Esparza v. State

OPINION

ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge.

Our prior opinion is withdrawn and, based on my dissent to the original opinion written by Judge Morrison affirming this case, the majority now hold as follows.

Appellant was accused of killing his infant son, Rene Esparza, Jr. The record reflects that on the date of the offense the child, who had been left in appellant’s care, began to cry. Appellant attempted to quiet the child without success. He then held the child by the legs and began swinging him about the room, hoping, he stated, “ . . . he would quiet down or he would get dizzy…