Opinion
No. 05-14-00999-CR
03-15-2016
JACKY SCOTT GARRETT, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court Collin County, Texas
Trial Court Cause No. 366-81797-2012
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Evans
Appellant Jacky Scott Garrett appeals his conviction for capital murder and asserts two issues: (1) the trial court erred in charging the jury on manner and means unsupported by evidence; and (2) the trial court abused its discretion in finding that appellant's counsel opened the door to certain evidence. We affirm the trial court's judgment.
I. BACKGROUND
In the fall of 2010, appellant and his wife began attending St. Philip's Episcopal Church in Frisco. By private adoption through their church in the spring of 2011, appellant and his wife adopted twin fifteen-month old children, L.G. and O.G. The twins had been surrendered by their mother to an associate pastor at the church. The adoption was finalized on September 30, 2011.
On October 11, 2011, the twin's babysitter picked up the children from their home. She took the twins to her home, fed them, and then took them to the church nursery while she attended morning bible study. The babysitter then took them back to her home, fed them lunch, and put them down for naps. The babysitter took the twins back to their home around 5:15 or 5:30 pm. L.G. was smiling and laughing.
Around 6 pm on October 11, 2011, appellant arrived at his neighbor's home with L.G. in his arms asking for help. The neighbor was a doctor. Appellant told the neighbor that he had been "roughhousing" and "playing around" with L.G. The neighbor testified that L.G. was conscious and breathing but moaning, rolling his eyes, and "just wasn't seeming very responsive." She asked appellant to call 911 and L.G. was transported to Children's Medical Center in Plano. L.G. was not breathing by the time he arrived at the hospital. When Dr. Khoshnid Ahmad attempted to intubate L.G., he found blood-tinged milk that had to be suctioned out of the back of L.G.'s throat. The presence of streaks of blood in the milk caused Dr. Ahmad to suspect internal bleeding. The medical team was unable to revive L.G. and he died.
During L.G.'s autopsy, Dr. William Rohr found a red contusion on L.G.'s abdomen near his navel and bruising around his buttocks and perineum. Dr. Rohr also found an intra-abdominal hemorrhage, a tear in the serosa and peritoneum, contusions on the small intestine, and torn blood vessels. Dr. Rohr concluded that L.G. died from blunt force injury to the abdomen. Later at trial, Dr. Rohr testified that injuries like those found in L.G.'s belly were often caused by car accidents or falls from a great height, not as a result of horseplay or wrestling. Dr. Rohr noted that in addition to the internal injuries to the belly, the red mark on the outside of his belly was significant because it gave him an idea of the point of impact to the belly. Dr. Rohr testified that stomping, kicking or punching "could very easily result in [L.G.'s] type of injury and would be perfectly consistent with it."
The grand jury indicted appellant for the offense of capital murder on August 2, 2012, and the indictment was amended on June 24, 2014. The amended indictment alleged that appellant:
did then and there intentionally or knowingly cause the death of an individual, namely, [L.G.], by stomping, kicking, punching, hitting, or striking [L.G.] in the abdomen, or by blunt force to the abdomen in a manner unknown to the Grand Jury, and the said [L.G.] was then and there an individual younger than ten (10) years of age.Appellant's trial commenced on July 2, 2014, and appellant entered a plea of not guilty.
Dr. Matthew Cox, Associate Professor of Pediatrics at the University of Texas Southwestern Medical School, testified at trial that he sees children as part of a clinical program when there are concerns of possible abuse. Dr. Cox reviewed the autopsy reports, the records of L.G.'s pediatricians and doctor, and the investigative records in this case. Dr. Cox testified that the trauma to L.G.'s belly caused a significant hemorrhage in his abdominal cavity as well as injury to his bowels and other tissues in the abdominal cavity. Dr. Cox testified L.G.'s death was caused by severe blunt force such as punching or kicking.
Following trial, the jury convicted appellant of capital murder and appellant was sentenced to life imprisonment without parole.
II. ANALYSIS
A. The Trial Court Did Not Err in Charging the Jury on Manner and Means
Appellant contends that the trial court erred by charging the jury on a theory of the murder that was not supported by the evidence. We disagree.
1. Standard of review
When we review claims of jury charge errors, we first decide whether there was error in the charge. Ferguson v. State, 335 S.W.3d 676, 684 (Tex. App.—Houston [14th Dist.] 2011, no pet.). If there was error and appellant objected to the error at trial, then only "some harm" is necessary to reverse the trial court's judgment. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
As appellant objected to the jury charge by arguing that "there has been insufficient proof to support submission of manner and means of stomping, kicking, punching, hitting or striking in the abdomen," any harm analysis in this case would be subject to a "some harm" standard. --------
2. Jury charge
In the application section, the jury charge provided in part:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 11th day of October, 2011, in Collin County, Texas, the defendant, JACKY SCOTT GARRETT AKA SCOTT J. GARRETT, did then and there intentionally or knowingly cause the death of an individual, namely, [L.G.], by stomping, kicking, punching, hitting or striking [L.G.] in the abdomen, or by blunt force to the abdomen in a manner unknown to the Grand Jury, and the said [L.G.] was then and there an individual younger than ten (10) years of age, then you will find the defendant guilty of the offense of Capital Murder as charged in the indictment.
2. Analysis
Appellant argued that the evidence presented at trial did not support the certain manner and means—stomping, kicking, punching, hitting or striking L.G. in the abdomen—of death as presented in the application paragraph of the jury charge. As stated above, we first decide whether there was error in the charge. Ferguson, 335 S.W.3d at 684.
It is proper to charge only on the means which is supported by the evidence. Ashby v. State, 646 S.W.2d 641, 644 (Tex. App.—Fort Worth 1983, pet. ref'd). As stated above, Dr. Ahmad suspected L.G. had internal bleeding upon his arrival at the hospital. During L.G.'s autopsy, Dr. Rohr found a red contusion on L.G.'s abdomen as well as an intra-abdominal hemorrhage, a tear in the serosa and peritoneum, contusions on the small intestine, and torn blood vessels. Dr. Rohr concluded that L.G. died from blunt force injury to the abdomen and that the red mark on the outside of L.G.'s belly was significant because it gave him an idea of the point of impact. Dr. Rohr further testified that stomping, kicking or punching "could very easily result in [L.G.'s] type of injury and would be perfectly consistent with it." Finally, Dr. Cox testified that the abdominal trauma to L.G.'s belly caused a significant hemorrhage in his abdominal cavity as well as injury to his bowels and other kind of tissues in the abdominal cavity. Dr. Cox further testified that the significant trauma which caused L.G.'s death was the result of a severe blunt force such as punching or kicking. As the evidence supports L.G.'s cause of death "by stomping, kicking, punching, hitting, or striking [L.G.] in the abdomen," we conclude that there was not error in the jury charge and we overrule appellant's first issue.
B. The Trial Court Did Not Abuse Its Discretion in Finding that Appellant's Counsel Opened the Door to Evidence
Appellant contends that the trial court erred by admitting evidence that L.G.'s sister suffered injuries similar to injuries found on his body. We disagree.
1. Standard of review
The standard of review of a trial judge's decision on the admissibility of evidence is abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (admissibility of evidence). Under the applicable standard, the court of appeals does not substitute its judgment for that of the trial court, but simply determines whether the trial court's analysis was arbitrary or unreasonable. Ford v. State, 129 S.W.3d 541, 547 (Tex. App.—Dallas 2003, pet. ref'd).
2. Additional facts
On April 29, 2014. appellant filed a motion in limine seeking to prevent the State from exhibiting any evidence that appellant's wife fell down the stairs while holding O.G. On May 20, 2014, appellant filed a motion to suppress this same evidence as well as evidence that O.G. suffered injuries such as a fracture of her foot and hair loss. At the hearing on June 6, 2014, appellant's counsel argued as follows:
There's going to be some evidence, we think, presented in this case to the effect that the decedent['s] twin sister was also injured in the period of time leading up to the death of the decedent. It's going to be our position that no evidence of that injury to the sister should be allowed as evidence in this case since it is -- any probative value it has is outweighed by its prejudicial effect and because the evidence will not demonstrate at whose hand the sister was injured.The State replied that it would agree to a motion in limine with regard to O.G.'s injuries but noted that "at some point though that they probably will be relevant under 404(b)." The trial court concluded as follows:
Mr. Haynes, I do believe that it's probably more appropriate on your first point with regard to the twin sister of the decedent for a Motion in Limine. Because I'm afraid at this point if I were to suppress it, there may be some reason why that door is opened or is otherwise relevant or otherwise accepted by Rule 404(b) that the Court would allow it. And by suppressing it out, I'm sending the wrong that's not -- that's not what the Court should be doing at this point.
***
Then if that's the case and I'm more to the other camp, which is Motion in Limine is appropriate, so long as we don't get it in front of the jury prior to having a hearing on the matter, then I think we've covered our bases. And so with that, I would rather not have a Motion to Suppress hearing, or, I guess, to preserve your record, your Motion to Suppress is denied. The Court, in lieu of that, is going to grant a Motion in Limine that any and all evidence regarding any abuse or alleged abuse that may have occurred to the decedent's twin sister will be precluded until the Court has a hearing outside the presence of the jury to determine whether or not that's relevant or some other purpose than the defendant's guilt.
At trial, Dr. Cox testified that twins are often targeted more for child abuse than children who are not a twin because it is "felt that it is kind of twice the work." During cross-examination, appellant's counsel questioned Dr. Cox at length in an attempt to discredit his conclusion that households with twin siblings can have an increased risk for child abuse. The following exchange then took place:
Appellant's counsel: Okay. So as far as you know, Mr. and Mrs. Garrett didn't have any problems with their twins?Following this exchange, the State requested to approach the bench. Outside the presence of the jury, the State made the following argument about the last question presented to Dr. Cox:
Dr. Cox: Well, I know there was a problem in [L.G.] because he has abusive injuries.
My point, Your Honor, is that at this point, the jury has a false impression because as far as he knows, there was a problem with the twins because he did examine [O.G.], and he knows about the hair that's fallen out of [O.G.] and he knows that her foot was broken. And we also know that [O.G.] had black eyes.The trial court then noted as follows:
So I think at this point, based on Mr. Schultz's questioning, the jury has the false impression that there wasn't a problem with the twins, and I think it was that last question that did it. And the reason I asked to approach is because I was -- I didn't want Dr. Cox to get into trouble by answering that question because the truthful answer to the question that was just asked him is yes, he does know of a problem with both twins.
And so I think the door has been opened and I think to not allow him to answer the defense question fully will leave a false impression in the jury's mind.
I saw it coming. I saw -- I knew it was coming. Here we go down with the twins, and it kept going and it kept going and it kept going; and then specifically, with regard to Mr. and Mrs. Garrett didn't have any problems with their twins. And I think it was creating a false impression in the jurors' minds that Logan is the only one and this guy is full of B.S. because he thinks it happens to twins. No offense to you, Dr. Cox.Appellant's counsel then requested to withdraw his entire cross-examination of Dr. Cox. After a short recess, the trial court returned and stated as follows:
The Court has analyzed the cross examination by the Defense of Dr. Cox. The Court notes that the -- because of the cross examination, I think the credibility of Dr. Cox and his opinions with regard to abuse that occurs in households with twins and generally, and more specifically, the last question that was asked, although I don't want the record to indicate that I am considering it on only one question, the totality of the cross examination, regarding the last question, regarding Mr. and Mrs. Garrett having issues or child abuse issues with their twins has opened the door to allow the State to now get into evidence concerning [O.G.]. So the Court's previous instructions to this witness and others with regard to [O.G.] have been lifted and we can proceed in that fashion.During re-direct examination, Dr. Cox then went on to describe O.G.'s injuries to the jury including hair loss, a fracture in the foot, unexplained weight loss, black eyes, and genital bruising. The State also introduced evidence of O.G.'s injuries from the former children's minister at the church and the nursery director at the church.
3. Analysis
Otherwise inadmissible evidence may be admitted if the party against whom the evidence is offered "opens the door" to the evidence. See Schutz v. State, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997). The party offering the evidence may not "stray beyond the scope of the invitation." Id. Here, appellant's counsel repeatedly questioned Dr. Cox's assertion that households with twin siblings have an increased risk for child abuse in an attempt to discredit him. Then counsel specifically asked if Dr. Cox knew whether Mr. and Mrs. Garrett had any problems with their twins. The court concluded that counsel had opened the door to the evidence regarding O.G.'s injuries. We agree. To have held otherwise would have created a false impression in the jurors' minds that L.G. was the only one abused and discredited Dr. Cox's conclusions regarding child abuse. See Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009) ("A party opens the door by leaving a false impression with the jury that invites the other side to respond."). Based on this set of facts, we cannot conclude that the trial court abused its discretion in admitting the evidence and we overrule appellant's second issue.
III. CONCLUSION
We resolve appellant's issues against him and affirm the trial court's judgment.
/David Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
140999F.U05
JUDGMENT
On Appeal from the 366th Judicial District Court, Collin County, Texas
Trial Court Cause No. 366-81797-2012.
Opinion delivered by Justice Evans. Justices Francis and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 15th day of March, 2016.