Summary
finding no speedy trial violation where defendant acquiesced to five-year delay
Summary of this case from Traylor v. StateOpinion
No. 04-14-00787-CR
03-16-2016
Matthew O. ARANDA, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2011CR2070
Honorable Pat Priest, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice AFFIRMED
A jury convicted Matthew O. Aranda of the offense of injury to a child by omission and assessed punishment at twenty years in prison and a $10,000.00 fine. On appeal, Aranda argues (1) his constitutional right to a speedy trial was violated; (2) the evidence was legally insufficient to support his conviction; (3) the trial court abused its discretion in denying his motion for mistrial; and (4) the trial court erred in denying a jury instruction on a lesser included offense. We affirm.
BACKGROUND
In response to a 911 call, emergency medical technicians (EMTs), paramedics, and sheriff's deputies arrived at Aranda's home in San Antonio, Texas, shortly after midnight on January 11, 2009. Aranda's three-year-old daughter, Melody Velasquez, was not breathing and had no pulse. The EMTs and paramedics immediately started cardiopulmonary resuscitation (CPR) on Melody and continued CPR while they transported her to a nearby hospital.
While medical personnel attended to Melody, Aranda told the sheriff's deputies that, about thirty-one hours earlier, on the afternoon of January 9, 2009, Melody had fallen down the stairs at home. In the fall, Melody sustained bumps on her forehead and on the back of her head, and Aranda applied ice to these injuries. Aranda reported that Melody started running a fever almost immediately. Aranda gave Melody liquid Tylenol for the fever. Because of her condition, Aranda had Melody sleep in his bed that night. The following day, Melody remained in bed all day. Melody did not eat or speak. Melody only drank a small amount. Later that evening, Melody still had fever and could not swallow. Because Melody could not swallow, Aranda administered Tylenol to Melody by rectal suppository. At around 11:30 p.m., Aranda heard Melody breathing heavily and he told Melody's other parent, Norberto Velasquez, to call 911. Aranda went on to tell authorities that both he and Velasquez performed CPR on Melody.
Aranda and Velasquez had recently adopted Melody. Prior to the adoption, Aranda and Velasquez cared for Melody as foster parents.
In the emergency room, doctors and nurses attempted to resuscitate Melody; however, about twenty-five minutes after arriving at the hospital, Melody was pronounced dead. The emergency room doctor who treated Melody noted that she had hematomas in the middle of her forehead and on the back of her scalp. He further noted that Melody had a multitude of bruises on her back and some bruising on her buttocks. Because some of the bruises were more faded than others, the doctor concluded that the bruises were in different stages of healing. The doctor ordered x-rays, which revealed that Melody had numerous broken ribs in different stages of healing and a broken pelvis. The emergency room doctor suspected that Melody had been the victim of child abuse and he informed the authorities.
Thereafter, a medical examiner performed an autopsy and prepared a report stating that Melody "died as a result of blunt head injuries." The autopsy report noted that Melody had "multiple bruises in various stages of resolution over her body as well as multiple healing [] rib fractures on both sides of the chest." The autopsy report concluded that "[t]he combination of acute head injury with healing rib fractures is most suggestive of non-accidental, inflicted trauma," and classified the manner of death as homicide.
Aranda was initially indicted for capital murder. Aranda was later re-indicted for one count of murder and three counts of injury to a child by omission. Aranda pled not guilty to all counts and the case was tried to a jury. Numerous witnesses testified at trial. The doctor who treated Melody in the emergency room testified about the nature of Melody's injuries and the symptoms that generally accompany such injuries. The medical examiner who performed the autopsy testified about the autopsy findings. Two pediatric radiologists testified that they reviewed Melody's x-rays from the emergency room and both concluded that Melody had multiple rib fractures. Caseworkers who had been assigned to Melody's foster case testified about Melody's personality, health, and physical traits. Finally, a caseworker testified that Aranda had received various types of training, including basic first aid training, in order to become a foster parent.
The jury found Aranda guilty of the offense of injury to a child by omission by failing to obtain proper medical care for Melody on or about January 9, 2009, and further found that Aranda had committed the offense recklessly rather than intentionally or knowingly. Aranda was found not guilty on the remaining counts. Aranda appealed his conviction.
SPEEDY TRIAL
In his first issue, Aranda argues his constitutional right to a speedy trial was violated. Two days before trial, Aranda filed a motion to dismiss the indictment asserting he had been denied a speedy trial. The trial court held an evidentiary hearing on Aranda's motion to dismiss. At the conclusion of the hearing, the trial court stated:
I note that the case was re[-]indicted on March 15, 2011, which is itself three years and what, three months ago. I note there is no evidence the State has ever announced "Not ready." I note there is no evidence the defense ever moved for a speedy trial. There's no question there is some prejudice to the defendant based upon the death of Mr. Velasquez; nonetheless, weighing all the considerations, the motion is denied.The trial court made written findings of fact and conclusions of law in support of its speedy-trial ruling.
The Sixth Amendment to the U.S. Constitution guarantees an accused the right to a speedy trial. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). The right attaches once a person is arrested or charged. Id. In determining whether a defendant's right to a speedy trial has been violated, courts weigh and balance four factors: (1) length of the delay; (2) reason for the delay; (3) assertion of the right; and (4) prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 530 (1972); Cantu, 253 S.W.3d at 280. Courts analyze a speedy trial claim by first weighing the strength of the Barker factors, then balancing their relative weights in light of the conduct of both the prosecution and the defense. Cantu, 253 S.W.3d at 281. None of the factors is necessary or sufficient to finding a speedy trial violation; the factors are related and should be evaluated in conjunction with any other relevant considerations. Id. Courts apply the balancing test with common sense and sensitivity to ensure that charges are dismissed only when evidence shows that a defendant's actual and asserted interest in a speedy trial has been infringed. Id. The constitutional right is that of a speedy trial, not dismissal of the charges. Id.
When reviewing a trial court's ruling on a speedy-trial claim, we use a bifurcated standard of review: an abuse of discretion standard for the factual components and a de novo standard for the legal components. Id. at 282. Thus, we give deference to the trial court's resolution of factual issues. Id. We defer not only to the trial court's resolution of disputed facts, but also to its right to draw inferences from those facts. Id. In evaluating the evidence at a speedy-trial hearing, the trial court may completely disregard a witness's testimony, based on credibility and demeanor evaluations, even if that testimony is uncontroverted. Id. We view all of the evidence in the light most favorable to the trial court's ultimate ruling. Id. Finally, although review of the Barker factors involves fact determinations and legal conclusions, the balancing test as a whole is a purely legal question. Id.
Presumptive Prejudice and Length of the Delay
The Barker test is triggered by a delay that is unreasonable enough to be "presumptively prejudicial." Id. at 281. The Texas Court of Criminal Appeals has held that a delay of four months is not sufficient but a delay of seventeen months is sufficient to trigger the Barker analysis. Id. In this case, Aranda was first arrested on April 9, 2009, and his trial began on May 6, 2014. This five-year delay was clearly sufficient to trigger a speedy-trial inquiry. See id. (recognizing that a seventeen-month delay is sufficient to trigger a speedy-trial inquiry). Aranda argues, and we agree, that this factor weighs heavily in favor of a finding of a speedy trial violation. See Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003) (concluding that a three and a half year delay between arrest and trial weighed heavily in favor of a finding of a violation of the right to a speedy trial).
Reasons for the Delay
The State has the initial burden of justifying a lengthy delay. Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994). In assessing the reasons for the delay, courts assign different weights to different reasons. Dragoo, 96 S.W.3d at 314. A deliberate attempt by the State to delay the trial should be weighed heavily against the State; a neutral reason such as negligence or overcrowded dockets weighs against the State albeit less heavily; and a valid reason should not be weighed against the State at all. State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999). A delay which is attributable in whole or in part to the defendant may even constitute a waiver of a speedy trial claim. Id.
As to this factor, Aranda argues the State failed to explain the delay in the trial court. We disagree. The State articulated multiple reasons for the delay in this case, and the trial court found that the majority of the delay was caused either by the court's docket conditions or by defense counsel's ill health. Specifically, part of the delay was caused by the State seeking a new indictment, and another part of the delay was caused by the prosecutor becoming the judge of the court in which the case was pending. When this occurred, the case was transferred to another trial court, and a new prosecutor was assigned to the case. Additionally, the trial court found that defense counsel was seriously ill and unable to try Aranda's case during much of 2013. In particular, the trial court found that defense counsel was not available for trial settings on April 26, 2013, and July 19, 2013, because of his health. The trial court found that at least two times prior to April 2013 the defense was not available to go to trial because its expert was unavailable or defense counsel was unavailable. The trial court also found that Aranda's case would have gone to trial in September 2013, but defense counsel was not available to try the case at the time. The trial court found that because defense counsel was not available to try Aranda's case in September 2013, his codefendant's case went to trial instead. The trial court further found that Aranda filed a motion requesting the transcript of Velasquez's jury trial on January 31, 2014. The motion was granted, and the preparation of the transcript further delayed the trial of this case.
The record shows this was a complex case. The jury heard from more than twenty witnesses at trial, including five medical doctors. Part of the delay was attributable to the defense, and part of the delay was attributable to the State. The reasons for the delay attributable to the State were neutral. Nothing indicates the State willfully delayed the trial in this case. Considering all the reasons for delay in this case, we conclude they weigh against a finding of a speedy trial violation.
Assertion of the Right
A defendant's failure to assert his speedy trial right does not amount to a waiver of that right; however, the failure to assert his speedy trial right makes it difficult for a defendant to prove he was denied a speedy trial. Dragoo, 96 S.W.3d at 314. The lack of a timely demand for a speedy trial indicates strongly that the defendant did not really want a speedy trial, and was not prejudiced by the lack of one. Id. And, the longer the delay becomes, the more likely a defendant who wished a speedy trial would be to take some action to obtain it. Id. For this reason, inaction weighs more heavily against a violation the longer the delay becomes. Id. In addition, "[f]iling for dismissal instead of a speedy trial will generally weaken a speedy-trial claim because it shows a desire to have no trial instead of a speedy one." Cantu, 253 S.W.3d at 283.
On appeal, Aranda argues that this factor should not be weighed against him because he asserted his right to a speedy trial immediately after his codefendant died, when the prejudice of the delay became apparent to him. The record, however, does not support this argument. The record indicates that Velasquez died in November 2013; however, Aranda did not file his motion asserting his right to a speedy trial until May 1, 2014, more than five years after his arrest and only five days before the case was scheduled to go to trial. This was Aranda's first and only assertion of his right to a speedy trial. In addition, Aranda's motion asked for a dismissal of the indictment with prejudice, rather than a trial. See id. (noting that a motion asking for a dismissal instead of a trial generally weakens a speedy trial claim). In light of Aranda's delay in asserting his right and his request for dismissal rather than a trial, this factor weighs heavily against a finding of a speedy trial violation. See Dragoo, 96 S.W.3d at 314 (concluding that assertion of the right factor weighed very heavily against finding a speedy trial violation where the defendant quietly acquiesced to a lengthy delay).
Prejudice to the Accused Resulting from the Delay
The last factor requires us to determine if there is evidence of prejudice to Aranda attributable to the State's delay. We assess prejudice in terms of the interests the speedy-trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize the accused's anxiety and concern; and (3) to limit the possibility that the accused's defense will be impaired. Cantu, 253 S.W.3d at 285. "[W]hen a defendant makes a prima facie showing of prejudice, the State carries the obligation to establish that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay." Munoz, 991 S.W.2d at 826 (internal quotations omitted).
A claim of prejudice based on the unavailability of witnesses requires an appellant to show: (1) the witness was unavailable at the time of trial; (2) the testimony would have been offered and material to the defense; and (3) due diligence was exercised in an attempt to locate the witness. Ervin v. State, 125 S.W.3d 542, 548 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Because prejudice is obvious when witnesses die or disappear during a delay, a defendant need only show that the prospective witness was believed to be material to the case, not that the witness would have testified favorably for the defense. Id.
Nevertheless, affirmative proof of particularized prejudice is not essential to every speedy trial claim, because "excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove, or for that matter, identify." Doggett v. U.S., 505 U.S. 647, 655 (1992). However, any presumption of prejudice may be persuasively rebutted by the State or extenuated by the defendant's acquiescence in the delay. Id. at 658; see Gonzales v. State, 435 S.W.3d 801, 815 (Tex. Crim. App. 2014) (holding the State failed to rebut the presumption of prejudice by proving that the defendant acquiesced in the delay).
Particularized Prejudice
Aranda first argues the prejudice in his case stems from the fact that his defense was impaired because his co-defendant, Velasquez, was unavailable to testify at his trial. This part of Aranda's argument focuses on particularized, rather than presumptive, prejudice.
In the trial court, Aranda made a prima facie showing of prejudice. At the motion to dismiss hearing, Aranda presented evidence that his defense had been impaired. Aranda called one witness to testify, Raymond Martinez. Martinez, who was a criminal defense lawyer, had represented Aranda's co-defendant, Velasquez. Martinez, Velasquez, Aranda, and Aranda's defense counsel had met on more than one occasion to discuss the facts of the case. For years, however, they did not know which case was going to go to trial first, so they did not talk about who was going to testify for whom. Martinez indicated that if Aranda's case had gone to trial first, Velasquez would not have testified because of Fifth Amendment concerns. As it turned out, however, Velasquez's case went to trial first. Velasquez testified on his own behalf at his trial. Although convicted, Velasquez was sentenced to probation, and therefore, Velasquez could have testified as to all the issues in Aranda's case without repercussions. Velasquez was a material witness—although he was not at home when Melody fell, Aranda had called Velasquez immediately after Melody was injured, causing Velasquez to come home from work early. In addition, Velasquez was home over the next thirty-one hours until 911 was called and medical personnel arrived.
Although the record demonstrates particularized prejudice because Velasquez was not available to testify at Aranda's trial, this prejudice is ameliorated by other circumstances. First, a transcript of Velasquez's testimony from his own trial was available to Aranda's defense counsel by the time Aranda went to trial. Second, even though Velasquez was not available to testify at Aranda's trial, he was available to participate—and in fact did participate—in the preparation of Aranda's defense. Third, Aranda was supposed to go to trial in September 2013; however, because Aranda's defense counsel was not available on the date in question, Aranda's trial was postponed and Velasquez's case went to trial instead. Absent this postponement, Aranda would have been tried before Velasquez. Finally, Martinez testified that if Aranda's case had been tried first, Velazquez would not have testified at Aranda's trial because of Fifth Amendment concerns.
Presumptive Prejudice
Next, Aranda asserts the prejudice factor weighs in favor of a speedy trial violation because the five-year delay in bringing his case to trial was presumptively prejudicial. In certain instances the length of delay may be so excessive that it presumptively compromises the reliability of a trial in ways that neither party can prove or identify. Doggett, 505 U.S. at 655; Gonzales, 435 S.W.3d at 812. When this happens, the defendant is absolved from the requirement to establish prejudice. Gonzales, 435 S.W.3d at 812. Instead, the burden is on the State to show that the presumption of prejudice was rebutted or extenuated. See id. at 814-15.
Here, the prosecutor elicited testimony from Martinez about some of the witnesses who testified on behalf of the defense when Velasquez went to trial. These witnesses included Dennis Moreno, a lawyer involved in Melody's initial Child Protective Services case; caseworkers from Child Protective Services, who testified about Melody's adoption process; and family members who testified as character witnesses. Martinez further testified that one of Melody's health care providers, a therapist, testified in Velasquez's defense. From this evidence, the trial court could have inferred that these witnesses were available to testify at Aranda's trial. In addition, the prosecutor informed the trial court that, even before defense counsel's illness, Aranda's trial was reset multiple times because defense counsel was going to trial in other cases and because the defense's expert witness was not available.
The five-year delay in bringing this case to trial was presumptively prejudicial. However, the presumption of prejudice was extenuated by Aranda's acquiescence in the delay. See Doggett, 505 U.S. at 658; Gonzales, 435 S.W.3d at 815. Moreover, the State also made a showing many other witnesses were still available to testify on behalf of the defense. After considering the record with regard to both particularized and presumptive prejudice, we conclude the prejudice factor weighs in favor of a speedy trial violation but not heavily.
Balancing the Factors
Having discussed each of the Barker factors, we must now balance them. Weighing heavily in favor of a speedy trial violation is the excessive, five-year delay between Aranda's arrest and his trial. Also weighing in favor of a speedy trial violation is the fact that Aranda's defense was impaired because Velasquez was not available to testify at Aranda's trial. However, for the reasons detailed above, this factor does not weigh heavily in favor of a speedy trial violation. On the other hand, the remaining two Barker factors weigh against a speedy trial violation. The reasons for the delay were partially attributable to the State and partially attributable to the defense. And, the portion of the delay attributable to the State was for neutral reasons, such as a new indictment, the initial prosecutor's election to the bench, and the transfer of the case to a different court. Also weighing heavily against a finding of a speedy trial violation is Aranda's failure to timely assert his right to a speedy trial over a five-year span. The longer the delay becomes, the more likely a defendant who wished a speedy trial would be to take some action to obtain it. Dragoo, 96 S.W.3d at 314. A defendant's lack of a timely demand for a speedy trial indicates strongly that he really did not want a speedy trial and was not prejudiced by the lack of one. Id. Aranda's speedy-trial claim was further weakened because when he finally asserted his claim he asked for a dismissal rather than a trial. See Cantu, 253 S.W.3d at 283.
We conclude that the Barker factors, when balanced together, weigh against a finding that Aranda's right to a speedy trial was violated. We, therefore, hold that the trial court did not err in denying Aranda's motion to dismiss. We overrule Aranda's first issue.
SUFFICIENCY OF THE EVIDENCE
In his second issue, Aranda argues the evidence was insufficient to establish that he committed the offense of injury to a child by omission with the required culpable mental state.
A person commits the offense of injury to a child by omission if he intentionally, knowingly, or recklessly, by omission, causes serious bodily injury to a child. TEX. PENAL CODE ANN. § 22.04(a)(1) (West Supp. 2015). The jury found Aranda committed the offense recklessly. "A person acts recklessly, or is reckless, with respect to . . . the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur." TEX. PENAL CODE ANN. § 6.03(c) (West 2011). "The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." Id. Absent a judicial confession, culpable mental state is ordinarily inferred from the acts of the accused or the surrounding circumstances. Ledesma v. State, 677 S.W.2d 529, 531 (Tex. Crim. App. 1984).
Under a legal sufficiency standard of review, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We do not reevaluate the weight and credibility of the evidence; our only task is to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
The Trial Evidence
The evidence pertaining to Aranda's culpable mental state is as follows.
First Responders
Dennis McNabb, an EMT, testified that he arrived at Aranda's home six minutes after midnight on January 11, 2009, in response to a 911 call. McNabb was taken to the master bedroom, where he saw a small child, later identified as Melody, lying on the bed. McNabb observed that Melody was "obviously injured." Melody had a "considerably large," "golf-ball sized" bump, or "hematoma" in the center of her forehead, which was surrounded by purple and green bruising. Melody had dried blood around and inside her mouth and nose, and a white, frothy substance around her mouth called sputum. The presence and location of the sputum were consistent with a seizure. McNabb's initial impression, based on the blood on Melody's mouth and nose and the injury to her head, was that Melody had "most definitely suffered some sort of traumatic event in her life." McNabb also observed that Melody was not breathing. McNabb checked Melody's pulse, and found no heart rate. McNabb heard one of Melody's parents say that Melody had fallen down the stairs the day before, she was not acting differently from normal, and she was last seen alive thirty to forty-five minutes before the EMTs arrived.
Sheriff's deputy David Barrera testified that he talked to Aranda while the EMTs were working on Melody. Aranda told Barrera that Melody had fallen down the stairs about thirty-one hours before, on January 9, 2009, at around 4:30 p.m. Melody had a couple of bumps on her head from the fall and had developed a fever. After Melody fell, Aranda called Velasquez at work. Melody had been pretty lethargic after the fall, and Aranda and Velasquez had just monitored her in bed. Melody's fever fluctuated and they gave her Tylenol for the fever. The fever reached as high as 103 degrees. Melody had been sleeping most of the time and she was having trouble breathing. Aranda said he and Velasquez finally decided to call 911 because Melody was having difficulty breathing. Aranda took Melody to the restroom, noticed she was not breathing, and started performing CPR on her. When Aranda performed CPR on Melody, blood came out of her nose.
Emergency Room Physician
Dr. Patrick Muehlberger, the emergency physician who treated Melody, also testified. Muehlberger was in charge of a team of doctors and nurses who treated Melody in the emergency room. When Melody arrived in the emergency room she was in "full arrest," meaning she had no intrinsic pulses or breathing. The paramedics were performing CPR on Melody. Muehlberger learned that Melody's parents told the paramedics that Melody had fallen down the stairs two days ago, and they called 911 when Melody became unresponsive.
Upon examining Melody, the medical team saw a large hematoma on the child's forehead with bruising; swelling to the back of her scalp; and blood coming from her mouth, ears, and nose. A CT scan showed diffused swelling of Melody's brain and a subdural hemorrhage—a pooling of blood beneath the dura. A subdural bleed is a big deal; it is usually a sign of a significant brain injury and is associated with swelling in the brain.
Muehlberger explained the hematoma was "basically a bruise on [Melody's] forehead that indicate[d] a fresh collection of blood usually from a direct trauma to the forehead." --------
Muehlberger testified that some of the typical symptoms that people with this type of injury exhibit are seizures, loss of consciousness, difficulty swallowing, and an altered mental status—that is, a change in their level of consciousness. They may also be confused or lethargic or appear to be sleepy or unarousable. Finally, they may also have symptoms like repetitive vomiting or severe headaches. Muehlberger added that it would be very odd for someone with severe head injuries like Melody's to be asymptomatic.
Muehlberger distinguished between different types of head injuries. Patients with an epidural hematoma might not have any symptoms and appear to be fine initially, but then decompensate very quickly and die. On the other hand, patients with a subdural hematoma like Melody's would exhibit symptoms at some point. Muehlberger could not say for certain how quickly symptoms would appear. However, a situation in which a three-year-old experienced a head trauma, sustained bumps on both sides of the head, developed a fever soon after, and started sleeping would be concerning.
According to Muehlberger, brain trauma would probably not cause a fever. Nevertheless, Muehlberger indicated that a fever is bad for a brain injury because it speeds the brain up and exacerbates any underlying injury. Other circumstances that make a head injury worse are hypotension, dehydration, loss of blood clotting, hypoxia, and a lack of oxygen. All of these circumstances significantly increase the underlying damage to the brain, and as a result, doctors seek to avoid them when they are dealing with a head injury.
Muehlberger said the inability to swallow is another symptom of a head injury. The inability to swallow can also cause other complications. When a person's brain is not working right, the body's protective nerve signals are affected. A patient who is unable to swallow or who is drooling runs the risk of having spit go into their lungs instead of their esophagus. The lungs are not equipped to handle such secretions. When these secretions go into the lungs, the risk of death is increased by thirty percent. If a patient is having trouble swallowing, medical professionals can place a protective tube into the patient's airway for protection.
Medical Examiner
The medical examiner who performed Melody's autopsy, Dr. Randall Frost, testified that Melody had obvious external injuries consisting of a big bruise in the center of her forehead; small abrasions beneath the eye and across her nose; a great deal of swelling and two areas of abrasions on the back of her head; and bruises on her back, arms, and legs. Additionally, Melody had a large, soft bump on the back of her head. The bump was a hematoma, an area filled with a lot of blood.
Frost's internal examination found that Melody had experienced a lot of bleeding on the surface of the skull. The bruising was on opposite sides of Melody's head. There was some bruising on the back of her head, in the scalp and on the surface of the skull. There was also some bruising on the front of her head. In addition, there was "a good bit of hemorrhage" within the skull. Frost found a subdural hemorrhage on the right side of Melody's head, and the underlying brain had started to swell. There were also areas of Melody's brain that appeared to be "infarcted," meaning the blood supply to these areas had been cut off. The changes in Melody's brain were consistent with trauma. Because of the swelling, the blood supply to some parts of Melody's brain had been cut off and these parts of her brain were starting to die. There was no evidence of a preexisting or older brain injury. The injury could have been a day or two old, but it was not weeks or months old.
Frost said, in general, he would expect that a child who received a subdural hematoma like Melody's would not act "normally" after the injury. Frost admitted that "normal" can vary from child to child. The child could be cranky, sleepy, in a coma, or he may not react at all. In a classic case, one would expect to see the changes to occur quickly and then continue to progress over time. A head trauma followed by grogginess, sleepiness, and difficulty swallowing would all be consistent with a subdural hematoma.
Frost also explained that a fever can mean a number of different things. Fever can be caused by some type of infection in the body. Frost explained that a child with a head injury like Melody's might be in a comatose state and might not be breathing properly. Or, the child's cough reflexes may not be as good as usual, and thus, the lungs might not clear out like they normally would. Under this scenario, the child could develop little areas of collapse in the lungs and inflammation and pneumonia around those areas, which can cause a fever. Frost said that Melody had some inflammation in her lungs. For this reason, Frost suspected Melody had some pneumonia, but it was difficult to tell for sure because there was a lot of hemorrhage and bleeding into Melody's lungs. Finally, Frost stated that because the brain controls temperature regulation, head injuries can cause fevers.
Aranda's Videotaped Interview
Hours after Melody was taken to the emergency room, sheriff investigators interviewed Aranda. A videotape of the interview was admitted at trial. In the videotape, Aranda stated that he was in the kitchen when he heard Melody fall down the stairs on Friday afternoon. Aranda ran to Melody when she hit the floor and picked her up. Melody was screaming and crying. Aranda noticed Melody had immediate swelling to the front and to the back of her head. Aranda carried Melody to the master bedroom, laid her on the bed, and applied ice to her head injuries. Aranda immediately called Velasquez, who was at work, and told him about Melody's injuries. Velasquez left work and came home. While Melody was lying on the bed, Aranda noticed that she felt hot. Aranda took Melody's temperature and she had a fever. This happened within twenty minutes of Melody's head injuries and before Velasquez arrived home from work. Aranda said that Melody did not have a fever before her head injuries. Over the course of the next day or so, Melody continued to have a fever which was as high as 103 degrees. When asked if Melody was speaking on Friday after she fell, Aranda responded that she was using only "a little bit of words." Aranda and Velasquez just left Melody in bed and tried to control her fever. According to Aranda, Melody did not want to take the liquid Tylenol, so they had to "drop [the Tylenol] down her." Aranda did not tell anyone outside their immediate household that Melody had fallen; he did not seek any medical advice or treatment for her. That night, Aranda and Velasquez allowed Melody to sleep in the master bedroom so they could monitor her. Melody slept through the night.
On Saturday morning, Melody was still sleeping when Aranda and Velasquez woke up. Melody woke up later but she remained in bed. Melody did not run or walk. Melody did not eat, and she had no more than a few sips to drink on Saturday. Melody continued to have a high fever. Melody was not talking on Saturday, but Aranda figured it was because of the fever. Because Melody was having a hard time swallowing, Aranda bought Tylenol rectal suppositories and administered one to Melody. Melody did not leave the bed all day on Saturday. Aranda said that he thought he heard Velasquez, who had a Nebulizer for his asthma, use his Nebulizer on Melody to help her breathe.
On Saturday night, Aranda and Velasquez went to bed. Melody was still sleeping in their bed. At around 11:30 p.m., Aranda woke up when he heard Melody breathing hard. Either Aranda or Velasquez tried to give Melody Tylenol again. Because of the way Melody was breathing, Aranda told Velasquez to call 911. Melody then went unconscious. Aranda and Velasquez performed CPR on Melody, and when they did, she started bleeding from her nose.
Foster Sibling
J. F. testified that he lived in Aranda's home when Melody died. Aranda was J.F.'s foster father. At the time, J.F. was fourteen years old. Four other children lived in the home, three boys and Melody. Melody and the boys were all very young; they were not in school yet. J.F. was the only child who went to school. On Friday, January 9, 2009, J.F. heard Melody screaming and crying. On the same day, J.F. saw Melody in Aranda's bed in the master bedroom of the house. J.F. said that he, and everyone else in the household, went into Aranda's room and prayed around Melody. J.F. also said that praying at home was not all that unusual for the family.
J.F. also recalled that, on January 11, 2009, he was awakened in the middle of the night by a police officer. From the time J.F. saw Melody in Aranda's bed on Friday until the time the police officer woke him up on Sunday, he never saw Melody walking around or playing.
Caseworker
Jessica Molinar of Pathways Youth and Family Services testified that Pathways was a nonprofit child placement agency that contracted with the Department of Family and Protective Services. Pathways had been involved in Melody's life from October 2006, when Melody was about ten months old, until she was adopted by Aranda and Velasquez on December 19, 2008. During this timeframe, a Pathways caseworker visited Aranda and Velasquez's home once a month. The caseworker assigned to Melody's case had noted no concerns about Melody's health or well-being; however, Melody had been referred for Early Childhood Intervention in October 2008, and she was receiving some therapy. Specifically, Melody was having problems with some food textures, so they were introducing different foods to her and supplementing her diet with PediaSure.
Molinar also explained that Aranda had called Pathways on December 16, 2008, to report that Melody had had an accident. According to Aranda, Melody had fallen from a barstool and bruised her left eye. On another occasion, Melody had fallen and chipped a tooth, and Aranda had taken her to the dentist the same day to have the tooth repaired.
During the adoption screening process, Aranda and Velasquez informed Pathways that in the event of an emergency they would use Methodist Children's Hospital. Aranda and Velasquez also reported that a fire department was located three miles from their home. Molinar also stated that foster parents are required to obtain basic first aid and CPR training because they are the primary caregivers for their foster children, and her organization wants the foster parents to be able to respond. Molinar confirmed that Aranda had received training in first aid and CPR.
Analysis
Aranda argues there was no evidence that he was aware of and consciously disregarded a substantial and unjustifiable risk. Aranda claims that none of the evidence at trial showed that he knew the bump on Melody's head was as serious as it was, or that he ignored a substantial and unjustifiable risk. In making these arguments, Aranda cites only to evidence that supports his argument. However, in performing a legal sufficiency review, we are required to view the evidence in the light most favorable to the jury's verdict.
The trial evidence showed that foster parents were required to have specialized training in caring for children, which included basic first aid and CPR training. Aranda had fulfilled these foster parenting requirements. Additionally, the evidence showed that Aranda was aware of the importance of proper health care, including emergency medical care. As part of the adoption screening process, Aranda had designated the hospital he would use in the event one of the children had a medical emergency. Furthermore, in the past, Aranda had called caseworkers when Melody had sustained far less serious injuries, such as a bruise around her eye and a chipped tooth. And, when Melody chipped her tooth, Aranda had promptly taken her to a dentist for treatment.
The evidence also showed that someone with head injuries like Melody's would probably not be asymptomatic. The symptoms that would likely accompany such a head injury included seizures, difficulty swallowing, and an altered mental status—that is, a change in the child's level of consciousness. Additionally, a child with a head injury like Melody's might not be breathing properly.
Even by Aranda's own account, Melody was not asymptomatic. Aranda admitted that after Melody sustained the bumps on her head on Friday afternoon she was pretty lethargic. Melody had a fever that was as high as 103 degrees. Melody was bedridden shortly after she was injured, and she remained so for the next thirty-one hours, until the time of her death. Aranda told investigators that Melody was barely talking on Friday and she did not talk at all on Saturday. Melody continued to have a high fever. Because Melody was unable to swallow, Aranda had to "drop the Tylenol down" her on Friday. The next day, when Melody was still unable to swallow, Aranda bought Tylenol rectal suppositories and administered one to Melody. Melody was also having trouble breathing, and Velasquez used his Nebulizer on Melody to help her breathe. However, despite all of the symptoms Melody exhibited, Aranda did not seek any medical advice or medical treatment for Melody until Melody's breathing became extremely labored. At this point, Aranda made the decision to call 911.
When the EMTs arrived, it was obvious to them that Melody was injured and had suffered some sort of traumatic event. Melody had a considerably large bump on the center of her forehead and dried blood around and inside her mouth and nose. In addition, Melody had dried sputum around her mouth indicating that she had suffered from a seizure as well.
Viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational jury could have found that Melody exhibited multiple life-threatening symptoms, that Aranda was aware of these symptoms, and that he consciously disregarded them. We further conclude that a rational jury could have found that the risk taken by Aranda in disregarding Melody's symptoms was of such a nature and degree that it constituted a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances, even as viewed from Aranda's standpoint. We hold the evidence was legally sufficient to support the jury's finding that Aranda recklessly caused seriously bodily injury to Melody by failing to provide her proper medical care. We overrule Aranda's second issue.
MOTION FOR MISTRIAL
In his third issue, Aranda argues the trial court abused its discretion in denying his motion for mistrial. After examining the particular facts in this case, we conclude the trial court acted within its discretion in denying Aranda's motion for mistrial.
Pertinent Facts
Several other children were living in Aranda's household when Melody died. During the investigation of this case, one of these children was interviewed by a forensic examiner on two separate occasions and the interviews were videotaped. At trial, the State attempted to lay the foundation to introduce a transcript of one of these interviews. The child was called as a witness to lay the predicate for admitting the transcript. The child testified that several months before trial he had told the prosecutor that he did not remember what had happened in this case and that some of the things he had said in the videotape were wrong.
Outside of the jury's presence, Aranda's counsel made the following complaint:
At this point, I'm asking the Court to grant Mr. Aranda a mistrial based on the fact that the State has admitted there was Brady evidence they did not give to the defense in a timely manner or at all.
It has prejudiced Mr. Aranda now to a degree where it can't—the skunk smell cannot leave the room. It is hard not to remember that poor ten-year-old boy [and] this video and as soon as they don't get the video or don't hear more about it, they're going to infer—since [he] was the State's witness [the jurors] are going to infer we did something to keep [the evidence] out and [] that places an unfair prejudice on Mr. Aranda.
The trial court ruled that the transcript of the child's interview would not be admitted into evidence and the jury would hear no more testimony from the child and the forensic examiner. Aranda's counsel then reiterated his complaint: "The impression the jury's going to have is since the State called the witness and the State's been talking about this video, if [the jurors] don't see it, they're going to assume, and rightfully so, that it's because of something [the defense] did; however, it is going to unfairly prejudice my client to where [the jury's] going to think [the defense] is trying to hide something from them."
In response, the trial court instructed the jury that it was not going to see the videotape or hear further testimony from the child because the trial court had determined that the child was too young and it was not satisfied that the child understood the nature and quality of an oath when he was interviewed. The trial court also instructed the jury to disregard the testimony that had already been given by the child and the forensic examiner.
Applicable Law
A prosecutor has an affirmative duty to turn over material, favorable evidence to the defense. Brady v. Maryland, 373 U.S. 83, 87 (1963); Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). Favorable evidence includes both exculpatory and impeachment evidence. Little, 991 S.W.2d at 866. Disclosure of exculpatory evidence during trial affords the accused the opportunity to request a continuance and this procedure satisfies the due process requirements of Brady. Payne v. State, 516 S.W.2d 675, 677 (Tex. Crim. App. 1974). "A defendant who fails to avail himself of this less drastic remedy waives any error resulting from the Brady violation." Cohen v. State, 966 S.W.2d 756, 763 (Tex. App.—Beaumont 1998, pet. ref'd). "It is only when a trial court denies a request for a continuance based on a Brady violation that a defendant may follow with a request for a mistrial." Id. at 763-64.
A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). It is an appropriate remedy in extreme circumstances for a narrow class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Whether an error requires a mistrial must be determined by the particular facts of the case. Id. Because it is an extreme remedy, a mistrial should be granted only when residual prejudice remains after less drastic alternatives are explored. Id. at 884-85. The asking of an improper question will seldom call for a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Ladd, 3 S.W.3d at 567. There is a presumption that an instruction given to the jury is efficacious. Moore v. State, 882 S.W.2d 844, 847 (Tex. Crim. App. 1994).
We review the trial court's denial of a mistrial for an abuse of discretion. Ocon, 284 S.W.3d at 884. We must uphold the trial court's ruling, unless it is outside the zone of reasonable disagreement. Id.
Analysis
According to Aranda, the State's failure to disclose the child's recent comments to the prosecutor deprived him of his right to a fair trial. Aranda argues that if he had been notified of the child's recent comments to the prosecutor—that the child did not recall what had happened in this case and that some of the things he said in his videotaped interview were wrong—then he could have moved to suppress the interview and the jury would not have heard about it at all. Aranda argues that, because the jury heard about the interview but never learned the contents of it, it had no choice but to think that Aranda was hiding something from it and to infer that he was guilty.
To the extent that Aranda is complaining about the State's nondisclosure of the child's recent comments to the prosecutor, we conclude any error is waived because Aranda did not request a continuance. See Cohen, 966 S.W.2d at 763-64. To the extent that Aranda is complaining about the testimony of the child and the forensic examiner and its effect on the jury, we conclude the trial court did not abuse its discretion in denying the motion for mistrial. A mistrial is appropriate only in extreme circumstances for highly prejudicial and incurable errors. Ocon, 284 S.W.3d at 884. The testimony the jury heard from the child and the forensic examiner was not highly prejudicial. Their testimony involved the techniques and procedures used in interviewing the child and explained what transpired when the child saw the videotapes of his earlier interviews. Additionally, the trial court explained to the jury why it would not hear further testimony from the child and the forensic examiner, and instructed the jury to disregard the testimony given by these witnesses. Absent evidence to the contrary, we must presume that the jury followed the trial court's instruction to disregard. See Moore, 882 S.W.2d at 847. Nothing indicates the jury failed to do so. Any possible error was therefore cured by the trial court's instruction. We overrule Aranda's third issue.
JURY INSTRUCTION
In his fourth issue, Aranda argues the trial court erred in denying his request for an instruction on the purported lesser offense of injury to a child by omission committed with criminal negligence.
Injury to a child can be committed either by an act or an omission. The Texas Penal Code provides: "A person commits an offense if he intentionally, knowingly, or recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child" "serious bodily injury." TEX. PENAL CODE ANN. § 22.04(a)(1). The statute does not list criminal negligence as a culpable mental state applicable to the offense of injury to a child by omission. We conclude the offense of injury to a child by omission committed with criminal negligence does not exist. Therefore, the trial court did not err in denying the requested instruction. See Irvin v. State, No. 14-99-00682-CR, 2001 WL 543688, at *3 (Tex. App.—Houston [14th Dist.] May 24, 2001, pet. ref'd) (not designated for publication) (holding the trial court correctly refused to instruct the jury on the offense of injury to a child by omission with criminal negligence because there is no such offense).
We overrule Aranda's fourth issue.
CONCLUSION
The trial court's judgment is affirmed.
Karen Angelini, Justice Do not publish