Opinion
No. 12-03-00376-CR
Opinion delivered June 30, 2005. DO NOT PUBLISH.
Appeal from the 173rd Judicial District Court of Henderson County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and BASS, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.
MEMORANDUM OPINION
Appellant Eric Dale Eliason was charged in a two-count indictment with causing serious bodily injury and/or serious mental deficiency to his son, Kaleb Eliason, a child under the age of fifteen. The jury found Appellant guilty of the lesser-included offense of criminally negligent injury to a child and assessed his punishment at confinement for two years in the Texas Department of Criminal Justice, State Jail Felony Division. In two issues, Appellant complains of the prosecutor's final argument to the jury. We affirm.
BACKGROUND
On October 11, 2001, Misty Holt left her three-month-old son, Kaleb Eliason, with Appellant, the baby's father, while she went shopping with her mother and sister. When they returned two hours later, Appellant was sitting in an armchair wiping Kaleb with a washrag. Appellant explained that Kaleb had spit up and needed clean clothes. When Misty returned with a clean outfit, she picked Kaleb up, noticed he was limp and lifeless, and screamed for her mother. The mother attempted mouth-to-mouth resuscitation while someone called 9-1-1. When the emergency medical personnel arrived, Kaleb was limp, pale, and barely breathing. They put an oxygen mask on Kaleb. He responded well to the oxygen, and his respiration rate and blood pressure increased. None of the emergency personnel noticed any external injury to Kaleb. Kaleb was taken by ambulance to the emergency room of a hospital in Athens. His regular pediatrician noted that Kaleb's head was swollen and that he was anemic with high blood pressure. Based on a CAT scan and X-ray that showed blood in the spinal fluid and both old and new bleeding in Kaleb's brain, Dr. Wilson suspected Kaleb's condition resulted from being severely shaken. He sent Kaleb to Cook's Children Medical Center in Fort Worth ("Cook's"). Dr. Warren Marks, a pediatric neurologist at Cook's, evaluated Kaleb's condition. In his opinion, Kaleb's injuries, including retinal hemorrhages, were consistent with Kaleb's being severely shaken. However, he said the subdural hematoma shown on his CAT scan and the contra coo were perhaps impact injuries. Dr. Marks attributed Kaleb's paralysis to a shearing injury caused by severe shaking. Karen Meazell, a therapist working with disabled children, testified that, at the time of trial, Kaleb was almost two years old, but was developmentally only five or six months of age. In her opinion, Kaleb had serious physical and mental disabilities. At Cook's, Appellant told Nurse Cheryl Coursey that Kaleb had been choking and that he had laid Kaleb across his lap, whacked him on the back, and then picked him up and shook him. He said that he knew everybody was pointing the finger at him and that he knew he would be going to prison for a long time. Nevertheless, he insisted to Nurse Coursey that he shook the child to get him to breathe and not out of anger or frustration. Dr. Ronald Uscinski, a Georgetown University neurosurgeon, testified as an expert for the defense. It was Dr. Uscinski's opinion that the subdural hematoma shown on Kaleb's CAT scan was a chronic subdural hematoma that caused Kaleb's brain to atrophy, resulting in the mental and physical impairment present at the time of trial. In his opinion, any force sufficient to cause an acute subdural hematoma would result in external injuries. Since no external injuries were observed, it was Dr. Uscinski's opinion that the subdural hematoma shown on Kaleb's CAT scan was a chronic subdural hematoma referable to the use of forceps during Kaleb's difficult birth. East Texas Medical Center records showed Kaleb had a history of vomiting and irritability, which were, in Dr. Uscinski's opinion, symptoms consistent with the presence of a chronic subdural hematoma from Kaleb's birth. In rebuttal, the State called Dr. Alan Norman who was part of the group treating Kaleb at Cook's. He testified that he observed multiple large, diffuse, multilayer retinal hemorrhages in both of Kaleb's eyes. He described the hemorrhages as serious. He said this condition was caused by shaking. He rejected the possibility that the hemorrhages could have been caused by a lack of oxygen due to a chronic subdural hematoma.JURY ARGUMENT
In his first issue, Appellant contends that the trial court erred in allowing the prosecutor to argue that the old blood on Kaleb's brain discovered in the CAT scan was the result of previous child abuse by Appellant. In his second issue, Appellant contends that the trial court erred in allowing the prosecutor to argue that a subdural hematoma could be caused by shaking alone. Applicable Law Proper jury argument falls into four categories: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) response to opposing counsel's argument, and (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000). An argument outside of these permissible categories will constitute reversible error if it is manifestly improper, violates a mandatory statute, or injects new facts harmful to the accused into the case. Westbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). A prosecuting attorney is permitted in his argument to draw from the facts in evidence all inferences which are reasonable, but he may not use his argument to put before the jury, directly or indirectly, evidence outside the record. Jordan v. State, 646 S.W.2d 946, 948 (Tex.Crim.App. 1983). Reference to Previous Abuse Specifically, Appellant challenges the following argument by the prosecutor:[PROSECUTOR]: Dr. Uscinski talks about the projectile vomiting of the baby. I want you to go back there and look through these medical records and look where you see projectile vomiting. These are the first days that the baby was in the hospital. There was one incident that was vomiting, and that was before they changed formula. Everything else was spitting up, spitting up, spitting up. And you have to do some flipping around because the dates are kind of messed up in here, but you can look at the date and look at what happened and you can figure out that the baby was spitting up.
The old blood on the brain. Ladies and gentlemen, none of my doctors ever told you there was no old blood on the brain. There is. What does it come from? I don't have the burden of proof on that. What's the most logical explanation? You heard Misty Holt say when she left the hospital the first time the baby was fine, he was eating. You can look in these records and you can tell. Then at that time who took care the baby? That man, the defendant. When he got out of the hospital —
[DEFENSE COUNSEL]: Your Honor, he's arguing an extraneous offense that there was no notice of, no evidence of at trial, and I object. It's an unreasonable deduction from the evidence. And if it were to be, we should have been entitled to rebut.
THE COURT: Overruled. Ladies and gentlemen of the jury, the attorneys are entitled to draw reasonable conclusions from the evidence. Their understanding of the evidence may differ from your understanding. It is your understanding that controls. What the lawyers have told you on either side is not evidence. You may proceed.
[PROSECUTOR]: And that goes back to using your common sense. It wasn't happening. Wasn't happening. Wasn't happening. Wasn't happening. Wasn't happening. Then what else do we know why shaking caused the injury. Dr. Uscinski gets up here and says a common subdural hematoma is something that happens over time, something that takes a while. So what do we know? Immediate onset of those injuries.Appellant argues that the prosecutor's argument requires reversal because it is outside the record and entirely contradicts the testimony. Appellant's defense was based on the theory that Kaleb's injuries were referable to a chronic subdural hematoma probably originating at his birth, but in any event antedating the incident that resulted in Appellant's prosecution. Both sides agreed that the CAT scan showed old blood on Kaleb's brain. Appellant argued that this supported his defensive theory that Kaleb's disability was solely referable to a chronic subdural hematoma. Severe reflux can be a symptom of a subdural hematoma. Kaleb's mother testified that Kaleb's severe reflux problem began when she was readmitted to the hospital, and Kaleb was in the care of Appellant. Dr. Marks testified that if there was a pre-existing injury as Appellant claimed, the prior injury "would add further credence to a chronically abused child, or a repetitively abused child." Our reading of the record leads us to the conclusion that in attempting to answer the argument of Appellant's counsel, the prosecutor did no more than draw a reasonable conclusion from evidence. Appellant's first issue is overruled. Reference to Cause of Injury Appellant complains of the following argument:
[PROSECUTOR]: Now, we all come and you-all probably know that you can get anybody that will testify to just about anything. But which doctor are you going to believe? Doctor Uscinski, who never saw the victim, or a doctor who is still seeing him today. A doctor who was hired to come up here and testify, or the doctors who testify, his physicians. The doctor that told you and said that you can't cause any kind of shearing injury to the brain. You can't tear brain cells. You can't cause trauma. You can't do anything from shaking a baby. Just doesn't happen.
And how do we know that the shaking occurred? Subdural hematoma. Contra coo injury. The torn brain cells. The torn retinas. Those are all tell-tale signs of shaking.
[DEFENSE COUNSEL]: Your Honor, I object to that. I think Doctor Marks made it clear a subdural had to be an impact injury.
THE COURT: Same ruling. Overruled.
[PROSECUTOR] When we sit there and we talk about —
THE COURT: Also thirty extra seconds for interrupting.
MR. SPENCER: Yes, sir. We also talked about the big disagreement in the medical community as to whether or not these types of injuries can occur from shaking. That's not what the disagreement is, and the evidence showed you that the disagreement was whether or not shaking alone can cause the subdural hematoma.
There's no disagreement as to whether or not it can cause torn brain cells. No disagreements to whether or not it can cause tears in the retinas. There's no disagreement about any other damages that we saw. The one disagreement as to whether or not it can be caused by shaken baby is the subdural hematoma. And what caused the injuries? Torn brain cells are what the problem in this kid are. You heard the evidence and the testimony that this kid is neurologically devastated because of that.Dr. Uscinski testified for the defense that Kaleb's subdural hematoma and contra coo injuries could not have been caused by shaking alone. Appellant complains that the prosecutor's statement that "the subdural hematoma is a tell-tale sign of shaking" misstates the evidence. The prosecutor did not argue, as Appellant contends, that a subdural hematoma could be caused by shaking alone. The prosecutor did include subdural hematoma as one of the telltale signs of shaking. In his next statement, however, the prosecutor acknowledged the disagreement in the evidence as to whether shaking alone could have caused the subdural hematoma. Moreover, the prosecutor in opening final argument had told the jury that Dr. Mark's testimony was that "shaking of that baby can cause all of those damages except maybe — he couldn't tell you for sure whether or not, except for maybe the subdural hematoma." Appellant's counsel, in his argument, recognized the conflict on this point telling the jury, "the scientific community is in disagreement about whether this phenomenon, shaking alone, causes a subdural hematoma." When read in its entirety and within its context, the challenged statement by the prosecutor was a summation of the evidence used to rebut Appellant's claim that Kaleb's injuries were referable to a pre-existing condition. Appellant's second issue is overruled.