Opinion
No. 05-03-00199-CR
Opinion issued February 6, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 2 Dallas County, Texas, Trial Court Cause No. F01-33777-Hi. Affirmed.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
OPINION
Kenneth Ray Atkinson appeals his conviction for injury to a child. After finding appellant guilty, the jury assessed punishment at life confinement. In five points of error, appellant contends the evidence is legally and factually insufficient to support his conviction and the trial judge abused his discretion in excluding certain evidence. We affirm the trial court's judgment.
Background
On June 11, 2001, Jeanie Rivers went to appellant's home at the Quill Run Mobile Home Park in Hutchins, Texas to use the telephone. Appellant told her his wife, Barbara, had been away for a week and that he did not know if she was coming home. Appellant told Jeanie he trusted her and was going to show her something. He walked Jeanie into the bedroom. She watched as he pulled a box away from a closet and removed some clothes that were hanging on the doorknob. When he opened the closet door, Jeanie saw a little girl, sitting naked in the closet. She was very thin and dirty. Jeanie told her husband, Joe, who notified the police. The girl, L.C., was removed from the home. Appellant was subsequently arrested and charged with injury to a child. Following his conviction, he filed this appeal.Legal and Factual Sufficiency of the Evidence
In his third and fourth points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. When reviewing challenges to the legal sufficiency of the evidence, we apply well known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). We view the evidence in the light most favorable to the verdict. Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). We determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003); Santellan v. State, 939 S.W.2d 155, 160 (Tex.Crim.App. 1997). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984); see Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). Thus, the factfinder is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991); Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). The factfinder may draw reasonable inferences from basic to ultimate facts. See Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). To establish injury to a child, the State was required to show appellant intentionally or knowingly, by act or omission, caused serious bodily injury to a child. Tex. Pen. Code Ann. § 22.04(a)(1), (b) (Vernon 2003). Proof of knowledge or intent is an inference that may be drawn by the factfinder both from direct evidence and from evidence of the circumstances surrounding the act. See Brown v. State, 2003 WL 22849864, *4 (Tex.Crim.App. Dec. 3, 2003) (jury may infer intent from any facts in evidence), petition for cert. filed, (U.S. Jan. 27, 2004) (No. 03-1078); Wolfe v. State, 917 S.W.2d 270, 275 (Tex.Crim.App. 1996) (knowledge is inference drawn by trier of fact from all circumstances); Dillon v. State, 574 S.W.2d 92, 94-95 (Tex.Crim.App. 1978) (same). Therefore, a jury can infer knowledge or intent from the acts, conduct, and remarks of the accused and from the surrounding circumstances. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991); LaPoint v. State, 750 S.W.2d 180, 182 (Tex.Crim.App. 1986); see Breckenridge v. State, 40 S.W.3d 118, 128 (Tex.App.-San Antonio 2000, pet. ref'd) (jury could have inferred requisite intent from appellant's conduct and surrounding circumstances). In this case, the jury was instructed:Now, considering all the law contained in the court's charge, if you find and believe from the evidence beyond a reasonable doubt that on or about June 2, 2001, in Dallas County, Texas, [appellant], either acting alone or with another as a party to the offense, did intentionally or knowingly by act or omission cause serious bodily injury or serious mental deficiency or impairment to [L.C.], a child fourteen years of age or younger, by failing to provide adequate food or medical care to [L.C.], or by depriving [L.C.] of adequate food or medical care, or by restraining [L.C.] and preventing her from obtaining adequate food or medical care and that, at the time of the offense, [appellant] had assumed care, custody or control of [L.C.], you shall find [appellant] guilty of injury to a child as charged in the indictment.During trial, Rivers testified she and her husband lived near appellant and Barbara at the mobile home park. They met the Atkinsons in January or February 2001. According to appellant, he and Barbara had five children; Barbara had another child, L.C., who lived with her father. Rivers was at the Atkinsons' house three to four days a week. She did not know L.C. because she did not see her there. Rivers's children spent the night at the Atkinsons' home on several occasions. On June 11, 2001, Rivers asked appellant whether he needed her to watch the children the following week while he went to a doctor's appointment. Appellant told her yes, because "it didn't look like Barbie was going to return." Rivers testified Barbara had been away about a week and that she had been told Barbara was visiting cousins. It was then that appellant told Rivers "he trusted her [and] was going to show her something." They walked into the Atkinsons' bedroom. Appellant moved a box and clothes from in front of the closet door. He opened the door and said, "Hey, [L.C.]." Rivers described what she saw:
I saw a little girl naked, sitting in the closet. She had a sheet wrapped-draped around her and her legs pulled up to her chest. Her hands back, holding her up. She had ratted hair. She was skinny, very skinny. Her skin didn't shine. She had one eye that was swollen closed, stuck closed with-it was matted up with pus. The other one was trying to see as much as it could see out of the other eye. It was just-it was awful.Rivers returned home and told her husband about L.C. He then went to the police and reported what his wife saw. While they were waiting for the police to arrive, Rivers asked appellant how long L.C. had been in the closet. He told her "a few months." When she asked why L.C. was in the closet, appellant said because "[h]er mother didn't want to deal with her." Rivers testified that her children, who were at the Atkinsons' home on a daily basis, had not seen L.C. nor did they know she existed. She described the Atkinsons as "very open with the home," allowing people to drop in at any time. Rivers testified she would stop in on a "daily basis," and the Atkinsons did not hesitate or delay in answering their door. During the four to five months before discovering L.C.'s existence, Rivers never saw any sign that she lived there. Rivers further testified that the remaining children were not malnourished or deprived of food or medical attention. They all appeared to be normal or fairly normal in size and weight for children of their age. Rivers testified that in late May, appellant made reference to L.C., referring to her as "ghost like," raiding the cabinets at night for something to eat. Barbara initially tried to get appellant to be quiet; then she joined the conversation, telling a story about L.C. getting up one night and being found at a neighbor's house, eating a "package of Ramon noodles." Appellant stated they had to "tie up the refrigerator" to prevent her from getting food. They said L.C. had an eating disorder because at an earlier age, she had not been fed correctly. When Rivers asked why she was with her father if he had not fed her properly, Barbara said it "was a long story" and changed the subject. Rivers testified appellant had assumed care, custody, and control of L.C. and that, at least when Barbara was absent from the home, he had access to L.C. and was the parent or the person in charge of L.C. Captain Ryan Woolever of the Hutchins Fire Department testified he arrived at the Atkinsons' house after Joe told him about a little girl in a closet. According to Woolever, L.C. was clothed but had no shoes or socks. She was very pale and had sunken facial features. He described her a "real frail looking" and "emaciated." She appeared to be a four-year-old child, based on her size. Woolever said she smelled of urine and feces. While talking to Woolever, appellant indicated L.C. had been in the closet "a year or so" because "she had been bad." Robert Allwardt, an investigator with the Ellis County district attorney's office, testified he was called to the Atkinsons' house that evening. He examined the closet and the closet door. The doorknob on the closet door had a functioning lock that could not be unlocked from the inside of the closet. The closet had no window. The inside had filthy, wet bedding, assorted trash, a dirty diaper, some plastic bags, empty potato chip wrappers, and feces. When asked to describe the smell of the closet, he responded, "If you didn't have a strong stomach, it would make you sick. It was very bad." He further testified that, based on his observations of the closet and his experience testing the lock and the door, the closet was "able to restrain a child from being able to get out and have access to food or medical attention." He also testified that, when asked, L.C. told him her name and that she was two years old. Dr. Susan Scott, a medical doctor specializing in pediatric emergency medicine and pediatric primary care, testified L.C. was admitted to Children's Medical Center and placed in her care. Dr. Scott testified:
It was obvious upon just evaluation at that time that [L.C.] was suffering from severe malnutrition. She was very tiny. 50th percentile for what a 2 year old should be. And she was obviously older than that. She was very quiet, had a vacant look to her. Her eyes were sunken. Her hair was very thin and broken. She had very poor dentition, with multiple teeth missing. She had difficulty standing on her own and needed assistance not only to get up to a standing position but to help remain there.Her chest was very tiny. You could see every rib. You could see every vertebra down her back. Her abdomen very distended. Both arms and both legs were very, very tiny. Obviously significant muscle wasting. Dr. Scott stated the medical records showed that when L.C. presented to the emergency room, "she was very dirty, covered with feces, had a bad case of lice and was very withdrawn." Dr. Scott testified at length about L.C.'s serious medical state and the lengthy process of "refeeding." She explained it is extremely dangerous to just feed someone who is severely malnourished because the body has basically shut down. A malnourished person will want to eat but eating can cause a significant electrolyte shift that, in turn, can cause low blood pressure, cardiovascular rapid heart rate, and heart failure. She also explained that at the time L.C. presented to the hospital, her stomach was incapable of processing food. Because of this situation, any food consumed would stay in L.C.'s stomach, becoming a concentrated mass. To avoid serious injury to L.C., the medical staff started a large intravenous (IV) tube for feeding her. Approximately ten days after the refeeding process began, they attempted to give L.C. food. She had significantly low blood pressure and a significantly high heart rate. She was lethargic, in respiratory distress, had poor profusion, and non-detectable levels of several electrolytes. Dr. Scott explained that meant her heart was not functioning, her body could not regulate its blood pressure and heart rate, and she didn't profuse her organs. She testified this was a direct result of her being deprived of food and nutrition for a long period of time. Dr. Scott testified that the fact L.C. was in the 50th percentile of height and weight for a two-year-old child meant that "when she reached that height and weight, she quit growing. So she was the height and weight of a 2 year old when she was 8 years old." Dr. Scott testified L.C. weighed approximately twenty-two pounds when she first saw her. She also testified that if L.C. had not received medical treatment at the time she presented, she would have died, that a reasonable person or care giver would recognize L.C. was not at the right size and weight that she should have been at eight years of age, and that a reasonable care giver would have sought medical treatment for her based on her condition. Dr. Barry Davison testified he was L.C.'s pediatrician during the first nineteen months of her life. He testified she was a normal baby, gaining weight at appropriate intervals. He testified that the last time L.C. visited him, she was nineteen months old and weighed 22 pounds 11 ounces. Viewed in the light most favorable to the judgment, the evidence shows: L.C. was locked in a closet at appellant's house where he lived with his wife and their other five children; she was denied proper nutrition and medical care for an extended period; she slept and lived in filth, including her own feces; at the age of eight years old, L.C. weighed approximately the same amount she weighed at the age of nineteen months; and she was severely malnourished when she arrived at Children's Medical Center. From these facts, we conclude a rational jury could infer appellant intentionally or knowingly, by act or omission, caused serious bodily injury or serious mental deficiency or impairment to L.C., by failing to provide adequate food or medical care to L.C., by depriving L.C. of adequate food or medical care, or by restraining L.C. and preventing her from obtaining adequate food or medical care and that appellant had, at the time of the offense, assumed care, custody, or control of L.C. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for injury to a child. We overrule appellant's third point of error. In his fourth point, appellant raises the same argument to challenge the factual sufficiency of the evidence. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence was so uncertain, improbable, or unbelievable that it would be clearly unjust to allow the verdict to stand See Thompson v. State, 93 S.W.3d 16, 21 (Tex.Crim.App. 2001), cert. denied, 124 S.Ct. 250 (2003); Scott v. State, 934 S.W.2d 396, 398-99 (Tex.App.-Dallas 1996, no pet.). Nor can we conclude the verdict is against the great weight of the evidence so as to be clearly wrong and unjust. See Thompson, 93 S.W.3d at 21; Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Scott, 934 S.W.2d at 398. Therefore, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's fourth point of error.
Exclusion and Admission of Evidence
In his first and second points of error, appellant complains the trial judge abused his discretion in excluding certain evidence. Under these points, appellant claims the trial judge should have permitted two defense witnesses, Drs. Tedford and Cook, to testify regarding appellant's state of mind at the time of the offense. In his fifth point of error, appellant claims "there is error because the jury was not allowed to hear testimony to determine whether appellant had the capacity to have acted knowingly, intentionally or by omission to cause injury to [L.C.], a child younger than 14 years of age." We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. See Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000); Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). We view the evidence in the light most favorable to the trial judge's ruling. See Corbin v. State, 85 S.W.3d 272, 282 (Tex.Crim.App. 2002). Under rule 702, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Tex. R. Evid. 702. Nevertheless, "before novel scientific evidence may be admitted under Rule 702, the proponent must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore relevant." Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992). Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Evidence which is not relevant is inadmissible. Tex. R. Evid. 402.Dr. Tedford's Testimony
Appellant first sought to introduce the testimony of Dr. Tedford, a psychologist. Appellant argued Tedford's testimony was admissible to show appellant's state of mind and "what he intended or failed to intend." The judge ruled appellant failed to establish the testimony was reliable or that it was relevant. In addition, he concluded that even if Tedford's testimony had some probative value, any probative value was substantially outweighed by the danger of unfair prejudice or confusion of the issues. On appeal, appellant argues the trial judge "erred in finding that the probative value of Dr. Tedford's testimony was substantially outweighed by the danger of unfair prejudice." Before evidence is admitted, the proponent of the evidence has the burden to show, by clear and convincing proof, that the evidence he is proffering under rule 702 is sufficiently reliable and relevant to assist the jury in accurately understanding other evidence or in determining a fact in issue. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). The reliability of "soft" science evidence, such as Tedford's testimony, may be established by showing that (i) the field of expertise involved is a legitimate one, (ii) the subject matter of the expert's testimony is within the scope of that field, and (iii) the expert's testimony properly relies upon or utilizes the principles involved in that field. Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App. 1999). Following a hearing outside the jury's presence, the trial judge concluded Tedford's testimony did not establish (i) the underlying scientific theory and technique Tedford relied on were accepted as valid by the relevant scientific community, (ii) Tedford's qualifications as an expert, (iii) the existence of literature supporting or rejecting the underlying scientific theory or technique, (iv) the potential rate of error for the theory or technique, (v) the availability of other experts to test or evaluate the technique, (vi) the clarity with which the underlying scientific theory or technique can be explained, and (vii) how Tedford's opinions were reached. After reviewing Tedford's testimony, we agree. Appellant failed to establish the factors specified by the judge which relate to the three-part reliability test to be met when considering whether evidence is reliable. See Nenno, 970 S.W.2d at 560. Because appellant did not establish the factors, we cannot conclude the trial judge abused his discretion in ruling that appellant did not establish Tedford's testimony was reliable. Regarding whether the testimony was relevant, Tedford testified appellant had low self-esteem, was a "wimp" and a "pushover," and tended to misconstrue the boundaries of appropriate behavior. He opined that appellant's "inaccurate perceptions of people and events are likely to lead him to erroneous conclusions and ill-advised actions." Although much of the testimony dealt with appellant's general emotional and mental state during his relationship with Barbara, Tedford's testimony did not discuss appellant's specific mental state at the time the offense was committed. Thus, we cannot conclude the judge abused his discretion in ruling the testimony was not relevant. Because the record supports the trial judge's ruling that Tedford's testimony was not relevant, it would necessarily be excluded under rule 403. See Tex. R. Evid. 403 (" Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . .") (emphasis added). We overrule appellant's first point of error.Dr. Cook's Testimony
Appellant next argues the trial judge erred in excluding Dr. Cook's testimony. During a hearing outside the jury's presence, Cook testified at length regarding his background, his expertise, and his assessment of appellant. Appellant offered Cook's testimony as reliable and relevant to establish appellant's state of mind and intent at the time of the offense. Following this, the trial judge sustained the State's objection and ruled Cook's testimony was inadmissible. According to the judge, Cook's testimony was speculative, unreliable, and "based on conjecture" because "a person cannot testify as to what is another person's state of mind." Appellant claims the trial judge erred. Although appellant claims the jury should have been allowed to hear Cook's testimony to determine and assess appellant's state of mind at the time of the events and whether it was his conscious objective to cause the result in this case, we disagree. Appellant argues his situation is analogous to that contemplated in article 38.36 of the code of criminal procedure. Article 38.36 provides that:In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon Supp. 2004) (emphasis added). Appellant urges Cook's testimony was relevant and, therefore, admissible because, as in murder convictions, the testimony would have showed the condition of appellant's mind at the time of the offense. Appellant cites Smith v. State, 5 S.W.3d 673, 679 (Tex.Crim.App. 1999) in support of his argument. In Smith, the court was called upon to address whether the court of appeals erred in holding that evidence admitted under article 38.36 did not have to meet the requirements of rules 403 and 404(b). The court concluded the lower court did err, noting that if the legislature had intended "to shield evidence admissible under Article 38.36 from Rule 404(b)'s ban . . . or Rule 403's balancing test, it would have been a simple matter for the Legislature to have said so." Smith, 5 S.W.3d at 679. The court noted it was "quite a serious matter . . . to read into the statute" something which was not contemplated by the legislative body. See Smith, 5 S.W.3d at 679. The court's holding in Smith does not support appellant's argument that article 38.36 authorized Cook's testimony in this case. Article 38.36 addresses evidence only in prosecutions for murder. The legislature could have expanded article 38.36 to encompass evidence in all prosecutions but did not do so. Because the legislature specifically chose to limit the application of article 38.36 to prosecutions for murder, we decline appellant's invitation to apply it to his situation. In his second and fifth points of error, appellant attempts to fashion a defense in which he is sane but incapable of forming the intent necessary to commit the alleged offense in this case. Appellant's stance is similar to that taken by the defendant in Thomas v. State, 886 S.W.2d 388, 391 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). In Thomas, the First Court of Appeals noted:
The negation of intent is absence of intent; that is an entirely different concept than the incapacity to form an intent due to severe mental disease or defect. The latter we label "insanity." Appellant has attempted to fashion a hybrid defense to criminal responsibility, one in which he is admittedly sane but unable to form an intent to commit a proscribed act. We do not recognize any such defense as a legal justification for criminal acts. Because there is no such defense upon which appellant can rely, his expert's testimony was not relevant to any issue before the jury. Therefore, the trial court did not err in refusing it.Thomas, 886 S.W.2d at 391. Because there is no "diminished capacity" defense to defeat the element of mens rea during the guilt-innocence phase of trial, the trial judge did not err in excluding Cook's testimony. See Jackson v. State, 115 S.W.3d 326, 328 (Tex.App.-Dallas 2003, pet. filed). We overrule appellant's second and fifth points of error. We affirm the trial court's judgment.