No. 05-08-01474-CR
Opinion issued July 30, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-81877-07.
Before Justices MOSELEY, BRIDGES and FILLMORE.
Opinion By Justice BRIDGES.
Appellant Claudia Ruth Williams was charged by indictment with one count of first-degree injury to a child ("Count I") and one count of third-degree injury to a child ("Count II"). The jury convicted appellant of both counts and sentenced her to forty years in prison on Count I and five years in prison on Count II. Appellant appeals from her convictions and accompanying sentences. We affirm the trial court's judgment with regard to Count I and reverse the trial court's judgment and render an acquittal with regard to Count II.
Background
Alexander Mullins returned home from work and his girlfriend, appellant, told him that his four-year old daughter's feet had been burned by appellant's two-year-old niece with a curling iron. Mullins applied burn cream to his daughter's feet. Later that night, as he prepared to give his daughter a bath, Mullins took off her pants and noticed a long burn on her buttocks, where the skin had been burned completely off. Mullins took his daughter to the hospital. At the hospital, his daughter was treated for second-degree burns to the bottoms of both feet and her buttocks. Dr. Thomas Janecek, the emergency room doctor, described the burns as "pressure burns." They would have required a "fair amount of pressure" and the object held down for several seconds at least. The burns resulted in blistering and skin loss, particularly on the buttocks. Dr. Janecek testified that the burns were serious enough that they should have received immediate medical attention rather than a twelve-hour delay. By the time of trial, sixteen months following the injuries, the daughter still had scarring which Dr. Janecek classified as a "permanent scar." Originally, appellant told Dr. Janecek that the two-year-old burned Mullins's daughter. But the doctor thought the story was implausible since a two-year-old would not have the strength to hold down an older, bigger child and burn her in three separate places. Dr. Janecek contacted Child Protective Services ("CPS"). Appellant was interviewed by both CPS investigators and the police. At first, she blamed the burns on the two-year-old, but later admitted she burned Mullins's daughter with the iron. The complainant testified in court that appellant was "the one who burned me" with a clothes iron on her feet and bottom. She said appellant's sons held her down, while appellant burned her. The complainant also testified that appellant told her to "tell a lie and blame it on [the two-year-old]." The complainant's aunt testified that, while she changed the dressings on the burns, the complainant asked her why appellant "did this" to her. Appellant testified on her own behalf at trial and claimed the police threatened her and hit her in the interview room until she confessed to burning the complainant. She said she lied in all three of her statements to the police and the truth was that she had gone to the grocery store and came back to find the complainant burned. Appellant said her son told her that the two-year-old had burned the complainant and, although she did not believe him, she lied to protect her sons. The jury returned a verdict of guilty on Count I of first-degree injury to a child and Count II of third-degree injury to a child. This appeal ensued. Analysis
Appellant raises eleven issues on appeal. In her first and second issues, she challenges the legal and factual sufficiency of the evidence establishing that the complainant sustained serious bodily injury. Issues three and four assert the evidence is legally and factually insufficient to prove the corpus delicti of the crime with regard to Count II. In her fifth and sixth issues, appellant argues the evidence is legally and factually insufficient to show that the complainant suffered bodily injury with regard to Count II. Issues seven and eight challenge the legal and factual sufficiency of the evidence to demonstrate that Texas has territorial jurisdiction over the alleged offenses. In issues nine and ten, appellant argues the evidence is legally and factually insufficient to support the alleged offenses occurred in Collin County. Finally, appellant contends she received ineffective assistance of counsel when her trial counsel failed to move for a directed verdict at the conclusion of the State's case-in-chief or to make any other pre-verdict or post-verdict motion challenging the sufficiency of the evidence. We begin our analysis with issue three in which appellant asserts the evidence was legally insufficient with regard to Count II, because there was no evidence of the corpus delicti of the claims. As charged in Count II, the State was required to prove appellant intentionally or knowingly caused bodily injury to the complainant by burning her with a curling iron. Tex. Penal Code Ann. § 22.04(a)(3) (Vernon Supp. 2009). Appellant confessed that she burned the complainant's foot with a curling iron. However, under the corpus delicti doctrine, an extrajudicial confession, standing alone, is insufficient to support a conviction without other evidence showing that a crime has been committed. Bible v. State, 162 S.W.3d 234, 246 (Tex. Crim. App. 2005); Salazar v. State, 86 S.W.3d 640, 645 (Tex. Crim. App. 2002). The State concedes that (1) any physical evidence of the burning with the curling iron was obscured by the later burning with the clothes iron, (2) the complainant testified appellant burned her only once, and (3) appellant's nieces recanted their statements that appellant told them she burned the complainant's foot with a curling iron as punishment. Because there was no independent evidence a crime occurred to corroborate appellant's confession, the evidence is insufficient to support appellant's conviction for bodily injury to a child under Count II. See Salazar, 86 S.W.3d at 645. We, therefore, sustain appellant's third issue. Because we sustain appellant's third issue, we need not address her remaining issues regarding Count II. Specifically, we need not address issues four, five and six. We also need not address issues seven through eleven, only as they relate to Count II. Because we sustain appellant's third issue, we reverse appellant's conviction for third-degree injury to a child under Count II and render an acquittal as to Count II only. We next consider appellant's first and second issues, challenging the legal and factual sufficiency of the evidence that the complainant sustained serious bodily injury. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). It is not necessary that every fact point directly and independently to an accused's guilt, but it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). A person commits first-degree 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. 2009). Whether an injury qualifies as a "serious bodily injury" is a determination that must be made on an ad hoc basis in each case. Moore v. State, 739 S.W.2d 347, 349-52 (Tex. Crim. App. 1987). "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. 2009). The disfiguring quality of an injury is judged at the time it was inflicted, not after medical treatment. Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. 1980). Disfigurement, like beauty, is in the eye of the beholder. Hernandez v. State, 946 S.W.2d 108, 113 (Tex. App.-El Paso 1997, no pet.). However, when distinguishing between "bodily injury" and "serious bodily injury," it is a matter of degree. Id. The photographs in the record before us show significant scarring and discolored skin. Dr. Janecek testified the photographs depicted a "permanent scar." Further, Detective Clay, the lead investigator, testified the complainant suffered from serious bodily injury on her feet and buttocks because "[t]here's still marks 18 months later." We conclude the evidence was sufficient to demonstrate the complainant suffered from serious permanent disfigurement to amount to "serious bodily injury" as required under Count I. See Tex. Penal Code Ann. § 1.07(a)(46); Williams v. State, No. 05-08-00617-CR, 2009 WL 2343259, at *5 (Tex. App.-Dallas July 31, 2009, no pet.) (not designated for publication) (scars that covered complainant's chest constituted "serious bodily injury"); Robinson v. State, Nos. 11-00-00178-CR, 11-00-00179-CR, 2001 WL 34373528, at *4 (Tex. App.-Eastland Feb. 1, 2001, no. pet.) (not designated for publication) (injuries that resulted in permanent widespread scarring constituted "serious bodily injury"). We overrule appellant's first and second issues. In issues seven, eight, nine and ten, appellant challenges the legal and factual sufficiency of the evidence to establish venue in both Texas and Collin County. We must presume venue was properly proven unless the defendant raised the issue in the trial court or the record affirmatively shows the contrary. Tex. R. App. P. 44.2(c)(1). Venue must be proven by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 2005). However, appellant failed to raise a venue challenge during the trial of the case. In fact, appellant's counsel conceded in closing argument that the complainant sustained serious bodily injury in Collin County. Appellant argues on appeal that she raised the issue in her motion for new trial. Her motion for new trial, however, alleged only that "[t]he verdict in this cause was contrary to the law and the evidence." We, therefore, determine that appellant waived her venue issues. See Tex. R. App. P. 33.1; Masters v. State, 306 S.W.2d 355, 357 (Tex. Crim. App. 1957). Because we conclude appellant's venue challenges were waived and we must presume venue was properly proven at trial, we overrule appellant's issues seven, eight, nine and ten. See Tex. R. App. P. 44.2(c)(1). In her eleventh issue, appellant contends she received ineffective assistance of counsel when her trial counsel failed to move for a directed verdict at the conclusion of the State's case-in-chief or to make any other pre-verdict or post-verdict motion challenging the sufficiency of the evidence. A claim of ineffective assistance of counsel is reviewed under the Strickland test. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In determining whether counsel rendered ineffective assistance, an appellate court considers two factors: (1) whether counsel's performance fell below an objective standard of reasonableness and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex Crim. App. 1999). Appellant bears the burden of proving his counsel was ineffective by a preponderance of the evidence. Id. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813. To defeat this presumption, appellant must prove that there was no plausible professional reason for a specific act or omission. Bone, 77 S.W.3d at 836. Any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Thus, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective assistance claim on direct appeal because the record on direct appeal is not developed adequately to reflect the reasons for defense counsel's actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). Here, we do not have an adequate record to review appellant's claim of ineffectiveness. See id.; Thompson, 9 S.W.3d at 813-15. Appellant must prove that there is no possible strategic reason for counsel's actions and trial counsel should be given the opportunity to explain his actions before being denounced as "ineffective." Bone, 77 S.W.3d at 836. The record before us is devoid of evidence from trial counsel himself and is "simply undeveloped and cannot adequately reflect the failings of trial counsel." Thompson, 9 S.W.3d at 814 (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)). The record is silent as to why appellant's trial counsel chose not to: (1) move for a directed verdict at the conclusion of the State's case-in-chief or (2) make any other pre-verdict or post-verdict motion challenging the sufficiency of the evidence Therefore, appellant has failed to rebut the presumption counsel's decisions were reasonable, and we overrule appellant's eleventh issue. Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14. Having overruled appellant's issues one through two and issues seven through eleven, we affirm the judgment of the trial court with regard to Count I, first-degree injury to a child. Having sustained appellant's third issue, we reverse the judgment of the trial court with regard to Count II, third-degree injury to a child, and render an acquittal with regard to Count II only.