Saturday, September 28, 1996

Lawyer Claims Baby Killed In Accident Was Not Human

By Associated Press

CORPUS CHRISTI (AP) - A man can't be prosecuted for manslaughter when the victim was a baby who was still in its mother's womb at the time of the accident, a defense lawyer claims.

The attorney, Anne Marshall, claimed in a court motion filed Thursday that a baby whose delivery was forced by a car accident was only 7-1/2 months into pregnancy and was not a human under legal definitions.

Ms. Marshall asked that an intoxication manslaughter charge be dropped against a Corpus Christi man.

The motion alleges that the indictment of Frank Flores Cuellar, 49, failed to state an offense because Krystal Zuniga was "in utero and thus not a person." The child died after the delivery.

According to Texas law, a "person" means an "individual" which is defined as "a human being who has been born and alive," the motion states.

Nueces County prosecutors disagree with the motion, saying the baby was born alive and died as a result of Cuellar's conduct.

It is expected that the case may test when a fetus is declared a human in Texas.

First Assistant District Attorney Roy Hudspeth and District Attorney Carlos Valdez were out of town Thursday and could not be reached for comment, the Corpus Christi Caller-Times reported today.

Assistant District Attorney George J. Spentzos, who is helping prosecute the case, said prosecutors are confident Marshall's motion won't be granted.

"We were anticipating a motion of this nature being filed based on these grounds. But I think Carlos has said previously there's going to be case law that we're relying on from sister states," Spentzos said. "We're going to have several cases to support our position."

In the motion, Ms. Marshall cites a 1994 appellate court decision overturning the conviction of a Walker County woman charged with reckless injury of a child for smoking crack while pregnant.
In that case, judges ruled that Texas law does not prohibit "any conduct with respect to a fetus, and the Legislature, by its definitions of 'child,' 'person,' and 'individual,' has specifically limited the application of our penal laws to conduct committed against a human being who has been born and is alive."

Ms. Marshall said that because the penal code does not prohibit conduct committed against a fetus, there is no offense stated in the indictment. She also argued that the language in the indictment is vague, the indictment fails to allege a culpable mental state and other technical points.

Prosecutors claim that Cuellar was drunk on June 15 when the truck he was driving struck a car driven by Jeannie Coronado, 24, the mother.

The child was delivered by emergency Caesarean and died two days later from head and spine injuries.

Ms. Coronado and Cuellar were hospitalized and later released, officials said.
Cuellar also has been indicted on a count of intoxication assault in connection with Ms. Coronado's injuries.

Cuellar's license had been suspended at the time of the accident because of a conviction for driving while intoxicated. He is being held in the Nueces County Jail in lieu of $100,000 bond.