Opinion
No. 14-06-01027-CR
Opinion filed February 12, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 339th District Court Harris County, Texas, Trial Court Cause No. 1011999.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
MEMORANDUM OPINION
Appellant, Carol Ann Hoey, appeals from her conviction for serious bodily injury to a child (her four-year-old daughter) by omission. A jury found that appellant committed the offense intentionally or knowingly and assessed punishment at life in prison. In two issues, appellant challenges the legal and factual sufficiency of the evidence to support the conviction. We affirm.
Background
On October 25, 2004, appellant's four-year-old daughter, Amanda, died after ingesting methadone (an analgesic and anti-addictive) that had been prescribed for appellant. Appellant testified at trial that on the night in question, she and her daughter were at the home of John Wayne Smith, whom appellant was dating at the time. Appellant kept methadone, as well as other drugs and her makeup, in a basket on the bathroom floor at this location. According to appellant, she and Amanda were watching TV when Amanda started scratching her arms and rubbing her nose. Appellant then became concerned that Amanda may have "gotten into something." She gave Amanda a Benadryl tablet to stop the itching. About an hour later, after drinking chocolate milk, Amanda went into the bathroom and vomited. The vomit contained milk and an orange foam. Appellant testified on direct examination that she did not ask Amanda whether she had gotten into the drugs at that point because Amanda knew not to and had never done so before. However, on cross-examination, appellant admitted that she knew Amanda had taken methadone when she vomited the orange foamy substance. After Amanda vomited, appellant discovered that one 40 milligram tablet of methadone was missing. Thirty to forty-five minutes after Amanda vomited, appellant called Don Coulter, her methadone counselor. According to appellant, Coulter did not tell her to call the police or to summon an ambulance; instead, he told her to observe Amanda. He stated that Amanda would be okay if she didn't start acting intoxicated. After talking with Coulter, appellant gave Amanda crushed antacid tablets in chocolate to induce further vomiting. Upon swallowing the antacids, Amanda vomited three more times. The nature of the vomiting was so violent that it scared appellant. Later, Amanda took a bath and ate, and appellant kept her up past her usual bed time. Amanda appeared tired, but otherwise seemed okay and had stopped itching. Eventually, appellant let Amanda fall asleep (sometime between 12 and 2 a.m.), and a couple of hours later appellant fell asleep. Shortly before 8 a.m., appellant woke because Amanda had urinated in the bed next to appellant. Dark brown blood emanated from Amanda's nose; she was unresponsive and did not appear to be breathing. Appellant screamed for Smith, who came to the room, wiped Amanda's face, and started CPR on her. Appellant called 9-1-1, and an ambulance arrived at the house. Appellant said that she was told she could not ride in the back of the ambulance with Amanda, so she rode to the hospital with Smith. At the hospital, appellant told a nurse that she thought Amanda's problems might stem from an automobile accident that they had been in the day before. Appellant got to see Amanda, and Amanda was pronounced dead shortly thereafter. An autopsy determined Amanda's cause of death to be a lethal dose of methadone. Appellant acknowledged that she had been made aware of the dangers associated with methadone. A handbook she received from the drug clinic informed her that medical attention was necessary anytime someone ingested methadone who was not prescribed methadone. She also signed a "Statement of Responsibility in Handling Methadone" in which she affirmed "I'm aware methadone is considered a lethal drug to all children. . . ." Appellant further admitted that she lied under oath to the police when she gave a statement after Amanda's death, omitting any mention that Amanda may have ingested methadone. She also lied when she told police that Amanda's condition was likely caused by the prior day's auto accident and that their dog had gotten into the methadone. Additionally, appellant acknowledged that she did not tell any of Amanda's care givers that Amanda may have ingested methadone because she (appellant) knew her earlier decision to not seek immediate medical attention had been the wrong course of action. At the time, she did not want to believe what had happened to Amanda, but she now believes that her own failure to properly act caused Amanda's death. A couple of days after giving her statement, appellant told police that Amanda may have ingested methadone. At trial, appellant agreed that she understood the dangers of methadone but "decided to take a risk and see if [she] could just help [Amanda herself]." She said that Coulter was not guilty but that she was guilty. Joseph Donald Coulter testified that he was appellant's primary chemical dependency counselor at Toxicology Associates. He said that on the night in question, appellant called him and asked if there was anything available for someone who had taken methadone to counteract its effects. He described a hospital substance called "Narcan," but told her that it could not be bought over-the-counter. Regarding whether appellant specifically told him about Amanda's ingestion of methadone and under what conditions he told appellant to call for an ambulance, Coulter testified somewhat inconsistently. When first asked, he said that appellant did not specifically tell him about Amanda taking methadone. He advised appellant that if Amanda had taken methadone, appellant "needed to call an EMT, that if [Amanda] got lethargic, she needed to be concerned and call an EMT." Coulter then described appellant's concession that Amanda "had gotten into the methadone," and the following exchange occurred:Q. What was your reaction to that? Did you think it was no big deal?
A. Well, no, again, I told her the ramifications of even a small amount of methadone on a child, she should call a EMT if that was the case.
Q. You felt based on what you had heard in the conversation at that point that it was crucial that she call an ambulance?
A. Yes.His reason for doing nothing more to insure medical attention for Amanda was that during the conversation with appellant, he doubted whether Amanda had ingested methadone. He then said that whether her illness was caused by ingesting methadone or something else, "it's not going to hurt to call an ambulance, you know. And I left it to her." Still later, he explained that he told appellant to keep Amanda vomiting, "give her an antacid if she's taken something, and to wait for the EMT's. And if she turns blue or passes out, you know, start CPR and call an ambulance." During examination by the State, Coulter clarified that the reason he asked appellant about Amanda's symptoms was because appellant seemed unsure of whether Amanda had actually ingested methadone or might be sick for some other reason. He asked her about symptoms of toxicity to figure out whether methadone could have been the cause of the vomiting. He told appellant that if she was concerned about Amanda's possible ingestion of methadone, appellant should get her to a hospital. Misty Worrell, one of the paramedics who responded to the scene on the night in question, testified that had the paramedics been told of methadone ingestion, they would have administered Narcan to Amanda, in the hopes of reducing the effects of the methadone. She said that Narcan was carried in the ambulance, but she refused to speculate whether treatment with Narcan at that point would have been successful. Because the paramedics were unaware of possible methadone ingestion, they treated Amanda only for cardiac arrest. Judy Corbett testified that on October 16, 2000, she left her five-year-old nephew and four-year-old niece at her home with appellant. Appellant phoned Corbett and asked her to come home because the children had ingested medication. Corbett went to the house and then took the children to the hospital, where they had their stomachs pumped. After considering the foregoing evidence, the jury convicted appellant of intentionally or knowingly causing serious bodily injury to a child by omission. See Tex. Penal Code § 22.04.