Brown v. State

Full title: TAMICA RAYCHELL BROWN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jun 19, 2003

No. 05-02-00207-CR (Tex. App. Jun. 19, 2003)

Opinion

No. 05-02-00207-CR

Opinion issued June 19, 2003 Do Not Publish

On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F00-44509-PL. AFFIRMED

Before Justices WHITTINGTON, RICHTER, and MALONEY¹.

1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice Whittington.

Tamica Raychell Brown appeals her conviction for injury to a child. See Tex. Pen. Code Ann. § 22.04(a)(1) (Vernon 2003). After finding her guilty of the charged offense and that she used or exhibited a deadly weapon during the commission of the offense, the jury assessed punishment at life confinement. In six points of error, appellant contends the evidence is legally and factually insufficient to support her conviction and the trial judge erred in (i) failing to submit a reasonable doubt instruction, (ii) denying appellant's requested instructions to the jury, and (iii) admitting the victim impact evidence at the punishment phase. We affirm the trial court's judgment.

Sufficiency of the Evidence

In her first and second points of error, appellant claims we must reverse her conviction because the evidence is legally and factually insufficient to prove appellant was the person who injured seventeen-month-old Teasia Haggerty. After reviewing the record, we cannot agree. In reviewing challenges to the sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000); Johnson v. State, 23 S.W.3d 1, 7-8 (Tex.Crim.App. 2000). A person commits the offense of injury to a child if she "intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission," causes serious bodily injury to a child. Tex. Pen. Code Ann. § 22.04(a)(1) (Vernon 2003). If the defendant acts intentionally or knowingly, the offense is a first degree felony, acting recklessly or with criminal negligence reduces the offense to a second degree or state jail felony respectively. Tex. Pen. Code Ann. § 22.04(e), (g) (Vernon 2003). Although appellant claims the evidence is legally and factually insufficient to support her conviction for injury to a child because the State's evidence failed to show she was the individual responsible for Teasia's injury, we disagree. At trial, Teasia's mother, Sherica Haggerty, testified she took her children to an in-home day care at the house of Ronald Wayne Brown and appellant in West Dallas. On January 10, 2000, Sherica's husband, Gerry, took Sherica to Baylor Hospital for dental surgery, then took the children to daycare. When Sherica and Gerry arrived at the daycare later that afternoon to pick up the children, appellant told them they needed to go to RHD Memorial Hospital. When she arrived at the hospital, she was told Teasia was dead. That night, appellant told her Teasia had a seizure. Later, Ron, appellant's husband, discussed the severity of Teasia's injuries with Sherica. According to Sherica, the Dallas police department also contacted her about the nature of Teasia's injuries. Sherica testified that two months before Teasia's death, appellant had called for an ambulance to take Teasia to the hospital because she purportedly had a seizure. Sherica took Teasia to her pediatrician and a neurologist, but neither doctor found anything wrong with Teasia. Sherica testified Teasia was not on any medication for seizures and that she had not seen Teasia have a seizure, lose consciousness, or fall to the floor. According to Sherica, appellant did not call or page her on the day Teasia died. Appellant's husband, Ron, testified that on January 10, 2000, there were about six or seven children at his daycare, most of whom were two or three years old. Teasia and her siblings arrived around seven in the morning. Ron left the house around ten o'clock to pick up his brother in Carrollton. Sometime around two o'clock, appellant called Ron and told him that Teasia was "breathing bad. She had a hard-like breath." Ron told appellant to call Sherica and tell her. He told appellant not to call an ambulance until she talked to Sherica. Ron went home, arriving about forty to fifty minutes later. He picked up Teasia to see how she was breathing. He testified Teasia was still breathing at the time but her arms were beginning to get cold. He noticed a bruise on her chin which appellant said she got when she fell earlier that day. Ron testified he drove Teasia to the hospital and that she was breathing when he handed her to the emergency room personnel. Although Ron admitted he did not leave for the hospital immediately because his brother had his car, he did leave within five to ten minutes after arriving home. Ron was at the hospital for about one and one half hours when he was told Teasia had died. According to Ron, appellant tried calling Sherica at work and on her pager but did not get through to her. Sharon Ikeler, a registered nurse, testified she is the director of emergency services at RHD Memorial Hospital. She was present when Ron brought Teasia in. Ikeler was in her office around 3:50 p.m. when she heard one of her charge nurses say she had a child that was not breathing and that she needed help. Ikeler immediately left her office and saw her nurse carrying a child in her arms. According to Ikeler, the "child was with no life symptoms, whatsoever. The child was limp in her arms." Ikeler checked for a pulse but found none. She began performing CPR using two fingers because "[i]t was a very small child." She then gave the child to one of the paramedics to continue CPR. At the same time, several members of the team tried to start an IV while Dr. Timm tried to establish an airway. According to Ikeler, they worked on Teasia "a long time" attempting to revive her before pronouncing her dead at 4:43 p.m. Ikeler testified she and Swift properly performed CPR on Teasia. She also testified that to transect the liver, one would have to apply "[q]uite a lot of force, and in completely the wrong area of the body." Ikeler admitted that CPR should not be performed on a person who is having a seizure but stated that Teasia was not being treated for seizure or seizure-like symptoms; rather she had no signs of life from the time Ikeler first saw her. Dr. Timm testified he was the emergency physician in charge when Teasia was brought to the hospital. When she arrived, Teasia was not breathing, her extremities were cold, and her body temperature was 95.3 degrees. Dr. Timm similarly testified that while he was in the room, he did not observe anyone performing improper CPR. Dr. Noel Baker, a pediatric neurologist, testified she examined Teasia after she had been taken to the hospital for a purported seizure in November 1999. According to Baker, she could not rule out the possibility that Teasia had suffered a seizure at that time. Nevertheless, Baker testified that in her training and experience as a medical doctor, it is "extremely rare" for a person having a seizure to die. The doctor testified:

The overwhelming majority of cases-overwhelming majority of cases of this very tiny minority are seen in middle-aged to elderly males, which have an established diagnosis of epilepsy and are on more than one medication. We don't know exactly what the etiology is; meaning, what caused the death. But there is some evidence that suggests that it's a cardiac event.

Now, all of this having [been] said, there have been some isolated cases described in children. When that happens, however, there's no evidence of damage to any of the other organ systems. Specifically relevant to this case, there's no tearing of the liver or the structures in the abdomen.

Dr. Lynn Salzberger, a Dallas county medical examiner, testified she performed the autopsy on Teasia. Salzberger observed five bruises on Teasia's face, eleven bruises to her head, and numerous bruises on the rest of her body. Some of the bruises on Teasia's chest were possibly attributable to the emergency room personnel administering CPR. Teasia's liver was transected or "severely ripped . . . almost completely ripped in half." Salzberger testified the mesentery was also torn.² When asked how severe an injury has to be to transect the liver, Salzberger responded: "A very severe type of blunt force trauma, such as a severe car wreck that's resulted in a fatality. Or a pedestrian being struck by a car or a fall from a great height or, in the case of a child, a strong blow to the abdomen." According to Salzberger, a fall from a second or third-story building could transect the liver but walking around and falling would not. Once the liver is transected, a person would die in "seconds to minutes." Salzberger testified Teasia "lost nearly half of her blood volume inside her belly, which is incompatible with life." In light of her observations, Salzberger determined the manner of Teasia's death was a homicide. Viewed in the light most favorable to the judgment, the evidence indicated appellant was the only person alone with Teasia from ten o'clock in the morning until approximately three o'clock in the afternoon when appellant's husband, Ron, arrived home. Teasia arrived at appellant's house around seven in the morning. When Ron left around ten o'clock, Teasia was alive. Appellant called Ron around two o'clock and said Teasia was "breathing bad." Ron arrived forty to fifty minutes later and, when his brother returned, they took Teasia to the hospital. Hospital personnel noted that, upon arrival, Teasia had no pulse, was not breathing, was limp, and had a lower than average body temperature. All efforts to revive her failed. According to the medical examiner, Teasia's liver was transected from a severe blow, comparable to that sustained when falling from a second to third-story building, and Teasia died within minutes of sustaining such a blow. From these facts, we conclude a rational jury could infer appellant "intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission," caused serious bodily injury to Teasia. See Tex. Pen. Code Ann. § 22.04(a)(1) (Vernon 2003). 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 first point of error. Furthermore, 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 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 Johnson, 23 S.W.3d at 11; Scott, 934 S.W.2d at 398. Therefore, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second point of error.

Reasonable Doubt Instruction

In her third point of error, appellant contends the trial judge erred in failing to define reasonable doubt in the jury charge at guilt/innocence. Although appellant concedes that trial judges are no longer required to give a reasonable doubt instruction, Paulson v. State, 28 S.W.3d 570, 572 (Tex.Crim.App. 2000) (overruling Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991)), she nevertheless argues the trial judge should not have applied Paulson retroactively to her case. We disagree. The reasonable doubt instruction is procedural in nature. See Geesa, 820 S.W.2d at 163. Procedural rules generally control litigation from their effective date. See Wilson v. State, 473 S.W.2d 532, 535 (Tex.Crim.App. 1971). Although her indictment was filed in February 2000, appellant was tried after Paulson issued. Thus, the holding in Paulson applies to this case. See Cook v. State, 99 S.W.3d 310, 315 (Tex.App.-Eastland 2003, no pet.). We find further support for our conclusion because, in Arroyo v. State, the court of criminal appeals applied Paulson to a case that was tried before Paulson issued, thus indicating it is to be applied retroactively. See Arroyo v. State, 32 S.W.3d 868, 868 (Tex.Crim.App. 2000) (per curiam). Therefore, we cannot conclude the trial judge erred in failing to define reasonable doubt in the jury charge. We overrule appellant's third point of error.

Lesser Included Offense

In her fourth and fifth points of error, appellant claims the trial judge erred in denying her requested instruction on the lesser included offenses of reckless injury to a child and negligent injury to a child. We disagree. To determine if a defendant is entitled to a lesser-included offense instruction, a two-prong test applies: (i) the lesser-included offense must be included within the proof necessary to establish the offense charged and (ii) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense. See Lofton v. State, 45 S.W.3d 649, 651 (Tex.Crim.App. 2001); Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001); Bignall v. State, 887 S.W.2d 21 (Tex.Crim.App. 1994). A person commits the offense of injury to a child if she intentionally, knowingly, recklessly, or with criminal negligence by act or intentionally, knowingly, or recklessly by omission causes serious bodily injury to child. Tex. Pen. Code Ann. § 22.04(a)(1) (Vernon 2003). If the defendant acts intentionally or knowingly, the offense is a first degree felony; acting recklessly or with criminal negligence reduces the offense to a second degree or state jail felony respectively. Tex. Pen. Code Ann. § 22.04(e), (g) (Vernon 2003). Here, we focus on the second element because the State does not contest the first element. The charge instructed the jury it could convict appellant if it found beyond a reasonable doubt that appellant intentionally or knowingly caused serious bodily injury to Teasia by "striking [Teasia] with or against an unknown object, a deadly weapon, the exact nature of which is unknown." For appellant to be entitled to a lesser-included offense charge, however, evidence from some source must have affirmatively raised that appellant did not intentionally or knowingly, by act or omission, cause serious bodily injury to the victim. Bignall, 887 S.W.2d at 24. That the jury may disbelieve crucial evidence pertaining to the greater offense is not sufficient to warrant the submission of the lesser-included offense submission to the jury; there must be some evidence directly germane to the lesser-included offense to warrant such submission. See Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997). Although appellant claims she was entitled to instructions on the lesser included offenses of reckless injury to a child and negligent injury to a child, she does not point us to evidence in the record that affirmatively raises the lesser included offenses. Rather, she argues the jury could have (i) disbelieved the medical examiner's testimony about the numerous bruises on Teasia's body and concluded "there was no bruising anywhere . . . other than those caused by intubation and the proper administration of CPR;" (ii) concluded appellant had no preexisting motive to intentionally or knowingly injure Teasia; or (iii) concluded appellant knew the risks of improper CPR and ignoring those risks, attempted to revive Teasia at home before Ron arrived. As noted above, however, that the jury may disbelieve crucial evidence pertaining to the greater offense is not sufficient to warrant the submission of the lesser-included offense to the jury. Skinner, 956 S.W.2d at 543. Rather, evidence from some source must have affirmatively raised the lesser included offenses. When, as in this case, there is no evidence directly germane to the lesser-included offenses, the requested submissions are not warranted. See Skinner, 956 S.W.2d at 543. We overrule appellant's fourth and fifth points of error.

Admission of Evidence

In her final point of error, appellant claims the trial judge erred in permitting victim impact testimony during punishment. Under this point, appellant contends that Teasia's grandmother, Darlene Jenkins, should not have been allowed to testify about how Teasia's death affected Sherica, Gerry, and Teasia's siblings. Appellant makes no complaint regarding Jenkins's testimony of the effect Teasia's death had on her personally. Initially, we question whether appellant has properly preserved this issue for our review. At trial, appellant objected to the testimony "under Rule 401 of the Rules of Evidence, as to relevancy; and also under Rule 403, as the harm would outweigh whatever relevance the testimony would be admissible for." On appeal, appellant argues that Jenkins's testimony addressing the impact the crime had on other people's lives was inadmissible because (i) "there was other testimony available to the prosecutor on this issue" because both Sherica and Gerry had previously testified and could have been called to testify again, and (ii) the court of criminal appeals has limited a witness's testimony to the impact the crime had on the individual's life, not the lives of others. When the complaint on appeal differs from that made at trial, the error, if any, is waived. See Cook v. State, 858 S.W.2d 467, 474 (Tex.Crim.App. 1993) (citing Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990) (objection stating one legal basis may not be used to support different legal theory on appeal)); see also Turro v. State, 950 S.W.2d 390, 404 (Tex.App.-Fort Worth 1997, pet. ref'd) (error waived when complaint on appeal differs from complaint at trial; trial judge did not have opportunity to rule on legal theory nor did State have opportunity to argue against it). Appellant's complaint on appeal addresses the propriety of Jenkins testifying about the impact Teasia's death had on others, specifically Teasia's parents and siblings; at trial, however, appellant only apprised the judge of her objections to the testimony on the grounds of relevancy and harm. Thus, we conclude she has waived this issue. Even were we to address her complaint, we would nevertheless determine her argument lacks merit. In non-capital felony cases, the State may present evidence as to any matter the trial judge, in the legitimate use of his discretion, deems relevant to sentencing. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2003). Victim impact testimony concerning the effect the offense had on the victim's family is generally relevant and therefore admissible. See Richardson v. State, 83 S.W.3d 332, 360 (Tex.App.-Corpus Christi 2002, pet. ref'd) (holding not error to admit child and forensic psychiatrist's testimony of effect crime had on victim's children); Moreno v. State, 38 S.W.3d 774, 778 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (holding not error to admit deceased's grandmother's testimony of psychological impact crime had on members of deceased's extended family, including suicide of deceased's uncle); see also Salazar v. State, 90 S.W.3d 330, 335 (Tex.Crim.App. 2002) (holding victim impact evidence "is designed to remind the jury that murder has foreseeable consequences to the community and the victim's survivors-family members and friends who also suffer harm from murderous conduct."); Johnson v. State, 987 S.W.2d 79, 87 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd) (holding counsel not ineffective for failing to object to complainant's testimony regarding psychological impact appellant's crime had on complainant's father because such evidence was admissible as having bearing on "appellant's personal responsibility and moral guilt."). We overrule appellant's final point of error.³ We affirm the trial court's judgment.