No. 14-02-00453-CR
Opinion filed June 12, 2003. Do Not Publish — Tex.R.App.P. 47.2(b).
On Appeal from the 183rd District Court, Harris County, Texas, Trial Court Cause No. 869,578
Panel consists of Justices YATES, HUDSON, and FROST.
LESLIE BROCK YATES, Justice.
Appellant, Stephanie Gallegos, was convicted by a jury of murder and sentenced to life imprisonment. In four points of error, appellant claims (1) the State improperly prosecuted her under the felony murder doctrine; (2) the trial court erred in denying her request for a lesser included offense; (3) the trial court erred in allowing testimony that appellant appeared to be under the influence of a controlled substance; and (4) the trial court erred in overruling appellant's objection to hearsay testimony. We affirm.
Background
Appellant was charged with the murder of the complainant, a two-year old boy. At the time of his death the complainant lived with his father, Gilbert Garza, and the appellant, his father's girlfriend. On January 31, 2001, the complainant received an eye examination. The optometrist found no evidence of any retinal hemorrhaging at the time. The following day, the complainant was left alone in appellant's custody. Appellant claimed complainant had been coughing and wanted to lie down. After complainant laid down, appellant noticed mucous around his mouth. She then saw that his lips had turned blue and he was no longer breathing. She attempted to revive the complainant and subsequently summoned neighbors. The Houston Fire Department responded to an emergency call from the residence, where Captain Nathan Snowden discovered the complainant to be non-reactive with dilated pupils. He was immediately transported to Texas Children's Hospital, where he later died. Doctor Doug Suell testified that at the time the complainant arrived at the hospital, he was not breathing or responding. Pediatric ophthalmologist, David Coats, testified that the complainant exhibited signs of shaken baby syndrome, including swollen optic nerves, retinal detachment, and hemorrhaging. After an autopsy, Harris County Assistant Medical Examiner, Patricia Moore, concluded that complainant had been struck several times on the head and had been violently shaken. Appellant was indicted for felony murder. The indictment alleged appellant: did then and there unlawfully, intentionally and knowingly commit the felony offense of injury to a child by shaking [the complainant], and while in the course of and furtherance of the commission of said offense did commit an act clearly dangerous to human life, to-wit: by striking [the complainant] with an unknown object and did thereby cause the death of [the complainant]. It is further presented . . . [appellant] did then and there unlawfully, intentionally, and knowingly commit the felony offense of injury to a child by striking [the complainant] with an unknown object, and while in the course of and furtherance of the commission of said offense did commit an act clearly dangerous to human life to-wit: by shaking [the complainant] and did thereby cause the death of [the complainant]. A jury found appellant guilty and sentenced her to life imprisonment. This appeal followed. Felony Murder Doctrine
In her first point of error, appellant maintains that the State improperly prosecuted her under the "felony murder rule." See Tex. Pen. Code Ann. § 19.02(a)(3) (Vernon 1994). Specifically, appellant argues that the acts forming the offense of injury to a child were the same acts relied upon by the State to prove appellant's commission of "an act clearly dangerous to human life." As such, appellant contends the act constituting the underlying felony and the act clearly dangerous to human life merged, and therefore could not support a conviction for felony murder. In support of this argument, appellant relies on Garrett v. State, 573 S.W.2d 543 (Tex.Crim.App. 1978). Texas Penal Code section 19.02(b)(3) provides: A person commits an offense if he . . . commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. Under the plain language of the provision, any felony can serve as the underlying felony, except manslaughter. Johnson v. State, 4 S.W.3d 254 (Tex.Crim.App. 1999). Furthermore, the Court of Criminal Appeals has specifically found that injury to a child may be the underlying felony as it is not a lesser included offense to murder. Id. at 256. We decline appellant's invitation to ignore clear precedent on this issue. Because this prosecution is not precluded by the merger doctrine, appellant's first point of error is overruled. Lesser Included Offense Charge
Appellant next argues that the trial court erred in failing to give a jury charge on the lesser included offense of reckless injury to a child. In response, the State argues that appellant has waived this point of error. We agree. The following discussion took place at the charge conference: Defense: I understand what the State is saying. But I would request that the court exclude [sic] a charge on reckless conduct. I think I understand the standard with regard to lesser included. The jury makes the determination as to whether it has any merits. I think in this particular case, Dr. Moore testified that there's absolutely no way to tell at what point in time the shaking will result in death. There's no way for an actor who's engaging in injury to say, "I'm going to shake a child to death," there's no point of no return. I think both of them stated that. Obviously, it's clear that you can shake a child and not kill a child. That's obvious from the implication of their testimony. I think there is some evidence on the issue of reckless conduct and I think that under the test, that some evidence should be given to the jury for its consideration. Court: Any response? State: I do, Judge. First of all, I want to clarify, what specifically is the lesser you're asking for? Defense: Reckless conduct. Court: Manslaughter is the correct term. State: I do not believe there has even been a scintilla of evidence that if the Defendant is guilty, that she is guilty of the offense of manslaughter. So I would object on that basis. Court: I'll deny your request. It is clear from this exchange that the State and court understood the defense's request to be for a charge on manslaughter — not reckless injury to a child as argued on appeal. It is well settled that even where a lesser included offense is supported by the evidence, the failure of defense counsel to request a charge on the offense, or properly object to its omission, constitutes a waiver. Kinnamon v. State, 791 S.W.2d 84, 96 (Tex.Crim.App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex.Crim.App. 1994) ( citing Moreno v. State, 702 S.W.2d 636 (Tex.Crim.App. 1986). In the absence of such a request or objection, the error complained of is waived. Id. Appellant's second point of error is overruled. Expert Testimony
In appellant's third point, she claims the trial court reversibly erred in overruling her objection to testimony that appellant appeared to be under the influence of a controlled substance. Appellant argues that the witness was not qualified to provide expert testimony. Debbie Belasquez, foster parent to appellant's child, testified regarding observations she made of appellant during court-ordered visitations. Specifically, she testified as follows: State: Do you have an opinion about whether or not you've ever seen [appellant] in a situation, where, in your opinion-I know you're not an expert, but in your opinion, you thought she was under the influence of something? Defense: Objection, this woman hasn't been qualified at all as a substance abuse expert or anything like that. Court: That's overruled. State: You can answer that. Belasquez: That was the first visit I had ever seen her, you know, act real apprehensive and, you know, and maybe she could have very well been. Appellant contends that the preceding testimony constitutes an opinion regarding her drug usage and, as such, is prohibited under Smithhart v. State, 503 S.W.2d 283 (Tex.Crim.App. 1973). We disagree. A lay witness may testify as to opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of her testimony or the determination of a fact in issue. See Tex.R.Evid. 701. Further, a lay witness can give an opinion as to intoxication. Richardson v. State, 766 S.W.2d 538, 540 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd); Howard v. State, 744 S.W.2d 640, 641 (Tex.App.-Houston [14th Dist.] 1987, no pet.). Belasquez was called to testify to her observations of appellant during court-ordered visitation. She observed appellant acting "apprehensively" and noted that this may have been due to her being under the influence of something. Belasquez was specifically asked to report on the visits, which she did and her testimony falls within accepted lay witness opinion based upon her perceptions. Smithhart, relied on by appellant, is distinguishable. 503 S.W.2d 283. Smithhart had been charged with driving under the influence of drugs, thus making the issue central to the conviction. The Smithhart court reasoned that an inexperienced police officer's opinion testimony on whether a defendant was under the influence of narcotics was not sufficient evidence to support the conviction. Id. at 285. It did not advance the proposition that a lay witness could never testify to general observations of intoxication. Here, the witness did not specifically testify to drug use, but rather to the unremarkable proposition that appellant appeared to be under the influence of "something." We find the testimony admissible and overrule appellant's third point of error. Hearsay Testimony
Appellant contends in her fourth point of error, that the trial court erred in allowing hearsay testimony of Texas Children's Hospital medical social worker, Allison Leftin. Leftin testified that Gilbert Garza, the complainant's father, had expressed concern about appellant inappropriately disciplining the complainant. Garza previously testified he had no reason to believe appellant had mistreated the complainant. Defense counsel objected to Leftin's testimony on hearsay grounds. However, on appeal appellant argues the statements were hearsay and were inadmissible to impeach Garza's prior testimony because the State failed to lay the proper predicate. To preserve error for appellate review, the complaining party must make a timely, specific objection. Tex.R.App.P. 33.1(a). The policy underlying specific objections serves two purposes: (1) a specific objection is required to inform the judge of the basis of the objection and afford him an opportunity to rule appropriately; and (2) a specific objection will allow opposing counsel an opportunity to remove the objection or supply other testimony. Villareal v. State, 811 S.W.2d 212, 217 (Tex.App. — Houston [14th Dist.] 1991, no pet.). The objection must be made at the earliest possible opportunity and set forth the specific grounds for the objection in order to preserve error. Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991). Appellant's trial counsel did not object to the testimony as improper impeachment testimony. The record reflects that at trial appellant made only a hearsay objection to Leftin's testimony. The State countered appellant's objections by limiting the statements for impeachment purposes. After the State limited the statements for impeachment purposes, appellant had the further burden to make the objection that she now makes on appeal. Appellant must have specifically objected to the fact that the State had not satisfied the predicate requirements. She did not; therefore, error was waived. Sandow v. State, 787 S.W.2d 588, 595 (Tex.App.-Austin 1990, pet. ref'd). Appellant points to Moore v. State, 652 S.W.2d 411 (Tex.Crim.App. 1983), to support her contention that the testimony should have been excluded. While we agree that Moore addresses the proper predicate for impeaching a witness with a prior inconsistent statement, it does not address the issue of preservation of error. The Moore court did not indicate the extent of Moore's objection, other than to call it a hearsay objection. Further, the State in that case did not argue waiver, but rather contended the testimony was admissible "because it had the indicia of reliability that takes hearsay out of the general rule of exclusion. . . ." Id. at 411. Here, if appellant had made a proper objection that the trial court could have sustained, the State would have had the opportunity to remedy the defect by recalling Garza and laying the proper foundation. It was appellant's burden to make a proper objection and we find she failed to do so. Appellant's fourth point of error is overruled and the trial court's judgment affirmed.