Opinion
NUMBER 13-15-00461-CR NUMBER 13-15-00462-CR
04-20-2017
CHRISTINE JOHNSON, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court of Jefferson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Hinojosa
Memorandum Opinion by Chief Justice Valdez
A jury found appellant Christine Johnson guilty of two counts of injury to a child. See TEX. PENAL CODE ANN. § 22.04(a)(1)(West, Westlaw through 2015 R.S.). The trial court sentenced Johnson to twenty years in prison on count one and sixty-five years on count two, with the sentences running concurrently. By four issues, which we reorganize and treat as three, Johnson contends that: (1) the evidence is legally insufficient as to both counts of injury to a child; (2) the trial court erred in excluding evidence proffered during the guilt-innocence phase of trial to negate the culpable mental state element of injury to a child; and (3) the trial court erred in admitting a competency report during the punishment phase of trial. In appellate cause number 13-15-00461-CR, as to count one, we affirm the trial court's judgment. In appellate cause number 13-15-00462-CR, we modify the trial court's judgment as to count two, affirm as modified, and remand for further proceedings consistent with this opinion.
This case is before the Court on transfer from the Ninth Court of Appeals pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.).
I. Background
Johnson gave birth to F.M. on July 13, 2013 at the age of nineteen. F.M.'s biological father, Darrell Mason, was seventeen. After F.M. was born, Johnson, Darrell, and F.M. lived in an apartment with Johnson's aunt, Linda Fields. When viewed in the light most favorable to the verdict, the relevant evidence showed the following.
On the night of August 17, 2013, Johnson's cousin, Angel Fields, arrived at Linda's apartment. When Angel arrived, she saw Darrell holding F.M. F.M. was making an odd noise. Angel asked to hold F.M., but Darrell initially refused and got angry. Eventually, Darrell gave F.M. to Angel and went into another room.
According to Angel, F.M. felt light and weak, one of her eyes was twitching, and she appeared to be having trouble breathing. Angel unwrapped F.M.'s blanket and saw that F.M.'s arm "was purple looking." When Angel asked Johnson what happened to F.M., Johnson replied that she did not know. Angel insisted that F.M. required immediate medical attention. Johnson reluctantly agreed to take F.M. to the hospital after Angel persisted.
Thereafter, Angel, Johnson, and Linda brought F.M. to the hospital. Darrell stayed at the apartment. Upon arriving to the hospital, medical personnel determined that F.M. was having a seizure and required immediate medical treatment. Johnson remained quiet when medical personnel asked for information regarding F.M.'s condition. Medical testimony showed that many of F.M.'s bones were either broken, bruised, or fractured, and her brain was bleeding from the inside. F.M. also suffered a fractured neck, which a doctor described as the most recent, significant injury. The majority of F.M.'s injuries were sustained within the two-to-three week period immediately prior to being taken to the hospital. There was medical testimony indicating that F.M.'s injuries were so obvious just from looking at her that almost anyone would have known that she needed medical attention. Medical testimony also showed that F.M. probably would have died if Johnson delayed taking her to the hospital another six hours. Fortunately, F.M. survived.
During her video interview with a detective at the hospital, Johnson admitted that she jerked F.M. out of bed the previous morning, on August 16, 2013, because F.M. woke her up too early. Using a sheet of paper, Johnson demonstrated on video the amount of force she used to jerk F.M. out of bed. A medical expert watched Johnson's demonstration on video and determined that the amount of force used could have caused F.M.'s neck to fracture.
Aside from F.M.'s neck fracture, the evidence regarding who caused F.M.'s other injuries suggested several individuals, including Darrell, Johnson (according to the State), or other members of Johnson's extended family.
The record shows that Darrell was also charged in connection with F.M.'s injuries. The State elicited testimony from a detective that Darrell was charged with the "very same thing."
At the close of the evidence, the trial court submitted two counts of injury to a child; count one asked the jury to consider whether Johnson was guilty of recklessly causing F.M.'s neck injury on or about August 16, 2013 by "pulling" F.M.; count two asked the jury to consider whether Johnson was guilty of intentionally or knowingly causing serious bodily injury by failing to seek medical treatment for F.M. Count two did not specify the type of injury that was the result of Johnson's failure to seek medical treatment. After deliberating, the jury found Johnson guilty on both counts.
With respect to count one, the jury specifically found that "on or about August 16, 2013, [Johnson] did then and there recklessly cause serious bodily injury to [F.M.] . . . by pulling [F.M.] with her hand with sufficient force to fracture [F.M.'s] neck." With respect to count two, the jury specifically found that "on or about August 16, 2013, [Johnson] did then and there intentionally or knowingly, by omission, cause serious bodily injury to [F.M.] . . .by failing to seek medical treatment for [F.M.], and [Johnson] ha[d] a statutory duty to act, namely, as a parent of [F.M.]." Johnson does not dispute that as F.M.'s parent, she had a duty to provide medical care. See TEX. FAM. CODE ANN. § 151.001(a)(3) (West. Westlaw through 2015 R.S.) (providing that parents have a duty to support their children, including providing clothing, food, shelter, medical and dental care, and education).
Following a punishment trial, during which the State admitted Johnson's competency report into evidence, the trial court accepted the jury's punishment verdict and sentenced Johnson to twenty years in prison on count one and sixty-five years on count two. This appeal followed.
II. Legal Sufficiency
By her first issue, Johnson contends that the evidence is legally insufficient to support her conviction for injury to a child as alleged in counts one and two.
A. Standard of Review
In conducting our legal sufficiency review, we view "the evidence in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Gross v. State, 380 S.W.3d 181, 185 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307 (1979)). We look to "the hypothetically correct jury charge for the case" in determining "the essential elements of the crime." Geick v. State, 349 S.W.3d 542, 545 (Tex. Crim. App. 2011). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
B. Applicable Law
Injury to a child is a second-degree felony if the defendant "recklessly" causes serious bodily injury to a child; the offense becomes a first degree felony if the defendant "intentionally or knowingly" causes serious bodily injury to a child. TEX. PENAL CODE ANN. § 22.04(a)(1), (e). Serious bodily injury means "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(a)(46) (West, Westlaw through 2015 R.S.).
Injury to a child may be committed by the defendant's act—for example, hitting or shaking a child, which causes serious bodily injury. See id. § 22.04(a)(1). The offense may also be committed by the defendant's failure to act—for example, failing to provide medical care for a child, which causes serious bodily injury. See id. § 22.04(b). However, for injury to a child by omission, it is not sufficient for the State to prove that the defendant failed to provide medical care for a serious bodily injury; instead, it is necessary to prove that the child suffered a serious bodily injury because the defendant failed to provide medical care. See Dusek v. State, 978 S.W.2d 129, 133 (Tex. App.—Austin 1998, pet. ref'd).
Importantly, injury to a child is a result-oriented offense. See Villanueva v. State, 227 S.W.3d 744, 748 (Tex. Crim. App. 2007). This means that the child's "injury" forms the "gravamen of the offense" or "allowable unit of prosecution." Id. Because it is the child's injury that defines this offense, the State may not obtain two convictions against a defendant for causing the same injury. Id. This holds true even if a single injury results from a combination of the defendant's affirmative act and subsequent omission. Id. An example of this would be where a parent shakes a baby (affirmative act) and then fails to seek medical care after shaking the baby (omission)—causing a single injury (shaken-baby syndrome). Id. In that scenario, the person has committed one offense, not two offenses, because one injury occurred. Id. at 749 (holding that double jeopardy prohibition against multiple punishments precluded punishing defendant for both his act in shaking baby and his omission in failing to seek medical help because only one injury occurred).
On the other hand, it is entirely possible that, in an appropriate case, the State could obtain two such convictions if a child suffers two distinct serious bodily injuries. For example, suppose that a parent . . . pokes his finger in his child's eye and causes the child to go blind. That is a serious bodily injury. The crime of injury to a child is complete. Suppose also that the parent then fails to seek medical assistance for that eye injury. As a result of that failure, the eye socket becomes infected, the infection travels to the brain, and the child suffers irreversible brain damage. This is a separate
serious bodily injury, an injury that would not have occurred but for (1) the original affirmative act of poking the child's eye, and (2) the separate criminal conduct of failing to seek medical attention for the already-injured eye. In this instance, the parent is criminally liable for two distinct injuries, neither of which would have occurred but for the parent's conduct.Id. at 751 (J. Cochran concurring).
C. Analysis
1. Count One—Reckless
Regarding count one, the jury found that Johnson recklessly caused serious bodily injury by "pulling [F.M.] with her hand with sufficient force to fracture [F.M.'s] neck." By her first issue, Johnson contests only the jury's finding that she caused serious injury with the requisite culpable mental state—i.e., recklessly.
A person acts recklessly, or is reckless, with respect to . . . the result of [her] conduct when [she] is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.TEX. PENAL CODE ANN. § 6.03(c) (West, Westlaw through 2015 R.S.).
Here, Johnson admitted that she jerked F.M. out of anger for waking up too early. Specifically, Johnson admitted: "One morning I woke up and I was mad and I accidentally jerked her but I actually meant to do it because I was so mad because she had woke me up so early in the morning." F.M. was five weeks old at the time. During her video interview with a detective at the hospital, Johnson demonstrated the amount of force she applied when she jerked F.M. out of bed. This demonstration was followed by a doctor's testimony that the amount of force Johnson used could have caused F.M.'s neck to fracture. When viewed in the light most favorable to the jury's verdict, the evidence supports a finding that Johnson consciously disregarded a substantial and unjustifiable risk of serious injury when she jerked F.M. See Jackson, 443 U.S. at 326; see also Torres v. State, 116 S.W.3d 208, 210 (Tex. App.—Corpus Christi 2003, no pet.) (defendant acted recklessly when he grabbed and twisted infant's leg in anger while changing his diaper). We further conclude that Johnson's disregard of the risk of injury to F.M. constituted a gross deviation from the standard of care that an ordinary person would exercise as viewed from Johnson's standpoint. See TEX. PENAL CODE ANN. § 6.03(c). The evidence is legally sufficient to prove that Johnson recklessly caused serious bodily injury to F.M.'s neck. Id. We therefore overrule Johnson's first issue to the extent it challenges the sufficiency of the evidence as to count one.
2. Count Two—Serious Bodily Injury
Regarding count two, the jury found that Johnson intentionally or knowingly caused serious bodily injury to F.M. by failing to seek medical care. By her first issue, Johnson also contends, among other things, that there is no evidence that F.M. suffered serious bodily injury as a result of any delay in seeking medical care.
As previously mentioned, the application paragraph of the jury charge did not specify the type of injury that F.M. suffered as a result of any delay in seeking medical care. However, because Johnson was found guilty of causing F.M.'s neck injury in count one, the same neck injury could not serve as the predicate injury to support Johnson's conviction in count two unless F.M. suffered "a separate and discrete, or at least incrementally greater," injury to her neck or elsewhere as a result of Johnson's delay in seeking medical care. See Villanueva, 227 S.W.3d at 748 (recognizing that appellant could be held criminally responsible in count two for failing to seek medical care for the child's underlying injury if the failure to seek care resulted in a "separate and discrete, or at least incrementally greater," injury to the child than the one for which appellant had already been held criminally responsible in count one). In other words, the evidence had to show that Johnson's delay in seeking medical care caused a serious bodily injury beyond that which Johnson caused in count one. See id.
Here, the evidence showed that on the night of August 17, 2013, Johnson took F.M. to the hospital after Angel insisted that immediate medical care was necessary. Although Johnson was reluctant to go at first, F.M. made it to the hospital and doctors were able to treat F.M.'s injuries and ultimately save her life. The medical testimony was that F.M. probably would have died if Johnson had delayed the trip to the hospital six more hours. Fortunately, the result in this case was not death. Although F.M. survived, there is no question that she sustained serious bodily injuries in the first five weeks of her life, the extent and seriousness of which is well documented and not in dispute. These injuries include bruises, fractured bones, and bleeding in the brain.
On appeal, the State argues that the evidence supports a finding that Johnson caused these injuries by omission. Specifically, the State points to the fact that (1) F.M.'s injuries were so obvious that "a caring parent could not have helped but notice" them, (2) Johnson initially expressed a reluctance to take F.M. to the hospital, (3) Johnson "showed very little care or concern, if any, for [F.M.] even at the hospital," and (4) Johnson admitted that she knew that F.M.'s arm was broken at least one day prior to taking F.M. to the hospital. However, as previously mentioned, it was not sufficient for the State to prove simply that Johnson failed to provide medical care for a serious bodily injury; rather, the evidence had to show that Johnson caused serious bodily injury because she failed to seek medical treatment for F.M. See Dusek, 978 S.W.2d at 133.
The evidence in this case shows that Johnson delayed seeking medical care for at least some period of time before she took F.M. to the hospital. The medical testimony generally indicated that the majority of F.M.'s injuries were sustained within the two-to-three week period immediately prior to being taken to the hospital. However, the evidence does not show any interval of time between the occurrence of any particular injury and a delay in seeking medical care for that injury. Furthermore, and most important, the evidence does not show that F.M. suffered a separate and distinct, or at least incrementally greater, serious injury attributable to Johnson's delay in seeking medical care. See Wright v. State, 494 S.W.3d 352, 366 (Tex. App.—Eastland 2015, pet. ref'd) (holding evidence was legally insufficient to establish that defendant intentionally or knowingly caused her child to suffer serious mental impairment or injury by failing to get the child prompt medical attention upon learning that the child had been sexually assaulted by defendant's boyfriend where no evidence showed that any delay in medical treatment attributable to defendant caused the child any additional mental injuries). Having reviewed the entire record in the light most favorable to the verdict, the evidence supports only a finding that F.M. could have died from injuries had she not been taken to the doctor. However, a jury could not have rationally found from the evidence that F.M. suffered a serious bodily injury because Johnson delayed seeking medical care for any particular underlying injury. We sustain Johnson's first issue to the extent that it challenges the sufficiency of the evidence as to count two.
We note that serious bodily injury includes "bodily injury that creates a substantial risk of death." TEX. PENAL CODE ANN. § 1.07(a)(46) (West, Westlaw through 2015 R.S.). Although medical testimony showed that F.M. could have died from injuries she sustained, there was no evidence that F.M. sustained a bodily injury, separate and distinct from the underlying injuries, because of Johnson's delay in seeking medical care, which put F.M. at a greater risk of death.
3. Lesser-Included Offense
When the evidence does not support a conviction for a greater offense, we modify the trial court's judgment to reflect a conviction for a lesser included offense if the evidence supports it. See Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App. 2014). Having determined that the evidence does not support a conclusion that Johnson's delay in seeking medical care caused a "serious bodily injury" separate and distinct from F.M.'s underlying injuries, we now consider whether a rational jury could have found Johnson guilty of the lesser included offense of intentionally or knowingly causing "bodily injury" by failing to seek medical care, which is a third-degree felony. TEX. PENAL CODE ANN. § 22.04(f).
See TEX. CODE CRIM. PROC. ANN. art. 37.09(2) (West, Westlaw through 2015 R.S.) (providing that an offense is a lesser included offense if, among other things, "it differs from the offense charged only in the respect that a less serious injury . . . to the same person . . . suffices to establish its commission"); see also Collier v. State, No. 03-97-00033-CR, 1998 WL 238523, at *4 (Tex. App.—Austin May 14, 1998) (not designated for publication) (observing that "bodily injury" is a lesser included element of "serious bodily injury"), aff'd, 999 S.W.2d 779 (Tex. Crim. App. 1999).
Bodily injury means physical pain [among other things.]
A person acts intentionally, or with intent, with respect to . . . a result of [her] conduct (failing to seek medical care) when it is [her] conscious objective or desire to . . . cause the result (physical pain).TEX. PENAL CODE ANN. §§ 1.07(a)(8) & 6.03(a), (b) (West, Westlaw through 2015 R.S).
A person acts knowingly, or with knowledge, with respect to a result of [her] conduct when [she] is aware that [her] conduct (failing to seek medical care) is reasonably certain to cause the result (physical pain).
Here, Johnson provided a written statement to the police, in which she stated: "I saw [F.M.'s] arm turn purple and green, but I didn't say nothing until the next day." The record also shows that Linda at some point told Johnson that F.M.'s arm appeared to be broken, to which Johnson replied that she "been knew that." The jury could have reasonably inferred from Johnson's admissions that she waited at least one day before seeking medical care for F.M.'s broken arm; that F.M. experienced physical pain during Johnson's delay in seeking care; and that Johnson knew that F.M. was reasonably certain to experience physical pain because of her delay in seeking care.
We conclude that the evidence is legally sufficient to convict Johnson of third degree injury to a child by omission. See TEX. PENAL CODE ANN. § 22.04(f); Jackson, 443 U.S. at 307. We therefore modify the trial court's judgment to reflect a conviction for that offense and remand the case for a new punishment trial on count two. See Thornton, 425 S.W.3d at 300.
III. Excluding Expert Testimony During Guilt-Innocence Phase
By her second issue, Johnson contends that the trial court erred under rule 401 of the Texas Rules of Evidence when it excluded expert testimony at the guilt-innocence phase of her trial—testimony which Johnson argues was directly relevant to rebut the culpable mental state element of injury to a child.
A. Offer of Proof
The trial court held a hearing outside the presence of the jury to determine whether Johnson's expert, Dr. Seth Silverman, would be allowed to testify at the guilt-innocence phase of trial. At the hearing, Dr. Silverman, a forensic psychiatrist, testified that Johnson's records indicate that she has an IQ of 67, which means she is "intellectually challenged." Dr. Silverman further testified that, in his opinion, Johnson's intellectual impairment "may affect her ability to appreciate certain actions or inactions that may have certain consequences regarding [F.M.]." On cross-examination, Dr. Silverman clarified that, although he could not speak to Johnson's "culpability," he could say that she does not have the "sophistication to understand some of the consequences of some of her behaviors compared to other people because of her intellectual impairment." After considering the arguments of counsel, the trial court excluded Dr. Silverman's testimony.
B. Standard of Review
We review the trial court's evidentiary ruling to exclude evidence for an abuse of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). The trial court abuses its discretion only if the ruling is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).
C. Applicable Law
Rule 401 provides that evidence is relevant if: "(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." TEX. R. EVID. 401. Evidence that a defendant suffers from a mental disease or defect may, in some cases, be relevant to rebut the culpable mental state element of the charged offense. For example, in Ruffin v. State, the Texas Court of Criminal Appeals held that the defendant's delusional belief that he was shooting at Muslims, as opposed to police officers, was directly relevant to rebut the culpable mental state element of first-degree aggravated assault, which required the State to prove that the defendant actually knew his targets were police officers rather than members of some other group. 270 S.W.3d 586, 594 (Tex. Crim. App. 2008). However, the court clarified that evidence of a mental disease or defect may be excluded "if it does not truly negate the required mens rea." Id.
D. Analysis
Here, Johnson offered Dr. Silverman's testimony to negate the culpable mental state element of injury to a child. With respect to count one, Dr. Silverman's testimony was relevant if it truly negated a finding that Johnson consciously disregarded the risk that jerking F.M. out of bed would cause a fractured neck. With respect to count two, which we have modified to reflect a third-degree felony, Dr. Silverman's testimony was relevant if it truly negated a finding that Johnson knew that F.M. was reasonably certain to experience physical pain because of a delay in seeking medical care.
Dr. Silverman testified that Johnson's intellectual impairment may affect her ability to appreciate the consequences of her actions or inactions towards F.M. However, nothing more was offered by Dr. Silverman regarding how Johnson's impairment affected her mental state, and Dr. Silverman conceded on cross examination that he could not speak to Johnson's "culpability." The trial court could have reasonably determined that Dr. Silverman's testimony did not truly negate Johnson's culpable mental state. Based on the record before us, we cannot conclude that the trial court's decision to exclude Dr. Silverman's testimony was "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor, 268 S.W.3d at 579. We overrule Johnson's second issue.
IV. Admissibility of Johnson's Competency Report at Punishment
By her third issue, Johnson contends that the trial court erred in admitting a competency report at the punishment phase of her trial pursuant to article 46B.007 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 46B.007 (West, Westlaw through 2015 R.S.). Johnson argues that the trial court's error merits a new punishment trial.
Although we have already remanded the case for a new punishment trial on count two, we address Johnson's third issue because she would be entitled to a new punishment trial with respect to count one if the issue were to be sustained.
A. Pertinent Facts
Prior to trial, the trial court appointed Dr. Edward Gripon to examine Johnson regarding her competency to stand trial. After examining Johnson, Dr. Gripon found her competent to stand trial. Dr. Gripon prepared a competency report, which included Dr. Gripon's ultimate finding regarding competency. The report also recited various statements made by Johnson to Dr. Gripon during the competency examination. The trial court accepted Dr. Gripon's finding that Johnson was competent, and the case proceeded to a trial on the merits.
Following the jury's verdict of guilt, the trial court convened a punishment trial. After the State rested, Johnson presented her evidence. An integral part of Johnson's mitigation theory was that the jury might find her to be less deserving of a harsh punishment if they understood how her intellectual impairment interfered with her ability to function in the world. To advance this mitigation theory, Johnson called Dr. Silverman.
Dr. Silverman testified that his evaluation of Johnson was based on interviews with her and those who knew Johnson, as well as his review of various records, including Dr. Gripon's competency report. Although Dr. Silverman mentioned Dr. Gripon's competency report, he did not testify to the contents of the report or to any statements made by Johnson as recited in the report. Dr. Silverman testified that, in his opinion, Johnson is easily influenced by others and cannot function independently due to her intellectual impairment. Dr. Silverman also testified that Johnson's impairment affected her mental awareness of the potential consequences of her actions or inactions as it pertained to the charges on which she had been found guilty.
On cross-examination, the State moved to admit a copy of Dr. Gripon's competency report into evidence. Johnson objected on the basis that the competency report was inadmissible under code of criminal procedure article 46B.007. The trial court overruled Johnson's objection and admitted the report into evidence. During the State's cross-examination of Dr. Silverman, the State referred to several statements made by Johnson during her competency evaluation as a means of testing the reliability of Dr. Silverman's opinion regarding Johnson's intellectual impairment.
B. Standard of Review and Applicable Law
We review the trial court's decision to admit Johnson's competency report under the abuse-of-discretion standard set out above. See Cameron, 241 S.W.3d at 19. Article 46B.007, entitled "Admissibility of Statements and Certain Other Evidence," provides, in relevant part, as follows:
A statement made by a defendant during a[] [competency] examination [or] the testimony of an expert based on that statement . . . may not be admitted in evidence against the defendant in any criminal proceeding, other than at: (1) a trial on the defendant's incompetency; or (2) any proceeding at which the defendant first introduces into evidence a statement [or] testimony . . . described by this article.TEX. CODE CRIM. PROC. ANN. art. 46B.007.
C. Analysis
1. Error
The statements made by Johnson to Dr. Gripon during her competency examination were admitted during her punishment trial, not at any competency trial. Consequently, by statute, Johnson's statements were inadmissible unless she "first introduce[d] into evidence a statement [or] testimony . . . described by [article 46B.007]." It is undisputed that Johnson never introduced any statement she made during her competency examination. Nonetheless, the State argues that Johnson opened the door to the use of her statements by offering the testimony of her expert, Dr. Silverman. However, Dr. Silverman never testified that his opinion regarding Johnson's intellectual impairment was based on any statement that Johnson made during her competency examination. Instead, Dr. Silverman testified that his opinion regarding Johnson's intellectual impairment was informed by a review of Dr. Gripon's competency report, among a myriad of other material; the jury never heard anything more about Dr. Gripon's competency report, much less about any statement recited in the report, until the State admitted it into evidence during cross examination. Furthermore, it is clear that Dr. Silverman's testimony on direct examination focused on Johnson's intellectual impairment as it related to the circumstances of the offenses, not as it related to her competence to stand trial. In other words, the State used Johnson's statements during her competency examination as a means to impeach Dr. Silverman even though Dr. Silverman testified that he had no opinion regarding Johnson's competence, was never asked to evaluate her for competence, and never referenced any statement she made during her competency examination.
As a matter statutory interpretation, we construe the phrase "testimony . . . described by [article 46B.007]" as a reference to "expert" testimony described earlier in the article. See Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000) (observing that, under the doctrine of "last antecedent," a qualifying phrase in a statute must be confined to the words and phrases immediately preceding it to which it may be applied without impairing the meaning of the sentence). As such, article 46B.007 allowed the State to admit Johnson's statements if Johnson first introduced "the testimony of an expert [that was] based on" a statement that Johnson made during her competency examination.
Under these circumstances, we cannot conclude that Johnson "first introduce[d] into evidence a statement [or] testimony . . . described by [article 46B.007]" when Dr. Silverman made only a passing mention of Dr. Gripon's competency report without referencing any of Johnson's statements. See Espinosa v. State, 328 S.W.3d 32, 41 (Tex. App.—Corpus Christi 2010, pet. ref'd) (concluding that testimony generally referencing the defendant's competence to stand trial did not implicate article 46B.007 when the testimony did not refer to any statement made by the defendant during his competency examination and did not reference any expert testimony based on any such statement). Johnson did not open the door to the admission of Dr. Gripon's competency report or to its use by the State in cross examining Dr. Silverman. Therefore, we hold that Johnson's statements were admitted in error.
2. Harm
Having found error, we must conduct a harm analysis to determine whether the error calls for a new punishment trial as to count one. Error in the admission of evidence generally does not rise to a constitutional level. See Mitten v. State, 228 S.W.3d 693, 695 (Tex. App.—Corpus Christi 2005, pet. ref'd, untimely filed). Instead, constitutional error is presented only if the erroneously admitted evidence violated the Texas or United States constitutions. Id. At trial, Johnson complained that admitting her statements violated a Texas statute, article 46B.007. She did not complain of any constitutional error. On appeal, neither Johnson nor the State address whether the error is statutory or constitutional. In order to apply the proper harm standard, we must first determine whether the error at issue here was constitutional. See TEX. R. APP. P. 44.2(a)-(b) (articulating a different harm standard for "constitutional" as opposed to "other" error).
Again, because Johnson is entitled to a new punishment trial as to count two, our harm analysis is relevant only to count one. Johnson was sentenced to twenty years in prison on count one for recklessly causing serious bodily injury to F.M.'s neck.
According to our research, statements described by article 46B.007 may sometimes implicate a defendant's Fifth Amendment right against compelled self-incrimination. In Estelle v. Smith, the United States Supreme Court held that admitting, at a punishment trial, statements made by a defendant during a court-ordered, in-custody competency examination implicated Fifth Amendment protections against compelled self-incrimination where, among other things, the defendant neither initiated the competency examination nor attempted to introduce any psychiatric evidence at his punishment trial. 451 U.S. 454, 468 (1981).
Although statements described by article 46B.007 were the subject of Estelle v. Smith, none of the circumstances that implicated Fifth Amendment concerns in that case are present here. The main reason is that Johnson initiated the competency examination by specifically requesting one prior to trial; therefore, unlike the defendant in Estelle v. Smith, Johnson's competency examination did not occur under circumstances in which she was compelled to incriminate herself. See id. Furthermore, unlike the defendant in Estelle v. Smith, Johnson introduced psychiatric evidence through Dr. Silverman at her punishment trial. See id. We therefore conclude that no error of constitutional dimension is presented on these facts. However, because admitting Johnson's statements violated article 46B.007, a statute, we conduct a harm analysis for statutory error under Texas Rule of Appellate Procedure 44.2(b). TEX. R. APP. P. 44.2(b).
Under Rule 44.2(b), the error is to be disregarded unless it affected Johnson's "substantial rights." Id. To make this determination, we must decide whether the error had a "substantial or injurious" effect on the jury's punishment verdict of twenty years on count one. Mitten, 228 S.W.3d at 696-97. Neither party has the burden of proof under rule 44.2(b). See id. Instead, we examine the record for purposes of determining harm. See id. If we are fairly assured that the error had "no influence or only a slight influence" on the jury's punishment verdict, the error is harmless and does not call for a new punishment trial. Id.
In assessing the likelihood that the jury's decision was adversely affected by the error, [we] should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. [We] might also consider the jury instruction given by the trial judge, the State's theory and any defensive theories, closing arguments and even voir dire, if material to appellant's claim.Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
Here, Dr. Gripon's report recites several statements made by Johnson during her competency examination. According to the report, Johnson provided routine background information, including her date of birth, marital status, employment, school, and family history; she stated that her pending charges are for "injury to a child" and "forgery"; she denied a history of mental health treatment; she denied a history of significant alcohol or drug use; and she stated that she spent her time while incarcerated reading a Bible and attending GED classes. As the State points out, most of the facts contained in Johnson's statements were either beneficial to Johnson's defense or of no real significance or consequence to the punishment verdict. Furthermore, the statements that were detrimental to her, such as the forgery charge, were already borne out by other evidence admitted by the State without objection.
The report also recited Dr. Gripon's observations of Johnson based on her statements. Notably, some of Dr. Gripon's observations actually supported Dr. Silverman's testimony that Johnson was intellectually impaired. For example, in assessing Johnson's competency to stand trial, Dr. Gripon rated her intelligence as "low to borderline" and stated that she was identified in school as needing "special education." Thus, at least to some extent, Dr. Gripon's observations buttressed Dr. Silverman's testimony regarding whether Johnson was intellectually impaired.
We recognize, however, that other observations made by Dr. Gripon would appear to undermine Johnson's mitigation theory that she was less deserving of a harsh punishment based on her intellectual impairment. For example, in finding Johnson competent to stand trial, Dr. Gripon states: Johnson "possesses sufficient ability to communicate with her attorney with a reasonable degree of rational understanding"; she "has a layperson's working knowledge of the role of a judge, jury, prosecutor, and defense attorney"; she is able to discuss "the various parameters of guilt, innocence, acquittal, and punishment"; and she has the ability to "conform her behavior to an acceptable standard in a courtroom setting." However, we are convinced that these observations did little to undermine Johnson's mitigation theory because they focused on Johnson's competency to stand trial, not on her relative blameworthiness for the underlying offenses due to her intellectual impairment. See Morales, 32 S.W.3d at 867 (directing reviewing courts to consider the character of the alleged error and how it might be considered in connection with other evidence).
Finally, the State did not excessively emphasize the error. See Motilla v. State, 78 S.W.3d 352, 359 (Tex. Crim. App. 2002) (considering whether the State emphasized the error in assessing harm). The record shows that the State's use of Dr. Gripon's report accounts for only fifteen pages of the sixty-two page punishment record devoted to cross-examining Dr. Silverman. The record also shows that the State made only a brief mention of Dr. Gripon's report during closing argument without repeating any of Johnson's statements.
After reviewing the entire record, we are fairly assured that the error in admitting Johnson's statements had "no influence or only a slight influence" on the jury's punishment verdict as to count one. See TEX. R. APP. P. 44.2(b); Mitten, 228 S.W.3d at 696-97. We therefore conclude that the error is harmless and that it does not call for a new punishment trial as to count one. See TEX. R. APP. P. 44.2(b).
V. Conclusion
In appellate cause number 13-15-00461-CR, as to count one, we affirm the trial court's judgment. In appellate cause number 13-15-00462-CR, we modify the trial court's judgment as to count two, affirm as modified, and remand for further proceedings consistent with this opinion.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do Not Publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 20th day of April, 2017.