Summary
concluding the trial court did not err when it allowed a CPS investigator to testify that she had talked to appellant on the telephone to set up an appointment to discuss the abuse allegations and appellant made various excuses for not meeting
Summary of this case from Garza v. StateOpinion
No. 11-03-00092-CR
June 16, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Brown County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
OPINION
The jury convicted J.B. Harrell, Jr. of the offense of injury to a child. The trial court found the enhancement allegation to be true and assessed appellant's punishment at confinement for life. We affirm.
Issues Presented
Appellant presents six issues for review. In the first and second issues, he challenges the legal and factual sufficiency of the evidence supporting his guilt. In the third issue, appellant argues that the trial court erred in admitting evidence of appellant's silence when confronted by an investigator for Child Protective Services. In the fourth issue, appellant contends that the trial court erred by allowing the CPS investigator to testify regarding her opinion that child abuse had occurred. In the fifth issue, appellant complains of the admission of an extraneous offense. In his final issue, appellant contends that the prosecutor impermissibly commented on appellant's failure to testify at trial.Sufficiency of the Evidence
In his first and second issues, appellant asserts that the evidence is legally and factually insufficient to support his conviction because the evidence was circumstantial and allowed for the possibility of the injury being accidental or being caused by another person. In order to determine if the evidence is legally sufficient, we must review 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App. 2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App. 2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App. 2002); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App. 1996). Contrary to appellant's assertion, the evidence — even though circumstantial — is not insufficient merely because there were other reasonable hypotheses for the injury. Sonnier v. State, 913 S.W.2d 511, 516 (Tex.Cr.App. 1995); Geesa v. State, 820 S.W.2d 154, 155-161 (Tex.Cr.App. 1991), overruled in part on other grounds by Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000). The record in this case shows that appellant was alone with the 22-month-old victim when the injuries occurred. Appellant called 9-1-1. When the paramedics arrived, the victim was lying in a "spread-eagle position" on her back on a mattress. The victim was breathing and had a pulse, but was unresponsive. The victim had a fresh bruise on her left jaw. Additional red marks and bruising appeared on the victim's neck, chin, and forehead. During the ambulance ride, the victim's breathing diminished, and her condition deteriorated. Upon arrival at the emergency room, the victim was unconscious. The victim was diagnosed with the following: a skull fracture to the back of her head from some sort of blunt force trauma; swelling of the brain; and retinal hemorrhages that were consistent with "shaken baby syndrome." The victim's doctors determined that the multiple systemic injuries suffered by the victim were the result of child abuse, were not accidental, and were not consistent with appellant's story. The victim's mother, Rebecca Wheeler, was engaged to appellant. Wheeler was at work when appellant called her and told her that he had called 9-1-1 because the victim was unconscious. Wheeler testified about the victim's lengthy hospital stay and her condition. While at the hospital, Wheeler was told that there was no hope for the victim, but the victim survived upon being taken off of life support. At the time of trial, the victim could not walk, talk, or sit. She had had seizures and would continue to do so for the rest of her life. The victim had undergone brain surgeries, had had several strokes, and had no use of her left hand. She was in a wheelchair and had leg braces. The victim would continue to undergo therapy and receive medication every day. The record shows that appellant was alone with the victim when the injuries occurred. Wheeler was at work. Appellant's brother and Kimberly Lynn Kemmitz, Wheeler's friend, had spent the night at the apartment but had left with appellant's mother approximately 30 minutes to an hour prior to the arrival of the ambulance. Appellant's mother drove over to the apartment to pick up appellant's brother and Kemmitz. Appellant took the victim out to the car to visit with his mother. The victim talked to appellant's mother. Appellant and the victim went back into the apartment, and the others left. Both Kemmitz and appellant's brother testified that the victim was fine when they left. Appellant told various people that he heard a loud thump in the kitchen, that he found the victim lying in the floor, and that he picked her up off the floor and took her into the living room. He was unable to wake her and called 9-1-1. Appellant told Wheeler a slightly different story. He told her that the victim was in the kitchen and must have fallen because she came out of the kitchen rubbing her head, then grabbed her cup, and went to lie down on the mattress. The paramedic found nothing in the kitchen to support appellant's story. After reviewing all of the evidence using the appropriate standards, we hold that the evidence is both legally and factually sufficient to support the jury's verdict. Appellant's first and second issues are overruled.Admission of Evidence
In his next three issues, appellant complains of errors related to the admission of evidence. A trial court has broad discretion in ruling on the admissibility of evidence. Salazar v. State, 38 S.W.3d 141, 151 (Tex.Cr.App.), cert. den'd, 534 U.S. 855 (2001); Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Cr.App. 2000); Prystash v. State, 3 S.W.3d 522, 527 (Tex.Cr.App. 1999), cert. den'd, 529 U.S. 1102 (2000). As such, we will not disturb the trial court's ruling as long as it was within the zone of reasonable disagreement. Salazar v. State, supra; Weatherred v. State, supra; Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App. 1991). Appellant asserts in his third issue that evidence regarding his silence when confronted by a CPS investigator constituted an impermissible comment on his constitutional right to remain silent. We disagree. The evidence did not show that appellant invoked his right to remain silent. The CPS investigator, Sharon Owens, testified that she talked to appellant on the phone and tried to set up an appointment with appellant to discuss the allegations in this case. Appellant inquired as to whether he had been charged in this case and then made various excuses for not coming in to meet with Owens. According to Owens, appellant seemed very agitated, frustrated, or nervous. Any statement made by appellant to Owens was admissible. See Cantu v. State, 817 S.W.2d 74 (Tex.Cr.App. 1991); Wicker v. State, 740 S.W.2d 779 (Tex.Cr.App. 1987), cert. den'd, 485 U.S. 938 (1988). Furthermore, appellant was not in custody or under arrest at the time of his conversation or lack thereof with Owens. Prearrest silence is a constitutionally permissible area of inquiry. Waldo v. State, 746 S.W.2d 750, 755 (Tex.Cr.App. 1988); Rosas v. State, 76 S.W.3d 771, 776 (Tex.App.-Houston [1st Dist.] 2002, no pet'n). The third issue is overruled. In his fourth issue, appellant argues that the trial court erred in permitting Owens to express her opinion that child abuse had occurred in this case. The record shows that Owen was allowed to testify over objection that her "finding in this case was reason to believe for child abuse." The trial court did not abuse its discretion in allowing such testimony. See TEX.R.EVID. 701-704; Ex parte Nailor, 149 S.W.3d 125, 134-35 (Tex.Cr.App. 2004); Johnson v. State, 970 S.W.2d 716, 720-21 (Tex.App.-Beaumont 1998, no pet'n). Appellant's fourth issue is overruled. In his fifth issue, appellant contends that the trial court erred in permitting the State to introduce evidence that appellant had previously committed an extraneous offense against another young child. The record shows that the State offered evidence showing that appellant had been left alone with the young children of Lisa Parks, a previous girlfriend of appellant. When Parks returned, her daughters were in bed crying. The next morning, Parks noticed marks that "looked like handprints, bruised handprints" on both sides of her two-year-old daughter's face. The child's doctor agreed that the marks and bruising were consistent with slapping and appeared to be the result of child abuse. However, the investigating officer thought that the marks could possibly have been a rash or scratches. To be admissible, evidence must be relevant. TEX.R.EVID. 401 402. Evidence of other crimes, wrongs, or bad acts is not admissible to show character conformity but may be admissible for other purposes, such as establishing an elemental fact, establishing an evidentiary fact that leads to an elemental fact, or rebutting a defensive theory. TEX.R.EVID. 404(b); Montgomery v. State, supra at 387-88. Further, although relevant and admissible under Rule 404(b), evidence may still be inadmissible under TEX.R.EVID. 403. When performing a Rule 403 balancing test, a trial court must determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Montgomery v. State, supra at 389. In making this determination, the trial court should consider the following: (1) whether the ultimate issue was seriously contested by the opponent of the evidence; (2) whether the State had other convincing evidence to establish the ultimate issue to which the disputed evidence was relevant; (3) the compelling nature, or lack thereof, of the evidence; and (4) the likelihood that the evidence was of such a nature as to impair the efficacy of a limiting instruction. Taylor v. State, 920 S.W.2d 319, 322 (Tex.Cr.App.), cert. den'd, 519 U.S. 951 (1996); Montgomery v. State, supra at 392-93. The trial court should also consider how much time the State will need to develop the extraneous offense evidence and the potential for the evidence to affect the jury in some irrational way. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Cr.App. 1999). We will reverse the trial court's decision only upon a showing of a clear abuse of discretion. Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Cr.App. 2000); Ransom v. State, 920 S.W.2d 288, 299 (Tex.Cr.App.), cert. den'd, 519 U.S. 1030 (1996); Montgomery v. State, supra at 390. An abuse of discretion is shown if the ruling was outside the zone of reasonable disagreement. Montgomery v. State, supra at 391. In this case, appellant contested his guilt, claiming that he did not injure the child but that she fell. The evidence that appellant caused the injuries to the victim in this case was circumstantial. Evidence of the extraneous offense did not take much time before the jury. Though the evidence was not highly compelling, it may have been helpful to the jury to rebut appellant's defensive theory and show that he injured the victim. Furthermore, evidence of the extraneous offense was not of such a nature as to impair the efficacy of a limiting instruction. The evidence showed that the child involved in the extraneous offense was not seriously injured but, at most, had bruises on her face from appellant's hands. We cannot hold that the trial court abused its discretion in admitting evidence of the extraneous offense. Appellant's fifth issue is overruled.Comment on Failure to Testify
In his final issue, appellant argues that the State improperly commented upon appellant's failure to testify at trial. The record shows that, during closing argument, the prosecutor was explaining the State's burden of proof when appellant objected that the prosecutor was misstating that burden because the State "must disprove" a hypothesis proposed by the defense. The prosecutor resumed his argument by referring the jury to the jury charge and then stating:But if the Defense should advance a theory, you should treat his theories just like anything else when considering whether or not it is true. Look at the evidence that is on the record to support what he says. See if there is evidence to support what he says.
At that point, defense counsel objected that the prosecutor was making an improper comment on appellant's right to not testify. The prosecutor explained that he was not attempting to comment on appellant's failure to testify. The trial court then told the prosecutor to confine his argument to the record and gave a thorough instruction to the jury to disregard any allusion to appellant's failure to testify. Appellant made no further objection and did not request a mistrial. Consequently, he did not preserve the issue for review. TEX.R.APP.P. 33.1; Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Cr.App. 1996), cert. den'd, 520 U.S. 1173 (1997). Moreover, the prosecutor did not improperly comment upon appellant's failure to testify but, rather, instructed the jury to consider whether any evidence supported appellant's version of the incident as told by appellant to various witnesses who relayed that information to the jury. Appellant's sixth issue is overruled.