Opinion
No. 05-07-01330-CR
Opinion issued May 14, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-21402-JW.
Before Justices BRIDGES, FITZGERALD, and LANG.
OPINION
A jury convicted appellant Juanita Palomina Gutierrez of injury to a child and assessed her punishment at thirty years' confinement. The trial court made an affirmative finding that a deadly weapon was used in the commission of the offense. On appeal, appellant contends the evidence is legally and factually insufficient to prove (1) she caused the child's injuries, and (2) a deadly weapon was used in the offense. Appellant also challenges the trial court's ruling admitting evidence that the injured child-appellant's son A.G.-had cocaine in his system when he was born, indicating appellant must have been using cocaine while she was pregnant. For the reasons discussed below, we affirm the trial court's judgment.
Background
A.G. was injured in the bathroom of his family's apartment on the afternoon of July 9, 2002; he was almost two years old at the time. At trial, the only descriptions of the events surrounding A.G.'s injury came from statements appellant gave after the fact to various medical providers, law enforcement personnel, and Child Protective Services workers. Earlier that day, A.G. accompanied his immediate family (appellant, his father Abel, and his brother) and some extended family members (appellant's sister Isabel, brother-in-law "Doughboy," and their son) as they ran errands. At one point in time, appellant remained in the car with the children while the other adults had gone inside an office. After some five minutes, appellant realized A.G.'s arms felt very warm, and she took him and the other children inside to wait. Other than this incident, A.G. showed no sign of illness or injury during the course of the morning. The family returned as a group to appellant's apartment at approximately 2:30 in the afternoon. Appellant needed to use the bathroom, and she walked straight to that room. A.G. walked with her-either holding her hand or following behind her-into the bathroom. Only appellant and A.G. were in the bathroom. According to appellant, A.G.'s arms suddenly "stiffened up," and he fell face forward on the vinyl tile floor in the bathroom. The only thing he fell on was a rug on that vinyl floor. Appellant picked A.G. up and turned him over; she thought he "looked like he was dead." Appellant tried to revive A.G. with water, but she saw blood in his mouth and then screamed for someone to call 911. As the family waited for the ambulance to arrive, a group of neighbors gathered. One tried to perform CPR on the child, but he did not respond. Appellant picked A.G. up and held him, patted him on the back, and blood from his mouth soaked onto her shirt. She rode with A.G. to the hospital. Appellant's basic description of the events did not vary significantly. Two witnesses testified to the nature of A.G.'s injuries. Gary Curb, an emergency medical technician for the Balch Springs Fire Department, arrived at the apartment complex with his partner in response to the 911 call. He described A.G. as unconscious, with clenched teeth, and slow erratic breathing. Curb compared the level of A.G.'s injuries to that of a child who had been in a car accident without a seat belt and had been slammed into a dashboard or window. He testified the child was completely non-responsive. He explained that because A.G.'s jaws were locked, the technicians were unable to intubate him to relieve his breathing problems. According to Curb, A.G.'s locked jaws and fixed enlarged pupils were indicative of a serious head injury. The technicians secured his spine and drove him to a nearby hospital, from which he was helicoptered to Children's Medical Center. Curb testified he thought the child might die. Doctor Donna Persaud examined and treated A.G. at Children's. Dr. Persaud served as the clinical director of the REACH program, which medically assesses children at a number of hospitals when there are concerns of abuse. She took a medical history of the child from appellant and then examined him. Dr. Persaud testified A.G.'s brain was swollen, and he was experiencing bleeding between the two hemispheres of the brain. She attributed these injuries to rotation forces that caused the blood vessels to break and tear. She also discovered a bruise, or hematoma, on the left side of A.G.'s head. Dr. Persaud reported the findings of an opthalmologist who examined A.G. and found hemorrhages of both retinas consistent with head trauma. According to Dr. Persaud, the brain and retina injuries could only be caused by massive rotational forces; the scalp hematoma was consistent with the child's head striking a hard surface on his left side. She testified the injuries could not have been caused by a simple fall because a child A.G.'s age does not have "the amount of force, acceleration, and violence required to produce this level of head trauma." She stated the injuries could have killed the child. And she believed the head injuries were caused by a combination of shaking and contact of the head on a hard surface. She clarified that the kind of severe, violent shaking necessary to cause these injuries would be observable to another person as being dangerous, and she stated the symptoms of the injury would have been visible immediately. On cross-examination, Dr. Persaud conceded that some studies existed in reputable publications concluding shaken baby syndrome was overdiagnosed and that short falls can cause this type of injuries. Dr. Persaud expressed her certainty that the injuries in this case could not have been caused by that kind of short fall. In response to questions from the State, Dr. Persaud testified that an adult's hands used to shake a baby can be deadly weapons. Detective Andy Phelps, who investigated the case for the police, agreed that hands used to shake a two-year-old could be deadly weapons. Witnesses also testified concerning appellant's demeanor during their interactions. Curb described appellant as "a little nervous" when she was relating what had happened to A.G. Julie Kinser, an investigator for CPS at the time, was assigned A.G.'s case. She went to see him at the hospital the day after his injury, spoke with Dr. Persaud, and then talked with appellant privately. According to Kinser, appellant did not exhibit any emotion during their conversation, which seemed strange to Kinser at the time. However, Kinser also testified that, while she was present, Dr. Persaud asked appellant a number of questions and appellant was cooperative when answering the doctor's questions. Curb testified to the single witnessed interaction between appellant and a family member. He stated that the man who carried A.G. to the ambulance identified himself as A.G.'s father and was "pretty worked up" and "real, real hysterical." Curb testified that when the child was placed in the ambulance, and technicians were working on his airway, the father yelled in English at appellant: "This is what happens when you're so mean to him." There was subsequent testimony that A.G.'s father primarily spoke Spanish and needed an interpreter for interviews.Sufficiency of the Evidence
Gutierrez's first four issues challenge the sufficiency of the evidence to support the jury's verdict and the trial court's affirmative finding of use of a deadly weapon. In a legal sufficiency review, we apply well-established standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001). The standard is the same for both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). We view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Id. at 417. The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000).Sufficiency of Evidence Showing Appellant Caused the Child's Injuries
The State indicted appellant for injury to a child, charging that she did "intentionally and knowingly cause serious bodily injury to [A.G.], a child of 14 years or younger." In her first and second issues, appellant contends the evidence is legally and factually insufficient to prove that she caused the injuries her son suffered. Certainly the evidence against appellant is largely circumstantial: no one saw appellant shake or strike A.G. while they were in the bathroom. However, the cause of an injury can be established, as here, by both expert medical testimony and circumstantial evidence. See Barcenes v. State, 940 S.W.2d 739, 745 (Tex.App.-San Antonio 1997, pet. ref'd). When an adult defendant has sole access to a child at the time his injuries are sustained, the evidence is sufficient to support a conviction for injury to the child. See Garcia v. State, 16 S.W.3d 401, 405 (Tex.App.-El Paso 2000, pet. ref'd); Bryant v. State, 909 S.W.2d 579, 583 (Tex.App.-Tyler 1995, no pet.). Inconsistencies between a defendant's version of events and the medical evidence concerning how an injury must have been inflicted can also be circumstantial evidence of guilt. See Kemmerer v. State, 113 S.W.3d 513, 516 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). The circumstantial evidence in this case clearly supports the jury's verdict. Although no one saw appellant shake or hit A.G., it is undisputed that the child was alone with her during the time when his injuries occurred. Indeed, according to appellant's own statements, A.G. walked into the bathroom with her, and she carried him out, "look[ing] like he was dead." Likewise, the medical evidence in this case supports the verdict. The jury heard medical testimony that A.G.'s injuries were so severe they could not have been caused by a fall from a short distance as appellant claimed. And the jury heard medical evidence that symptoms of those severe injuries would have immediately followed the injury. When we examine the evidence in the light most favorable to the verdict, we believe a rational jury could have found that appellant caused the injury to A.G. beyond a reasonable doubt. See Vodochodsky, 158 S.W.3d at 509. Likewise, giving appropriate deference to the jury's assessment of the evidence and its resolution of the evidentiary conflicts, and considering all of the evidence in a neutral light, we cannot say that the great weight and preponderance of the evidence contradicts the jury's verdict. See Watson, 204 S.W.3d at 417. We conclude the evidence is both legally and factually sufficient to support the jury's verdict in this case. We overrule appellant's first and second issues.Sufficiency of Evidence Showing Use of a Deadly Weapon
The indictment in this case contained two paragraphs and charged appellant with causing A.G.'s injuries by using two deadly weapons: her hands (by shaking him) and an unknown object (by striking his head against it). "It is well-settled that when a general verdict is returned and the evidence is sufficient to support a finding of guilt under any of the paragraph allegations submitted the verdict will be upheld." Fuller v. State, 827 S.W.2d 919, 931 (Tex.Crim.App. 1992). Thus, so long as the State proved either of the deadly-weapon theories, we will uphold the trial court's affirmative finding. See id. A deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(17)(B) (Vernon Supp. 2008). Appellant concedes that Texas courts have concluded that the human hands can be used as a deadly weapon, depending on the evidence showing how the hands were used. See Turner v. State, 664 S.W.2d 86, 90 (Tex.Crim.App. 1983) ("we conclude that a fist or hand are not `deadly weapons' per se but can become such only in the manner used depending upon the evidence shown"). In Turner, there was no medical evidence of the cause of death or evidence concerning what injuries or wounds might have been inflicted by the fist or by the hands. See id. In appellant's case, there was medical evidence indicating that the cause of A.G.'s brain and retina injuries was severe, violent shaking, which would have been observable to another person as being dangerous. Both Dr. Persaud and Detective Phelps testified that an adult's shaking a child this age would constitute using her hands as a deadly weapon. We conclude ample evidence supports the finding that appellant used her hands, within the meaning of the statutory definition, as a deadly weapon. We overrule appellant's third and fourth issues.Evidentiary Challenges
Gutierrez's remaining issues challenge the trial court's ruling admitting evidence her son was born with cocaine in his system. We review a trial court's decision to admit evidence under an abuse of discretion standard. See McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005). If the trial court's decision was within the "bounds of reasonable disagreement," we do not disturb the ruling. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005). Appellant complains that the trial court erred in admitting-over appellant's rule 403 objection-evidence of the results of Kinser's CPS background check on appellant. That check revealed that A.G. had cocaine in his system at the time of his birth, indicating appellant had used cocaine during her pregnancy. Appellant argued at trial that this information was not admissible character evidence (e.g., of a common plan or scheme or motive) and that any probative value in this case was outweighed by the unfairly prejudicial effect of the evidence. The State argued defense counsel had opened the door to the evidence by questioning Kinser about background checks she had run on other family members in this case. In her fifth issue, appellant argues her counsel did not open the door to this evidence, and in her final issue, she argues the evidence should have been excluded under rule 403. Our review of defense counsel's questioning of Kinser leads us to conclude the examination, taken as a whole, did open the door to the State's question concerning appellant's CPS history. The line of inquiry on cross was as follows:Q.
Did you do background checks on the husband?
A.
Yes.
Q.
Background checks on Isabel?
A.
Yes.
Q.
Didn't know who Doughboy was to make a background check on him?
A.
Correct.
Q.
Did you ever find out who he was?
A.
No, I did not.
Q.
Okay. You also do — not just criminal record checks but you — you end up doing CPS history checks, correct?
A.
Yes, I do.
Q.
On those other individuals?
A.
On all of the principals in a case.
Q.
Did you do any CPS history on Juanita's mother?
A.
Yes, I did.
Q.
Okay. Her name is also Isabel, correct?
A.
Correct.
Q.
Okay. And you found some CPS history on those people, didn't you?At this point, the prosecutor objected to relevance; the objection was overruled. The witness answered, "Yes," and defense counsel changed the subject. We understand the defense counsel, in this exchange, to have asked questions concerning background checks-whether criminal or CPS-on all of A.G.'s adult family members except appellant. More specifically, counsel elicited testimony from Kinser that she "found some CPS history on those people." The only possible relevance of these questions would be to show that other adult family members had a history of bad acts concerning children. It is fundamentally unfair to allow the defense to ask such questions concerning every other adult family member and not to allow the State to ask the same question concerning appellant, A.G.'s mother. See Schutz v. State, 957 S.W.2d 52, 71 (Tex.Crim.App. 1997) ("[O]therwise inadmissible evidence may be admitted if the party against whom the evidence is offered `opens the door.'"); see also McInnes v. Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 188 (Tex. 1984) ("A party on appeal should not be heard to complain of the admission of improper evidence offered by the other side, when he, himself, introduced the same evidence or evidence of a similar character."); see also Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (evidence that could potentially be excluded as irrelevant or unfairly prejudicial cannot be challenged by party who was first to allude to evidence). We conclude the defense opened the door to the State's question concerning appellant's CPS history. We find no abuse of discretion in allowing the testimony. As to the rule 403 issue, we must ask whether the trial court's determination was reasonable in view of all relevant facts. The court of criminal appeals has stated that our rule 403 analysis can include a number of factors, including but not limited to: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. State v. Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App. 2005). Our review has a somewhat limited scope in that we have already concluded the evidence was admissible because of a particular line of inquiry by the defense. Thus, we address the Mechler factors in terms of that line of inquiry. Once the jury had heard evidence that appellant's husband, sister, brother-in-law, and mother had all been investigated by CPS and that the investigator "found some CPS history on those people," then evidence of any similar background check on appellant became highly probative. Certainly the evidence would make an impression on the jury, but we view that fact in light of the evidence the jury had already heard about other family members. The evidence took minimal time to develop. And, given Kinser's testimony pointing at those other individuals, the State did need evidence of appellant's background to give a fair treatment of the subject to the jury. We do not question that the evidence of appellant's CPS background was prejudicial to her. But given this body of testimony as a whole, we cannot say the probative value was substantially outweighed by the danger of unfair prejudice. See McShane, 239 S.W.3d at 234. Nor can we say the trial court abused its discretion in admitting the evidence. We overrule appellant's fifth and sixth issues as well.