Opinion
No. 01-07-00253-CR
Opinion issued October 2, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 1075700.
Panel consists of Chief Justice RADACK and Justices NUCHIA and HIGLEY.
MEMORANDUM OPINION
A jury convicted appellant, Jacquandria Franks, of recklessly causing serious bodily injury to a child younger than fifteen, while using a deadly weapon, hot water. See Tex. Penal Code Ann. §§ 22.04(a)(1), (c)(1) (Vernon Supp. 2008). The jury assessed punishment at 15 years in prison. Appellant challenges the trial court's denial of her motion to strike certain punishment-phase testimony. We affirm.
Background
Appellant was convicted of causing her fifteen-month-old son, Z.F., serious bodily injury by placing him in hot water. The evidence during the guilt-innocence phase showed that appellant told her boyfriend, Damion Johnson, she was going to bathe Z.F. around noon, before a party they were to host that evening. Johnson testified that both he and appellant saw injuries on Z.F.'s feet, buttocks, elbows, and hands within minutes after the bath. Appellant refused to take Z.F. to the hospital, and Johnson later called appellant's mother to seek help. Appellant's mother called 9-1-1, and around 7:30 p.m., police officers came to appellant's house, where Officer Stephen Kapalske saw Z.F. sitting on a couch, covered only by a towel. Officer Kapalske saw the burns and blisters on Z.F. and noticed that appellant was ignoring Z.F. while entertaining guests at the party. Officer Kapalske called an ambulance for Z.F., who was taken to a nearby hospital. This was more than seven hours after the initial injury, during which time appellant had not sought any medical care for Z.F. Officer Kapalske testified that appellant did not want to go to the hospital with her son, although she eventually agreed to do so. Johnson, appellant's mother, and the police detective who investigated this crime all testified that Z.F. seemed afraid of appellant. The police detective said she saw Z.F. swat his mother's hand away, "as if to say, `leave me alone.'" The emergency room physician who treated Z.F. noted that he did not reach out for his mother and observed scars on his shoulder that appeared to be adult bite marks. Appellant's mother, the police detective, and the emergency room physician also testified that appellant seemed detached, indifferent, and nonchalant about Z.F. and his injuries, which were mostly second-degree immersion burns over 12-14% of his skin. Both the State's expert medical witness and police detective testified that the patterns of the burns showed that Z.F. had been immersed in hot water, indicative of child abuse. The emergency room physician also testified that she believed Z.F. had been abused, based on his current injuries, his inappropriately calm response, the conflicting stories appellant gave hospital staff, the lack of mother-child bonding, and the evidence of prior injuries she saw on Z.F. During the punishment phase, the State introduced evidence regarding the abuse, neglect, and murder of appellant's older child, J.F. Although Cardello Richard, appellant's former boyfriend and Z.F.'s father, was convicted of J.F.'s murder, the State argued that this evidence, including J.F.'s autopsy report, was relevant to show that appellant had been negligent and abusive with J.F. During the punishment phase, Detective Steven Straughter, who had investigated J.F.'s murder, testified that appellant was not at home when Richard murdered two-year-old J.F. by stomping on him. Dr. Dwayne Wolf, the Deputy Chief Medical Examiner for Harris County, who performed J.F.'s autopsy, testified that, in addition to J.F.'s fatal injuries, he found evidence of five prior rib fractures, which would have been sustained between two weeks and two months prior to J.F.'s death. Dr. Wolf further testified that some of the previously broken ribs were consistent with a kick or blow to J.F.'s back and the others could be consistent with "being pushed off . . . a ledge and falling a couple of feet." Dr. Wolf also said that J.F.'s rib fractures would have been painful when J.F. tried to breathe or when someone tried to pick him up. Anthony Steamer, Cardello Richard's brother, testified that appellant neglected and mistreated J.F. Steamer said he saw appellant kick J.F. off a three-foot-high porch because he was crying for food. Steamer said that appellant did not go to the aid of her crying toddler, although another adult helped him. Steamer also saw appellant hit J.F. on his chest, backside, and head, when J.F. was hungry or otherwise in need. Wanda Alex, Cardello Richard's mother, also testified that appellant visited with J.F. several times a week, and she saw appellant neglect J.F. She said, "She [appellant] just didn't want to be bothered with him." Appellant's mother also testified that she had been concerned about J.F.'s well-being in appellant's care, because she believed that appellant did not properly supervise J.F. She testified that she did not believe J.F. was being abused because "most of the time [J. F.] was with me. He was only with [appellant] the last seven months of his life. . . ." At the close of punishment-phase evidence, appellant's attorney objected that the testimony about the old wounds and the autopsy report had not been linked to appellant and that there had been no showing that she had been negligent or abusive with J.F. The trial overruled appellant's objection and denied her motion to strike Dr. Wolf's testimony about J.F.'s old wounds and to strike the autopsy report. In her sole issue on appeal, appellant contends this was error.Standard of Review
The admissibility of evidence at the punishment stage of a trial is controlled by article 37.07. See Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon 2006). Section 3(a) provides in pertinent part:[E]vidence may be offered . . . as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.Id. at § 3(a) (emphasis added). "A trial court's ruling as to the admissibility of evidence under article 37.07 is reviewed under an abuse of discretion standard." Henderson v. State, 29 S.W.3d 616, 626 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (citing Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996)). The trial court must make the threshold determination of admissibility of the evidence of the bad act. Mitchell, 931 S.W.2d at 954; see Malpica v. State, 108 S.W.3d 374, 377 (Tex.App.-Tyler 2003, pet. ref'd) ("The trial court, however, must make a threshold determination that the jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense before it can admit evidence of the extraneous offense at the punishment phase of a non-capital trial."). "Before the jury can consider this evidence in assessing punishment, it must be satisfied beyond a reasonable doubt that the acts are attributable to the defendant." Haley v. State, 173 S.W.3d 510, 515 (Tex.Crim.App. 2005) (citing Huizar v. State, 12 S.W.3d 479, 482-83 (Tex.Crim.App. 2000)). The Court of Criminal Appeals has held that the statutory burden of proof applies to a defendant's involvement in the act itself, not to the elements of a crime necessary for a finding of guilt. Id.