As the Judges Saw It
November-December 2007

As the Judges Saw It

Tanya Dohoney

Assistant Criminal District Attorney in Tarrant County



Kenneth Staley committed a capital murder in Tarrant County. His procedural posture is that of an incompetent-to-be-executed, death-row inmate with no scheduled execution date. The trial judge set aside his prior execution date after finding him execution-incompetent. (That is, while he was competent during trial, he is now not competent to be executed.) As a result of the competency proceeding, the judge entered findings that, when Staley is medicated, he appears to be asymptomatic, but Staley has refused to take psychotropic medication to treat his schizophrenia. The district judge decided that Staley posed a danger to himself when he was not medicated and, accordingly, involuntarily medicating Staley was in his best medical interest. So the court ordered that Staley’s medication be compelled.

Staley appealed the trial judge’s order, questioning the constitutionality of State-dictated anti-psychotic medication to restore execution competency. The State moved to dismiss and characterized the compelled-medication order as non-appealable.

Who wins?


When the prosecution offers extraneous-offense evidence during a trial’s guilt phase, must a trial judge sua sponte include a reasonable-doubt instruction regarding proof of the extraneous offense in the jury charge?


Gary Young previously represented misdemeanor DWI client Leslie Goodman before his election as Lamar County District and County Attorney. When Goodman discussed his DWI case with Young, he apparently described his daily drinking habits. Goodman was convicted for that 2000 DWI offense.

No lesson learned, Goodman kept imbibing and driving, and his drinking habits led to another DWI arrest. Now the elected prosecutor, Young indicted Goodman on felony DWI charges with the 2000 DWI alleged as jurisdictional. Goodman sought to disqualify Young based upon the prior attorney-client relationship, and Young countered that he could use public records to prove up the 2000 DWI without resort to any confidential communication. After the trial court denied disqualification, Goodman sought mandamus relief from the Texarkana Court of Appeals. The appellate court acknowledged that a trial judge has authority to disqualify a prosecutor only when a conflict rises to the level of a due-process violation. Due-process rights are implicated when an attorney defends a client on a case and then participates in that client’s prosecution in a matter that bears a substantial relationship to the first case. Finding the due-process violation “inescapable” in Goodman’s case, the Texarkana court granted mandamus relief.

Was the court correct?


Convicted of aggravated robbery and aggravated sexual assault in 1995, Tony Lee Blacklock is serving two stacked life sentences. During Blacklock’s trial, his victim, who already knew him, identified him before the jury as the perpetrator. However, DNA evidence from semen in the victim’s vaginal smears was inconclusive on identity.

Ten years after his conviction, Blacklock moved to retest these samples pursuant to Code of Criminal Procedure article 64.03(a)(1)(B) & (a)(2)(A) which allow a convicting court to order DNA testing if it finds, among other things, that identity was or is at issue in the case if the convicted person establishes by a preponderance that he would not have been convicted had exculpatory DNA results been obtained.

Does the fact that the victim knew her attacker and positively identified Blacklock undermine his ability to obtain the requested post-trial DNA testing?


Rickey Lynn Harrison’s 8-month-old son lived with his mother and her extended family. Although Harrison typically lived elsewhere, on one fateful night, Harrison decided to cozy-up to his baby and the baby’s mother. While the mother showered, she left the baby in bed with Harrison, and she heard the baby crying. When she finished her shower, the little boy was having a hard time breathing and looked sleepy. Moments later, he vomited; regurgitation occurred two more times during the night. Ultimately, the baby stopped breathing and was pronounced dead. Autopsy results showed death resulted after blunt-force trauma to the abdomen which could only have resulted from a punch, kick, or stomp, not a fall.

Tried for his 8-month-old son’s murder, Harrison did not testify, but the prosecution introduced a statement he made to the police which included a description of how Harrison would “play-fight” with his 8-month-old child. In that statement, the defendant conceded that he would “softly hit” the little boy’s body during this game and could have hit him too hard. Evidence also included another skimpy confession of guilt. The defense witnesses included Hazel Evans, who testified about Harrison’s relationship with his son. When defense counsel asked her how she knew Harrison, she said he was a friend of her son’s. Then she volunteered that Harrison was “a sweet person” and “a good person” and had watched her kids without incident.

After this witness’s direct testimony, the prosecutor approached the bench and explained that the witness’s character testimony had opened the door to cross-examination about Harrison’s prior assault convictions. The defense argued that Hazel Evans’ volunteered, nonresponsive comments actually focused on Harrison’s character around children and, thus, did not open the door to the assault cases. The trial court allowed the State to ask “were you aware” questions about these priors.

On appeal, Harrison’s counsel argued that Evans’ testimony was innocuous and was also limited to the specific character traits of being a good father and being good with children, attributes that would not logically be rebutted by evidence of prior violent acts. The Waco Court of Appeals, with the Chief Justice dissenting, reversed.

Was the door opened to the “were you aware questions” about prior assaults?


Isaiah Paul Delao committed a capital murder in McLennan County by shooting a man while robbing a local bar. Trial evidence revealed that, after Delao was identified and brought in for questioning, he informed the police detective that he was taking medication, had difficulty reading, and was a mental health patient. Delao requested to have his mental health counselor present during police questioning, and this request was fulfilled. During this interview, the police detective specifically inquired about Delao’s background, education, and family; Delao’s prompt responses were detailed and appropriate. A few of his comments vaguely bordered on requests to stop the questioning (i.e., I wanna go home, when can I go home, I’ll come talk to you later). At the conclusion of the discussion, Delao confessed to the crime’s details. The entire hour-long statement was recorded, and the DVD recording was introduced at trial. Expert testimony intended to impugn the voluntariness of Delao’s confession was admitted. Delao’s attorney contended that the defendant’s mental disabilities kept him from fully understanding his legal rights and made Delao more susceptible to coercion and persuasion. After hearing all of the evidence, the trial court found the confession voluntary. The issue was placed before the jury as well and, likewise, they rejected the involuntariness claim. Delao ultimately received a life sentence.

The Waco Court of Appeals affirmed his conviction after rejecting several claims, including an attack on the trial court’s confession ruling. Delao raised on appeal his trial allegations regarding his diminished capacity, enhanced susceptibility, and purported termination requests. The Waco court applied the usual totality-of-the-circumstances standard to the voluntariness question and affirmed.

On PDR, Delao argued that the voluntariness of a confession given by a mentally retarded/ill person cannot be assessed under the same standard as that used for a person of normal mentality.

Does a unique standard apply to these facts involving mental illness?


After the State rested in this assault prosecution, the attorney for Brenda Pitts Bennett objected to the trial judge’s failure to instruct the jurors on the law of self-defense. The verbose objection included a phrase stating, “And we respectfully request that the court charge the jury on the law of self-defense as it relates to this case.” On appeal, Bennett complained that the jury’s instructions did not address defense of a third person and defense of property. The Dallas Court of Appeals determined that the phrase “as it relates to the case” sufficiently put the trial judge on notice of Bennett’s defense-of-third-person charging request.

Was the court right or wrong?


Cory Stevens received 10 years’ deferred adjudication on his 1995 involuntary manslaughter conviction in Brazoria County. Lo and behold, in 2003, he picked up a DWI in Tom Green County and, accordingly, faced that prosecution and a revocation in the eight-year-old manslaughter case. Although the Tom Green County stop appeared promising because it was based on several observed traffic violations, that case ended after the trial court granted suppression, apparently finding a lack of officer credibility (because the stop facts were so clear-cut), although no express findings were entered.

On the heels of this success, Stevens next sought to curtail his revocation by filing a motion to suppress in Brazoria County. The only evidence at this hearing was the transcript of the suppression testimony from the earlier DWI hearing. Unfortunately, the State’s attorneys did not question the applicability of the Fourth Amendment to the revocation scenario. See Pa. Bd. of Prob & Parole v. Scott, 524 U.S. 357, 363-64, 118S. Ct. 2014, 141 L.Ed.2d 344 (1995) (holding that the exclusionary rule does not apply to proceedings other than criminal trials). Ultimately, the Brazoria County trial judge granted suppression based upon the prior Tom Green County disposition after determining that collateral estoppel precluded an independent review of the evidence regarding the validity of the DWI traffic stop. A State appeal ensued and, while acknowledging the questionable nature of the trial court’s collateral estoppel ruling, the Fourteenth Court of Appeals affirmed the suppression by extending deference to the Brazoria County trial court’s decision, which was premised on the suppression hearing transcript. (Anyone else a little frustrated with the application of law throughout this case?)

On State’s PDR, what was the outcome?


Tarrant County prosecuted Eric Paul Michael for child-sex acts perpetrated against a 9-year-old who attended a sleepover with Michael’s daughter. After the child reported to her mother that Michael had licked her vagina, law enforcement authorities videotaped the young girl’s interview. Later, during the trial, defense counsel impeached the child-victim’s testimony with several prior inconsistent statements made during the recorded session. Discrepancies involved the bedroom’s logistics, the child’s position on the bed, and the flaccid state of the defendant’s penis. As rebuttal, the State proffered the girl’s teacher/babysitter to testify about her truthfulness. When objecting, defense counsel claimed that the child’s credibility had not been attacked and, instead, that their theory focused on no attack happening. After the prosecutor pointed out specific credibility-questioning instances, the trial court allowed the teacher’s opinion testimony. On appeal, the Fort Worth Court of Appeals rejected the defense complaint of improper bolstering.

Does impeachment with prior inconsistent statements automatically open the door to rebuttal evidence regarding character for truthfulness?


Two little girls, Ujeana and Precious, typically lived with their grandmother, Zula Mae. On an October evening in Wichita County, their mother, Sharon Ann Williams, removed her daughters from Zula Mae’s fully-appointed home and took them to her boyfriend’s duplex which lacked just about everything. The duplex had no kitchen, no bathroom, no basic utilities, little furniture, and lots of trash.

That night, the girls burned to death while Williams was out. The mother’s first jaunt that evening was for cigarettes and food. She returned briefly after obtaining her smokes, but she had forgotten the children’s Little Debbie snacks. After telling her boyfriend that she wanted to go out with friends, Williams and her beau put the girls to bed with a lit candle positioned upright in a metal pie pan for light. The bedroom contained a bed and a dresser, a nailed-up exterior door, and two interior doors (one was non-functional, missing its doorknob). Williams left the house, leaving the boyfriend in charge. The boyfriend checked on the girls intermittently. He also quickly slipped out of the house to nab a cigarette from his neighbor. The candle remained lit in the bedroom. After the boyfriend fell asleep, the candle’s open flame resulted in a raging fire which consumed the girls; the boyfriend awoke to their screams and unsuccessfully tried to save them from the conflagration. The fire burned at 1,200 degrees and, during most of it, all the doors to the room were closed.

Away from the site of the inferno, Williams’ evening out included buying and eating the girls’ snack she had previously sought, visiting with innumerable friends at a motel and elsewhere, and making some new “friends”—a couple of unnamed men with whom she took vaguely-described rides.

Presciently, two weeks before the fire, the grandmother, Zula Mae, had expressly warned Williams about taking the girls to the duplex and the fire hazard presented by using candles in the makeshift home.

Is there sufficient evidence to prosecute Williams for reckless injury to her two children?



The State wins; appeal dismissed. Staley v. State, AP-75,462, ___ S.W.3d ___, 2007 WL 2622426 (Tex.Crim.App. September 12, 2007) (9:0) (Hervey). The Texas Constitution in §5(a) grants the Court of Criminal Appeals final appellate jurisdiction in criminal cases except as limited by the Constitution or prescribed law. Article 44.02 of the Code of Criminal Procedure grants defendants the right to appeal any criminal action as the rules provide. Staley failed to cite any authority—constitutional, statutory, or otherwise—supporting the court’s jurisdiction for this appeal from an interlocutory order, so it is dismissed.


No. Delgado v. State, No. PD-0203-07, ___ S.W.3d ___ (Tex.Crim.App. September 26, 2007) (Cochran) (7:2:0). Resolving a conflict among the appellate courts, this decision holds that an instruction on proving extraneous acts beyond a reasonable doubt is only required when requested.

Here are the facts. While surveilling a bar known as a drug-dealing haven, officers witnessed a drug sale. The dope-deal participant, Morales, subsequently pinpointed his cocaine supplier as a man sitting right inside the bar. The officers entered. They saw Delgado extract a couple cocaine baggies from his pocket and unsuccessfully attempt to conceal them behind the bar. A subsequent consent search of Delgado’s car uncovered more similarly-packaged contraband.

In an abundance of pretrial caution, the State informed the trial judge and Delgado that it intended to offer evidence of the Morales-Delgado delivery transaction that led the authorities to Delgado—an event which arguably falls into the same-transaction-contextual-evidence category, not requiring such notice.

When the prosecutor sought permission to discuss the drug transaction early in the trial process, Delgado’s attorney voiced no opposition. The jury heard the Morales drug-sale facts absent any objection or limiting-instruction request (at the time proffered and at charging). After acquitting Delgado of possession with intent to distribute, the jury convicted him of simple cocaine possession.

Although CCP article 36.14 requires that a court’s charge set out the law applicable to the case, the issue of who exactly decides which law applies has bedeviled courts for years. This opinion includes a history of charging decisions. That lesson winds up with a discussion of Almanza’s protective framework which was designed to thwart reversals from defense sand-bagging on charging matters. See generally, Almanza v. State, 686 S.W.2d 157, 161-72 (Tex. Crim. App. 1985) (op. on reh’g). But Almanza left open the issue of assigning the responsibility for deciding what law applies to a case between the court on its own motion or to the defense.

Although trial courts have an absolute sua sponte duty to prepare a charge that sets out the law regarding the specific offense alleged, they have no concomitant duty to instruct the jury without a request by the defense on all potential defensive issues, lesser-included offenses, or evidentiary matters. Submission of these charges frequently rests on strategic choices by the litigants. For example, if neither side requests a lesser-included instruction, courts should defer to the parties’ implied decision not to include one and, therefore, not do so sua sponte. Likewise, consideration of a limiting-instruction can be strategic and, when not requested at the time of the evidentiary proffer, caselaw considers the evidence admitted for all purposes. Accordingly, an extraneous-offense limiting instruction should be submitted in the guilt-innocence phase charge only upon request when such an instruction was already issued at the time of the extraneous admission’s introduction.

Contemplating these issues, Judge Cochran concluded that, because there is no duty to limit the jury’s consideration of an extraneous offense unless requested, there is no duty to instruct juries on the burden of proof concerning an extraneous offense.

Note the statutory exception to this general rule in capital sentencing based upon CCP article 37.07, §3(a)(1)’s requirements.


No. Young sought mandamus of the Texarkana court’s order, and a unanimous Court of Criminal Appeals conditionally granted this second mandamus because the Texarkana court clearly abused its discretion by granting Goodman’s initial mandamus. In re State Ex Rel. Gary D. Young, AP-75,648, ___ S.W.3d ___, 2007 WL 2781293 (Tex. Crim. App. September 26, 2007) (9:0) (Price). Regardless of Young’s mandamus victory, the court describes his conduct as “ethically ill-advised.”

Here’s the law. Mandamus relief lies when a relator establishes that no adequate remedy at law exists and the act sought to be compelled is ministerial, not discretionary. Magistrates have a ministerial duty to rule upon a timely presented motion, but they have no similar duty to rule a certain way. In short, it is improper to order a trial judge to rule a certain way unless a “clear right to the relief being sought” exists based upon unambiguous law and facts.

The Court of Criminal Appeals reviews a mandamus which requests relief from a lower court’s mandamus order under a clear abuse of discretion standard. A lower appellate court abuses its discretion by granting mandamus absent a proper basis so, on review, the high court reviews the lower appellate court’s mandamus ruling de novo. Here, because precedent does not firmly and unequivocally mandate that Young be disqualified, Goodman has no “clear right to relief.” The Texarkana court’s mandamus order constituted a clear abuse of discretion.

On the disqualification issue, for the purposes of this opinion, the court assumed without deciding that a trial judge has the authority to disqualify an elected prosecutor if his continued representation of the State would violate the defendant’s due-process rights—but this assumption is not of such indubitable provenance that it rendered the trial court’s decision ministerial. While caselaw reveals that a plurality of the Court of Criminal Appeals has held that a due-process violation must be shown before disqualification is appropriate, another plurality has held that a trial judge lacks authority to disqualify an elected prosecutor solely on the basis of a disciplinary rule violation. But even if a trial judge’s ruling is erroneous, that fact does not, in and of itself, justify mandamus relief.


No. The fact that the victim testified that she knew her attacker and identified him is irrelevant. Blalock v. State, PD-1639/1640-06, ___ S.W.3d ___, 2007 WL 2781659 (Tex. Crim. App. September 26, 2007) (9:0) (Hervey). The language and legislative history of article 64.03(a)(1)(B) make it very clear that a defendant requesting DNA testing can raise the issue of identity by showing that exculpatory DNA tests would prove his innocence—in spite of other evidence or procedural acts (such as a guilty plea) to the contrary.

Blacklock’s case was decided under a prior version of article 64.03(b) which prohibited convicting courts from finding that a guilty plea removed any question of identity being an issue. The current version of this article is even broader; it allows identity to be considered an open question regardless of the type of plea entered or the existence of a confession or similar evidence.


Absolutely. A unanimous court reversed the Tenth Court of Appeals’ reversal. Harrison v. State, PD-1226-05, ___ S.W.3d ___, 2007 WL 2781653 (Tex. Crim. App. September 26, 2007) (9:0) (Meyers).

Generally, evidence of a person’s character is not admissible to prove conforming conduct. However, a defendant may inject his character into issue by introducing character/reputation evidence himself under TRE 404(a). It matters not whether the defense intentionally introduces this testimony or that a defense witness blurts it out voluntarily. Once the evidence comes in, the State is entitled to rebut it via Rule 405’s methods—that is, either reputation or opinion evidence using “have you heard” or “were you aware” questions about specific instances of conduct inconsistent with the character trait raised by the defense. The purpose of such rebuttal is to discredit the character-witness testimony, not the person whose character was put in issue.

There appears to be one potential exception to this rule. In line with one of the cases cited, Meyers drops a footnote to telegraph to defense counsel that admission of rebuttal character evidence can be thwarted by objecting to nonresponsive statements or asking that they be stricken or disregarded.


No. Application of the totality-of-the-circumstances test is the appropriate standard. Delao v. State, PD-0067-07, ___ S.W.3d ___, 2007 WL 2781295 (Tex. Crim. App. 26, 2007) (9:0) (Meyers). By analogy, the court considered the Supreme Court’s application of the totality-of-the-circumstances standard not only to adult confessions, but also to those of juveniles. See Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560 (1979). Texas caselaw has followed the Supreme Court’s lead. See Griffin v. State, 765 S.W.2d 422 (Tex.Crim.App. 1989). Finding that this all-encompassing standard takes into account factors such as intelligence, age, experience, education, and maturity, the unanimous court held that the totality-of-the-circumstances standard of review for evaluating the voluntariness of confessions applies equally to persons of all levels of mental capacity.


Wrong. Preservation did not occur. Bennett v. State, PD-1350-06, ___ S.W.3d ___, 2007 WL 2781655 (Tex. Crim. App. September 26, 2007) (8:1:0) (Keller). Self-defense and defense of third person are separate defenses enumerated in different sections of the Penal Code. By itself, a request regarding one does not alert the trial judge with respect to the other. Nor does an open-ended, loosely-worded objection shift the onus to the trial judge, even if the trial evidence supported submission. A specific request is required, and trial judges are not required to mull over all of the evidence to determine whether a defendant’s generic request meant more than it expressly said. While “magic words” are not required, the substance of the requested instruction must be conveyed. Because defensive instructions must be requested to be considered law applicable to the case requiring submission, Bennett’s failure to do so here resulted in no trial court error. While none of this is earth-shattering, it is always good to see preservation rules in ink.


State wins! The Fourteenth Court misapplied the standard of review. State v. Stevens, PD-0226-06, ____ S.W.3d ____, 2007 WL 2848865 (Tex. Crim. App. October 3, 2007) (6:3:0) (Womack). It’s not new law that reviewing courts afford deference to a trial judge’s determination of historical facts which are supported by the record and to the mixed law/fact determinations that are premised on demeanor calculations. Likewise, appellate courts use a de novo standard to review pure legal issues and applications of law/fact not hinging on any credibility analysis. When the Fourteenth Court considered the State’s argument that collateral estoppel did not preclude the presentation of the suppressed DWI evidence in Brazoria County, the court misapplied the standard of review and afforded deference to the Brazoria County judge’s decision which only involved a pure legal issue. Then, the Fourteenth Court parroted the truism that a reviewing court may affirm a trial court’s decision if it is correct on any theory applicable to the case and affirmed although no theory other than collateral estoppel applied to this case. Unfortunately, the case’s appellate orbit continues for yet another do-over on remand.

Judge Cochran pens her three-vote concurrence to make it clear that she questions whether the doctrine of collateral estoppel applies to a probable-cause finding from a suppression ruling, an issue the court declined to address in Guajardo v. State, 109 S.W.3d 456 (Tex. Crim. App. 2003). The concurring opinion also mentions the other problematic aspects of attempting to apply collateral estoppel based upon the DWI suppression ruling in that the suppression ruling was not a final judgment (and did not even involve any real fact-finding).


No. The Court of Appeals applied the incorrect standard of review. Michael v. State, PD-1611-05, ____ S.W.3d ____, 2007 WL2848851 (Tex. Crim. App. October 3, 2007) (7:2:0) (Womack).

Judge Womack’s opinion reads like an evidence horn book, and his decision is based upon the erroneous review by the Fort Worth court, leaving consideration of the ultimate evidentiary issue for the lower appellate court on remand.

This decision holds that impeachment with a prior inconsistent statement does not always mean that the impeached witness’s credibility has been attacked. TRE 608(a) only authorizes rehabilitation when credibility is questioned.

Identifying five forms of impeachment, Judge Womack categorizes two as specific and three as nonspecific types. Specific forms include impeachment by prior inconsistent statements (aka self-contradiction) and impeachment by another witness. This form attacks the accuracy of certain testimony by implying that the witness normally tells the truth but is wrong this time. Nonspecific impeachment forms attack either bias, motive, or interest or testimonial defects and also generally question the witnesses’ truthfulness. This second form is akin to calling the witness a liar. Generally, a witness’s character for truthfulness may be rehabilitated with good-character testimony only after an attack on the witness’s general truth-telling character. Impeachment by prior inconsistent statement normally involves an attack on the witness’s accuracy, not her character for truthfulness. Nevertheless, where the cross-examiner’s intent and method demonstrate a more general attack on character, then rehabilitation through Rule 608(a) is appropriate. The determination of whether character rehabilitation evidence is permitted after impeachment with self-contradiction evidence depends upon whether a reasonable juror would believe that the witness’s character for truthfulness was attacked by the cross-examination, evidence from other witnesses, or statements of counsel. This cause was remanded to answer that question.


No. Reversal and acquittal ordered for legally insufficient evidence of reckless conduct. Williams v. State, No. PD-0446-06, ____ S.W.3d ____, 2007 WL 2848986 (Tex. Crim. App. October 3, 2007) (8:2)

This is a tough case and a complex opinion (there are 80-something footnotes). The State alleged two counts of reckless injury to a child: 1) by taking the girls from a house with working utilities to a building without them and leaving the children in a room with a lit candle; or 2) by leaving them asleep in a building without utilities with a burning candle instead of taking them to a house with working utilities. Overall the court holds that the indictment’s allegations would rarely constitute reckless criminal conduct. Criminal recklessness arises where there exists moral blameworthiness involving the actual disregard of a known substantial and unjustifiable risk. Because the heart of recklessness is the conscious disregard of the risk created by the actor’s conduct, mere lack of foresight, stupidity, irresponsibility, thoughtlessness, and ordinary carelessness do not suffice. Recklessness requires a defendant actually foresee the risk involved and consciously decide to ignore it, necessitating subjective awareness of the danger and disregard of the same.

Here the State failed, as a matter of law, in its initial burden of production to show criminal recklessness. The test set out has four prongs. First, the act or omission, viewed objectively at the time of commission, had to create a substantial and unjustifiable risk of harm. Second, the risk must be of such a magnitude that its disregard is a gross deviation from the standard of care that a reasonable person would have exercised in the same situation. Third, the defendant had to consciously recognize the substantial and unjustifiable risk at the time of the conduct, and, finally, criminal recklessness requires that a defendant consciously disregard the risk.

Judge Cochran’s decision completely derided the allegations, which focused on the duplex’s lack of utilities. Whether on its own or in combination with other claims, a lack of utilities does not give rise to a substantial and unjustifiable risk of serious injury or death considering either a camping-is-OK or a being-poor-is-not-criminal analysis. After a brief discussion of camping basics and fire-based-on-wiring statistics, the court resorted to consideration of the fact that one in three children worldwide live without modern conveniences, so lack thereof cannot be criminal.

Addressing the significance of Zula Mae’s warning, Judge Cochran wistfully notes that all of us are guilty of ignoring our mothers’ wise words. She also contends that the grandmother’s warning was too general and unfocused to establish Williams’ subjective awareness of the risk of deadly accident. Moreover, considering other cases with similar admonitions, the court finds that the significance of the warnings must be viewed in context with the likelihood of the occurrence and magnitude of the risk posed at the time of the behavior. Simply because Williams ignored Zula Mae’s warning, that did not give rise to Williams’ criminal recklessness without additional evidence.

The court next considered the indictment language regarding Williams’ leaving the girls in bed with the candle under her boyfriend’s supervision. Judge Cochran considered this reckless allegation highly unique because Williams did not leave the girls asleep with the candle, but with her more trustworthy boyfriend caring for them. The judge found no other case where a defendant left children with a caregiver whose competence was unquestioned. Thus, her conduct did not grossly deviate from an ordinary standard of conduct, involve an extreme degree of risk, or involve any conscious risk creation.

Finally, the court’s decision briefly delves into a discussion of Texas Penal Code §6.04’s “but for” causation and curiously utilizes a foreseeability analysis.

From the opinion’s expansive language, it is highly doubtful that additional/different pleading could have saved this prosecution in the eyes of the court’s majority. Overall, the majority’s opinion is a feast upon which any defendant facing an allegation of reckless conduct will soon be licking his chops.

Presiding Judge Keller, joined by one other judge, points to considerations she believes were overlooked by the majority. She contends that leaving the children with a lit candle was unjustifiable for myriad reasons. She also points to Williams’ failure to return when originally planned as evidence supporting the jury’s verdict. Also, the presiding judge did