Opinion
No. 05-10-00890-CR
02-27-2012
DONALD DEAN SPENCER, JR., Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued February 27, 2012
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause No. F10-51953-X
OPINION
Before Chief Justice Wright and Justices Myers and Lagarde
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice Lagarde
Appellant Donald Dean Spencer, Jr. waived a jury and pleaded guilty to the charged offense of injury to a child. See Tex. Penal Code Ann. § 22.04(a)(1) (West 2011). After hearing appellant's judicial confession and additional evidence, the trial court assessed appellant's punishment at ten years' imprisonment. In his sole point of error, appellant contends the trial court erred by finding him guilty of intentional injury to a child when the proper verdict is a conviction for the lesser-included offense of reckless injury to a child. We affirm the trial court's judgment.
Evidence Presented
The complainant's mother, April Sherman, has three daughters. Only the youngest child is appellant's biological child. The complainant is Sherman's oldest daughter who was six years old at the time of the offense. In January 2010, the complainant was admitted to Children's Medical Center in Dallas, Texas, suffering from a closed head injury resulting in a subarachnoid hemorrhage to the left temporal area. At the time of trial, the complainant's grandmother testified she appeared to be back to normal.
The complainant's injury occurred after Sherman grew impatient with her, "popped her on the butt," and put her in the bedroom with appellant and her sister. Soon, Sherman heard the complainant calling out to her. Sherman ran into the bedroom and found the complainant lying unconscious on the floor. As Sherman tried to revive the complainant, appellant came back into the room crying. Sherman asked appellant what happened. Appellant said he did not know, that "all he did was push her down." The complainant soon regained consciousness. She vomited and had difficulty walking and understanding questions. Eventually, the complainant asked for ice cream. However, she continued to vomit and go in and out of consciousness. Upon the advice of a neighbor who was a medical doctor, Sherman and appellant took the complainant to a hospital; she was transferred to Children's Medical Center. The complainant remained unconscious and required intubation. A CT scan of the complainant's head showed a subarachnoid hemorrhage in the left temporal area. The doctors were concerned her brain might be swollen. The complainant also had bruising on her right forehead and small areas of bleeding in the skin near the right frontal hairline and on her neck. At trial, the complainant's grandmother testified the complainant could not remember words as well as she did prior to the injury.
That sister was not appellant's biological child.
Dallas police detective Abel Lopez interviewed appellant and Sherman at Children's Medical Center. Sherman stated her daughter Rachel told her appellant injured the complainant. Rachel told Sherman that "Daddy picked up sister by her throat and slammed her down." Rachel repeated this statement during an interview at the Dallas Children's Advocacy Center.
Appellant's version of events varied. Appellant told Lopez he did not know how the injury happened because he was not in the room at the time, but he thought the complainant had fallen off the bed. Soon after the injury, appellant talked to his pastor about what had happened. His pastor told appellant that he, the pastor, would have to call the police. Appellant gave the pastor a Detective Baum's business card to call. When the pastor called Baum, appellant told Baum that he had flown into a rage and pushed the complainant into the bedpost. Appellant was arrested pursuant to a warrant based on his confession and the medical evidence. At trial, appellant told yet another version of events. He said he had not told the truth to the police or to Sherman because he was scared and ashamed. Appellant said the complainant was crying and he grabbed her shirt and told her to stop. He then pushed her "pretty hard" into the bedpost. She lost her balance, turned around, and hit the bedpost with her head. Appellant denied he grabbed the complainant by the neck, insisting he only grabbed her shirt. During appellant's presentence interview by a probation officer, appellant said he "went to grab her and she lost her balance and hit her head on the bedpost." There was also evidence appellant had a history of violence.
The complainant's injuries were not medically consistent with the complainant having fallen off the bed.
Sherman testified appellant's version was inconsistent with the way she found the complainant when she first saw her in the bedroom.
Because the presentence report made no mention of appellant having said he grabbed her shirt, appellant contended that statement was simply left out of the report.
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Applicable Law
When a defendant waives his right to a jury trial and pleads guilty, the State must introduce sufficient evidence into the record to support the plea and show the defendant is guilty, and said evidence shall be accepted by the court as the basis for its judgment. See Tex. Code Crim. Proc. Ann. art. 1.15 (West 2005); see also McGill v. State, 200 S.W.3d 325, 330 (Tex. App.-Dallas 2006, no pet.). Under this procedural safeguard, there is no requirement that the supporting evidence prove the defendant's guilt beyond a reasonable doubt. Ex parte Martin, 747 S.W.2d 789,792 (Tex. Crim. App. 1988). We will affirm the trial court's judgment if the evidence introduced embraces every essential element of the offense charged and is sufficient to establish a defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996).
As fact finder, the trial court considers the evidence and decides whether to find the accused guilty of the offense charged in the indictment, guilty of a lesser-included offense, or not guilty. See Aldrich v. State, 104 S.W.3d 890, 893 (Tex. Crim. App. 2003) (trial court authorized, but not required, to find defendant guilty of a lesser-included offense). The trial court is the sole judge of the credibility of the evidence presented and the weight to give it. Jones v. State, 944 S.W.2d 642, 643 (Tex. Crim. App. 1996). Further, the trial court has the exclusive authority to resolve any conflicts in the evidence. See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001).
Discussion
Appellant contends the trial court erred by finding him guilty of intentional injury to a child rather than the lesser-included offense of reckless injury to a child. The record shows appellant signed a written judicial confession and stipulation of evidence admitting he committed the offense as alleged in the indictment. The confession was admitted into evidence without objection. A judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1980) (op. on reh'g). Additionally, there was conflicting evidence as to how the complainant was injured. The trial judge, as fact finder, resolved that conflict in favor of a guilty finding of intentional injury. The record supports that finding. We overrule appellant's sole point of error.
We affirm the trial court's judgment.
SUE LAGARDE
JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
100890F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DONALD DEAN SPENCER, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00890-CR
Appeal from the Criminal District Court No. 6 of Dallas County, Texas. (Tr.Ct.No. F10- 51953-X).
Opinion delivered by Justice Lagarde, Chief Justice Wright and Justice Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered February 27, 2012.
SUE LAGARDE
JUSTICE, ASSIGNED