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Click here for the full text of this decision FACTS:Police found Antwonyia Smith lying dead in the Sprague Swimming Pool parking lot of Kimball High School. She had been shot three times with a shotgun. The police received information that Terence Chadwick Lawrence was dating Smith and another woman named Courtney Anderson at the time of Smith’s death. Lawrence also had a friend named Kenneth Moore who lived near the scene of the crime. Detective John Davison testified Anderson gave a written statement. Anderson confirmed that she and Lawrence were boyfriend and girlfriend and that Lawrence had been seeing Smith as well. According to Anderson, Smith called Anderson’s house, wanting to talk to Lawrence and to tell him she was pregnant. When Anderson told appellant Smith had called, he said “he was going to take care of the problem.” Anderson asked Lawrence what he meant by that, and he said if she did not know, she did not need to worry about it. Anderson told police that Lawrence was with her on the night of Sept. 8, the night before Smith’s body was discovered, until he left around midnight, and he called her about two hours after he left her house. Davison interviewed Moore, who also gave a written statement. Moore stated Lawrence had left his shotgun and a box of shells at Moore’s house and picked them up a few days before Smith’s death. In light of this information, the investigating officers obtained search warrants for Lawrence’s house and car. Under the rear seat of Lawrence’s vehicle, police found a spent shotgun shell casing. The officers interviewed Lawrence who told them he bought a “20 gauge pump shotgun” in late July 2004 but that it had been stolen from the car, along with a CD player. Lawrence told Davison he did not report the theft. He also stated that, on the night before Smith’s body was discovered, he left Anderson’s house and was home by midnight. He “stayed at home and talked on the phone” with Anderson. The police ran tests on the three spent shotgun shell casings and subsequently arrested appellant. Moore later admitted he had not told the truth about the shotgun, stating he wanted to help appellant. Moore then told Davison that appellant retrieved the shotgun and the box of shells from Moore’s house around midnight on Sept. 8. Davison conceded police did not find the shotgun used in Smith’s murder. No evidence of blood spatter was found on appellant’s car or at his house. Carl Oden, manager of Uncle Dan’s pawn shop, testified that, on Aug. 24, 2004, he sold a “Nato Gamebird 10, 20 gauge shotgun” to appellant. Oden was not very familiar with this type of shotgun and had not seen many. He testified he would characterize it as a deadly weapon. Lynn Salzberger, a medical examiner, testified she performed Smith’s autopsy. Salzberger testified that each of the three shots inflicted fatal injuries, and Smith could have died from any one of the three shots fired. Salzberger testified Smith was pregnant at the time of her death. HOLDING:Affirmed. Viewed in the light most favorable to the judgment, the evidence shows that Lawrence had been seeing both Anderson and Smith during the summer of 2004. After viewing the evidence in the light most favorable to the verdict, the court concluded the evidence was legally and factually sufficient to support Lawrence’s conviction for capital murder. Lawrence, the court stated, contended that the definition of an individual in Texas Penal Code �19.03(a)(7)(A), i.e., a “human being who is alive, including an unborn child at every stage of gestation from fertilization until birth,” is unconstitutional under the 14th Amendment to the U.S. Constitution, because it is vague and fails to provide fair notice to Lawrence that his alleged activity was proscribed. Lawrence further argued the statute’s definition is unconstitutional, because it fails to distinguish between viable and nonviable fetuses, the court stated. Because the statute clearly defines when criminal liability attaches for harming a fetus, the court held that the statute is not unconstitutionally vague and that the statute, as written, gives fair notice to individuals, specifically appellant, that such activity is proscribed by �19.03(a)(7). Addressing the viability issue, the court stated that the Texas Legislature was well aware of the U.S. Supreme Court’s discussion on viability in Roe v. Wade, 410 U.S. 113 (1973), but chose not to incorporate fetal viability in the capital murder statute. When a woman’s privacy interests are not implicated, the Legislature may determine whether, and at what point, the life of her unborn child should be protected, the court stated. The Legislature’s decision not to consider the viability of a fetus when imposing maximum criminal liability on an actor who murders a pregnant woman, the court further stated, does not somehow render the statute vague or unconstitutional. OPINION:Whittington, J.; Morris, Whittington and Richter, J.J.

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