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Click here for the full text of this decision FACTS:Gerardo Flores, 18, and his girlfriend Erica Basoria, 16, had been dating for over a year when Basoria discovered sometime in February 2004 that she was pregnant. An ultrasound later showed that she was carrying twins. At an April 30 appointment, Basoria told her doctor, Jerry Johnson, that she was considering an abortion. Johnson informed her that the pregnancy was at such a late stage that an abortion could not be performed safely. According to Basoria’s testimony, she asked Flores to help her terminate the pregnancy by stepping on her abdomen. He did so on two occasions: two weeks and one week before the premature delivery. She had to ask him repeatedly before he agreed to step on her. According to Basoria’s statement to the police, he used a “slow, steady press” on her abdomen, and stopped pressing once she asked him to stop. Basoria also testified that she took measures to induce the deaths of the fetuses. She struck herself in the abdomen more than 10 times. She began engaging in this behavior two weeks before the premature delivery; by the last week of her pregnancy, she was striking herself every day. After Johnson instructed her to refrain from jogging and going on walks, she took up jogging and failed to limit her walking, in a deliberate attempt to endanger the pregnancy. Basoria further testified that she had violated her doctor’s instructions to take prenatal vitamins, though her medical records showed that she had reported taking them. On May 7, Basoria then approximately 20 weeks to 22 weeks pregnant prematurely delivered the twins at home. They were stillborn. According to the doctor who conducted the autopsies, the cause of the deaths appeared to be some sort of “blunt force trauma” that had occurred sometime between May 4 and May 6. The twins had been dead in utero for at least one day before they were delivered. Authorities indicted Flores for capital murder and murder for intentionally or knowingly causing the deaths of “unborn child #1″ and “unborn child #2.” Flores pleaded not guilty and filed a pretrial motion to dismiss the indictment on the grounds of due process, equal protection and the establishment clause of the 1st Amendment. The trial court denied the motion. At trial, expert witnesses testified that either a pregnant woman striking herself repeatedly or another person stepping on a pregnant woman’s abdomen could terminate a pregnancy. There was no consensus among the witnesses on whether the striking, the stepping or some genetic abnormality caused the deaths. Johnson and others who observed Basoria shortly after the premature delivery observed bruises on her upper arms, a small bruise on her face and a line of purplish bruises roughly three inches long across her abdomen. When asked about the bruises, Basoria testified that Flores struck her in the face on the night of May 6, causing the bruise there. She also testified that the bruises on her arms resulted when she and Flores were engaging in consensual, playful roughhousing. Dr. Stephen Pustilnik, Flores’ expert witness, testified that the bruise on her abdomen appeared to be “much more consistent” with the pregnant woman striking herself than with a foot being pressed down on the abdomen. According to Flores’ statement to the police and Basoria’s trial testimony, he stepped above her navel, whereas the bruises on her abdomen were below her navel. Likewise, Basoria testified that she and not Flores caused those bruises. To support the theory that Basoria wanted to have the children and was being abused by Flores, the state presented an expert witness who testified about the dynamics that are typically present in an abusive relationship. He observed that, if the abuser is arrested or charged with a crime, the abused victim will commonly defend the abuser, such as by requesting that the charges be dropped or refusing to testify against him. The state also attempted to impeach Basoria’s credibility by presenting testimony of a teacher who testified that Basoria showed her the ultrasound pictures and appeared happy and excited about the prospect of having children. The trial court submitted jury instructions on capital murder, injury to a child and manslaughter but denied Flores’ request for an instruction on deadly conduct. The jury convicted Flores of capital murder and sentenced him to life in prison. On direct appeal to the 9th Court of Appeals, Flores raised constitutional challenges to the statute under which he was indicted and argued that the trial court erred in denying his request for a lesser-included offense instruction. The 9th Court affirmed his conviction. Flores sought review by the CCA. HOLDING:Affirmed. First, Flores argued that the statute is unconstitutional, because it allowed the state to prosecute him for killing an unborn child. Flores claimed that the statute thus contravenes the restrictions announced in Roe v. Wade and subsequent abortion decisions of the U.S. Supreme Court by protecting the life of a fetus before the point of viability. The CCA stated that it recently rejected this claim in its 2007 opinion Lawrence v. State, and reaffirmed that holding in rejecting Flores’ argument. Second, Flores argued that the statute’s exception for pregnant women terminating their own pregnancies violates equal protection in this case by exempting Basoria from criminal prosecution while allowing him to be prosecuted. This argument depends on the unusual facts of this case, the CCA stated. Because Basoria cooperated with Flores’ attempts to kill the fetuses, Flores argued that the statute treated the two of them differently even though they were both engaging in the same behavior. Both were attempting to cause the deaths, yet only Flores and not Basoria could be prosecuted under the statute, because she was the pregnant woman carrying the victims. In advancing this argument, the CCA stated that Flores ignores significant evidence that Basoria did not consent to Flores’ stepping on her abdomen. A jury, the CCA stated, could reasonably credit the simpler explanation of the bruises: that all of them not just the one on her face resulted from abusive acts by Flores. In addition, the state presented evidence that Basoria looked forward to carrying the twins to term. In short, the CCA found that Flores sought a pretrial dismissal of the prosecution based on a claim that, even if it had been correct on the underlying merits, could have been resolved only by evidence adduced at trial. That is not the purpose of a pretrial motion such as a motion to quash the indictment; rather, its purpose is to address “those issues that can be determined before there is a trial on the general issue of the case.” Thus, the CCA found that the 9th Court did not err in affirming the trial court’s decision to deny the motion to quash the indictment on equal protection grounds. Third, Flores argued that the provision defining an “individual” to include an “unborn child” violated the establishment clause of the U.S. Constitution by adopting “a religious point of view over a secular one.” Mere consistency between a statute and religious tenets, the CCA stated, does not render a statute unconstitutional. Otherwise, no law against theft or murder could pass constitutional muster, because those laws are consistent with religious strictures such as the Ten Commandments. Fourth, Flores contended that the trial court erred in refusing to charge the jury on the lesser-included offense of deadly conduct. A defendant, the CCA stated, is entitled to a jury charge on a lesser-included offense if two requirements are met. First, the defendant must request an instruction on a lesser-included offense of the charged offense under Texas Code of Criminal Procedure Art. 37.09. Second, there must be some evidence that if the defendant is guilty, he is guilty only of the lesser-included offense. To begin its analysis, the CCA sought to determine whether the offense for which Flores requested an instruction, deadly conduct, is a lesser-included offense of the charged offense, capital murder. The CCA applied a syllogism: Deadly conduct is a lesser-included offense of attempted murder; attempted murder is a lesser-included offense of capital murder; therefore, deadly conduct is a lesser-included offense of capital murder. The CCA then sought to determine whether there was some evidence that Flores was guilty only of deadly conduct and not capital murder. Flores argued that he met this requirement, because there was evidence that he did not cause the twins’ deaths. The evidence, the CCA stated, could have convinced a rational jury that Flores did not cause the deaths but merely intended to do so. Yet Flores, the CCA stated, did not present any evidence that he acted merely recklessly rather than intentionally. By marshaling evidence that he might not have caused the deaths, without disputing the evidence that he acted intentionally, Flores might have raised, and been entitled to, an instruction on attempted murder. But the court found no evidence of deadly conduct. In light of this analysis, the CCA concluded that the 9th Court did not err in holding that the trial court did not err in refusing to instruct the jury on deadly conduct. OPINION:Keller, P.J., delivered the opinion of the court in which Meyers, Womack, Keasler and Hervey, JJ., joined. CONCURRENCE:Cochran, J., filed a concurring opinion in which Johnson, J., joined. “Appellant makes several strong arguments concerning the potential unconstitutionality of Section 19.06 of the Penal Code as it applies to the prosecution of one who assists a pregnant woman to lawfully obtain an abortion. . . . That is, a woman has a legal right to terminate the life of her unborn child. A physician or other licensed health professional has a legal right to terminate the life of an unborn child if he does so with appropriate consent. Neither of them is criminally liable for what would otherwise be a capital murder. But the plain language of the statute might well be read to make anyone who assisted the woman or the physician in that lawful act subject to prosecution for capital murder under the law of parties: the woman’s mother, father, or friend who drives the woman to the doctor’s office or provides the money for a lawful abortion with the intent that the woman obtain such an abortion; the unlicensed medical assistant who helps the licensed doctor in performing the abortion; or, as appellant claims in this case, the father of an unborn child who assists in an unorthodox procedure that intentionally leads to a miscarriage. “Appellant argues that such an overbroad interpretation of the statute would violate the due process and equal protection rights of the person who assisted the woman in performing her lawful act. That is an issue that deserves serious consideration. “In this case, however, there is ample evidence to support the conclusion that appellant was not acting at the behest of the prospective mother, but was instead physically abusing her.” Price, and Holcomb, JJ., concurred without a written opinion.

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