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Thomas v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 4, 2005
No. 05-04-00196-CR (Tex. App. Mar. 4, 2005)

Opinion

No. 05-04-00196-CR

Opinion issued March 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-71362-QW. Affirmed.

Before Justices MORRIS, WHITTINGTON, and O'NEILL.


OPINION


After Stephen Dewayne Thomas was indicted for knowing or intentional injury to a child, a jury convicted him of the lesser included offense of reckless injury to a child. He now complains on appeal that the trial court erred by admitting evidence of an extraneous offense, that the lesser included offense of reckless injury to a child was not supported by the evidence at trial, and that the evidence against him is legally insufficient to prove he acted recklessly. We affirm the trial court's judgment.

Factual Background

Appellant and Katrina Lockhart have a daughter together and previously shared an apartment. When the daughter was one year old, appellant and Lockhart got into an argument because appellant had gotten home late. Lockhart could smell alcohol on appellant's breath. Appellant started pushing Lockhart, and she told him to leave. She tried to pick up a phone, but appellant ripped the cord out of the wall and threw the phone across the room. Appellant grabbed Lockhart by the hair and ripped her shirt. At that point, they were arguing so loudly that they woke the baby. Lockhart went upstairs to get the baby, and appellant followed her. As Lockhart picked up her daughter, appellant hit her in the back of the head. Lockhart got scared, and searched for a phone upstairs. When she could not find one, she moved back downstairs, holding the baby over her shoulder. Appellant had taken the cordless phone Lockart had been seeking, and he followed her with it back down the stairs. With the phone, appellant hit Lockart two times in the back of the head as she moved down the stairs. As he tried to hit her a third time, he hit the baby as she leaned out from Lockhart's arms. The baby started crying loudly, and appellant left the apartment. Lockhart then called police. She could tell her child was in pain. The officer who arrived on the scene said that, when he got to the apartment, Lockhart's shirt was torn and it appeared that some of her hair had been pulled out. She was shaky and crying while she held the baby. The officer stated that Lockhart told him appellant had hit her with a cordless phone as she was walking down the stairs. Lockhart also stated that appellant had missed hitting her one time and struck the baby in the head with the cordless phone. While the officer was at the apartment, appellant called Lockhart on the telephone. Before the officer had a chance to ask appellant any questions, he stated, "I didn't hurt my baby." Appellant refused to return to the apartment. The officer stated that he did not see a knot on the child's head. He claimed that he was with the child long enough for a knot to appear if such an injury had occurred. Paramedics examined the baby the night of the offense and determined that she was alright. The day after the argument, Lockhart noticed a knot on her daughter's head where appellant had struck her. Lockhart believed appellant had been trying to hit her when he hit his daughter. On another occasion, when the baby was only five or six weeks old, Lockhart and appellant began to argue. Appellant shoved Lockhart as she was holding the baby in her arms. Lockhart moved upstairs to get to a phone. Appellant followed her up the stairs, hitting her from behind. Once, when he tried to hit Lockhart, he instead hit the baby, who was draped over her shoulder. Afterward, the baby had two visible marks on her face. Lockhart called the police, and appellant was arrested. Later, she claimed to police that she did not believe appellant had hit the child and that the marks were just a scratch. At one point before the trial, appellant drove Lockhart to the courthouse so she could recant her claim that appellant had hit her with the telephone. At the time, Lockhart loved appellant and wanted to protect him. She told a prosecutor that the assault had been her fault and appellant had not been responsible. At trial, she stated that her previous recantation to the prosecutor was false.

Discussion

In his first three issues, appellant complains the trial court erred when it admitted evidence of the extraneous offense involving appellant hitting the baby when she was approximately five weeks old. Appellant contends the intended victim of that offense was not the same as the victim of the charged offense and therefore the evidence was inadmissible under article 38.37 of the Texas Code of Criminal Procedure and Texas Rule of Evidence 404(b). Appellant additionally contends the probative value of the extraneous offense was substantially outweighed by the danger of unfair prejudice stemming from the offense. We review a trial court's decision to admit evidence under an abuse of discretion standard. See Carter v. State, 145 S.W.3d 702, 707 (Tex.App.-Dallas 2004, no pet.). Under article 38.37 of the code of criminal procedure, notwithstanding Texas Rule of Evidence 404, evidence of other crimes, wrongs or acts committed by the defendant against the child who is the victim of the charged offense "shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child." Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (Vernon Supp. 2004-05). This statute specifically trumps the general prohibition against admitting extraneous offenses found in rule of evidence 404. See Smith v. State, 5 S.W.3d 673, 680-81 (Tex.Crim.App. 1999). Appellant alleges article 38.37 was improperly applied to his case because the previous offense did not involve intentional conduct directed against his baby, whereas the indictment in this case alleged he intentionally and knowingly caused bodily injury to the baby. Appellant does not dispute that he struck the baby during the previous offense. He contends only that his intended victim in that instance was Lockhart. Although Lockhart testified that she believed appellant had intended to strike her when he hit the baby, the baby was, in fact, hit while she was in Lockhart's arms. This fact could be viewed by a jury as showing appellant knowingly injured the child. Under the penal code's definition of "knowingly," a person acts with knowledge with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003). Appellant's striking the baby in Lockhart's arms also could be viewed by a jury as appellant's recklessly injuring the child. Under the penal code, a person acts recklessly as to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. Id. § 6.03(c). Moreover, under the law of transferred intent, a person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that a different person was injured. See id. § 6.04(b). When appellant knowingly struck at Lockhart, he was criminally responsible when the blow landed on his daughter. Appellant had previously hit his baby when he was in the process of hitting Lockhart. Accordingly, he was aware on the second occasion — if he somehow was not aware on the first occasion — that he could very well cause bodily injury to the baby while he was trying to cause bodily injury to Lockhart. The admitted evidence was relevant with respect to (1) appellant's state of mind when he somehow managed to strike the child on another occasion while he was attempting to strike Lockhart and (2) his previous assaultive relationship with the child. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2. Because the evidence was admissible under article 38.37, it did not have to be admissible also under rule of evidence 404(b). The trial court did not abuse its discretion in admitting the evidence under article 38.37. We resolve appellant's first two issues against him. Even when evidence of a defendant's extraneous act is relevant under article 38.37, the evidence may still be inadmissible under rule of criminal evidence 403. See Hitt v. State, 53 S.W.3d 697, 706 (Tex.App.-Austin 2001, pet. ref'd). Under rule 403, relevant evidence may nevertheless by excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. Here, if viewed in isolation, appellant's hitting his baby with the cordless telephone might have appeared to the jury to be a momentary, accidental slip of the hand against a child he could never imagine harming. Appellant's previous striking of the infant child while in her mother's arms offered instructive, relevant evidence about appellant's relationship to the child, as well as his state of mind when he was swinging the phone in her direction. The prejudice from the previous offense stems mainly from its very relevance. We conclude that, under these facts, the trial court did not abuse its discretion in admitting the evidence. We resolve appellant's third issue against him. In his fourth issue, appellant complains the trial court erred by including in the jury charge for intentional or knowing injury to a child the lesser included offense of reckless injury to a child, the offense for which he was ultimately convicted. Appellant objected at trial that the inclusion of the lesser included offense was not supported by the evidence. A trial court may charge on a lesser included offense where (1) the lesser included offense is included within the proof necessary to establish the charged offense, and (2) there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser included offense. See Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993). Here, appellant concedes reckless injury to a child is included in the proof necessary to establish knowing or intentional injury to a child. He contends, however, that there was no evidence raised in his case permitting a rational jury to find he acted only recklessly. As discussed previously, a person acts recklessly with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. Tex. Pen. Code Ann. § 6.03(c). The evidence in appellant's case shows he likely struck his daughter previously when she was just an infant in her mother's arms. Lockhart, however, did at one point deny to police that appellant had actually hit the child on that occasion. Lockhart believed that when appellant later hit the child with a telephone, he had meant to hit her instead. In addition, appellant told a police officer the night of the altercation that he had not hurt his baby. Given the state of the evidence, a rational jury could have believed in appellant's case that he was not aware his conduct was reasonably certain to cause his baby's bodily injury but instead consciously disregarded a substantial and unjustifiable risk that he would injure her. Compare Tex. Pen. Code Ann. § 6.03(b) with Tex. Pen. Code Ann. § 6.03(c). We conclude the trial court did not err by including an instruction in the jury charge on the lesser included offense. We resolve appellant's fourth issue against him. Appellant complains in his final issue that the evidence against him is legally insufficient to prove he acted recklessly. In a legal sufficiency review, we consider the evidence in the light most favorable to the verdict and determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). Arguing legal insufficiency, appellant contends the evidence shows his conduct in hitting Lockhart was intentional and there was no evidence he was aware of, but consciously disregarded, the risk that his baby daughter would be injured by his conduct. We disagree. According to the testimony at trial, appellant was striking at Lockhart's back with a cordless telephone while Lockhart held the child over her shoulder. While striking at Lockhart from behind on a previous occasion, appellant had struck the baby when she was just an infant. Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to show appellant was aware of, but consciously disregarded, a substantial and unjustifiable risk that he would injure his daughter as he repeatedly thrust a cordless phone in her direction as he tried to hit her mother. We resolve appellant's fifth issue against him. We affirm the trial court's judgment.


Summaries of

Thomas v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 4, 2005
No. 05-04-00196-CR (Tex. App. Mar. 4, 2005)
Case details for

Thomas v. State

Case Details

Full title:STEPHEN DEWAYNE THOMAS, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 4, 2005

Citations

No. 05-04-00196-CR (Tex. App. Mar. 4, 2005)