Opinion
No. 05-02-01624-CR
Opinion issued January 6, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the 265th District Court, Dallas County, Texas, Trial Court Cause No. F02-01077-UR. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
OPINION
Terri Ellen Logan-Gates appeals her capital murder conviction. A jury convicted appellant and, pursuant to statute, she was sentenced to confinement for life. In twenty-four points of error, appellant challenges the legal and factual sufficiency of the evidence and argues the trial court erred in overruling her motions for mistrial, objections to certain evidence and the court's charge, and requests for the inclusion of certain matters in the court's charge. We affirm the trial court's judgment. On February 5, 2001, Robert Franklin, a Lancaster fire fighter and EMT, was driving an ambulance and received a call that there was an injury at an address in Lancaster. When Franklin arrived, he got out of the ambulance and saw appellant holding a baby, D.G., and walking toward him. As Franklin approached appellant, she turned away and started to go back inside her apartment. Franklin approached appellant and took D.G. from her. D.G. was naked and unconscious, her breathing was shallow and slow, and she was not responsive. Franklin noticed D.G. was dry. Franklin went to the back of the ambulance and laid D.G. on a stretcher to let the paramedics on the scene take over treatment. Although Franklin palpated the back of D.G.'s head, he did not feel any trauma. Appellant was "hanging on the back doors of the ambulance pretty hysterical." Franklin got out of the ambulance and asked appellant what had happened. Appellant said she was giving D.G. a bath and took her out of the bathtub, stood her up, and told her to stay "right there." Appellant left the room and returned to find D.G. had fallen. Appellant then called 911. D.G. was taken to Children's Medical Center (Children's) where Julia McDonald, a pediatric emergency medicine physician, examined her. D.G. was not breathing well and was in "somewhat of an unstable condition," with altered mental status and declining heart rate. McDonald put a tube down D.G.'s throat to assist her breathing and sent her to the CT scanner and the intensive care unit. The CT scan revealed a "pretty extensive skull fracture" that, McDonald testified, was not consistent with a slip and fall in the bathroom. D.G. was treated for her injuries but died on February 7, 2001. Donna Persaud, a pediatrician at Children's Referral and Evaluation of Abused Children program, examined D.G. and reviewed her CAT scan. The scan showed D.G. had fresh blood between the halves of her brain and a skull fracture in the back of her head. From this, Persaud concluded D.G. had suffered high-force head trauma and significant force injury to the nerve cells in her brain. Persaud testified that the explanation offered for D.G.'s injuries, that she fell from her own height, would not explain the level of trauma that she suffered. Instead, Persaud testified, D.G.'s brain and nerve cell injuries were consistent with D.G.'s head moving with speed and rotation and suddenly being stopped against a hard surface or with D.G. being shaken violently. After D.G.'s death, Persaud reviewed the autopsy report which showed that at least a portion of D.G.'s skull fracture had occurred a week or two before her death. However, Persaud testified that this indication of prior injury added to her diagnosis of abusive head trauma because abusive injuries tend to be repeated and escalating. Persaud testified D.G. could have suffered a portion of her skull fracture eight days before her death, but it was not medically plausible that D.G. could have "been normal for days" after suffering brain injury resulting in blood between the hemispheres of her brain and unconsciousness. Jennie Duval, a forensic pathologist who conducted an autopsy on D.G., testified D.G.'s nerve fibers were injured. Duval testified that, if D.G. had fallen eight days before her death, she would have died then and would not have been "walking around asymptomatic." According to Duval, simply jerking a child down to make her sit down, even if she struck her head on an object in that motion, is not enough force to cause the shearing in the brain. Duval testified that children under the age of three are very susceptible to shearing injury that can occur when they are shaken. A child's brain is extremely soft and is not set in the skull; thus, the brain can move back and forth more readily than an adult's brain, creating a greater risk for a shearing injury. Randall Alexander, a pediatrician in Atlanta, Georgia, testified D.G. had retinal hemorrhages in both eyes consistent with D.G. being shaken repetitively and with "quite a lot of force." The retinal hemorrhages were tested and determined to be fresh on February 5, 2001. Presented with the scenario of a minimal prior fracture of D.G.'s skull followed by a second impact resulting in a more complex fracture, Alexander testified that such a scenario would fit better with a clinical history that showed the child was a "pretty sick" child with "a whole lot of symptoms" following the initial fracture. Alexander testified that, in his opinion, the first force was not nearly what the second force was because the second force created "big time brain injury." David Dolinak, Dallas deputy chief medical examiner, testified he was working in Miami, Florida at the time of D.G.'s autopsy, but he reviewed the autopsy records and determined D.G.'s death was a homicide caused by blunt force head injury. Dolinak testified that D.G.'s CT scan at Children's an hour and a half after her injury did not show any significant brain swelling. However, Dolinak testified, it was not brain swelling that made D.G. go unconscious after her injury but injury to the brain tissues themselves and damage to the nerve cells in her brain. Dolinak testified that, in his opinion, the nerve cell damage was not caused by any previous skull fracture because the nerve damage would have caused unconsciousness or unresponsiveness for a long time following the injury. Further, the bleeding over the surface of D.G.'s brain was recent and indicated nerve cell damage. There was evidence of prior bleeding associated with a prior fracture, but that was in a very small area and did not contribute in any way to D.G.'s death, according to Dolinak. In contrast, Vincent DiMaio, the chief medical examiner in San Antonio, testified he reviewed the autopsy report and tissue slides and photographs of D.G. taken at the time of the autopsy. DiMaio testified he would not rule D.G.'s death a homicide and could not testify it was a homicide. According to DiMaio, the cause of D.G.'s death was the initial injury that occurred a week to two weeks before her death. The autopsy revealed both recent and old bleeding and a fracture that was one to two weeks old. When the lining covering the inside of the brain cavity was examined, it showed blood both on the inside and outside of the lining and evidence of "organization," that the body was healing. This evidence was also from one to two weeks old, indicating bleeding inside and outside the lining one to two weeks prior to death. DiMaio testified the skull was weakened by the initial fracture, and because of this, any minimum trauma to the head could cause injury to the brain or rebleeding or push the bone into the brain. In D.G.'s case, DiMaio testified, the initial fracture was "significant" and "severe" because it caused bleeding both inside and outside the lining, and the re-injury appeared relatively minor. DiMaio testified there was no doubt D.G. had a fracture that was one to two weeks old, and taking that into account, there was no way to say the more recent fall produced death. DiMaio testified D.G.'s death was not a baby shaking case because shaking a baby would break its neck, not cause a skull fracture, which would require an impact. Further, DiMaio testified D.G. developed an inability to coagulate her blood while she was in the hospital and received transfusions that did not help the blood to clot and rendered her highly susceptible to bruising. Concerning the blood on D.G.'s brain, DiMaio testified there was more blood at the time of the autopsy than when D.G. presented. DiMaio testified the second impact caused rebleeding but did not necessarily cause the initial fracture to increase. Children with very bad head injuries could seem to be normal, according to DiMaio. When the second impact caused additional bleeding in D.G.'s brain, that led to retinal hemorrhage as well. John Plunkett, a forensic pathologist, also testified that D.G.'s death was caused by the original head injury. However, Plunkett testified that an impact in the bathtub or falling outside the bathtub could cause significant injury in and of itself. A fall backward from a height of approximately twenty inches could have caused D.G.'s initial fracture and injury, Plunkett testified. The bleeding underneath the lining inside the brain cavity was the important factor in this case, Plunkett testified, because that bleeding showed there was brain damage resulting from the initial skull fracture. D.G.'s father, Darren Graham, testified he and appellant went to Oklahoma on Friday, January 26, 2001, to look at houses. D.G. stayed with her grandmother, Marsha Graham. On Saturday, January 27, Graham called Marsha, who said D.G. had fallen off the back porch. Marsha handed the phone over to D.G.'s grandfather, who told Graham that, right after the fall, D.G. lay on the ground without moving or breathing, but she recovered. Graham and appellant returned to Dallas late that night and picked up D.G. the next day. Graham testified D.G. did not "act like herself," did not play around like she normally did, and acted like she had the flu. She vomited several times and did not eat much. Graham testified D.G. was taken to the doctor on Monday, January 29. After D.G.'s death, Graham testified he was angry with his mother and father "because I knew my daughter was injured over there." Graham did not find out, however, that part of D.G.'s skull fracture was old until approximately seven months after her death when the report was released. Appellant testified that she and Graham went to Oklahoma to look at houses, Graham heard in a phone call to his mother that D.G. had fallen off a porch but was okay, and appellant and Graham picked up D.G. on Sunday, January 28. According to appellant, D.G. was acting "worn out," when they picked her up, and during the week that followed D.G. slept a lot, would not play, and vomited. One day appellant and D.G. were picking up toys, and D.G.'s hand/eye coordination was "kind of off." Appellant asked D.G. if she was sick, but D.G. crawled up on the couch and sat there for the rest of the evening. D.G. went to day care that week with Linda Gust. Gust told appellant that D.G. had thrown up and "wasn't playing right." On February 3, D.G. said "Hurt, mamma," while rubbing the back of her head. Appellant examined D.G.'s head but found no bumps, scratches, or bruises. D.G. pointed to her heart and to her stomach or toes and said, "Hurt," but appellant could find nothing wrong. Graham was present during this incident, and D.G. finally got up and sat on the couch and watched television. During the week preceding her death, D.G. stood up in the bath every time appellant tried to wash her hair. When appellant rubbed shampoo in D.G.'s hair, D.G. leaned forward "like she was getting away," but there were no marks on her. D.G. would also try to get away from the towel when appellant dried her hair after a bath. On Monday, February 5, Marsh took D.G. to the doctor, who diagnosed D.G. with two inner ear infections. When appellant came home from work, she bathed D.G. together with appellant's nearly one-year-old son from a previous relationship. Appellant thought the ear infections explained why D.G had started standing up in the bath. When D.G. stood up in the bath that evening, appellant tried to get D.G. to sit down and gave her a "swat to like get her attention." Appellant testified the swat "wasn't very hard at all." Appellant put her hand on D.G.'s hip and "tugged her down." At the same time, D.G. was sitting down, and D.G. "went back and hit her head." Appellant testified D.G. hit her head on the soap dish or around the soap dish. After she hit her head, D.G. leaned forward and said, "Hurt, mamma," while touching the back of her head. Appellant examined D.G.'s head but found no marks. Appellant told D.G. she was sorry, but D.G. "had to sit down and take a bath." Appellant testified she did not force or slam D.G.'s head into the soap dish or any other surface. Appellant took her son into the living room, put him on the floor, and gave him cookies. While she was doing this, appellant left D.G. alone in the bath for approximately five minutes. Appellant returned to the bath and finished washing D.G. and tried to play with her, but D.G. "just wasn't acting herself." Just as she stood D.G. up outside the tub, appellant heard what she thought was her son coughing or choking. Appellant told D.G. to "stay right there" and went into the living room and got the cookie out of her son's mouth. Appellant heard "a loud noise in the bathroom like a thunk," and she ran to the bathroom. She discovered D.G. lying on the floor a few inches from the tub. D.G. was not moving, and her breathing was shallow. Appellant picked up D.G. and carried her to her bedroom where she noticed D.G. was not breathing. Though she did not know CPR, appellant gave D.G. "a couple of mouth-to-mouth like breaths." Appellant started "freaking out" and ran into the living room where she called 911. After D.G.'s death, appellant was charged with capital murder. Following a nine-day trial, a jury convicted appellant, and this appeal followed. In her first point of error, appellant argues the trial court erred in overruling her objection to the court's charge defining "knowingly" and failing to limit the definition of the term to the results of conduct. Section 19.03(a) of the penal code describes particular factual contexts that the Legislature has determined, in combination with an intentional or knowing murder, constitute capital murder. See Tex. Pen. Code Ann. § 19.03(a) (Vernon Supp. 2004); Hughes v. State, 897 S.W.2d 285, 295 (Tex.Crim.App. 1994). In proving capital murder, the State must prove that the accused intentionally or knowingly caused the death of an individual and also that the accused engaged in other criminal conduct (i.e., kidnapping, robbery, aggravated sexual assault, escape from a penal institution) or had knowledge of certain circumstances (i.e., that the victim was a peace officer). Hughes, 897 S.W.2d at 295. However, when an individual is charged with capital murder of a child under six years of age, there is no requirement that the individual engaged in any other criminal conduct or had knowledge of any additional circumstances, including the age of the victim. See Tex. Pen. Code Ann. § 19.03(a)(8) (Vernon Supp. 2004). Because the State must prove every element of the capital murder and of the underlying offense, in capital murder cases there is no error in failing to limit the court's charge to specific "result of conduct" language when the additional language concerning the culpable mental state is itself limited to proving the "conduct elements" for the underlying offense. Hughes, 897 S.W.2d at 295 (citing Cook v. State, 884 S.W.2d 485, 489 n. 3 (Tex.Crim.App. 1994)). However, it is error in a capital murder case involving only two of the three conduct elements if the definitions included all three of the conduct elements. Hughes, 897 S.W.2d at 295. Here, the jury charge defined knowingly in terms of both result of conduct and the circumstances surrounding conduct as follows:
A person acts knowingly, or with knowledge, with respect to circumstances surrounding her conduct when she is aware that the circumstances exist.
A person acts knowingly, or with knowledge, with respect to a result of her conduct when she is aware that her conduct is reasonably certain to cause the result.See Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003). The application paragraph in the charge authorized the jury to convict appellant of capital murder if it found the following:
that [appellant] did then and there knowingly cause the death of [D.G.] . . . by causing [D.G.] to strike or by striking [D.G.] with or against a bathtub, a floor, a soap dish, a wall, a door, or an object the exact nature and description of which is unknown to the Grand Jury, and at the time of the offense, [D.G.] was a child under 6 years of age. . . .See Tex. Pen. Code Ann. § 19.03(a)(8) (Vernon Supp. 2004). However, there is no requirement in section 19.03(a)(8) that an offender know or intend that her victim be a child under six. Id.; Black v. State, 26 S.W.3d 895, 897 (Tex.Crim.App. 2000). Thus, acting knowingly with respect to the circumstances of her actions was not an element of the offense in this case. The trial court therefore erred in failing to limit the definition of "knowingly" to the results of conduct. See Hughes, 897 S.W.2d at 295. When the jury charge contains error, we must then determine whether sufficient harm resulted from the error to require reversal. Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App. 1998); Ford v. State, 129 S.W.3d 541, 545 (Tex.App.-Dallas 2003, no pet.). Where, as here, an appellant has made a timely objection at trial, an appellate court will search for only "some harm." See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); Ford, 129 S.W.3d at 545. In determining whether the error was harmful and reversal is required, an evidentiary review must be conducted, as well as review of any part of the record as a whole that may illuminate the actual, not just theoretical, harm to the accused. See Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986); Almanza, 686 S.W.2d at 174. For this review, the presence of actual harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record as a whole. See Almanza, 686 S.W.2d at 171. If any harm is found after conducting this review, then reversal is required. See Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). Although the charge in this case erroneously defined knowingly in terms of the circumstances surrounding her conduct, we cannot conclude appellant was harmed by this error. The application paragraph states that appellant "did then and there knowingly cause the death of [D.G.]. . . ." The term "knowingly" directly modifies the phrase "cause the death." See Hughes, 897 S.W.2d at 296. Referring back to the definitions of knowingly, it is obvious that the "result of her conduct" and "cause the result" language are the applicable portions of the definitions provided. See id. Because the facts, as applied to the law in the application paragraph, pointed the jury to the appropriate portion of the definitions, no harm resulted from the trial court's failure to limit the definition of "knowingly" to result of conduct. See id. at 296-97. We overrule appellant's first point of error. In her second and third points of error, appellant argues the trial court erred in denying her motions for mistrial after certain statements by the prosecutor. Specifically, appellant complains of the prosecutor's question to Dolinak that "a defense team can hire just about any expert they want to say just about anything they want" and the prosecutor's statement during argument comparing DiMaio to "Dr. Kavorkian." In each case, the trial court sustained appellant's objection to the statement and instructed the jury to disregard the statement. However, the trial court denied appellant's motion for a mistrial in each instance. A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). Mistrial is appropriate for only "highly prejudicial and incurable errors." Id. (citing Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000)). It may be used to end trial proceedings when faced with error so prejudicial that expenditure of further time and expense would be wasteful and futile. Simpson, 119 S.W.3d at 272. Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer. Id. (citing Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000)). The trial court is required to grant a motion for a mistrial only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Simpson, 119 S.W.3d at 272; Wood, 18 S.W.3d at 648. Here, appellant's counsel objected to both of the prosecutor's complained-of statements immediately, and the trial court sustained the objections and instructed the jury to disregard. We conclude the trial court's instruction to disregard cured any error. See Simpson, 119 S.W.3d at 272. Accordingly, the trial court did not abuse its discretion in overruling appellant's motions for mistrial in response to the prosecutor's questioning and argument. See id. We overrule appellant's second and third points of error. In her fourth point of error, appellant argues the prosecutor failed to present exculpatory evidence to the grand jury in violation of her constitutional rights and the code of criminal procedure. However, the State generally has no duty to present exculpatory evidence to a grand jury. In re Grand Jury Proceedings 198.GJ.20, 129 S.W.3d 140, 144 (Tex.App.-San Antonio 2003, no pet.); Matney v. State, 99 S.W.3d 626, 629 (Tex.App.-Houston [1st Dist.] 2002, no pet.); see also United States v. Williams, 504 U.S. 36, 51 (1992) (no duty to disclose exculpatory material to federal grand juries). Under these circumstances, we conclude the prosecutor in this case had no duty to disclose exculpatory material to the grand jury, and appellant's constitutional rights and the code of criminal procedure were not violated by any such failure to disclose. See In re Grand Jury, 129 S.W.3d at 144; Matney, 99 S.W.3d at 629. We overrule appellant's fourth point of error. In her fifth point of error, appellant argues the trial court erred in overruling her motion for mistrial when the prosecutor stated, "I take an oath. My job is to uphold . . . uphold justice." The trial court sustained appellant's objection and instructed the jury to disregard but denied appellant's motion for mistrial. Argument of this type is improper. See Mosley v. State, 983 S.W.2d 249, 258-59 (Tex.Crim.App. 1998). However, the impropriety of such argument lies in its uninvited and unsubstantiated accusation of improper conduct directed at a defendant's attorney. See Mosley, 983 S.W.2d at 258 (quoting Orona v. State, 791 S.W.2d 125, 128 (Tex.Crim.App. 1990)). Here, appellant's counsel objected immediately to the prosecutor's reference to her oath to uphold justice, and the prosecutor did not directly attack defense counsel. The trial court sustained defense counsel's objection and instructed the jury to disregard. Under the circumstances of this case, we conclude the trial court's instruction to disregard cured any error. See Simpson, 119 S.W.3d at 272. We overrule appellant's fifth point of error. In her sixth point of error, appellant argues the trial court erred in denying her motion for mistrial when she objected to the following statements during the State's closing argument:
[PROSECUTOR]: Defense wants to bring in cell phone records. Well, you know, if Darren had come to my office to talk to me, I certainly . . .
[DEFENSE COUNSEL]: Excuse me.
[PROSECUTOR]: I certainly had them.
[DEFENSE COUNSEL]: Excuse me. Excuse me. Excuse me. It's totally outside the record.
[THE COURT]: Overrule the objection.
[PROSECUTOR]: I didn't even know about the January 27th defense . . .
[DEFENSE COUNSEL]: Excuse me, your honor.
[PROSECUTOR]: . . . about that date . . .
[DEFENSE COUNSEL]: Excuse me, your honor. Objection. What she personally knew is not in the evidence.
[THE COURT]: I'll sustain that objection.
[DEFENSE COUNSEL]: Excuse me. Excuse me. Move that the jury be instructed to disregard her statement about personal . . .
[THE COURT]: The jury will disregard that portion of the argument.
Appellant contends the prosecutor's statements in this exchange" made the prosecutor herself an unsworn witness against the appellant and implied personal knowledge based on contents of telephone records that appellant's defense or evidence (testimony from Darren) of [D.G.'s] fall and head injury on January 27 at her grandmother's home was false or perjury.On the contrary, the record contains the prosecutor's statement, made without objection immediately following the trial court's denial of appellant's motion for mistrial, that "the State was never presented with any evidence about a January 27th fall, or certainly . . . or a phone call, or we would have [sic] you that evidence. And again, who came up with that story? The defendant and Darren Graham." Earlier, during closing argument, defense counsel argued the testimony showed Darren "used his own mother Marsha's cell phone" on January 27, and "you don't see any records in here of her records or any records from a cell phone company that was being used. You don't see them because . . . because they were up there on January 27th as was testified under oath." Under these circumstances, we conclude the prosecutor's reference to cell phone records was a proper answer to the argument of opposing counsel. See Wilson, 938 S.W.2d at 59. We overrule appellant's sixth point of error. In her seventh point of error, appellant complains the trial court erred in denying her motion for mistrial after defense counsel objected to the prosecutor's opening argument regarding the causation charge. The prosecutor stated, "Basically this [the causation charge] is in here because the defense is arguing that. . . ." At this point, defense counsel objected, the objection was sustained, and the trial court instructed the jury to disregard. Although it is unclear how the prosecutor intended to characterize the defense's argument, we conclude the error was cured by the trial court's instruction to disregard. See Simpson, 119 S.W.3d at 272. We overruled appellant's seventh point of error. In her eighth point of error, appellant complains the trial court erred in overruling her objection to the prosecutor's argument concerning the reasons for lesser-included offenses being included in the charge. In making this argument, appellant cites the following argument by the prosecutor:
[PROSECUTOR]: Ladies and gentlemen, as the judge read to you the charge, they're different . . . they're lesser included offenses, and we talked about those in voir dire. And if there's just a piece of evidence that possibly could raise the fact that the defendant . . .
[DEFENSE COUNSEL]: Excuse me. Excuse me, your honor. Excuse me, your honor. I'd respectfully object to that line of argument about the court's charge.
[THE COURT]: Overrule the objection.
A defendant is entitled to an instruction on a lesser-included offense if: (1) proof of the charged offense includes the proof required to establish the lesser-included offense and (2) there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Ferrel v. State, 55 S.W.3d 586, 589 (Tex.Crim.App. 2001). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Id. Thus, because the prosecutor did not misstate the law, we find no error. See id. We overrule appellant's eighth point of error.In her ninth point of error, appellant argues the trial court erred in overruling her objections to certain autopsy photographs. Where pictorial evidence will help the jury to understand verbal testimony, such as the technical language used by a medical doctor in describing the injuries sustained by a victim of a crime, a trial judge does not abuse his discretion in admitting these photographs. Harris v. State, 661 S.W.2d 106, 107 (Tex.Crim.App. 1983) (photograph of seven-month-old child's skull after skin deflected back, showing depressed fracture, admissible to show jury injury which resulted in child's death); Hernandez v. State, 118 S.W.3d 469, 477-78 (Tex.App.-Eastland 2003, pet. ref'd) (photographs of child's arm, arm bones, skull and brain admissible to help doctor explain his findings). In this case, DiMaio testified on behalf of the defense that he reviewed the autopsy report and tissue slides and photographs of D.G. taken at the time of the autopsy and concluded D.G.'s death was not a homicide. Both the State's and appellant's experts reviewed the autopsy record, among other things, in reaching their conclusions. Thus, we conclude the autopsy photos were admissible to help the doctors explain their conclusions. See Harris, 661 S.W.2d at 107; Hernandez, 118 S.W.3d at 477-78. We overrule appellant's ninth point of error. In her tenth and eleventh points of error, appellant argues the trial court erred in denying her request to charge the jury that they could not convict appellant for death caused by or related to the initial skull fracture, and this denial denied appellant due process of law and her right to a fair trial. Specifically, appellant complains there was no evidence that appellant caused the skull fracture and brain injury occurring five to fifteen days before D.G.'s death, yet the prosecutor argued the "prior fracture was caused by [appellant] on one of those [previous] occasions and . . . she went a little farther this time and she killed her this time." We have already concluded the application paragraph correctly required the jury to convict appellant of capital murder only if it found appellant knowingly caused the death of D.G. on or about February 7, 2001, by causing D.G. to strike or striking her with a bathtub or other object. Under the circumstances of this case, we cannot conclude the trial court erred in refusing to specifically instruct the jury that it could not convict appellant for death caused by a prior skull fracture when the charge correctly required the jury to find appellant knowingly caused D.G.'s death on or about February 7, 2001. We overrule appellant's tenth and eleventh points of error. In her twelfth point of error, appellant argues the trial court erred in overruling her request for a charge to the jury that, if there was reasonable doubt as to whether or not a homicide occurred, the jury had to acquit appellant. Specifically, appellant complains the court charged the jury on the issue of proof of a murder, which assumed there was evidence before the jury that a homicide took place. On the contrary, the court's charge required the jury to find appellant not guilty of capital murder unless it found from the evidence beyond a reasonable doubt that appellant knowingly caused the death of D.G. Because the jury was properly instructed to find appellant not guilty unless it found beyond a reasonable doubt that she had committed capital murder, we conclude the trial court did not err in refusing to charge the jury on the "defense" that no murder or homicide occurred. We overrule appellant's twelfth point of error. In her thirteenth point of error, appellant complains the trial court erred in failing to charge the jury on the issue of whether D.G.'s death was caused by trauma occurring five to fifteen days before D.G.'s death. As discussed previously, the charge required the jury to find appellant not guilty unless it found beyond a reasonable doubt that she committed capital murder. The evidence that D.G. suffered a skull injury between five and fifteen days before her death was for the jury to weigh in determining whether appellant knowingly caused D.G.'s death on or about February 7, 2001. Under these circumstances, the trial court did not err in failing to charge the jury on the issue of whether D.G.'s death was caused by an injury sustained five to fifteen days before her death. We overrule appellant's thirteenth issue. In her fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth points of error, appellant complains the trial court erred in denying her motions for mistrial after certain improper and prejudicial questions by the prosecutor. In each case, the trial court sustained appellant's objection, instructed the jury to disregard, and overruled appellant's motion for mistrial. Having reviewed the record, we conclude the trial court's instruction to disregard cured the error, if any. See Simpson, 119 S.W.3d at 272; Wood, 18 S.W.3d at 648. We overrule appellant's fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth points of error. In her twentieth point of error, appellant complains of the trial court's denial of her motions for mistrial on eleven separate occasions. In addition, appellant complains of three occasions where the trial court overruled her objection to (1) the prosecutor's use of the word "allegedly" in reference to a conversation a witness had with Graham's mother concerning D.G.'s initial fall; (2) the prosecutor's reference to "the weekend that you allegedly went to Oklahoma" in cross-examining appellant; and (3) the prosecutor's statement during closing argument that the State had taken "shaking" out of the charge. In each of the eleven instances in which appellant moved for a mistrial, the trial court had sustained her objection and instructed the jury to disregard. We have reviewed the record, and we conclude the instruction to disregard cured the error, if any. See Simpson, 119 S.W.3d at 272; Wood, 18 S.W.3d at 648. Further, we have reviewed the three instances in which the trial court overruled appellant's objection to statements by the prosecutor, and we cannot conclude the trial court erred in overruling appellant's objections. Nor can we conclude the cumulative effect of the complained-of comments and questions caused sufficient harm such that appellant was denied a fair trial. We overrule appellant's twentieth point of error. In her twenty-first point of error, appellant complains the trial court erred in refusing to charge the jury on the defense of accident. However, under the current penal code, there is no longer a defense of "accident." See Williams v. State, 630 S.W.2d 640, 644 (Tex.Crim.App. 1982) (Op. on reh'g). The function of the former defense of accident is now performed by the requirement of section 6.01 of the penal code that "A person commits an offense only if he voluntarily engages in conduct. . . ." Tex. Pen. Code Ann. § 6.01(a) (Vernon 2003); Williams, 630 S.W.2d at 644. Thus, the trial court did not err in refusing appellant's request for a charge on the defense of accident in this case. See Williams, 630 S.W.2d at 644. We overrule appellant's twenty-first point of error. In her twenty-second point of error, appellant argues the trial court erred in sustaining the prosecutor's objection to appellant's attorney's argument that the jury should find appellant not guilty under the law of mistake of fact. Specifically, appellant's counsel quoted that portion of the jury charge regarding mistake of fact:
It is a defense to prosecution that the actor, through mistake, formed a reasonable belief about a matter of fact if her mistaken belief negated the kind of culpability required for commission of the offense.Although any actor's mistake of fact may constitute a defense to the offense charged, she may nevertheless be convicted of any lesser included offense of which she would be guilty beyond a reasonable doubt, if the fact was as she believed. Now therefore, if you find and believe from the evidence beyond a reasonable doubt that the defendant committed the acts as alleged in the indictment, but you further find, or have a reasonable doubt thereof, that the defendant through mistake formed a reasonable belief about a matter of fact, to-wit: the existence of a prior head injury of [D.G.], which mistaken belief negated the kind of culpability required for the commission of the offense, you will acquit the defendant of the offense charged in the indictment and say by your verdict "Not Guilty." After reading this portion of the charge, appellant's counsel made the following argument:
Even if you believe, even if you believe that [appellant] yanked that child down hard, and made — in some preposterous way, made that child hit her head. If she's not aware of the prior head injury, if she is not aware of the prior head injury, you must find her not guilty. Not only of the offense of. . . .
At that point, the prosecutor objected that this argument was a misstatement of the law. The trial court sustained the prosecutor's objection and instructed the jury to review the charge and follow the law and the court's charge. We conclude the trial court was correct in sustaining the prosecutor's objection that appellant's counsel's argument misstated the law. Appellant's counsel argued that, if the jury found that appellant was not aware of D.G.'s prior injury, it had to find appellant not guilty of capital murder or any other lesser charge. This argument misstates the law and ignores the fact that the charge instructed the jury to find appellant guilty of capital murder if it found appellant knowingly caused the death of D.G. by striking her with or against a bathtub or unknown object on February 7, 2001. In making this determination, the jury was free to weigh the evidence that appellant did not strike D.G. on February 7, 2001, but a finding that appellant did knowingly strike D.G. on that date required the jury to convict appellant of capital murder, whether or not appellant was aware of D.G.'s prior injury. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). Thus, the trial court correctly sustained the prosecutor's objection. We overrule appellant's twenty-second point of error.In her twenty-third and twenty-fourth points of error, appellant argues the evidence is legally and factually insufficient to support her capital murder conviction. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp, 707 S.W.2d at 614; McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). A person commits capital murder if she intentionally or knowingly causes the death of an individual under six years of age. Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(8) (Vernon 2003 Supp. 2004). Here, the record contains the testimony of Persaud, Duval, Alexander, and Dolinak that D.G.'s death was caused by severe trauma inflicted on February 5, 2001. The jury was free to believe this testimony and disbelieve the testimony of DiMaio and Plunkett that D.G.'s death was actually caused by an earlier injury. Sharp, 707 S.W.2d at 614; McCray, 861 S.W.2d at 407. Further, the jury was permitted to infer from the evidence that appellant was lying about the events of February 5 and that appellant knowingly caused D.G.'s death on that day, and D.G. was a child under six years of age at the time. See Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(8) (Vernon 2003 Supp. 2004); Stahle, 970 S.W.2d at 686-87. Under these circumstances, we conclude the evidence is legally and factually sufficient to support appellant's conviction. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484-85. We overrule appellant's twenty-third and twenty-fourth points of error. We affirm the trial court's judgment.
We note the murder of an individual under six years of age constituted the offense of capital murder under section 19.03(a)(8) of the penal code in effect in 2001 when the offense occurred.