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Click here for the full text of this decision FACTS:In the early morning hours of May 7, 2004, an ambulance carried E.B. to the hospital emergency room after she delivered twins prematurely at home. Medical evidence revealed that the twins had been dead in utero for at least 24 to 48 hours. At the hospital, nurses noticed bruises on E.B.’s arms and massive bruising on her abdomen. The hospital notified police, and officers questioned Flores, E.B.’s boyfriend with whom she was living at Flores’ parents’ house. In a hand-written statement, Flores stated that he and E.B. argued the previous night and he struck her during that argument. Flores admitted that in the seven days prior to E.B.’s delivery, he stepped on her abdomen on two different occasions. The state charged Flores with capital murder of the two unborn children. A jury found Gerardo Flores guilty of the capital murder of his two unborn children. The trial court sentenced him to life in prison. Flores appealed. HOLDING:Affirmed. Under Texas Penal Code �19.03(a)(8), the definition of capital murder in Texas includes the murder of an individual under six years of age. Under �1.07(a)(26), the code defines “individual” as a “human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.” Under �19.06, certain conduct is excluded from the scope of the capital murder statute in its relation to unborn children, including the mother’s actions in obtaining an abortion, the actions of physicians in conducting legal abortions, and the legal prescribing of drugs that induce abortions. In issues one through four, Flores contended that Texas Penal Code ��1.07(a)(26) and 19.06 are unconstitutional. Flores challenged �19.06 under the equal protection clauses of the federal and state constitutions and the equal rights amendment of the Texas Constitution. He challenged �1.07(a)(26) under the due process and establishment clauses of the U.S. Constitution. Flores argued that his conviction denied him equal protection of the law under the U.S. and Texas constitutions because, as the biological father seeking to abort the unborn children, the Texas Penal Code treated him differently than the biological mother. If a law does not implicate a fundamental right and there is no suspect class, the court stated, then the statutory classification need only be rationally related to a legitimate governmental purpose to survive an equal protection challenge. Flores does not have a fundamental right to abort or to assist in aborting his unborn children, the court stated, and Flores is not, as a man, a member of a suspect class for the purposes of the statute. Section 19.06, the court stated, does not discriminate on the basis of gender. Under ��19.06 and 19.03, prosecution for murder of unborn children is not limited to biological fathers or to males. Anyone, male or female, relative or nonrelative, whose conduct is not exempted by �19.06, is subject to prosecution, the court found. There being no fundamental right or suspect class at issue, the court then subjected the statute to a “rational basis” review for purposes of the equal protection challenge. If there is a rational relationship between the disparity of treatment and some legitimate governmental purpose, then the classification does not deny Flores equal rights or violate the equal protection clause, the court stated. Applying law to facts, the court found that the statute was rationally related to the state’s legitimate interest in protecting life. Flores further contended that �1.07(a)(26) violated his right to due process of law. Flores argued that �1.07(a)(26) was vague and also that the statute’s definition of individual violated substantive due process under Roe v. Wade, 410 U.S. 113 (1973), because “the [S]tate does not have an interest in the preservation of potential life, at least until the fetus reaches viability.” The court found that �1.07(a)(26) was not vague, because a “reasonable person of ordinary intelligence would not believe that Texas statutes permit someone not exempted by the statute to knowingly or intentionally cause the death of an unborn child.” The court also dismissed Flores’ substantive due process arguments, stating that the state’s interest in protecting life does not arise only at the point of viability. In issue five, Flores also argued that the trial court erred in allowing evidence of unindicted extraneous offenses during the trial, meaning bruises relating to family violence other than bruises inflicted during the attacks that led to the death of the unborn child. But the bruise evidence was necessary to explain the circumstances surrounding the charged offense, the court stated, and the probative value of the evidence did not substantially outweigh the danger of unfair prejudice. The trial court did not abuse its discretion in admitting the evidence, the court held. Finally, in issues six through ten, Flores argued that the trial court erred in refusing to submit lesser-included offenses for the jury’s consideration. The trial court submitted instructions on capital murder, injury to a child and manslaughter. Flores requested instructions on felony murder, criminally negligent homicide, deadly conduct, aggravated assault, and assault. The trial court denied his requests. The court found harmless any error in failing to include Flores’ proposed lesser-included offense instructions. The jury’s rejection of the manslaughter and injury to a child options, the court stated, indicated that the jury legitimately believed that the defendant was guilty of the greater charged offense. OPINION:Gaultney, J.; Gaultney, Kreger and Horton, J.J.

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