Petition for Writ of Certiorari — Kavali v. Texas

fuprame Court, U9.

FILED

os $65 SEP 8 2003

No.

In the

Supreme Court of the Anited States

ARUNA KAVALI,

Petitioner,

V.

THE STATE OF TEXAS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

To THe Texas Court OF APPEALS

For Tae Firra Circuit

PETITION FOR WRIT OF CERTIORARI

Gary A. UDASHEN

Counsel of Record

SORRELS & UDASHEN

2301 CEDAR SPRINGS ROAD

SuITE 400

DALLAS, TX 75201

(214) 468-8100

(214) 468 8104 Fax

Counsel for Petitioner

BECKER GALLAGHER LEGAL PUBLISHING, iNC.,

CINCINNATI, OHIO 800-890-5001

a ae ee ee eee re cree noone ee a oo eee

QUESTIONS PRESENTED FOR REVIEW

I. Is the Texas Court of Appeals opinion in this case

finding the evidence sufficient to sustain the verdict

inconsistent with the standards for analysis of sufficiency of

the evidence challenges set out in Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781, 62 L.Ed.2d 560 (1979)?

PARTIES TO Thr. . ROCEEDINGS

Aruna Kavali - Petitioner

represented by:

Gary A. Udashen

2301 Cedar Springs Road

Suite 400

Dallas, Texas 75201

214-468-8100

The State of Texas - Respondent

represented by:

John Roach

Collin County District Attorney

210 S. McDonald Street

McKinney, Texas 75069

972-548-4323

and Greg Abbott

Texas Attorney General

209 W. 14th Street

Austin, Texas 78711-2548

512-463-2100

ii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW ........ i

PARTIES TO THE PROCEEDINGS ............ li

BOs PAINTINGS oe eee ee ill

Ge ty ys yy | Vv

Co 1

STATEMENT OF JURISDICTION ............. l

STATEMENT OF THE CASE ................ 2

REASONS FOR GRANTING THE WRIT ........ 3

QUESTION FOR REVIEW .................. 3

Is the Texas Court of Appeals opinion in this

case finding the evidence sufficient to sustain

the verdict inconsistent with the standards for

analysis of sufficiency of the evidence

challenges set out in Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781, 62 L.Ed.2d 560

(1979)

nn 8

APPENDIX

Appendix A - Texas Court of Appeals Judgment and

ME RPE 6g i we ww eee ewe aess la

Appendix B - Order Denying Rehearing - 01/10/03

Appendix C - Texas Court of Criminal Appeals

Denying Petition for Discretionary Review - 06/11/03

iV

INDEX OF AUTHORITIES

PAGE

Cases

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,

G2 L..G.20 SEO (ISTH) ow ce cee 2-4, 6, 7

Johnson v. State,

673 S.W.2d 190 (Tex. Crim. App. 1984) ....... 7

Codes and Rules

Se Ve BONE 66 oc es Keene ee 1

Texas Penal Code $7.01 ..........ccccccccees 6

Texas Penal Code $7.02 ....... ccc ccc cece 6

Constitutional Provisions

U. S. Constitution, amends. V and XIV ........... 2

Petitioner, Aruna Kavali, hereby petitions for a writ of

certiorari to review the opinion of the Texas Court of

Appeals, Fifth District (entered November 4, 2002, rehearing

denied January 10, 2003) as upheld by the Texas Court of

Criminal Appeals (Petition for Discretionary Review refused

June 11, 2003), affirming the Petitioner’s conviction for

Capital murder.

OPINION BELOW

The opinion of the Texas Court of Appeals, Fifth District,

dated November 4, 2002 is:

Aruna Kavali v. The State of Texas, No. 05-01-00835-CR.

This opinion was unpublished. A copy of this opinion

may be found in Appendix A of this Petition. The order of

the Court of Appeals denying rehearing, dated January 10,

2003, may be found in Appendix B of this Petition.

The order of the Texas Court of Criminal Appeals

refusing Petitioner’s Petition for Discretionary Review,

seeking review of the Court of Appeals opinion, dated June

11, 2003, may be found in Appendix C of this Petition.

STATEMENT OF JURISDICTION

The Texas Court of Appeals affirmed the Petitioner’s

conviction on November 4, 2002. Rehearing was denied on

January 10, 2003. Petitioner filed a Petition for Discretionary

Review with the Texas Court of Criminal Appeals and this

Petition was refused June 11, 2003.

The Court’s jurisdiction is invoked pursuant to 28 U.S.C.

1257.

STATEMENT OF THE CASE

Petitioner, Aruna Kavali, was charged with the offenses

of Capital Murder and Injury to a Child alleged to have

occurred on or about December 8, 1999. (CR 2, p. 248). A

jury trial was held from April 30, 2001, through May 4, 2001

after which Petitioner was found guilty of capital murder.

(CR 2, P. 308). The trial court sentenced Petitioner to life in

prison. (CR 2, p. 309). Notice of Appeal was given to the

Court of Appeals for the Fifth District of Texas. On

November 4, 2002, the Court of Appeals affirmed the

conviction. Petitioner filed a Motion for Rehearing on

December 3, 2002, which was denied on January 10, 2003.

Petitioner filed a Petition for Discretionary Review with the

Texas Court of Criminal Appeals which was denied June 11,

2003.

Petitioner was accused of murdering her baby. In the

Texas Court of Appeals and the Texas Court of Criminal

Appeals, Petitioner challenged the sufficiency of the evidence,

citing the due process clauses of the U. S. Constitution,

amends. V and XIV and relying on Jackson v. Virginia,

supra. In Petitioner’s brief in the Texas Court of Appeals,

under Issue I, Petitioner stated:

“In reviewing the sufficiency of the evidence, the

court is required to view the evidence in the light most

favorable to the prosecution and determine if any

rational trier of fact could find the elements of the

offense beyond a reasonable doubt. Chambers v.

State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986);

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 2879, 62 L.Ed.2d 560 (1979). The due process

clauses of the U. S. and Texas Constitutions protect a

defendant against conviction “except upon proof

2

beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.” Jn re

Winship, 297 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d

368 (1970). See also, Richardson v. State, 879

S.W.2d 874 (Tex. Crim. App. 1993).”

(Appellant’s Brief, p. 13).

In the Petition for Discretionary Review, Petitioner stated

the following:

“The opinion of the Court of Appeals on this issue is

totaily devoid of any reasoning. Moreover, a proper

application of Jackson v. Virginia, 443 U.S. 307, 3 19,

99 S.Ct. 2781, 2879, 62 L.Ed.2d 560 (1979) and the

Texas cases following it would result in a finding that

the evidence in this case is legally insufficient.”

(Petition for Discretionary Review, p. 11).

The Texas Court of Appeals rejected this argument and

found the evidence sufficient by stating in its opinion:

“We conclude this evidence is legally and factually

sufficient-to show appellant committed the offense of

capital murder. See Jackson, 443 U.S. at 319.”

(Court of Appeals opinion, p. 4).

REASONS FOR GRANTING THE WRIT

Question for Review

Is the Texas Court of Appeals opinion in this case finding

the evidence sufficient to sustain the verdict inconsistent with

3

the standards for analysis of sufficiency of the evidence

challenges set out in Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 62 L.Ed.2d 560 (1979)?

Reasons for Granting the Writ

This Petition should be granted because the Texas Courts

have applied the sufficiency of the evidence review in a

manner inconsistent with due process of law and in

contravention of the due process clauses of the U. S.

Constitution.

There was no evidence that established that Petitioner

committed the acts that caused the death of her baby. Instead,

the State’s argument and the jury verdict were based on the

fact that she was the only person home when the baby was

discovered to have been injured and speculation that she must

have been responsible. Upholding a verdict on this basis is a

direct violation of due process.

The opinion of the Court of Appeals on this issue is totally

devoid of any reasoning. Moreover, a proper application of

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2879,

62 L.Ed.2d 560 (1979) would result in a finding that the

evidence in this case is legally insufficient. Based on this

improper application of Jackson, this Petition should be

granted.

The Petitioner submitted a strong argument in her brief as

to why the evidence in this case is insufficient. This argument

emphasized the following points:

1. There is absolutely no evidence that Petitioner did any

of the acts alleged and there is no evidence that she was

responsible for causing the death of her baby. The evidence,

4

without dispute, shows that there were at least four adults and

a child at the Kavali home in the hours leading up to the

discovery of the injured baby. (RR 3, p. 20-24, 77; RR 4,

138-145, 177). Although the other people left the home

shortly before the injured child was discovered, the State’s

evidence fails to establish beyond a reasonable doubt that one

of the other people did not cause these injuries to the baby.

There is no evidence concerning the time of death of the child

and the evidence does not show, with any degree of certainty,

when those injuries occurred and it is equally plausible that

any one of these other people could have caused the injuries.’

Despite the clarity of this argument in Petitioner’s brief, the

Court of Appeals opinion wholly fails to discuss this.

2. There is no evidence that the Petitioner’s explanation

of the events was not true. She told the police that she put the

baby on the couch and went into the bathroom. While in the

bathroom, she heard a knock on the door and was unable to

immediately answer it. When she came out of the bathroom,

the baby was gone from the couch and the front door was

ajar. She immediately went outside and discovered the

injured baby on the porch. (RR 3, p. 111-116, 208-211).

There is nothing about this explanation that is inconsistent

with the physical evidence and this exculpatory explanation is

as plausible, or more so, than the State’s theory of guilt. In

fact. Petitioner’s explanation is supported by the fact that an

unidentified palm print was found on the door (RR 4, p. 84,

' The Court of Appeals cited the blood testimony. However, there

is no testimony that the child had blood on him and it is common

knowledge that a mother who has recently given birth could very

well have left blood around the house. (RR 3, p. 30). Moreover,

the State did not exclude the possibility, or even the likelihood, that

any blood allegedly matched to the baby, in fact, came from the

mother and was a mixture of the baby’s and mother’s blood.

2

ee

99) aud the police found nothing in the apartment consistent

with having caused the ligature marks on the baby. (RR 4, p.

81-82, 84, 103, 108). Again, the Court of Appeals opinion

fails to recognize or discuss this.

3. There is not one iota of testimony that the baby’s

father, Ganguadaya Kavali, did any of the acts alleged in the

indictment or in any way participated or played a role in the

death of the baby. The evidence clearly and unequivocally

established that Mr. Kavali was at the store with his daughter

and was not home when the child was discovered to have been

injured or killed. (RR 3, p. 92, 111-116, 208-211) (RR, Ex.

24). There is no evidence that he took any action to cause this

or that he had any knowledge or participation. It is utter

speculation without any evidentiary basis to suggest that he

played a role. Therefore, the entire allegation based on the

law of parties under Texas Penal Code §7.01 and 7.02 is not

supported by sufficient evidence and under Jackson cannot

support this verdict. Additionally, there is simply no basis to

conclude that Petitioner had some knowledge of the

commission of the offense and could have prevented it.

Under the law of parties, the State was required to prove both

that Mr. Kavali played a role in the offense, which they failed

to prove and, if they proved that, Petitioner, acting with intent

to promote or assist the commission of the offense, solicited,

encouraged, directed, aided or attempted to aid Mr. Kavali in

committing the offense. This is another area in which the

State presented absolutely no evidence. Once again, the Court

of Appeals opinion fails to analyze or discuss this argument.

Despite the fact that the evidence falls far short of that

necessary to sustain a conviction, the Court of Appeals found

the evidence sufficient. In so finding, the Court’s opinion

simply summarized the evidence and then stated:

Co ee eae

“We conclude this evidence is legally and factually

sufficient to show Appellant committed the offense of

capital murder. See Jackson, 443 U.S. at 319;

Johnson, 23 §.W.3d at 11. We overrule appellant’s

first and second issues.” (Court’s Opinion p. 4).

This conclusion is disturbing not only because it is wrong,

but also because it is totally devoid of any reasoning. With

all due respect, a summary of the evidence and a conclusory

overruling of the point raised is not reasoning.* The parties

to this appeal deserve an opinion that analyzes the law and

facts and this opinion fails in this regard. At the very least,

the Court of Appeals opinion should point to the evidence, if

any can be found, that establishes that Petitioner did the acts

alleged or caused the death of her baby. Likewise, if the

Court is upholding the verdict on the basis of the parties

allegation’, the evidence supporting a conclusion that

Petitioner’s husband was involved in the baby’s death, if there

is any, should be cited and discussed.

In fact, the evidence here fails far short of that necessary

to sustain a conviction under Jackson and for this reason the

> The Court’s evidentiary summary only establishes that Petitioner

was at the home where the baby was found to have been injured.

In her brief, Petitioner cited Johnson v. State, 673 S.W.2d 190

(Tex. Crim. App. 1984) which states that mere presence at the

crime scene is insufficient to prove that a person committed an

offense. The Court of Appeals opinion neither cites nor discusses

Johnson or the principle for which it stands.

> The Court of Appeals opinion is unclear as to whether the

conviction is being upheld based on the State’s theory that

Petitioner was the primary actor or the alternative theory that

Petitioner was guilty under the law of parties.

7

Texas Court of Appeals opinion is in violation of due process

and should be reversed.

CONCLUSION

BASED ON THE FOREGOING ARGUMENTS,

Petitioner pray that this Petition for Writ of Certiorari be

granted.

Respectfully submitted,

GARY A. UDASHEN

State Bar No. 20369590

SORRELS & UDASHEN

2301 Cedar Springs Road

Suite 400

Dallas, Texas 75201

214-468-8100

214-468-8104 fax

APPENDIX A

COURT OF APPEALS

FIFTH DISTRICT OF TEXAS AT DALLAS

No. 05-01-00835-CR

[Filed November 4, 2602]

ARUNA KAVALIT, )

Appellant )

V. )

)

THE STATE OF TEXAS, _)

Appellee )

)

Appeal from the 380th District Court

of Collin County, Texas

Trial Court Cause No. 380-80476-01

Opinion delivered by Justice Bridges,

Justices Kinkeade and FitzGerald participating

JUDGMENT

Based on the Court’s opinion of this date, the judgment of

the trial court is AFFIRMED.

Judgment entered November 4, 2002.

/s/

David L. Bridges, Justice

la

IN THE

COURT OF APPEALS

FIFTH DISTRICT OF TEXAS AT DALLAS

No. 05-01-00835-CR

[Filed November 4, 2002]

ARUNA KAVALIT,

Appellant

V.

THE STATE OF TEXAS,

Appellee

eee eee ees Se”

On Appeal from the 380th District Court

of Collin County, Texas

Trial Court Cause No. 380-80476-01

OPINION

Before Justices Kinkeade, Bridges, and FitzGerald

Opinion By Justice Bridges

Aruna Kavali appeals her capital murder conviction. A

jury found appellant guilty, and the trial court sentenced her

to life in prison. In eight issues, appellant argues the evidence

is legally and factually insufficient to support her conviction,

the trial court erred in overruling her objections to the

submission of the law of parties, certain language in the

family code is unconstitutional as applied in this case, a juror

was improperly excused over appellant’s objection, and the

prosecutor improperly commented on appellant’s failure to

2a

d , ——_ - ©

Court of Appeals Opinion - 11/4/02

testify and implied appellant had a criminal record. We affirm

the trial court’s judgment.

On December 6, 1999, appellant gave birth to a baby that

was in perfect health but had irregular genitalia. Specifically,

the baby’s genitalia at first appeared female but, after a series

of tests, a pediatric endocrinologist determined the baby was

a male. The endocrinologist, Grace Tannin, discussed the

| situation with appellant and her husband and presented the

option of raising the baby as a girl, though the baby would

| then require reconstructive surgery at a later date and would

| not be able to bear children. Alternatively, the baby could be

| raised as a boy, but Tannin could not say with certainty that

the baby would be able to produce sperm or father children.

Appellant and her husband elected to raise the baby as a boy

and took him home on December 8, 1999. That same day, the

baby died of blunt force head injury and ligature

strangulation. Appellant was convicted of murdering her

baby, and this appeal followed.

In her first and second issues, appellant complains the

evidence is legally and factually insufficient to support her

capital murder conviction. When reviewing challenges to the

legal and factual sufficiency of the evidence, we apply well

known standards. See Jackson v. Virginia, 443 U.S. 307,

319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Johnson v.

State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also

Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App.

1996). The factfinder is the sole judge of the witnesses’

credibility and their testimony’s weight. Bonham v. State,

680 S.W.2d 815, 819 (Tex. Crim. App. 1984). The factfinder

may believe or disbelieve all or any part of any witness’

: testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim.

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Court of Appeals Opinion - 11/4/02

App. 1986). When reviewing a case comprised wholly of

circumstantial evidence, the standard of review is the same as

it is for reviewing cases in which direct evidence exists. King

v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). A

person commits capital murder if he intentionally or

knowingly causes the death of an individual under six years

of age. See TEX. PEN. CODE ANN. § § 19.02(b)(1);

19.03(a)(8) (Vernon 1994).

In this case, the record shows appellant told police that

she left her baby sitting alone on the couch and went to the

bathroom for approximately two minutes. The door of the

bathroom was closed, and appellant said she heard a knock at

the front door. Appellant called out, but she did not hear

anything. Appellant came out of the bathroom three minutes

later and discovered her baby was no longer sitting on the

couch, and the front door of the apartment was ope=.

Appellant went outside and discovered her baby lying dead oii

the porch.

Johnny Lynn Rudder, a firefighter and paramedic, arrived

at appellant’s apartment about the same time as police and a

fire engine. When he walked inside appellant’s apartment,

Rudder found appellant, her husband, and her daughter “kind

of walking around.” Everyone in the apartment “had sort of

a flat look on their face.” - udder asked what was wrong, but

nobody responded. However, they all looked toward a couch

where Rudder saw a baby lying on its back. Jeffrey Surles,

another paramedic, came in and took the baby outside to the

ambulance where Rudder used a bag-valve mask to try to get

the baby breathing. Rudder noticed the baby’s head was “like

a bag of water” with nothing solid along the top part of the

skull. Rudder also discovered a red line on the baby’s neck as

4a

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Court of Appeals Opinion - 11/4/02

if someone had used a cord to strangle it. Nevertheless, the

baby’s face was very clean as if it had just had a dath.

Collin county medical examiner William Rohr performed

an autopsy on appellant’s baby and determined the baby died

from blunt force head injury and ligature strangulation. In

addition, Rohr detected caffeine in the body and found

fragments of green glass in the baby’s mouth, stomach, and

small intestine. David Walker Spence, supervisor of the trace

evidence section at the Southwest Institute of Forensic Science

testified the glass fragments found in the baby’s body matched

fragments in a mortar and pestle found in appellant’s kitchen

and the “P-traps” of two sinks in appellant’s apartment.

Dallas police officer Frank Della testified the porch

outside the door of appellant’s apartment was clean, and the

potted plants sitting on the porch were sitting upright. The

record does not indicate that any physical evidence was

recovered from the porch. Police recovered a latent palm

print from the outside of the front door, but the print was not

identified. Dallas police detective Daniel Krieter testified he

could not tell how old the palm print was and that prints could

remain on a surface indefinitely.

Timothy Kalafut, a forensic DNA analyst, testified he

compared DNA samples from appellant, her baby, and her

husband and daughter with blood samples taken from her

apartment. On a sheet from the bed in appellant’s master

bedroom and on the carpet in the master bedroom, Kalafut

found stains that were possibly a mixture of appellant’s, her

daughter’s, and her baby’s blood. Kalafut’s DNA test

indicated a male contributed to the samples, and the only

other male in the family, appellant’s husband, was excluded.

Sa

Court of Appeals Opinion - 11/4/02

Kalafut also tested a bloodstain found on a wet towel in

appellant’s master bathroom, but he was unable to isolate any

DNA from the towel because it was too wet. Thus, the

evidence developed at trial showed the baby’s blood was on

the bed and on the carpet in the master bedroom.

In appellant’s apartment, a mortar and pestle was found

containing glass frag;ments matching those found in the baby’s

body - glass fragments that had time to travel through the

baby’s body and into the baby’s small intestine. Rohr testified

the glass fragments would not necessarily have stopped

moving through the baby’s system at death; however, Rohr

had only seen one example of such movement after death and

never in an infant. Rohr testified the glass had to be in the

baby “for some time,” but he agreed there was no way to tell

how long. Despite the severity of the baby’s head injury, the

baby appeared clean as if it had just had a bath. We conclude

this evidence is legally and factually sufficient to show

appellant committed the offense of capital murder. See

Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 11. We

overrule appellant’s first and second issues.

In her third issue, appellant argues the trial court erred in

submitting to the jury an instruction on the law of parties

because there is no evidence to show that her husband

murdered the baby or that she acted with intent to promote or

assist her husband in murdering the baby. A person is

criminally responsible for an offense committed by the

conduct of another if, acting with intent to promote or assist

the commission of the offense, he solicits, encourages,

directs, aids, or attempts to aid the other person to commit the

offense. TEX. PEN. CODE ANN. § 7.02(a)(2) (Vernon

1994). Evidence is sufficient to support a conviction under the

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Court of Appeals Opinion - 11/4/02

law of parties where the actor is physically present at the

commission of the offense and encourages the commission of

the offense either by words or other agreement. Ransom v.

State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). In

determining whethef a defendant participated in an offense as

a party, the court may examine the events occurring before,

during, and after the commission of the offense and may rely ~

on actions of the defendant which show an understanding and

common design to commit the offense. /d.

On the day of the murder, Casey Larowe, appellant’s

neig’ibor, heard some loud talking from appellant’s apartment

next door and went to investigate. Larowe looked in

appellant’s open doorway and saw appellant holding her baby

and talking loudly in another language on the telephone. The

baby was limp and unmoving, and Larowe stood in

appellant’s doorway and asked if she needed help. Appellant

did not answer and remained on the telephone. Larowe,

dressed in her nightgown, went back to her apartment and

threw some clothes on.

Approximately two minutes later, Larowe returned to

appellant’s apartment and again asked if appellant was okay.

Appellant did not answer but, when Larowe said she was

going to call 911, appellant said somebody knocked on her

door, came in, took her baby, beat it and threw it outside.

Larowe took the baby from appellant and put the baby on the

couch. Throughout this exchange, appellant remained on the

telephone. Larowe checked the baby for a pulse and found

none. When Larowe tilted the baby’s head back, her hand

sank into the baby’s scalp. Frantic, Larowe asked if appellant

had called 911. Appellant did not respond. Soon thereafter,

appellant’s husband and daughter came in the door of the

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Court of Appeals Opinion - 11/4/02

apartment, and appellant’s husband did not pick up the baby

but called someone on the telephone instead. Larowe could

not understand what appellant’s husband was saying. When

appellant’s husband got off the telephone, Larowe called 911

and remained in the apartment until police and paramedics

arrived.

Appellant argues there is no evidence to show her husband

murdered the baby, and an instruction on the law of parties

was therefore inappropriate. Although appellant’s husband

was not present in the apartment when Larowe came to

investigate appellant’s loud talking, the baby had already

suffered a massive head wound and stopped breathing by that

time. We have already concluded the evidence was legally

and factually sufficient to show appellant murdered her baby.

If the evidence clearly supports appellant’s guiit as a principal

actor, any error in charging on the law of parties is harmless.

Black v. State, 723 S.W.2d 674, 675 (Tex. Crim. App.

1986); Reyes v. State, 910 S.W.2d 585, 593 (Tex. App.-

Amarillo 1995, pet. ref'd). In addition, we conclude a rational

jury could have found beyond a reasonable doubt that, if

appellant did not murder her baby, she encouraged, aided, or

directed her husband to do so. See Ransom, 920 S.W.2d at

302. We overrule appellant’s third issue.

In her fourth issue, appellant argues the trial court erred

in overruling her objection to the submission of the law of

parties because she was not under a legal duty to prevent a

criminal offense against her baby. In her fifth issue, appellant

makes the related argument that family code section 151.001

is unconstitutionally vague in imposing on a parent a duty of

“protection” of the parent’s child. The penal code provides

that a person is criminally responsible for an offense

8a

nn ee eee Pe ee et at ee eee eee

Court of Appeals Opinion - 11/4/02

committed by the conduct of another if, having a legal duty to

prevent commission of the offense and acting with intent to

promote or assist its commission, he fails to make a

reasonable effort to prevent commission of the offense. TEX.

PEN. CODE ANN. § 7.02(a)(3) (Vernon 1994). The jury

instructions in this case, quoting section 151.001 of the Texas

Family Code, stated that a parent has “the duty of care,

control, protection of the child, and reasonable discipline of

the child.” See TEX. FAM. CODE ANN. § 151.001(a)(2)

(Vernon Supp. 2002). The charge further instructed the jury

to find appellant guilty of capital murder if it found beyond a

reasonable doubt that appellant’s husband killed the baby and

appellant, “having a legal duty to prevent commission of the

offense and acting with intent to promote or assist its

commission, failed to make a reasonable effort to prevent

commission of the offense.” See TEX. PEN. CODE ANN. §

7.02(a)(3) (Vernon 1994).

Appellant argues it is contrary to the intent of the family

code to impose on a parent the legal duty to protect a child

from the commission of a criminal act by a third party.

However, the charge in this case does not impose such a duty.

Instead, the charge authorized a conviction only if, having a

legal duty to prevent commission of the offense and acting

with intent to promote or assist its commission, appellant

failed to make a reasonable effort to prevent the offense. We

conclude that, to authorize a conviction, this instruction

required appellant to have the intent to promote or assist her

husband in murdering her baby and, contrary to appellant’s

arguments, did not unreasonably require appellant to protect

her child from every potential threat to avoid prosecution for

capital murder.

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Court of Appeals Opinion - 11/4/02

Appellant complains further that the language referring to

“protection of a child” is impermissibly vague. A statute is

void for vagueness when it fails to give a person of ordinary

intelligence fair notice of what the statute requires or is so

indefinite that it encourages arbitrary arrests and convictions.

See Long v. State, 931 S.W.2d 285, 287 (Tex. Crim. App.

1996). We conclude that the language referring to “protection

of a child” gave fair notice that appellant should not feed her

baby ground glass, strangle her baby with a ligature, or crush

her baby’s skull, nor should she permit another individual to

do so. We overrule appellant’s fourth and fifth issues.

In her sixth issue, appellant complains the trial court erred

in excusing a juror over appellant’s objection. Specifically,

appellant complains of the dismissal of a juror who had an ill

six-month-old child and needed to take the child to the doctor.

The juror had no one else to take the child to the doctor, and

the trial court found the juror was disabled and seated an

alternate juror. Appellant objected that the juror was not

disabled under article 36.29 of the Texas Code of Criminal

Procedure. The trial court overruled appellant’s objection and

seated the alternate juror. We cannot conclude the trial court

abused its discretion in finding that the excused juror was

disabled by her inability to find a means of taking her baby to

the doctor other than by taking the baby herself. See Edwards

v. State, 981 S.W.2d 359, 366 (Tex. App.-Texarkana 1998,

no pet.) (holding juror’s inability to find child care for her

fourteen-year-old son rendered juror “disabled” within

meaning of code of criminal procedure); see TEX. CODE

CRIM. PROC. ANN. Art. 36.29 (Vernon Supp. 2002). We

overrule appellant’s sixth issue.

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Court of Appeals Opinion - 11/4/02

In her seventh issue, appellant complains the trial court

erred in failing to declare a mistrial when the prosecutor

referred to appellant’s failure to testify. Specifically , appellant

complains of the following exchange during appellant's

closing argument:

[DEFENSE COUNSEL]: I think it’s unthinkable that

you have lived in proximity with this woman for the

last five days, and you’ve observed her for 30 or 40

hours, and you must get some vibrations from her.

— [PROSECUTOR]: Judge, I’m going to object to that,

commenting on a defendant’s demeanor when she has

not testified. We can’t go into that.

doe

[DEFENSE COUNSEL]: I object to them calling to

the attention of the jury the fact that she hasn't

testified. That’s a direct comment on her failure to

testify, and I’d ask for a mistrial at this time. That’s

unconscionable.

[THE COURT]: I’ll tell you what. I'll instruct the jury

to disregard any comment with regard to whether or

not the defendant has testified. Go ahead.

It appears that, although defense counsel objected to the

prosecutor’s statement and moved for a mistrial, the trial

court did not rule on defense counsel’s objection. Also,

defense counsel did not pursue a specific ruling on his motion

for mistrial. As a prerequisite to presenting a complaint for

appellate review, the record must show that the complaint was

: made to the trial court, and the trial court ruled on the

request, objection, or motion. See TEX. R. APP. P. 33.1.

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Court of Appeals Opinion - 11/4/02

Here, defense counsel did not obtain a ruling on his motion

for mistrial and, thus, did not preserve this issue for our

review. |

Nevertheless, it appears from the above-quoted exchange

that the prosecutor was objecting to defense counsel’s

implication that appellant’s “vibrations” indicated her

innocence even though appellant did not testify. We note that

it was defense counsel who twice referred to appellant’s

failure to testify. Even assuming the prosecutor’s objection

can be construed as a comment on appellant’s failure to

testify, we conclude the trial judge’s instruction to disregard

cured the error, if any. See Moore v. State, 999 S.W.2d 385,

405 (Tex. Crim. App. 1999) (instruction to disregard will

cure all but most egregious errors); Brokenberry v. State, 853

S.W.2d 145, 153 (Tex. App.-Houston [14th Dist.] 1993, pet.

ref’d) (instruction to disregard sufficient to cure error where

prosecutor’s statement indirectly referred to appellant’s failure

to testify). We overrule appellant’s seventh issue.

In her eighth issue, appellant complains the trial court

erred in denying her motion for a mistrial when the

prosecutor improperly implied that appellant had a criminal

record. Specifically, appellant complains of the prosecutor’s

statement during the State’s final argument that defense

counsel knew “that in a criminal trial we’re not allowed to

bring up any criminal history of the defendant.” Appellant

argues this comment created a false impression with the jury

that appellant had a criminal record that the State was

prevented from bringing to the attention of the jury.

We note that defense counsel immediately asked for and

received an instruction to disregard the prosecutor’s

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Court of Appeals Opinion - 11/4/02

statement. Generally, a prompt instruction to disregard will

cure an inadvertent reference to an extraneous offense. See

Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).

Unless the extraneous offense is so calculated to inflame the

minds of the jury or is of such a nature as to suggest the

impossibility of withdrawing the impression produced, an

instruction to disregard can cure any improper impression.

Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App.

1992). Here, the prosecutor did not refer to any extraneous

offense, and we conclude the prosecutor’s implication that the

State could not bring up appellant’s criminal history was not

so calculated to inflame the minds of the jury and was not of

such a nature as to suggest the impossibility of withdrawing

the impression produced. See Gardner v. State, 730 S.W.2d

675, 696-97 (Tex. Crim. App. 1987). Therefore, the trial

court did not err by failing to grant appellant’s request for a

mistrial, and the prompt instruction cured any improper

impression created by the prosecutor’s statement. See Ovalle,

13 S.W.3d at 783. We overrule appellant’s eighth issue.

We affirm the trial court’s judgment.

/s/

DAVID L. BRIDGES

JUSTICE

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APPENDIX B

IN THE

COURT OF APPEALS

FIFTH DISTRICT OF TEXAS AT DALLAS

No. 05-01-00835-CR

[Filed January 10, 2003]

ARUNA KAVALT, )

Appellant )

V. )

)

THE STATE OF TEXAS, )

Appellee )

)

ORDER

Before Justices Bridges, FitzGerald, and Kinkeade'’

The appellant’s Motion for Rehearing filed December 3,

2002, is DENIED.

| The Honorable E. Kinkeade, Justice, Court of Anneals,

Fifth District of Texas at Dallas, Retired, was a membe. of ‘his

Court when this case was submitted and subsequently decided.

However, Justice Kinkeade did not participate in the disposition of

this motion.

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/s/

DAVID L. BRIDGES

JUSTICE

APPENDIX C

OFFICIAL NOTICE FROM COURT OF

CRIMINAL APPEALS OF TEXAS

P.O. BOX 12308, CAPITOL STATION,

AUSTIN, TEXAS 78711

6/11/2003

COA#: 05-01-00835-CR

RE: Case No. PD-0176-03

STYLE: KAVALI, ARUNA

On this day, the Appellant’s petition for discretionary

review has been refused.

Troy C. Bennett, Jr.

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