Until now.

The case that made the law is Cuellar v. State, 957 S.W.2d 134 (Tex.App. - Corpus Christi 1997, pet. ref'd), and it certainly has some pretty bad facts. Frank Cuellar became extremely intoxicated and decided to drive a motor vehicle. In a horrifying twist, the vehicle crashed into another car being driven by Jeannie Coronado who (and this is the really bad part) was seven and one-half months pregnant. At the hospital, an emergency caesarian section was performed and the baby was delivered alive. Nevertheless, 43 hours later the child died of internal bleeding of the brain.

Cuellar was charged with causing the death of the child by reason of DWI. From a legal standpoint, however, there was a critical issue that had to be resolved. The Penal Code states that the offense of intoxication manslaughter requires the death of "another". After going through some scholastic gymnastics, the Code tells us that "another" is defined as a "person", a "person" is defined and an "individual", and an "individual" is defined as "a human being who has been born and is alive". Consequently, did the law require that the Coronado child be "born and . . . alive" at the time of the accident in order for Cuellar to be guilty of the offense of intoxication manslaughter?

Cuellar's lawyer said "yes, there is no offense if the child had not yet been born", the prosecutor said "no, the child can be born after the fact", and, more importantly, the trial court agreed with the latter. After a trial, Cuellar was convicted and sentenced to 16 years in prison.

On appeal, the court for the 13th appellate district in Corpus Christi, in a 2-1, decision, affirmed the conviction. On April 13th of this year, the state's highest criminal court, the Court of Criminal Appeals, declined to hear the case.

With this background, the question must arise as to whether politics had any effect on the appellate decisions. The case, of course, comes perilously close to the issue of abortion and the question of when life begins. In fact, Bill Price, president of Texans United for Life, said that the court decision "has real meaning for the pro-life movement because here we have a case that has wound its way all through the courts in which an unborn child's life is said to have meaning".

Of course, the case has nothing to do with abortion and is a matter of simple statutory construction and interpretation. That is, regardless of their feelings about abortion, the courts had to decide the case based solely upon how the law of intoxication manslaughter had been written. However, the case drew considerable media attention from its inception. The decision to charge Cuellar with intoxication manslaughter case was covered on front pages across the State and even the highest court's decision not to hear the case received major coverage in the April 30th edition of the Dallas Morning News.

Judges, to a certain extent, labor in anonymity. Unless an unusual case comes their way, the average man on the street may not even be aware of who holds the positions. However, in this day and time, any elected judge doesn't want the religious right / pro-life forces against him. Most would probably run from the issue of abortion as if it were the plague.

With this in mind, could the judges in this case have yielded to public pressure? These were, after all, "bad facts".

Both lower courts could have relied on what the perceived to be built in safeguards. That is, the trial judge could always err on the side of public opinion and let the Corpus Christi appellate court reverse him if he was incorrect. (From that view, he is viewed as a tough on crime judge and the "correct" legal decision ultimately came about). Likewise, the appellate court could have ruled the same way since the Texas Court of Criminal Appeals could bail them out if they were legally wrong. Once again, they appear as being tough on crime, and the pro-life groups would not be sending campaign contributions to an opponent.

But the Court of Criminal Appeals, unlike the lower judges, have the right to dodge the issue altogether. They need not decide the case on its merits unless four of the nine judges wished to hear it. Four could not be found.

So now we have the Cuellar case on the books and it is the law of the land. The facts were gruesome and I'm sure the vast majority of Texans agrees with the Cuellar punishment. However, for Cuellar to receive 16 years in prison require a finding that a viable fetus is "born and is alive". Clearly, the Coronado child had not been born at the time of the offense.

Cuellar certainly needed to be held responsible, and 16 years in prison is probably appropriate. However, we deserve to have a specific statute that criminalize his conduct without strained legal logic. Simply put, the legislature could redefine an "individual" to include "a fetus which is capable of living outside the womb". As the dissent noted in the Corpus Christi opinion, "If the law is to be changed to allow prosecution for conduct such as [Cuellar's], that change must come from the legislature and not from the Court".

These were very bad facts. From a statutory construction standpoint, do we now have a bad law?

Barry Green is the District Attorney for the 271st Judicial District.