the evidence presented, no reasonable person

could possibly believe the conduct was justifiable. The

child was subjected to a savage beating with a leather

belt on two successive nights. On the first night, Victoria

Teubner took over the whipping when her husband tired

himself. On the second night, they gagged their daughter

to stifle her crying. The photographs admitted into evi-

dence offer a grim record of the effects of the beating.

The appellants could not have reasonably believed that

a

6a

the degree of force used was necessary for disciplinary

purposes. Appellants’ second point of error is overruled.

The judgment of the trial court is affirmed.

/s/ BILL CANNON

Justice

Judgment rendered and Opinion filed October 29, 1987.

Panel consists of Chief Justice J. Curtiss Brown and

Justices Robertson and Cannon.

Publish. Tex. R. App. P. 90.

7a

EXHIBIT B

OFFICIAL NOTICE

COURT OF CRIMINAL APPEALS

RE: Case No. 1310-87

STYLE: Teubner, Victoria Anita

December 10, 1987

I have this day received and filed the Appellant’s

petition for discretionary review.

COA#: 14-86-00445-CR Thomas Lowe, Clerk

Court of Criminal Appeals

P. O. Box 12308, Capital Station

Austin, Texas 78711

Mail To:

Donald W. Rogers, Jr.

Lyric Office Centre

440 Louisiana, Suite 1875

Houston, TX 77002

8a

OFFICIAL NOTICE

COURT OF CRIMINAL APPEALS

RE: Case No. 1310-87

STYLE: Teubner, Victoria Anita |

February 17, 1988 |

On this day, the Appellant’s Petition for Discretionary

Review has been REFUSED.

COA#: 14-86-00445-CR Thomas Lowe, Clerk

Court of Criminal Appeals

P.O. Box 12308, Capital Station

Austin, Texas 78711

Mail To:

Donald W. Rogers, Jr.

Lyric Office Centre

440 Louisiana, Suite 1875

Houston, TX 77002

, |

9a

OFFICIAL NOTICE

COURT OF CRIMINAL APPEALS

RE: Case No. 1311-87

STYLE: Teubner, John Michael

December 10, 1987

I have this day received and filed the Appellant’s

petition for discretionary review.

COA#: 14-86-00446-CR Thomas Lowe, Clerk

Court of Criminal Appeals

P. O. Box 12308, Capital Station

Austin, Texas 78711

Mail To:

Donald W. Rogers, Jr.

Lyric Office Centre

440 Louisiana, Suite 1875

Houston, TX 77002

ella ai

10a

OFFICIAL NOTICE

COURT OF CRIMINAL APPEALS

RE: Case No. 1311-87

STYLE: Teubner, John Michael

February 17, 1988

On this day, the Appellant’s Petition for Discretionary

Review has been REFUSED.

COA#: 14-86-00446-CR Thomas Lowe, Clerk

Court of Criminal Appeals

P. O. Box 12308, Capital Station

Austin, Texas 78711

Mail To:

Donald W. Rogers, Jr.

Lyric Office Centre

4401) Louisiana, Suite 1875

Houston, TX 77002