Opinion
No. 05-15-01360-CR
08-16-2017
JUSTIN ROBERT BOYCE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 15th Judicial District Court Grayson County, Texas
Trial Court Cause No. 063963
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Brown
Opinion by Justice Bridges
Appellant Justin Robert Boyce was charged with capital murder. The jury convicted him of the lesser-included offense of murder and sentenced him to life in prison. In four issues, he challenges (1) the sufficiency of the evidence to support his conviction; (2) the expert's qualifications to opine on the force necessary to cause an occipital skull fracture; (3) the expert's description of another case involving an occipital skull fracture; and (4) the trial court's refusal to allow his sister to testify regarding his non-violent nature around children. We affirm the trial court's judgment.
Background
In the fall of 2012, Sara Perry was in the middle of a custody dispute regarding her two daughters K.P. and B.P. K.P. was eleven months older than B.P., who was three years old.
Christina Villanueva, Perry's mother and the girls' grandmother, lived with the family up until approximately October 27, 2012, and regularly babysat the sisters. During that time, Villanueva never saw K.P. beat up or fight with B.P. While she admitted she had seen the girls push each other off their bed, the falls never resulted in bruises or injuries.
According to Perry, B.P. suffered from bad allergies and infantile asthma, but described her as "generally in good health" leading up to November. Records indicated B.P. went to the ER on October 31, 2012 because of vomiting, diarrhea, coughing, and a little fever but was discharged the same day with instructions to provide Ibuprofen and Tylenol.
During this time, Perry was dating appellant. According to Villanueva, B.P. expressed fear of appellant. Villanueva witnessed occasions when appellant tried to get B.P. to go to the bathroom and she hid behind her and said, "No, no, no, I don't want to." B.P. was not potty trained and both appellant and Villanueva attempted to teach B.P. to use the bathroom. Perry told both appellant and Villanueva to stop working with B.P. because their methods were contradicting each other.
When Villanueva told Perry B.P. expressed fear towards appellant, Perry told Villanueva to move out. Perry accused Villanueva of lying about B.P.'s expressed fear of appellant. Perry also felt Villanueva disagreed with her life choices, failed to discipline the girls, and spoiled them.
For a short time after Villanueva moved out, appellant primarily babysat the sisters. In mid-November, Perry hired Victoria Berry to babysit. Berry was a young woman Perry knew from school. Berry described the girls as well-behaved. During the few weeks Perry babysat, the girls were never injured in her care.
Prior to November 28, 2012, the day B.P. was rushed to the hospital with deadly brain injuries, B.P. received two other injuries from two separate events. First, in the early morning hours of November 26, 2012, Perry took a picture of the girls sleeping. The flash startled B.P. and she rolled off her bed onto a toy van. The fall caused a small cut under her eye and some bruising. Although Perry thought the bruising was "bad," she did not think the fall seriously injured her.
Villanueva watched the sisters that morning while Perry and appellant attended a custody hearing. Villanueva immediately noticed bruises on B.P.'s face.
That evening, appellant babysat the girls while Perry worked. Around 9 p.m., K.P. pushed B.P. off Perry's bed. Pictures from appellant's phone showed a large bruise and knot over B.P.'s right eye on her forehead. Appellant applied an ice pack and texted Perry about the incident.
Perry said the girls' fighting was not out of the ordinary, but K.P. did not commonly leave bruises on B.P. Perry admitted the fighting had increased over new toys B.P. received for her recent birthday.
Perry did not remember anything remarkable about November 27, 2012. If B.P. had been suffering from neurological issues, she would have remembered.
On the morning of November 28, 2012, Perry checked on the girls before leaving for work. She noticed B.P. felt warm but not enough to wake her up and check her temperature. Perry left the girls with Berry and Rhiannon Runion, Berry's friend.
Berry and Runion admitted they fell asleep shortly after Perry left—Runion around 7:30 a.m. and Berry around 8:30 a.m. Berry woke up shortly before 11 a.m. and checked on the girls. They were playing with toys in their room. She changed B.P.'s pull up and B.P. "seemed fairly normal . . . occasionally a little whiny but that wasn't out of the ordinary." She then turned on a movie and returned to the living room to work on a school essay. Runion woke up around noon. On her way to the bathroom, she noticed the girls lying on their bed watching a movie.
Berry did not see the girls again until appellant and Perry returned home around 12:30 p.m. B.P. came out when she heard Perry's voice and "was like whining." It was then that Berry and Runion noticed B.P.'s bruises. Runion said she noticed a mark under B.P.'s left eye and a bruise on her right forehead. Berry noticed the injury under her left eye.
Perry claimed that upon her return she found B.P. with feces on her hands, in her diaper, and "all over." She cleaned up B.P. and appellant changed her bedsheets. She said Berry and Runion left before she had a chance to ask what happened. Berry later explained they quickly left because she had class at 1:15 p.m. and needed to first drop off Runion. Perry admitted she never complained or asked Berry any questions about the alleged incident. Later text messages between Perry and Berry showed no indication Perry was unsatisfied with Berry's care of the girls, and in fact, the two discussed when Berry would receive payment.
Appellant, Perry, and the girls then went to Olive Garden for lunch. B.P. ate but Perry described it as "uncharacteristically very little." When they got home, B.P. was clingy and complaining about a headache. Despite wanting to be carried more than usual, B.P. was talking coherently, following instructions, and walking before Perry left for work. When Perry left, the girls were watching a movie in their room.
What exactly happened after Perry left is unknown and appellant's stories varied during the course of the investigation. However, various witnesses testified to the following facts during trial.
Jami Brown, a Grayson County 911 dispatcher, received a call around 4 p.m. and appellant stated B.P. was having a seizure. Because appellant's location was outside her jurisdiction, she transferred the call to Denison and Chad McKee took over the call.
During the 911 call, appellant said he was in the other room when he heard "weird noises." Upon entering B.P.'s room, "she was all balled up having a seizure." He described her breathing noises as "snoring." Her eyes were rolling back in her head and barely open. Her heart was "beating like crazy" and she was "sticking her tongue out."
In the audio recording, appellant is heard repeatedly telling B.P. to "come on breathe" and "baby girl, come on, look at me." He told the dispatcher B.P. had a fever all day and admitted she had rolled off her bed and hit her head on a toy "the other night." She was "bruised up on one side ever since then."
David Gallagher, the assistant fire marshal for Grayson County and assistant fire chief for the North Texas Regional Airport, and Kirk Wortham, an advanced firefighter and EMT, arrived at Perry's duplex at 4:20 p.m.
B.P. was lying flat on her back on the bed with appellant standing next to her. Gallagher also observed another small child, K.P., in the room. Both men noticed a bruise on B.P.'s right forehead that was "pretty severe . . . not necessarily bleeding or anything, but just black-and-blue type" and described her eyes as "fixed and open but not responsive." Based on their experience and B.P.'s symptoms, they questioned whether she experienced a seizure.
Appellant told them B.P. had fallen off the bed two days earlier and hit her head on some toys. Appellant also mentioned that she may have hit her head on the wall during the seizure, but he did not specify which part of her head. Gallagher also noticed blood in the corner of B.P.'s mouth.
Gallagher did not notice any linear petechiae, described as capillary bursts that exhibit as small, red dots on the skin, or what appeared to be finger marks on B.P.'s neck. However, he explained, "that generally shows itself when there is enough blood in the system and she was not breathing very well."
The EMTs checked B.P.'s vital signs and although she was breathing, it was "pretty labored, probably eight to ten breaths a minute," which was not normal. Wortham said he was unable to get a brachial pulse, which indicated her systems were shutting down, but he was able to feel a carotid pulse. Wortham then administered "blow-by" oxygen from a non-breather mask for two to three minutes until the ambulance arrived.
He explained a child not in respiratory distress would take around twenty-five to thirty breaths a minute.
This technique involves placing a mask above the patient's mouth and blowing oxygen across the face, allowing the patient to breathe it in on her own rather than pumping the oxygen directly into the body.
Gallagher described appellant's demeanor as casual, calm, and "conversationalist," not worried or excited. Gallagher was not used to seeing someone act like that, especially with a nonresponsive child, but he also acknowledged appellant was cooperative and "not trying to obstruct anything."
Appellant suffered from Asperger's Syndrome and a doctor explained that in a crisis situation, it is typical for such a person to seem uninvolved, unemotional, uncaring, and distant because unless they have been specifically trained or have learned how to manage a situation, they tend to withdraw and not know what to do.
Jason Brookins and Chad Lemons were the paramedics who arrived on the scene. The original dispatch indicated they were responding to a three-year-old having a seizure; however, when they arrived, Gallagher told them B.P. was not breathing.
Brookings inquired about B.P.'s medical history, which Gallagher could not readily answer. Gallagher returned to the duplex and interrupted appellant, who was on the phone with Perry, and asked about B.P.'s medical history. Perry said she was born premature and had asthma. She did not mention that B.P. had trouble eating and staying awake earlier in the day. Her only recollection of B.P.'s previous behavior was her crying and not wanting her to leave for work. Gallagher testified that from a medical stand point, this was important because it showed B.P. was conscious and okay before Perry left for work. He relayed the information to the ambulance crew.
The paramedics began administering CPR after B.P. flat-lined, and eventually, she required intubation. As they pulled into the hospital, B.P.'s pulse and skin color returned but she still was not breathing on her own. Brookins then noticed some dried blood around the edge of her nose. He also noticed "all of the petechiae showing up." Gallagher and Wortham testified that none of the medical treatment they provided before her arrival at the ER would cause the petechiae.
Brookins further observed what appeared to be finger marks on her neck, bruising on her forehead, a bruise on her ear, and small old and new bruises all over her body. Based on the bruising, he believed B.P. suffered abuse and he shared his opinion with ER staff.
Several of the medical personnel also observed markings on B.P.'s neck, which looked like fingerprints, and petechiae around her eyes. Susan Handling, the charge nurse, checked B.P.'s pupils for reaction and described them as "blown pupils," meaning they were completely dilated. "It's an ominous sign meaning that there is some kind of brain damage and usually it's not reversible." Based on her observations, she automatically thought possible child abuse.
Dr. Stephen Creme was the emergency room physician who treated B.P. He noted that upon her arrival to the ER, she scored a three on the Glasgow coma score, meaning she was not opening her eyes, not verbalizing anything, and not responding with any sort of movement. He ordered a CT scan. The scan revealed a subdural and subarachnoid bleed and an occipital skull fracture.
Dr. Creme explained the Glasgow coma score was a standardized way physicians indicated the severity of an injured patient. The scale ranged from three to fifteen, with fifteen being the best and three the worst. According to the American Academy of Emergency Medicine, a level eight was considered seriously impaired in which a person may require intubation because she would be losing protective reflexes to breathe on her own.
When B.P. returned to the ER, she was placed on a ventilator because she was still unable to breathe on her own. Amanda Hoffpauir, the pediatric charge nurse, continued to monitor B.P.'s vital signs and kept her stable until Care Flight arrived to transport her to Children's Medical Hospital in Dallas.
During this time, Hoffpauir conducted a more thorough examination of B.P.'s body. She said the "goose egg" on the forehead was hard to the touch with petechial hemorrhages. B.P.'s top lip was busted, and she had dried blood all over her teeth. Fingerprint marks were visible on her throat, along with small scratch marks on her neck. B.P.'s diaper was clean and dry, which was "odd" because a seizure often causes incontinence.
Witnesses described Perry as being very focused on appellant in the ER, rather than B.P. She was "rather stoic" and not that upset. Not until a nurse explained the severity of the situation did she finally become visibly upset. "It took the conversation of like, hey, this is really serious so stop worrying about your boyfriend and worry about your child to get her there."
Ruby Osborne, who worked registration in the ER, talked to Perry and appellant. Appellant told her he was not sure what happened to B.P. He recalled putting her down to sleep in the bed and later found her lying on the floor after he heard a "thump." This rendition of events differed from what he told the 911 dispatcher.
Gayla Williams, the security director, heard appellant explain to Osborne what allegedly happened to B.P. Then she heard a second story. His second explanation was that B.P. was playing in her room and must have been jumping up and down on the bed and then he heard a thump. When he checked on her, she was laying on the floor gurgling. In a third conversation, Perry said appellant told her B.P. must have been jumping on the bed and after he heard the thump, he went into the room and she was having a seizure. Williams said, "The story kept getting bigger."
Detective Christopher Nordhoff with the Denison Police Department received information regarding possible child abuse and arrived at the hospital at approximately 5:40 p.m. After speaking with two fellow officers, Detective Nordhoff talked with Perry and then called Berry. Berry and Runion were eliminated as possible suspects in B.P.'s injuries.
Detective Nordhoff excluded the babysitters as suspects after doctors concluded the severity of B.P.'s injuries indicated they occurred during the time frame she was in appellant's care and not earlier in the day.
B.P. was careflighted to Children's Hospital early the same evening. Dr. Matthew Cox, a consulting physician specializing in evaluation of potential child abuse, saw her the next morning. He received B.P.'s medical history from Perry. She described B.P.'s behavior on November 28 as normal and she ate without incident. Not until Perry prepared to leave for work did B.P. get "cranky."
Although Dr. Cox knew B.P. suffered an occipital skull fracture with subarachnoid and subdural hemorrhage around her brain, doctors ordered another CT scan. The second scan revealed massive brain swelling. Dr. Cox explained that the continued brain swelling, despite medical intervention, indicated B.P.' injury was recent. The neurosurgeon team inserted a brain pressure monitor to measure brain swelling and to guide treatments. Her initial pressure was forty and normal pressure is less than fifteen. At one point, her brain pressure measured over one hundred. Despite continued medical treatment, B.P. was pronounced brain dead on November 29, 2012, at 9 p.m.
Dr. Joni McLain performed an autopsy on December 2, 2012. In addition to the observed external injuries, Dr. McLain noted a hemorrhaged area in B.P.'s lower back that could have resulted from blunt trauma consistent with someone slamming a child on the floor. Subscalpular hemorrhages consistent with blunt force trauma were seen on the back of the head and on the top right and left sides of the head.
The location of the skull fracture was not normal for a three-year-old. Dr. McLain explained she had performed many autopsies on children and "you rarely see a skull fracture back that deep on the occipital bone." She believed the injury was caused by blunt trauma that would take a lot of force. A simple household fall or K.P. jumping on her would not cause the injury. She further explained neither scenario would explain the multiple subscalpular points of blunt force trauma found on her head. She agreed nothing within her autopsy findings could answer the question of when the brain started to swell and when the injury progressed to her inability to function. However, because the fracture was near the brain stem, which controls breathing and heart rate, she opined symptoms would be immediate from such an impact and B.P. would not experience a lucid interval—described as a collection of blood between the skull and dura from an impact that accumulates with a person developing symptoms over time as the mass of blood causes decompensation of the brain. Dr. McClain said B.P. would not be walking, talking, and eating prior to such an injury.
During the medical team's life-saving efforts on November 28 and the weeks that followed B.P.'s death, officers continued talking with appellant. On the night of the incident, Detective Nordhoff asked appellant if he would voluntarily give a statement at the police department. The recorded interview was played for the jury.
In the interview, appellant said Berry babysat the girls that morning. He and Perry returned home around 12:45 p.m. and then they ate at Olive Garden. Perry left for work around 3:30 p.m. and appellant continued babysitting. Appellant contradicted himself during the interview as to whether he turned on the movie for the girls or whether it was already on for them when Perry left. He also contradicted his ability to hear what was going on in their room. On the one hand, he said the television was so loud he could not hear anything in the room, yet later he claimed he heard B.P. "gurgling" from the bedroom.
Despite appellant's claim that he was in the living room scraping paint from a dresser while the girls watched the movie, officers found no signs of scraped paint when they later searched the duplex. Instead, two dressers were already in the girls' bedroom.
Detective Nordhoff asked appellant about B.P.'s injuries. Appellant acknowledged the bruises on her face, but provided no explanation for the skull fracture or the multitude of other bruises on her body except that the sisters hit each other a lot. He had no explanation for her skull fracture.
Appellant also talked to Officer Hayth and Lieutenant Tillman. Appellant mentioned taking the girls out to eat earlier in the day, but did not mention B.P. acting "groggy" or exhibiting any other abnormal behavior. When asked if B.P. had any marks on her, appellant said K.P. pushed B.P. off of Perry's bed around 9 p.m. on November 26 and she had a knot on her head. He also told them about B.P. rolling off her bed onto the van and described her as "bruised up." When asked if he noticed petechiae around her eyes or face, appellant said he had never seen anything like that on her.
Lieutenant Tillman asked appellant directly if he injured B.P., and he repeatedly denied it. He explained that he disciplined the children by using a time-out chair or making them face a wall, but he never used physical discipline.
Detective Nordhoff witnessed K.P.'s November 28 interview at the Children's Advocacy Center. The video recording was played for the jury. K.P. said B.P. was sick because "she was snoring, not breathing." She first said B.P. was laying on their bed and appellant was in the room "just staying in there." Later in the interview, she said B.P. was crying in Perry's room.
On January 2, 2013, Detective Nordhoff interviewed appellant again, but this time in the presence of his lawyer. During the interview, appellant mentioned for the first time that on the day of the incident, B.P. fell asleep during lunch and on the car ride home. He said it was not "her normal falling asleep," but was "almost like a short circuit." Appellant did not mention during this interview that B.P. suffered a seizure and hit her head on the bedroom wall. He also changed his story regarding what he was doing during the time prior to and when Perry left for work. This time, he indicated that he had finished scraping the girls' chest of drawers and moved them back into their room before Perry left for work. He said he started the movie for the girls and then went to Perry's room and started cleaning it.
Based on the severity of B.P.'s injuries and the doctors' conclusions that they were intentionally caused by blunt force trauma during the time she was with appellant, the State indicted him for capital murder by
intentionally or knowing causing the death of an individual [B.P.], an individual younger than 10 years of age, by striking her head with an object the exact description of which is unknown, by causing her head to strike an object the exact description of which is unknown, or by otherwise causing blunt force trauma to the head to [B.P.] by unknown means or by a combination of the preceding.
After a multi-week trial in which the jury heard the above evidence and a myriad of scientific evidence regarding short fall brain injuries that will be discussed at length below, it convicted appellant of the lesser-included offense of murder. The court sentenced him to life in prison. This appeal followed.
Sufficiency of the Evidence
In his first issue, appellant challenges the sufficiency of the evidence to support his conviction because the undisputed facts show B.P. suffered two falls in the days leading up to her death and K.P. admittedly jumped from a bed onto her head. He alleges any of these incidents, or a combination of them, could have caused B.P.'s skull fracture. Because expert testimony and scientific studies could not eliminate these possibilities, appellant argues the State failed to prove beyond a reasonable doubt that he caused B.P.'s death by an intentionally inflicted, violent act. The State responds appellant's murder conviction is legally sufficient based on the severity of her injuries, the circumstantial evidence, and the majority of scientific studies indicating short falls do not cause traumatic brain injuries.
The Constitution requires that a criminal conviction be supported by evidence "necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Jackson v. Virginia, 443 U.S. 307, 316 (1979). In reviewing a conviction for the sufficiency of the evidence, a court must ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011).
We consider only whether the factfinder reached a rational decision. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) ("Our role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act rationally."). The jury is the sole judge of credibility and weight to be attached to witness testimony. Jackson, 443 U.S. at 319. A reviewing court must permit juries to draw multiple reasonable inferences from facts, so long as each is supported by the evidence presented at trial. See Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume the jury resolved the conflicts in favor of the verdict and therefore defer to its determination. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). But, as the Texas Court of Criminal Appeals explained in Hooper, the jury is "not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions" because doing so is not sufficiently based on facts or evidence to support a finding of guilt beyond a reasonable doubt. Id. at 15; see Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. App. 2010) (noting conviction based upon juror speculation raises only suspicion of guilt and is inadequate to satisfy constitutional sufficiency standard of proof beyond a reasonable doubt). Thus, "[i]f, given all of the evidence, a rational jury would necessarily entertain a reasonable doubt as to the defendant's guilt, the due process guarantee requires that we reverse and order a judgment of acquittal." Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003).
Appellant argues, "The State must prove, beyond a reasonable doubt, that the injury was not, and could not, have been the result of a short distance fall or from the older sister jumping from the bed onto [B.P.'s] head." He contends the State's scientific evidence provided a "strong suspicion" that the short falls did not cause B.P.'s injuries and that she died intentionally at the hand's of appellant, but such suspicion is nothing more than speculation that cannot constitute proof beyond a reasonable doubt. Thus, we begin our analysis by addressing the severity of B.P.'s injuries and appellant's challenge to the scientific evidence presented to the jury regarding short falls, potential lucid intervals, and second impact syndrome.
It is undisputed B.P. suffered an occipital skull fracture causing traumatic brain damage. Dr. Cox explained fractures of the occipital bone are rare because it is a thicker, well-protected bone. Most skull fractures occur on the side of the head because that is the typical site of impact from accidental falls.
Dr. Cox opined B.P.'s injuries were not from a short fall event. He explained short falls result in "predictable type injuries, typically the side of the head." Young children regularly fall, but "they don't die on a regular basis." In his experience, short falls do not lead to the pattern of injuries B.P. suffered. Further, he explained the vast majority of literature concludes short falls are benign. "Simple falls lead to simple injuries."
B.P.'s autopsy further supported Dr. Cox's conclusion that a short fall did not cause B.P.'s injuries. The autopsy report showed more extensive brain damage than what he observed during his examination. For example, she suffered subscalpular hemorrhages, or multiple impact sites of the scalp. She had a direct contusion on the left frontal cortex, the area behind the left eye. She suffered multiple layers of retinal hemorrhages, which is commonly seen in severe traumatic injuries to children. He further explained the type of subdural hematoma B.P. suffered is most commonly related to inflicted, not accidental, head injuries. Dr. Cox testified a short fall would not have caused multiple points of blunt trauma to her head. Rather, he concluded her injuries resulted from a forceful, violent impact to the back of her head.
According to Dr. Cox, the impact would have caused B.P. significant neurological compromise, which would knock her unconscious almost immediately or lead to significant neurological symptoms such as vomiting, altered consciousness, inability to walk, or impaired eye function. He explained "immediately" as meaning someone would know within a minute or two of a major problem. If the injury did not immediately knock B.P. unconscious, she would have been unconscious within minutes. "[T]here would be something dramatically different about her after a traumatic event caused this pattern of injury."
Dr. Cox testified about the possibility of B.P. having a "lucid interval." A "lucid interval" is a collection of blood between the skull and the dura that accumulates over time and a person develops neurologic symptoms as the mass of blood causes decompensation of the brain. The pressure of the building fluid causes the progression of the neurologic symptoms.
He testified a lucid interval is more common in an epidural hematoma, which B.P. did not have. Based on his training, education, and experience, Dr. Cox opined the fall on November 26 from B.P.'s bed (a height of one foot, six inches) onto the toy van would not cause her brain damage. He further opined falling or being pushed off Perry's bed (a height of approximately two feet, five inches) later that same evening "wouldn't lead a child who is three years old to a fatal head injury several days later." Thus, he would not expect a two-day lucid interval; rather, based on the severity of her injuries, he would expect immediate unconsciousness or unconsciousness within a few minutes.
In his opinion, based on the history Perry provided for November 28, which included B.P. acting normally, eating, and playing, B.P.'s injury did not occur before Perry left for work. Even with the additional details Perry failed to provide at the hospital, which included B.P. running a low grade fever, complaining of a headache, and falling asleep in the restaurant and on the way home, Dr. Cox's opinion would not change—"I believe her injury would happen right before she became unconscious." While Dr. Cox admitted symptoms from a head injury exist on a spectrum, a headache would not be a symptom of her extensive injuries. Such significant injuries would present themselves as "more than just a cranky toddler." Thus, Dr. Cox did not believe B.P. experienced any lucid interval.
On cross-examination, Dr. Cox agreed he could not specifically say someone took B.P.'s head and slammed it on the ground because he was not present when it happened; however, his opinion of how the injury occurred was based on "information given to me, the medical findings, the imaging, and everything so it's the complete medical picture to suggest things."
The defense questioned Dr. Cox about scientific studies regarding short falls. He explained that a published, peer reviewed article is not a "stamp of approval" because the study is not checked for validity. Rather, a published article means the study involves the scientific process, and the information is available for consideration. He further explained peer reviewed "is publishing scientifically accurate, sound process and information obtained from that. Can it be erroneous? Absolutely. . . . [I]t's not a perfect process."
Dr. Cox acknowledged scientific articles that reached different conclusions regarding whether B.P.'s head injury would immediately cause neurological deficits resulting in a coma or unconsciousness. He considered some of them not credible and emphasized the majority of the literature supports his position. Defense counsel asked:
Q. So you can't rule out that possibility; can you?
A. I find it highly unlikely but in science I don't rule anything out because anything is possible but I find it based on my experience highly unlikely that she would be anything other than comatose after the injuries she sustained.
Q. Dr. Cox, I understand but that wasn't my question. My question was because there is peer reviewed scientific articles that are opposite from what you say, you can't rule out that is a possibility, can you?
A. Not one hundred percent, correct.
Defense counsel asked him about a 1989 article in the Journal of Trauma called Mortality of the Child who Falls, in which eighteen children who fell from higher than three feet but lower than four stories, suffered head injuries. Of the eighteen, nine experienced a lucid interval between one hour and three days before seeking medical attention. Dr. Cox emphasized the children did not have injuries similar to B.P. "[I]t's comparing apples to oranges." He did not believe there had to be an exact fact pattern between the studies and her injuries, but "There are differences and you have to consider each and every one of those differences in interpreting the significance of the literature as it pertains to this patient."
Dr. Cox expressed similar opinions when discussing the Humphries study (the head injured child who talks and later dies). That study discussed four children who suffered brain injuries from falls, but none of them suffered an occipital skull fracture. Dr. Cox also said it is important to understand how the literature defines "lucid" because it is often a wide variation from "talking, acting normally" to "partially comatose." In his experience, children with injuries similar to B.P.'s experienced no significant lucid interval. They were all abnormal immediately afterwards.
Dr. Cox testified he had never seen a strike to the frontal or parietal lobe of a child that resulted in an occipital skull fracture. Rather, most skull fractures are at or near the site of impact. So while a forehead strike, such as K.P. jumping on B.P., could result in a skull fracture, it would be an orbit fracture (an area where the bone is thinner). When asked if he was aware of a basal occipital fracture resulting from a blow somewhere else on the head, he answered, "Clinically I have never seen that nor am I aware of anything published about that type of fracture being from a remote impact site."
Like Dr. Cox, Dr. Creme also testified that based on his training, experience, and education, B.P.'s injury would be "immediately" apparent upon receiving the blow to her head that caused the skull fracture and subsequent brain bleed. He explained "immediately" as meaning someone would know within a minute or two of a major problem. "She would have been unconscious." He did not believe she would have regained consciousness.
Dr. Creme also reviewed the defense expert's opinions and agreed some studies were contrary to his opinion. He admitted there were scientific studies in which a person experienced a lucid interval from as short as two minutes to up to three days. He agreed the studies were peer reviewed articles, but "They publish both sides of the issues a lot."
Dr. Creme explained a lucid interval did not mean the same as "symptom free interval." One article discussing a lucid interval referenced a child with a Glasgow coma score of eight. Dr. Creme emphasized this child would be lying on a bed partially responsive and partially unresponsive. It would be "crystal clear to anybody" the child was injured. The child would not be walking around, eating, and running a little fever. When B.P. arrived at the hospital, she had a Glasgow score of three.
Dr. Creme explained the Plunkett study, an article published in 2001 in the American Journal of Forensic Medical Pathology, in which Dr. Plunkett surveyed 75,000 children who sustained head injuries from short-distance falls from playground equipment from 1988 to 1999. Eighteen children suffered fatal head injuries. Dr. Creme walked the jury through a chart showing the eighteen children's injuries and whether they experienced lucid intervals. "Lucid" was not defined in the study. Six of the children did not experience a lucid interval. Seven children experienced a lucid interval lasting less than fifteen minutes. Although five of the children experienced lucid intervals lasting between one to forty-eight hours, none of them suffered an occipital skull fracture from the short fall. Ultimately, the Plunkett study concluded short falls rarely cause death.
Dr. Creme knew of "quite a few" studies indicating children do not receive retinal hemorrhaging, subdural hematomas, subarachnoid hematomas and occipital skull fractures from a short fall. He acknowledged some studies supported deadly short fall injuries, but such studies are in the vast minority of medical literature and are considered a "rare event." Further, like Dr. Cox, Dr. Creme also testified a lucid interval is more common with an epidural bleed. B.P. did not suffer epidural bleeding, which further indicated to him the unlikelihood of her experiencing a lucid interval after her injury.
Dr. Bux, the defense expert, testified to exactly the opposite. He said lucid intervals are more common with subdural hematomas and he has seen a couple with epidural hematomas.
Thus, although Dr. Creme agreed, "A lucid interval can occur with folks who have head injuries," he ultimately concluded B.P. was killed by blunt force trauma to the head and the action that made the "most sense for this case would be somebody grabbing her around the neck and slamming her head into something."
The defense raised the possibility of B.P. suffering from second impact syndrome, a phenomenon usually experienced by teenagers or young adults in contact sports. Dr. Creme explained it as follows:
The first impact has to be a sufficient force to cause a disregulation of the brain itself. The potassium flows out of the cell. That is replaced by calcium that goes into the cell and the person itself is in a fragile state at that point. Then the second impact occurs and the brain is not yet prepared for that second impact. As a result the
additional release of potassium is catastrophic and at that point they have no recovery.He did not believe B.P. suffered from second impact syndrome. She did not have a first impact. Rather, he testified she had one impact with enough force to cause the occipital bone to break and the brain bleed that immediately knocked her unconscious. He did not believe falling off the bed and hitting her head on a toy or K.P. pushing her off a bed two days earlier resulted in injuries that caused her death. "[T]hose injuries happen all the time. Day in and day out we see them and they do not cause that kind of severe injury pattern." He opined that based on appellant's description of B.P.'s behavior to the 911 dispatcher, her injuries occurred within a few minutes of him calling.
Dr. Cox also did not believe B.P. suffered from second impact syndrome. Essentially, Dr. Cox did not see a first impact with neurologic symptoms causing a concussion, which would present before a second impact. Thus, B.P.'s subsequent behavior was inconsistent with any second impact. Assuming there was a first impact and K.P. caused a second impact by pushing her off the bed, B.P. acted normally and was not unconscious after the alleged second event. Moreover, Dr. Cox explained that even if K.P. jumped on B.P. with enough force to cause a skull fracture, that scenario did not fit with the clinical presentation of what medical personnel saw at the hospital. He was unaware of a situation in which a young child was hit on the front of the head and suffered a fracture at the base of the skull.
Dr. Cox admitted he did not know the amount of force needed to create an occipital skull fracture, but he was skeptical of someone's ability to quantify such force for the jury:
They could try to quantify it but the interpretation is limited by the fact that as we said we can't do studies to figure out how much force it causes to cause - - it takes to cause injuries in children. We are limited by the data because we can't specifically study children. We have to rely on data obtained by other means and animal studies in particular.Dr. Creme shared Dr. Cox's skepticism in quantifying the necessary force to cause a skull fracture because of variables such as the size and age of the bone and how brittle it was at the time of impact.
Dr. Creme disagreed with the defense theory that K.P. caused the fracture and called it "a very far fetched scenario."
The child jumping on another child would not lead to a fracture at the base of the skull like that so it wouldn't be a site of impact. It would be a head slamming in that regard. So jumping on another child's head would not lead to this pattern of injury at the base of the skull. So it may have happened. It didn't cause her skull fracture as it was identified.
To support its theory that appellant did not cause the skull fracture, the defense presented the expert testimony of Dr. Robert Bux, a forensic pathologist and coroner from Colorado, and Chris Van Ee, a biomedical engineer specializing in biomechanics.
Dr. Bux described the human brain as the "most mysterious part of the human body." He testified not enough studies of the brain exist to be completely confident in opinions on how injuries occur because "a lot of things are either in flux or have changed over the last fifteen or twenty years." Peer-reviewed articles supporting both sides of the issue indicated to him the science is unsettled.
Dr. Bux opined B.P. sustained a skull fracture at some time prior to her death, but he could not say for sure when it happened. He said he reviewed Perry's statements, and they helped form the basis of his opinion as to "various scenarios that were possible."
Although Dr. Bux agreed with Dr. McClain's conclusion that B.P.'s injuries were "recent," he thought she should have done more to define "recent." For example, she should have looked at thin pieces of tissue under a microscope to determine the time of the skull fracture and the age of certain bruises on B.P.'s face. He disagreed with Dr. McClain's testimony that such testing is rare. Regardless, he admitted that even with such testing one could not determine within minutes of when an injury occurred.
Dr. Bux did not believe the neck marks indicated someone choked B.P. because of the inconsistency of statements between witnesses. The lack of any other physical injuries indicating a struggle such as abrasions on the back of B.P.'s elbows or shoulders further supported his opinion she was not choked. He further explained the petechiae on her eyelids were not from strangulation because "what you typically see" when someone is strangled is petechiae on the eyelids and the eyeballs. B.P. did not have petechiae inside her eyes.
In an attempt to refute the State's theory that B.P.'s death was not caused by second impact syndrome, Dr. Bux testified "plenty of literature [] doesn't support" Dr. Cox's opinion. The defense asked Dr. Bux the following:
Q. Based upon your review of all the evidence and your review of the scientific articles is there a scientific, medical probability that the injury to [B.P.] occurred some other time than 4:00 to 4:30 p.m. on Wednesday, November 28, 2012?
A. Sure.
Q. How far back could it have been?
A. I don't know because I don't have any microscopic slides . . . .
When asked if B.P. could have been injured that morning while the babysitters slept and then gone to lunch later, he agreed this was a possible scenario. "They're all likely. I can't put one more likely than another because it would just be a guess. I mean we've got several possible ways and that's as good as I could do it based on the science."
On cross-examination, Dr. Bux admitted he agreed with Dr. McClain's conclusions regarding B.P.'s injuries and that such injuries were consistent with blunt force trauma. His problem was that the evidence did not indicate when the injuries occurred.
Despite knowing about the three other injuries prior to her death, Dr. Bux excluded B.P. falling off the bed as a significant event responsible for any injury because a fall less than two feet would not cause a serious injury. As for K.P. pushing her off the bed, he agreed it was unlikely the fall caused an occipital fracture, "but you need to check with the biomechanical guy."
The defense then presented the testimony of Van Ee, a biomedical engineer specializing in biomechanics. He referenced the Gergen study from 1953 in which Dr. Gergen, a leading pioneer in biomechanics, studied the location of skull fractures when adult cadaver heads were dropped. Gergen's study showed that four percent of fractures occurred at the impact site, meaning most skull fractures occurred a little ways from the impact. He performed nine drops from heights between forty and sixty-six inches. Gergen found the type of fracture differed as heights changed. Van Ee further expounded, "[T]here's a lot of variation between people and exactly how their bones are going to fracture." Ultimately, he agreed the Gergen study could not explain B.P.'s occipital fracture. He also discussed other studies from Ibrahim in 2012 and Hall in 1989; however, again, none of these studies involved children suffering an occipital skull fracture from a fall.
Within the studies, authors warn, "It is important to realize that human cadaver experiments are an approximation of reality. Their data should be interpreted carefully in connection with results from animal and finite element experiments."
In the Ibrahim study, approximately twenty percent of children suffered brain injuries or skull fractures from falling less than three feet. However, the study also found the risk of skull fractures from low-level height falls is likely lower in toddlers compared to infants because of skull thickness. "Toddlers compared to infants are less likely to suffer skull fractures under the same condition." In the Hall study, young children suffered injuries from a fall of three feet or less; however, of the five who suffered skull fractures, none of them were of the occipital bone.
Van Ee explained children's skull fractures have not been studied to the same extent as adult skulls. In fact, other than two studies on infant skulls, he could only think of "one or two on three years olds, that's all we have in the entire basis of science-scientific literature." He testified that because of the lack of scientific studies, "We need to be careful about how much we say about what's happening with a three-year-old skull." What the literature reveals is that adults can suffer skull fractures from a forty-inch fall "and we know that the child's skull is thinner and bigger and more prone to injury than an adult."
Van Ee agreed B.P.'s fall from the bed onto the toy van did not cause the occipital fracture. When asked about K.P. pushing her off the bed, he opined that if B.P. was standing on the bed then the possible full height off the fall (including her height and the bed) could be about sixty-four inches, a height similar to that found in the Gergen study to cause a skull fracture in an adult. However, he recognized B.P. had a bruise on her forehead after that fall. Van Ee explained that if the primary impact of the fall occurred in the front of her head, then he would not expect an occipital fracture. However, it was possible that she hit the back of her head, causing the fracture, and then bounced and hit her forehead on another object. Thus, he said it was scientifically possible the force generated from a fall off the bed could have caused the occipital fracture if "the primary impact is in the back of the head from this kind of height."
To support the defense theory that K.P. jumping on B.P. could have caused her fracture, Van Ee discussed a 1996 study (AGARD) that looked at what type of fractures result when the adult head is against something and force comes down against it. The study revealed that when the head is still and a larger object impacts the top of the head and it becomes entrapped between two things, mass can build up, push down towards the spine, and the localized force can "throw out" the occipital bone. He admitted the energy to break a child's skull is less than an adult, but he did not know how much less. Further, he acknowledged "it's obviously going to depend on exactly how the child hits and how much of that fall energy is actually transferred into the head to result in that fracture."
Considering the evidence in the light most favorable to the verdict, we conclude the factfinder reached a rational decision. Jackson, 443 U.S. at 316; Isassi, 330 S.W.3d at 638. The jury heard extensive scientific evidence regarding the likely cause of B.P.'s death. We disagree with appellant's contention that the "real issue here is not which experts are believable," but how an appellate court treats scientific evidence that is "clearly in a state of uncertainty." While the defense presented studies contradicting the State's position, the evidence did not "clearly" show a state of uncertainty in the scientific community. In fact, the studies relied on by appellant did not involve falls causing occipital skull fractures and the extensive injuries presented here. Rather, the majority medical view is that short falls do not cause occipital skull fractures resulting in deadly brain injuries.
Dr. Cox and Dr. Creme repeatedly testified that based on their medical experience, the severity of B.P.'s injuries would render her unconscious almost immediately, meaning the deadly impact happened within minutes of appellant calling 911. Dr. McClain also testified that because the fracture was near the brain stem, which controls breathing and heart rate, B.P. would have immediate symptoms and not experience a lucid interval. Dr. McClain explained B.P. would not be walking, talking, and eating prior to such an injury. Thus, it was reasonable for the jury to determine B.P. did not suffer from second impact syndrome or experience any lucid interval from her prior falls, but instead, appellant intentionally inflicted her injuries.
To the extent the defense presented the scientific possibility that K.P. caused B.P.'s injuries by jumping on her, such studies were conducted mostly on adult cadaver heads, which Dr. Cox said do not account for human protective reflexes, in which a child tries to stop a fall and usually fractures extremities. Moreover, Van Ee acknowledged he did not simulate any tests in which he dropped one dummy on top of another dummy in an attempt to recreate what could have happened when K.P. jumped on B.P.—too many unknown variables existed such as whether B.P. was on the floor or the bed, B.P.'s body position, and how high K.P. was when she jumped on her. Although Van Ee thought it was "possible" K.P. caused the fracture, he agreed it was "very rare" for a child to receive such serious injuries resulting in death. Further, Dr. Cox testified that regardless of what a biomedical engineer said could happen, clinical experience is more important than mathematical models. Accordingly, given Van Ee's uncertainty in how K.P. could have caused the skull fracture because of too many unknown variables, the jury could rationally conclude scientific evidence did not support this defensive theory.
Further, the jury heard conflicting evidence from K.P. about when she jumped on B.P.'s head. In her forensic interview, it is clear she did not have a concept of time. She said they did not go anywhere on November 28, which was untrue, and she said B.P. "got sick tomorrow." She also said she jumped on B.P. on a different day, but later said she hurt B.P. that day.
She said after she jumped on B.P., B.P. made her top lip bleed, but appellant cleaned it and "now it's better." She said appellant did not have to clean up B.P. because "she didn't bleed." Appellant never mentioned this incident to any medical staff or an officer during any of his interviews. Moreover, although gauze was found in Perry's bedroom during a subsequent search of the duplex, they were not bloodied. Medical staff did not see any injuries to K.P.'s lip when she was examined on November 28. Thus, based on K.P.'s description of her own injuries from the incident, a jury could reasonably infer it did not occur within days of November 28, thereby causing B.P.'s death.
Appellant relies on Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) to argue that the court of criminal appeals has determined as a matter of law that short falls can result in fatal injuries and testimony stating otherwise is, according to appellant, "scientifically flawed and no longer enjoys acceptance in today's scientific community." Thus, he claims to the extent the State's witnesses claimed B.P.'s head injuries were not caused by a short fall, the position has been rejected by the court of criminal appeals. We disagree for several reasons.
First, Henderson went before the court as a subsequent application for writ of habeas corpus from a 1995 capital murder case in which Henderson relied on new developments in biomechanics years after her conviction that undercut the medical examiner's original testimony that an infant "came to his death as a result of a severe closed head injury . . . characteristic of abuse, homicide." Id. at 837 (Cochran, J., concurring). During the original trial, the medical examiner testified it was "impossible" for the infant's extensive brain injuries to have occurred from accidentally dropping him onto a linoleum-covered concrete floor and that Henderson's story was "false" and "incredible." Id. at 838. Years later, the medical examiner acknowledged the medical profession had gained a greater understanding of pediatric head trauma and the extent of injuries that can occur as a result of relatively short distance falls. Id. at 839. He said he could no longer use words like "impossible" or "incredible" to describe Henderson's version of events. Id. He believed that there was no way to determine "with a reasonable degree of medical certainty" whether the infant's injuries resulted from an intentional act of abuse or an accidental fall. Id. at 834. In light of the new evidence, the court of criminal appeals determined Henderson was entitled to a new trial for the jury to consider the evolved scientific evidence. Id.
Unlike Henderson, the State's experts here did not testify in absolute terms that B.P.'s injury could not have occurred from short fall injuries. Rather, they acknowledged the studies, but said they were in the minority view and based on their experience, training, and the unlikelihood of the pattern of her injuries occurring from a short fall, they determined what made the "most sense" was an intentional act by appellant caused B.P.'s death. Further, the jury was presented with a complete picture of the current state of the scientific evidence regarding short fall injuries, the potential of lucid intervals, and second impact syndrome. Appellant has neither challenged the validity of these studies nor has any State witness recanted their expert opinion because of a change in current science. As such, the jury as factfinder was free to resolve any conflicts in the evidence and did so in favor of the State.
Further, we cannot agree with appellant's argument that the difference in expert opinions makes it impossible to conclude beyond a reasonable doubt that the injuries occurred as the State alleged. "Rarely is a case wholly dependent on science alone." See Ex parte Henderson, 383 S.W.3d at 861 (Hervey, J., dissenting).
Here, in addition to the scientific evidence, the jury heard other circumstantial evidence supporting appellant's guilt. Villanueva testified B.P. was scared of appellant. Despite testimony that the sisters constantly fought, photographs from Perry's and appellant's cell phones indicated B.P. did not have any visible injuries prior to November 26, 2012. Appellant gave several different versions of what happened before he called 911, which the jury could infer was evidence of his consciousness of guilt. Couchman v. State, 3 S.W.3d 155, 163-64 (Tex. App.—Fort Worth 1999, pet. ref'd).
The jury could rationally conclude that appellant lied about turning on a movie and not seeing the girls again until he heard "gurgling" from Perry's room. Detective Nordhoff conducted an experiment with a fellow officer in which the other officer stood in B.P.'s room and made a loud gurgling noise with the television off to see if Detective Nordhoff could hear the noise in Perry's room. He could not. K.P. said in her forensic interview that B.P. was in Perry's room crying. Then she was "snoring" in their room. The jury could rationally conclude B.P.'s fatal injuries occurred while she was alone with appellant in Perry's room and then he took her back to her bedroom and laid her on the bed.
Lastly, past medical records indicated Perry had taken B.P. to Children's Medical Center several times in the previous years for ear infections and other viruses. In one instance, B.P. suffered from similar symptoms as those she allegedly experienced on November 28 (cough, congestion, fever), but Perry did not take her to the hospital. The jury could infer B.P. was not acting as if she felt badly enough for Perry to seek medical attention prior to leaving for work shortly before 4 p.m., which again supports the repeated testimony that B.P.'s injuries happened shortly before appellant called 911.
In assessing the sufficiency of the evidence, we have a duty to "ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged." Winfrey, 323 S.W.3d at 882. The legal sufficiency standard of review does not require us to decide "what happened," rather, we only have to be satisfied that a jury could rationally answer that question for themselves beyond a reasonable doubt. See Walker v. State, PD-1429-14, 2016 WL 6092523, at *14 (Tex. Crim. App. 2016) (not designated for publication). Although the jury relied on circumstantial evidence as well as the State's expert and scientific testimony, "[t]his was not a determination so outrageous that no rational trier of fact could agree." Wirth v. State, 361 S.W.3d 694, 698 (Tex. Crim. App. 2012). Thus, we are satisfied a jury could rationally answer "what happened" to B.P. beyond a reasonable doubt. Accordingly, the evidence is legally sufficient to support appellant's murder conviction. We overrule his first issue.
The court of criminal appeals issued Walker shortly before appellant filed his reply brief. In his reply, appellant argues the case "significantly altered the landscape for reviewing the evidentiary standard of child injury and child death cases." However, Walker has since been designated as an unpublished opinion. Pursuant to Texas Rule of Appellate Procedure 77.3, "unpublished opinions have no precedential value and must not be cited as authority by counsel or by a court." TEX. R. APP. P. 77.3. Regardless, Walker is distinguishable for several reasons. Unlike this case, the State experts in Walker were unable to say whether injuries were intentional or accidental. Instead, the primary evidence relied on by the State was expert testimony that only suggested how the child received burns from a scalding bathtub. 2016 WL 6092523, at *12 (considering the uncertainty as to both the nature of the injury—accidental or intentional—and the mechanism of the injury, expert testimony was too speculative to support conviction). Further, Dr. Cox testified in Walker and provided an opinion about injuries based on an assumption about water temperature that was inconsistent with the undisputed facts of the case—specifically, that the undisputed maximum temperature of the water from the faucet could not have been hot enough to cause "wave" or "splash" burns. Id. at *14. Dr. Cox's opinion here was not based on some crucial, undisputed fact that would render his opinion nothing more than speculation. Accordingly, we disagree with appellant that Walker demands a reversal of his conviction.
Admission and Qualification of Expert Testimony
In his second issue, appellant argues the trial court abused its discretion by allowing Dr. Creme to testify as to how much force is necessary to cause an occipital skull fracture because he was unqualified to provide the opinion. The State responds appellant's issue is waived.
The State asked Dr. Creme "What kind of force is required to create a fracture as seen in B.P.?" Appellant objected because Dr. Creme was not qualified as a bioengineer. Outside the presence of the jury, the State argued,
I am not trying to get him to quantify in a way of pounds per whatever. I think he already testified that it is a thick bone and it is great force and I will ask him if it is a lot of force or a little force and what type of head injuries involving the occipital bone has he treated in the past.Appellant responded, "If he says it will just be a lot that is okay."
When the jury returned, the State asked, " . . . with regard to the occipital bone that we have been talking about in the back of the head with regard to the force used to fracture that bone is it a lot or a little?" He answered, "A lot." Thus, Dr. Creme provided the answer that defense counsel agreed would be "okay." Moreover, later in the trial, Dr. Cox testified without objection that "it would be a lot of force, high impact type force to cause a fracture of this type."
Absent a running objection, counsel is required to object to inadmissible testimony each time the evidence is offered. Lane v. State, 151 S.W.3d 188, 192-93 (Tex. Crim. App. 2004). Because the same evidence came in without an objection, this issue is not preserved for review. Id. ("An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection."). Appellant's second issue is overruled.
In his third issue, appellant further argues the trial court abused its discretion by allowing Dr. Creme to provide an example from another case in which a patient suffered a skull fracture. He objected the evidence was more prejudicial than probative and the example had no relevance to the force used in this case. The trial court overruled the objection, and Dr. Creme described a ten-year-old boy who took a full swing with a metal baseball bat and hit his little sister "square in the back of the head," while she was standing behind him. He treated the girl for an occipital fracture.
Under rule 44.2(b), we disregard any error that does not affect appellant's substantial rights. TEX. R. APP. P. 44.2(b). A substantial right is affected when the error has a substantial or injurious effect or influence in determining the jury's verdict. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). In assessing the likelihood that the jury's decision was adversely affected by the error, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. Id. The reviewing court may also consider the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire and whether the State emphasized the error. Id. at 518-19.
Assuming the trial court erred by admitting this testimony, after examining the record, we have fair assurance, the error, if any, did not have a "substantial or injurious effect or influence the jury's verdict." Id. We do not agree with appellant that such evidence suggested "the jury consider that to be similar to how [B.P.] received her skull fracture." Although medical testimony emphasized B.P. died from blunt force trauma to the head, neither the State nor the defense indicated her injuries were caused by a baseball bat. In fact, officers admitted they did not find any object in their subsequent search that could have been a murder weapon. Rather, the State's theory was that appellant hurt B.P. in Perry's room by putting his hands around her neck and slamming her head against the floor. Further, the baseball bat example was only briefly discussed by Dr. Creme during the multi-week trial and not emphasized by the State. Accordingly, error if any, was harmless. We overrule appellant's third issue.
Rule 404 Evidence
In his final issue, appellant argues the trial court erred by excluding testimony of his peaceful and loving nature with children. The State responds the trial court did not abuse its discretion because Texas Rule of Evidence 405 excludes specific instances of conduct.
A trial court's decision on the admissibility of evidence is reviewed under an abuse of discretion standard and will not be reversed if it is within the zone of reasonable disagreement. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).
Texas Rule of Evidence 404(a)(2) allows a defendant to offer evidence of the defendant's pertinent trait. TEX. R. EVID. 404(a)(2). Appellant argues he attempted to offer evidence through the testimony of his sister, Heide Neely, of his peaceful and nonviolent nature around children, which was a pertinent trait relevant to show the unlikelihood he lost his temper and killed B.P.
In a hearing outside the presence of the jury, Neely described appellant's interactions with her children as "Just natural with them. Playing. Interacting. Helping with them." He was never violent and never lost his temper with them. Her children never expressed fear or acted scared around him.
The State objected to appellant trying to prove character through specific instances as prohibited by rules of evidence 404(a)(1)(A) and 405. The trial court sustained the State's objection to Neely testifying to specific instances of conduct showing appellant's non-violent nature, but agreed to allow testimony as to his reputation for non-violence.
Before the jury, appellant asked Neely if she had an opinion as to whether he was peaceful or violent, and she answered, "He's very peaceful. The opposite of violent." The jury also heard the testimony of several former co-workers who testified to his non-violent nature.
Despite the jury hearing evidence of his reputation for non-violence, appellant argues this testimony was not the same as being able to discuss specifically his non-violent nature with children and "certainly, if the jury had known these facts, they would have understood that he was not violent with B.P. as claimed by the prosecution." We cannot agree with appellant. Neely testified her family was close with appellant and although they lived out of state, they visited and spent two weeks at a time. She testified she brought her children on these trips. Thus, the jury heard testimony that Neely thought appellant was peaceful and not violent and that her children spent time around him when they visited. The trial court properly applied both rules 404 and 405 by allowing opinion testimony of his non-violent nature, but prohibiting specific instances of his conduct while in the presence of Neely's children. Appellant's fourth issue is overruled.
Conclusion
The judgment of the trial court is affirmed.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47
151360F.U05
JUDGMENT
On Appeal from the 15th Judicial District Court, Grayson County, Texas
Trial Court Cause No. 063963.
Opinion delivered by Justice Bridges. Justices Myers and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered August 16, 2017.