Opinion
No. 05-08-00617-CR
Opinion Filed July 31, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 366 th District Court Collin County, Texas, Trial Court Cause No. 366-80855-07.
Before Justices WRIGHT, BRIDGES, and FRANCIS.
OPINION
Vikki Deborah Williams appeals from her convictions of three counts of injury to a child. A jury convicted appellant and sentenced her to forty-five years' confinement and a $5000 fine for each count. In four points of error, appellant argues certain photographs were improperly admitted, and the evidence is legally insufficient to show appellant caused serious bodily injury and factually insufficient to support her convictions. We affirm the trial court's judgment. On October 29, 2006, Steve Trester, a Wylie police detective, was dispatched to appellant's residence to investigate a report of injury to a child. When Trester arrived, he learned a child, three-year-old J.W., had been taken to Plano Medical Center. Appellant, still at the scene, was "upset." Trester collected a belt appellant indicated she had used to spank J.W. Phyllis Jackson, an investigator with the Allen police department, was called to Plano Medical Center to investigate J.W.'s injuries. Jackson saw J.W. had "a swollen frontal area of his head, a black eye, abrasions to his nose, a bruise on the left side of his cheek, abrasions on the right temple area, some scars on his neck and completely covering his upper torso." J.W. had "scars and circular type scars and scabbed over circular injuries, and they completely covered his upper torso, front and back." There was also an abrasion to J.W.'s hand, abrasions with fresh blood behind both of his ears, a cut on the bottom of his foot, bruises "on and about his back and buttocks," and "some marks on or about his penis." J.W.'s case was the worst case Jackson had "personally investigated as far as seeing physical injuries to one's body." Jackson spoke with other police officers, investigators, and medical personnel, and she took photographs of J.W.'s injuries. Jackson then went to the Collin County children's advocacy center to meet with Trester and other people, including appellant, who were at appellant's residence when the Wylie police responded to the call. Jackson read appellant her Miranda warnings, and appellant agreed to speak to Jackson. Jackson videotaped the interview with appellant, and appellant later agreed to make a written statement. Appellant stated she had spanked J.W. "a couple of times on his butt and on his back." Appellant spanked J.W. with his clothes both on and off, pulled his ears, and spanked him with a belt on his butt, back, stomach, and genital region. After seeing the marks the belt left on J.W.'s body, appellant spanked him with her hand. Appellant said she spanked J.W. "with the belt about once a week and with her hand probably two to three times a week." Appellant initially stated she would give J.W. "a light bite" and she demonstrated with the front of her teeth. Appellant said she bit J.W. on his back, stomach, and buttocks. Appellant said "the spankings weren't working and she bit him one time and she realized it hurt and said it made him behave better." When asked how J.W. fractured his skull, appellant said J.W. fell off a trampoline but also said J.W. would move around a lot when she was spanking him and he would be falling all over the place and she might possibly have hit him in the head with the belt. Appellant was indicted on seven counts of serious injury to a child. At trial, the State introduced Jackson's testimony and appellant's voluntary statement. In her statement, appellant said she spanked J.W., pulled his ears, and placed bite marks on his back "as a discipline." Appellant stated J.W. fell off a trampoline and sustained injury to his head. Appellant also stated that, when she told J.W. to go to his room, she "would push him in the back of his head to move him along quicker." Richard Honaker, an emergency room physician at Plano Medical Center, testified he examined J.W. when he arrived by ambulance. J.W. had multiple areas of bruising, swelling, and contusions in his facial area, a large area of swelling around his right eye and right forehead, swelling toward the top of his skull, and "very raw" abrasions behind both ears "like cuts from something very dull." J.W. had multiple semi-circular wounds on his chest, back, groin, and upper thighs. The wounds were "almost like burns" with "red raw edges on them." J.W.'s right hip was bruised and swelling. J.W.'s teeth in his jaw "did not match quite correctly and he did not want to open it fully as if there was either a fracture or the muscles were moving on something that was causing him a great deal of pain and discomfort." Honaker ordered a scan of J.W.'s entire body and determined the right socket of J.W.'s eye was fractured and "went into a skull fracture that went across and into the back into the occipital area." Honaker testified J.W.'s right orbital fracture was serious bodily injury, and "it takes a great deal of force to do that type of injury." Honaker testified the fracture was "a very potentially life threatening, organ threatening injury" that could result in "blindness, permanent loss of vision or visual acuity if the muscles are injured such that you can no longer look in certain directions." As to J.W.'s skull fracture on the back of his head, Honaker testified a child has "very plastic, semi-malleable bones," and it is "very difficult to get a skull fracture and it takes a great deal of force." Such an injury, Honaker testified, can cause a direct brain injury and bleeding in the brain. Honaker testified skull fractures in children are "really quite rare unless there is some other mode of force; either they have been thrown somehow or they have fallen from some height." J.W.'s skull fractures were not consistent with being struck by a belt Appellant's husband, Karl Williams, testified he had been charged with failing to take action to keep J.W. safe but wanted to testify. Williams told the jury that, after he married appellant, who could not have children, they decided to adopt twin girls. The biological mother of the girls had another child, J.W., and Williams and appellant decided to also adopt J.W. J.W.'s "vocabulary was little to none," and Williams's relationship with J.W. "started off kind of slow because [J.W.] was behind." Appellant and Williams moved to the Dallas area and bought a house in Wylie. The first time Williams noticed an injury on J.W. was when he noticed a bump on J.W.'s head. Appellant told Williams J.W. had bumped his head on the bathtub. After that, Williams saw "like one or two scratches on [J.W.'s] neck." Williams asked appellant about the scratches, "and every time [appellant] explained what had happened." Williams noticed swelling on J.W.'s head, and appellant "said he bumped his head and there was like a knot." Williams saw appellant put ice on J.W.'s head twice, and both times appellant explained J.W. had hit his head in the bathtub, once while appellant was spanking him. Williams and appellant did not discuss appellant's spanking of J.W., but Williams "stepped in a couple of times and said that was enough." Williams testified he told police J.W. had fallen off a trampoline because "that's what [appellant] told [him] that she had told [police]." Williams testified he had a trampoline, but it was "never put together" except for "the metal poles [Williams] put in the back yard because [he] was going to put it together, but that was before they came and started digging for the pool." Three times on the day the police took the twins and J.W. away, appellant told Williams she had "messed up," but that was all she said. Later, in a telephone conversation, appellant admitted biting J.W., but Williams did not know about the biting until he saw pictures of J.W. taken in the emergency room. On cross-examination, Williams acknowledged he initially told police J.W. fell off a trampoline and had told "multiple stories" concerning what happened to J.W. However, Williams testified that, during the five weeks in Wylie prior to J.W.'s removal, Williams never saw J.W. with his shirt off and did not notice any injuries on J.W. other than the bumps that appellant explained. On the night J.W. was removed, J.W. was with Williams and a family friend in an upstairs room watching television "at around 9:00 or 9:30." At that time, J.W. did not have a black eye, and J.W. was not upstairs after that time. Williams did not know when J.W. got the black eye, but he testified that, if something happened to J.W. between the time Williams went upstairs and the time the police came later that night, Williams "wouldn't have been able to hear it because [he] was upstairs in the game room." The jury subsequently convicted appellant of three counts of injury to a child, and this appeal followed. In her first point of error, appellant argues the trial court erred in admitting certain photographs. Specifically, appellant complains the pictures of J.W.'s injuries were cumulative, and their probative value was substantially outweighed by the danger of unfair prejudice. When determining whether the trial court abused its discretion in admitting relevant photographs into evidence, our review is limited to determining whether the probative value of the photographs is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See Tex. R. Evid. 403; Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App. 1996). A court may consider several factors in deciding whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice. These factors include, but are not limited to (1) the number of exhibits offered, (2) their gruesomeness, (3) their detail, (4) their size, (5) whether they are black and white or color, (6) whether they are close-up, and (7) whether the body depicted is naked or clothed. See Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1999) (citing Long v. State, 823 S.W.2d 259, 271 (Tex.Crim.App. 1991)). The nine photographs about which appellant complains are eight-and-a-half-inch by eleven-inch photographs showing the extent of the injuries to J.W.'s front torso, back, face, lower back, shoulder, chest, and scalp. The photographs show J.W.'s injuries from different angles and different locations and depict the injuries appellant was charged with inflicting. Appellant does not allege any tampering, enhancement, or attempt by the State to inflame, confuse, or mislead the jury in its presentation of the photographs. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995). While the photographs of the injuries to this three-year-old boy are graphic, they are not "so horrifying or appalling that a juror of normal sensitivity would necessarily encounter difficulty deciding the critical issues of the case after viewing them." See Fuller v. State, 829 S.W.2d 191, 206 (Tex.Crim.App. 1992), overruled on other grounds by Castillo v. State, 913 S.W.2d 529, 534 (Tex.Crim.App. 1995). Rather, they are no more gruesome than the crime appellant committed. See Long, 823 S.W.2d at 273. Further, the photographs show J.W.'s injuries in different locations and from different angles in different lighting and are not cumulative in nature. After reviewing the photographs, we do not conclude the trial court abused its discretion in admitting them. We overrule appellant's first point of error. In her second, third, and fourth points of error, appellant challenges the legal and factual sufficiency of the evidence to show the bites on J.W. were a "serious bodily injury" and to show appellant caused J.W.'s head injury. In a legal sufficiency review, we 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). Specifically, we ask 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. As the exclusive judge of the weight and credibility of the witnesses' testimony, the jury is free to believe or disbelieve evidence from either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). In a factual sufficiency review, we view the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case based on factual insufficiency, we look at the evidence objectively and find that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. As a reviewing court, we may substitute our judgment for the jury's determinations on the weight and credibility of the evidence only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (stating that the factual sufficiency review requires "due deference" to be afforded to jury's determinations). Absent a contradictory showing from the record, we should defer to the jury's determinations regarding the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). A person commits the first-degree felony offense of injury to a child if she intentionally or knowingly causes serious bodily injury to a child fourteen years of age or younger. Tex. Penal Code Ann. § 22.04(a)(1), (c)(1), (e) (Vernon Supp. 2008). "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. Tex. Penal Code Ann. § 1.07(a)(46) (Vernon Supp. 2008). As to the indictment alleging appellant caused serious bodily injury to J.W. by biting him with her mouth, J.W.'s foster mother, Suzanne Hollman, testified J.W. had, at the time of trial, "numerous circles all over and then also a lot of 3-D like scars." Hollman testified J.W. also had scars that were "small like your finger and then some very large. You can see the actual circle and there is no pigment left in it." When asked how many scars were on J.W.'s body, Hollman stated "there are more than several. I mean it's completely covered." Hollman testified J.W.'s chest was "completely covered," his back was "the same," and he had a "very long, also, scar that goes from one side to the other side of his back." Hollman further testified there were scars "all the way down on [J.W.'s] buttocks," on the side of his face, on the side of his neck, behind his ears, and on top of his head. Matthew Cox, a board certified pediatrician, testified he examined J.W. when J.W. was removed from appellant. Cox testified most of J.W.'s injuries "were in the healing stages, but they were still readily apparent, and that scar tissue would cause long standing disfigurement absolutely, especially with how many injuries that he had." J.W. appeared at trial and removed his shirt for the jury to see the scarring on his back and chest. We conclude this evidence was legally and factually sufficient to show J.W. suffered "serious bodily injury" from the bites appellant inflicted upon him. See Tex. Penal Code Ann. § 1.07(a)(46) (Vernon Supp. 2008); Jackson, 443 U.S. at 319; Watson, 204 S.W.3d at 415. As to J.W.'s head injury, appellant challenges her convictions on two counts of causing serious bodily injury to J.W. by striking his head or causing his head to strike against a hard object. Appellant argues the evidence is legally insufficient to support her convictions on these two counts because (1) the evidence is insufficient to corroborate Williams's accomplice witness testimony and (2) the convictions cannot be sustained because the circumstances do not exclude every other reasonable hypothesis except that of her guilt. A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. Art. 38.14 (Vernon 2005). It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App. 1999); Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App. 1988). If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of article 38.14 has been fulfilled. Cathey, 992 S.W.2d at 462; Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App. 1991). The accomplice witness rule is a statutorily imposed sufficiency review which is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards. Cathey, 992 S.W.2d at 462-63. Assuming without deciding that Williams's testimony was "accomplice witness testimony," the corroborating evidence shows appellant admitted she spanked J.W. with his clothes both on and off, pulled his ears, and spanked him with a belt on his butt, back, stomach, and genital region. Appellant claimed J.W. fell off a trampoline but also said J.W. moved around a lot when she spanked him, and she might possibly have hit him in the head with a belt. In her voluntary statement, appellant stated that, "when [she] would tell [J.W.] to go to his room, [she] would push him in the back of his head to move him along quicker." Honaker testified a child has "very plastic, semi-malleable bones," and it is "very difficult to get a skull fracture and it takes a great deal of force." Honaker testified skull fractures in children are "really quite rare unless there is some other mode of force; either they have been thrown somehow or they have fallen from some height." Thus, the corroborating evidence tends to connect appellant to the offense in satisfaction of article 38.14. See Tex. Code Crim. Proc. Ann. Art. 38.14 (Vernon 2005); Cathey, 992 S.W.2d at 462-63. As to whether the State produced evidence to exclude every other reasonable hypothesis except that of appellant's guilt, the former standard of review requiring reversal of circumstantial evidence cases unless the defendant's guilt is the only reasonable hypothesis has been overruled. Geesa v. State, 820 S.W.2d 154, 160-61 (Tex.Crim.App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000) (overruling Geesa's requirement that "reasonable doubt" be defined in jury charge); Manivanh v. State, No. 05-07-00921-CR, 2008 WL 4952837, at *4 (Tex.App.-Dallas Nov. 21, 2008, pet. filed). The jury, not the reviewing court, "accepts or rejects reasonably equal competing theories of causation." Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Under these circumstances, we conclude the evidence was legally and factually sufficient to support appellant's convictions for two counts of injury to a child by causing serious bodily injury. See Jackson, 443 U.S. at 319; Watson, 204 S.W.3d at 415. We overrule appellant's second, third, and fourth points of error. We affirm the trial court's judgment.