Stuart v. State

Full title: KASSI STUART, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Apr 26, 2006

No. 4-04-00898-CR (Tex. App. Apr. 26, 2006)

Opinion

No. 4-04-00898-CR

Delivered and Filed: April 26, 2006. DO NOT PUBLISH.

Appeal from the 81st Judicial District Court, Atascosa County, Texas, Trial Court No. 03-03-00051-Cra, Honorable Donna S. Rayes, Judge Presiding. Affirmed.

Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.

MEMORANDUM OPINION

Opinion by: SANDEE BRYAN MARION, Justice.

A jury found defendant, Kassi Stuart, guilty of injury to a child. The judge assessed punishment of twenty-five years' confinement. Defendant complains of her conviction in five issues on appeal. We affirm.

EVIDENTIARY RULINGS

In her first issue, defendant asserts the trial court erred in admitting Officer Perez's testimony that he did not believe defendant's pre-trial statement. Officer Perez attempted to testify that he did not believe everything in defendant's statement, but was interrupted by defendant's objection. The trial court overruled the objection and allowed the officer to testify. Defendant again objected, and the trial court sustained this objection and instructed the jury to disregard the testimony. We believe defendant has failed to preserve error with regard to Officer Perez's statement. In order to preserve error, the defendant must (1) object on specific grounds; (2) request an instruction that the jury disregard the comment; and (3) move for mistrial. Brooks v. State, 642 S.W.2d 791, 798 (Tex.Crim.App. 1982). Although defendant objected to the officer's statement and requested that the jury disregard the testimony, she failed to move for a mistrial following her objection. "It is well settled that when [defendant] has been given all the relief [she] requested at trial, there is nothing to complain of on appeal." Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993). Accordingly, defendant has not preserved error with regard to this statement. In her second issue, defendant claims the trial court erred in allowing Officer Perez to testify about who he interviewed and how his investigation led to obtaining an arrest warrant. We review a trial court's decision to admit or exclude evidence using an abuse of discretion standard and will not reverse a trial judge whose ruling was within the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). Here, Officer Perez testified that he met with doctors, parents, and CPS workers for the child. He never testified to the substance of the conversations, but only that these meetings were a part of his investigation. Police officers may testify how an investigation began and the course of events leading to a defendant's arrest. See Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App. 1995); Lee v. State, 29 S.W.3d 570, 577-78 (Tex.App.-Dallas 2000, no pet.). Officer Perez's testimony was offered for the purpose of showing how the investigation proceeded; therefore, the trial court did not abuse its discretion in admitting the testimony.

JURY CHARGE

Defendant next claims she was denied her right to a unanimous verdict because the trial court improperly charged the jury by combining, in one submission, three different theories of committing one offense. The trial judge instructed the jury as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about September 10, 2002 in Atascosa County, Texas, the defendant, Kassi Stuart, did then and there knowingly cause serious bodily injury to [C.F.], by breaking the leg of said child by a means unknown, or by striking his head with an object unknown, or by causing his head to strike an object unknown and that [C.F.] was then and there a child fourteen (14) years of age or younger, then you will find the defendant guilty of knowingly causing serious bodily injury to a child fourteen years of age or younger.

A jury verdict in a criminal case is required to be unanimous. Tex. Const. art. V, § 13. A unanimous jury verdict "ensures that the jury agrees on the factual elements underlying an offense," requiring "more than mere agreement on a violation of a statute." Francis v. State, 36 S.W.3d 121, 125 (Tex.Crim.App. 2000). However, the requirement that a verdict be unanimous is not violated when, as here, the jury is instructed on alternate theories of committing the same offense. Martinez v. State, 129 S.W.3d 101, 103 (Tex.Crim.App. 2004). When alternative theories of committing the same offense are submitted to the jury in the disjunctive, it is appropriate for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). Here, the jury charge alleged alternate theories of committing one offense. See Jefferson v. State, No. PD-0363-05, 2006 WL 931605, at *3-6 (Tex.Crim.App. Apr. 12, 2006) (noting that defendant's acts of "striking [the victim] with his foot," "causing [the victim's] head to strike an unknown object," or "failing to intercede or stop the physical abuse of [the victim]" are means of committing a single criminal offense under Section 22.04(a) of the Texas Penal Code, Injury to a Child). Therefore, the trial court did not err in submitting this charge to the jury.

SUFFICIENCY OF THE EVIDENCE

In her last two issues, defendant asserts the evidence is legally and factually insufficient to support a finding that she was criminally responsible for the offense of injury to a child. Defendant argues there was no testimony to prove C.F.'s broken leg was a serious bodily injury and there was insufficient evidence to prove defendant caused C.F.'s broken leg and brain damage. We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999) (same); Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996) (same). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). Before C.F. was born, his parents decided to employ defendant as a babysitter. Defendant had a reputation as a kind and gentle person who loved children. On September 9, 2002, defendant babysat three-month-old C.F. in defendant's parents' home. Defendant's father, Larry Stuart, testified he was home from work that day and noticed C.F.'s left eye was red and would wander. Mr. Stuart also testified C.F. would whimper and refuse to stand. C.F's mother testified that on September 10, 2002 at around 7:20 a.m., she brought C.F. to defendant's home, at which time he was in good health, with no medical problems. That day, defendant was the only adult with C.F. in the home. C.F. was sleeping when he arrived and remained asleep until defendant's dog barked and woke him up. Defendant fed him and changed his diaper. C.F. went to sleep again, until noon. When he awoke, he was gasping for air and defendant called for an ambulance. Officer Douglas received the dispatch call around 1:30 p.m. When the emergency workers arrived, C.F. was having difficulty breathing and having seizures. The emergency crew noticed fresh scratches on him, but did not notice any broken bones. Dr. Cartie testified C.F. had a spiral fracture to his left leg, which would cause severe pain, bleeding, and swelling. C.F. also had bleeding in his brain, brain tissue injury, and retinal hemorrhages. Doctors Cartie, Parra, and Tullous testified C.F.'s injuries were not accidental and not self-inflicted. Dr. Cartie and Dr. Parra testified that C.F.'s injuries were caused by shaking him, as well as an impact to his head. The doctors gave C.F. a bone scan and there was a question as to whether his left radius was previously fractured, but the fracture was not confirmed. Defendant's medical expert, Dr. Ronald Uscinski, testified that C.F.'s brain was bleeding several days before September 10, 2002. However, C.F.'s treating doctors testified that his injuries were fresh and would have caused immediate unconsciousness. C.F.'s pediatrician, Dr. Jennifer Kowalik, testified that C.F.'s last visit with her was his two-month checkup in August 2002, and at that time C.F. was "perfectly healthy" and she never noticed any scratches or bruises on him. Although the evidence regarding when C.F.'s injuries may have occurred was conflicting, it was the jury's prerogative to draw reasonable inferences from the evidence, and to judge the credibility of the witnesses and the weight to be given their testimony. See Jones v. State, 944 S.W.2d 642, 647-49 (Tex.Crim.App. 1996). After a review of the record, we hold the evidence is legally and factually sufficient to support the jury's verdict.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.