McKay v. State
No. PD-1133-14
Case Summary written by Andy Linn, Staff Member.
JUDGE MEYERS delivered the opinion of the court in which JUDGES JOHNSON, ALCALA, YEARY and NEWELL joined.
Appellant, Cody Wayne McKay, lived with his girlfriend, Brandee Casteel, and her daughters. While he was making dinner one night, Casteel’s daughter, T.J., was playing in the house. Not knowing she had come into the kitchen, McKay turned around with a pot of hot green beans and bumped into T.J., causing him to spill hot water and green beans down her back. When the burn began to blister and pop two days later, Casteel took T.J. to the hospital and told the nurses and a police officer that she spilled the water on T.J., but later explained that McKay actually spilled the water.
McKay, charged with “injury to a child causing bodily injury, [with] and intentional mental state,” was eventually “convicted of injury to a child with the [lesser-included] culpable mental state of criminal negligence,” and sentenced to two years’ imprisonment. The State’s theory of the case was that McKay intentionally injured T.J., and presented almost no evidence of his criminal negligence. In attempting to prove McKay intentionally caused the injury, the State alleged a pattern of abuse and presented evidence of existing bruises on T.J., extensive “reports from the Texas Department of Family and Protective Services (DFPS),” and emphasized the time lapse between taking T.J. to the hospital and the accident. The court admitted the DFPS reports into evidence, but they were not read to the jury. On appeal, McKay argued insufficient evidence to support conviction. The court of appeals affirmed the conviction, pointing to Casteel’s comments in the DFPS reports that she spilled the water on T.J. and “that T.J. was always ‘up her butt.’” The court of appeals held the evidence legally sufficient, reasoning that the jury could have interpreted those comments to mean “T.J. was also always under Appellant’s feet and, therefore, he should have known she would be close by while he was cooking.”
Issue: Whether there was sufficient evidence to support Appellant’s conviction of criminal negligence.
The Court of Criminal Appeals granted Appellant’s motion for discretionary review to determine whether the State presented sufficient evidence at trial to support the conviction. In reviewing the sufficiency of the evidence, the Court “look[ed] at the evidence presented in the light most favorable to the verdict [to] determine whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” In order to prove criminal negligence, the Texas Penal Code requires the State to “show that the defendant should have been aware of a substantial and unjustifiable risk that the injury to the child would occur and that the failure to perceive this risk was a ‘gross deviation from the standard of care that an ordinary person would exercise.’” The reviewing court looks at the circumstances from the defendant’s point of view to determine whether it was a gross deviation. To support a criminal conviction here, the State must have proved that McKay created a substantial unjustifiable risk to the child by cooking and moving hot items in the kitchen, and failing to perceive this risk was a gross deviation “from the standard of care an ordinary person would exercise.”
The court of appeals found that Casteel’s statement in the DFPS report was the only piece of evidence that could support the jury’s criminal negligence conviction. In reversing, the Court of Criminal Appeals held this piece of evidence legally insufficient to support a conviction. In fact, the court ruled that the statement was not even relevant, as children do not necessarily behave the same way with others as they do with their parents. McKay lived with the family for a very short period of time (less than three months), and he was not one of T.J.’s parents. The statement only indicated that T.J. was often underfoot of Casteel, not Appellant or anyone else. Moreover, the State did not present any evidence that Casteel told Appellant to take extra care because T.J. was often underfoot. Therefore, the court agreed with Justice Moseley’s dissenting opinion “that ‘it takes too great a leap of logic’ too assume that,” T.J. would often be under Appellant’s feet because Casteel said T.J. was often under her feet.
Furthermore, because Casteel made the statement to DFPS while claiming it was she who tripped and spilled the water on T.J. makes its probative value questionable. Also, the court of appeal’s statement that the jury could assume T.J. was often underfoot of McKay was not a reasonable inference. Without evidence that T.J. acted the same around Appellant or others as she did around her mother, and with the statement’s questionable probative value, the court held that the statement was legally insufficient for a reasonable jury to have convicted Appellant of criminal negligence beyond a reasonable doubt.
Because the State did not show T.J. was often under Appellant’s feet or that he knew she would likely be underfoot, the court held the evidence insufficient to support Appellant’s conviction and reversed and vacated the conviction.
JUDGE HERVEY, dissenting, joined by PRESIDING JUDGE KELLER, JUDGE KEASLER, and JUDGE RICHARDSON.
Judge Hervey believed that the evidence presented and reviewed in the light most favorable to the verdict was sufficient to support Appellant’s criminal negligence conviction. In addition to facts in the majority opinion, Judge Hervey pointed to the facts that “Appellant normally cooked meals for the children,” Casteel had personally seen T.J. running around in the kitchen while Appellant cooked for the family, and that there was not much room for Appellant to move around in the kitchen. From all the evidence, the dissent opined “that the jury could have reasonably inferred that Appellant ought to have been aware that his cooking created a substantial and unjustifiable risk to T.J. because T.J. had been known to run around in the kitchen while he was cooking.” And when the jury viewed the circumstances from the Appellant’s perspective, it could have found his failure to perceive the risk to T.J. “was a gross deviation from the standard of care an ordinary person would have exercised.”