Susan A. Bienek v. State ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-94-00090-CR





Susan Bienek, Appellant



v.



The State of Texas, Appellee





FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT NO. 7994, HONORABLE HAROLD R. TOWSLEE, JUDGE PRESIDING

Appellant was convicted of murder and a jury assessed punishment at nine years imprisonment. See Penal Code, 63d Leg., R.S., ch. 399, sec. 1, § 19.02, 1973 Tex. Gen. Laws 883, 913, amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, § 1, 1973 Tex. Gen. Laws 1122, 1123 (Tex. Penal Code Ann. § 19.02, since amended). Appellant claims the trial court erred in nine points of error raising the following central issues: (1) the trial court failed to include a jury instruction regarding the due diligence of the grand jury in determining the deceased's name before declaring it to be unknown in the indictment; (2) the trial court failed to sustain objections to certain improper arguments made by the prosection; and (3) the evidence is legally and factually insufficient to support a conviction. We will affirm the conviction.

BACKGROUND

On January 5, 1993, the mangled body of a newborn infant was found at the Bastrop County landfill near a garbage bag containing bloody material and letters addressed to appellant. The Bastrop County Sheriff's Office questioned appellant who admitted that the infant was her baby and at that time gave one of two written statements to investigators. According to the statements, appellant awoke at approximately 11:30 p.m. on December 30, 1992, suffering from cramps, back pain and bleeding. Appellant claims she gave birth to a stillborn child on her bathroom floor. According to appellant, she held the child for a while and then placed it in an unheated shed for the night. The next morning she put the baby in one trash bag, put other bloody materials in a second trash bag, and left both bags in a box at a roadside park. Appellant told investigators that she had secretly planned to give up the child for adoption because her family could not afford another child. Co-workers testified that appellant had worn a coat to work every day in the Fall of 1992 and denied that she was pregnant.

DISCUSSION

In her first point of error, appellant claims the trial court erred in failing to instruct the jury concerning whether the grand jury exercised due diligence in obtaining the name of the deceased infant before stating it to be unknown in the indictment. Article 21.07 of the Texas Code of Criminal Procedure states when the name of a person necessary to be stated in the indictment is unknown to the grand jury, that fact shall be stated. Tex. Code Crim. Proc. Ann. art. 21.07 (West 1989). Thus, it is sufficient to state a person's name as unknown in the indictment if that name is in fact unknown. Appellant argues that under Payne v. State, 487 S.W.2d 71 (Tex. Crim. App. 1972), the State has the burden of proving the grand jury exercised reasonable diligence in attempting to ascertain the name of the infant.

At trial, grand jury foreperson Charles Howard Fromme, Jr. stated that Officer Campos of the Bastrop County Sheriff's Department testified before the grand jury that the child had no name at his death. A death certificate for the child contained the name Daniel Bienek, but it was never presented to the grand jury. In Turner v. State, the Texas Court of Criminal Appeals held that, although the grand jury's diligence was not at issue, where evidence showed that a newborn infant had been abandoned by its mother and where evidence tended to show there was no name for that infant, the grand jury did not fail to exercise due diligence by stating the child's name as unknown in the indictment rather than asking the mother if the child had a name. Turner, 385 S.W.2d 848, 851 (Tex. Crim. App. 1965). In this case, the record reflects that appellant left her newborn infant in a trash bag, never referred to the infant by name during questioning, and said at one point that she had planned to give up the child for adoption. Under these circumstances, the grand jury was justified in stating in the indictment that the child's name was unknown. Point of error one is overruled.

In points of error two and three, appellant alleges the evidence is legally and factually insufficient to support a verdict. When a verdict is challenged on both legal and factual sufficiency grounds, this Court must first address the legal sufficiency grounds. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). The critical inquiry in a legal sufficiency review of a criminal conviction is whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). This Court does not ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Id. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.

The law provides that a person commits the offense of murder by intentionally or knowingly causing the death of an individual. Penal Code § 19.02 (a)(1). Further, the jury was instructed that if the evidence showed appellant to be the parent and mother of the deceased child with a duty to care for this child and further showed that appellant caused the death of the child by intentionally and knowingly neglecting the child by failing to provide food, shelter and medical care, then the appellant would be guilty of murder. The trial record shows the prosecution introduced testimony stating the child was alive at birth and that its death was caused by exposure resulting from the actions of the appellant. The court need not consider opposing testimony in this type of review, only whether a reasonable jury could have established the elements of the crime based on these facts. Jackson, 443 U.S. at 319. We hold that the evidence was such that a rational trier of fact could have found for the State on the elements of the offense, and accordingly, appellant's point of error two is overruled.

In a factual sufficiency review, the court must view the evidence in the light most favorable to the verdict. Here the court considers all the evidence equally, and will set aside the verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd, untimely filed). In this case, the State presented lengthy expert medical testimony showing the presence of air in the infant's lungs and bowels. Dr. Norton, a forensic pathologist testifying for the State, found no signs of intrauterine distress. Because of the lack of indication of intrauterine distress, the presence of air in the lungs and bowels, and the lack of any other physical abnormalities, Dr. Norton concluded that the child was not stillborn and his death was caused by exposure. Relying on the presence of air in its bowels, she estimated that the child lived for at least thirty minutes and more likely closer to two hours. Dr. Norton also noted that the infant's severe post mortem injuries probably resulted from a bulldozer operated at the landfill and did not believe this would cause air to enter the child's bowels. The appellant presented expert testimony from another forensic pathologist, Dr. Bux, who disagreed with Dr. Norton's findings. Dr. Bux believed the child had been stillborn, and that the air found in the child's lungs and bowels could be attributed to decomposition or the post mortem trauma. After considering all the evidence, including both pathologists' testimony, we cannot conclude that the jury's verdict is so against the overwhelming weight of the evidence as to be clearly wrong or unjust. Appellant's point of error three is overruled.

In points of error four and five, appellant objects to certain statements made by the prosecution during argument in the guilt and innocence phase of the trial. Appellant failed to object at trial to the comments raised in points of error four and five, and therefore, waived any error regarding those particular comments. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). Appellant's points of error four and five are overruled.

In her sixth point of error, appellant claims that the trial court erred in failing to overrule objections made to improper statements made by the prosecutor during its argument concerning the page length of the jury's charge. An improper jury argument may constitute reversible error only if, in the light of the entire record, the argument is extreme or manifestly improper, violates a mandatory statute, or injects new facts into the trial which may be considered harmful to the accused. Davis v. State, 840 S.W.2d 480, 488 (Tex. App.--Tyler 1992, pet. ref'd). The prosecution's statement neither injected new facts into evidence, nor was it harmful to the accused. Point of error six is overruled.

Appellant's seventh point of error claims the trial court erred in not granting a mistrial following the prosecution's remarks concerning the possibility of a retrial if the jury deadlocked during the punishment phase. The trial court sustained the objection and instructed the jury to disregard the statement. Appellant argues that under Brown v. State, , that informing the jury of the consequences of deadlock during the punishment phase constitutes reversible error. Brown, 692 S.W.2d 497, 502 (Tex. Crim. App. 1985) However, the Texas Court of Criminal Appeals further held in Brown that such error may be cured if the trial court issues an instruction to disregard the statement. Id. The record shows the trial court sustained the appellant's objection to this statement and issued an instruction to disregard. Appellant's point of error seven is overruled.

In her eighth point of error, appellant claims the trial court erred in overruling an objection to the prosecution's reference during the punishment phase to other potential opinions about the propriety of punishing the appellant. A jury argument by a prosecuting attorney that attempts to persuade the jury to convict the defendant or assess that defendant a particular punishment because "the people" demand it is considered improper. Motley v. State, 773 S.W.2d 283, 293 (Tex. Crim. App. 1989). Here, the prosecutor was referring to the testimony of six defense witnesses who believed that punishing the defendant would accomplish nothing. The prosecutor only noted that it would be improper for him to bring in the remainder of the county's residents as witnesses. As stated above, an improper jury argument is reversible error only if the argument is extremely or manifestly improper in light of the entire record, violates a mandatory statute, or injects new facts into the trial which may be considered harmful to the accused. Davis, 840 S.W.2d at 488. This statement did not encourage the jury to reach a certain result based on community expectations, nor did it inject new facts into evidence. Under Davis, such statement is harmless error, and therefore, point of error eight is overruled.

Appellant's ninth point of error contends the trial court made a similar mistake in failing to overrule an objection to a statement by the prosecutor to the jury during the punishment phase that there was "something they had not heard." The statement, viewed in context, cannot be construed as extremely or manifestly improper, and it also fails to interject new facts into evidence. See Davis, 840 S.W.2d at 488. Point of error nine is overruled.

CONCLUSION

The judgment of the trial court is affirmed.

Jimmy Carroll, Chief Justice

Before Chief Justice Carroll, Justices Jones and B. A. Smith

Affirmed

Filed: October 18, 1995

Do Not Publish

certain statements made by the prosecution during argument in the guilt and innocence phase of the trial. Appellant failed to object at trial to the comments raised in points of error four and five, and therefore, waived any error regarding those particular comments. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). Appellant's points of error four and five are overruled.

In her sixth point of error, appellant claims that the trial court erred in failing to overrule objections made to improper statements made by the prosecutor during its argument concerning the page length of the jury's charge. An improper jury argument may constitute reversible error only if, in the light of the entire record, the argument is extreme or manifestly improper, violates a mandatory statute, or injects new facts into the trial which may be considered harmful to the accused. Davis v. State, 840 S.W.2d 480, 488 (Tex. App.--Tyler 1992, pet. ref'd). The prosecution's statement neither injected new facts into evidence, nor was it harmful to the accused. Point of error six is overruled.

Appellant's seventh point of error claims the trial court erred in not granting a mistrial following the prosecution's remarks concerning the possibility of a retrial if the jury deadlocked during the punishment phase. The trial court sustained the objection and instructed the jury to disregard the statement. Appellant argues that under Brown v. State, , that informing the jury of the consequences of deadlock during the punishment phase constitutes reversible error. Brown, 692 S.W.2d 497, 502 (Tex. Crim. App. 1985) However, the Texas Court of Criminal Appeals further held in Brown that such error may be cured if the trial court issues an instruction to disregard the statement. Id. The record shows the trial court sustained the appellant's objection to this statement and issued an instruction to disregard. Appellant's point of error seven is overruled.

In her eighth point of error, appellant claims the trial court erred in overruling an objection to the prosecution's reference during the punishment phase to other potential opinions about the propriety of punishing the appellant. A jury argument by a prosecuting attorney that attempts to persuade the jury to convict the defendant or assess that defendant a particular punishment because "the people" demand it is considered improper. Motley v. State, 773 S.W.2d 283, 293 (Tex. Crim. App. 1989). Here, the prosecutor was referring to the testimony of six defense witnesses who believed that punishing the defendant would accomplish nothing. The prosecutor only noted that it would be improper for him to bring in the remainder of the county's residents as witnesses. As stated above, an improper jury argument is reversible error only if the argument is extremely or manifestly improper in light of the entire record, violates a mandatory statute, or injects new facts into the trial which may be considered harmful to the accused. Davis, 840 S.W.2d at 488. This statement did not encourage the jury to reach a certain result based on community expectations, nor did it inject new facts into evidence. Under Davis, such statement is harmless error, and therefore, point of error eight is overruled.

Appellant's ninth point of error contends the trial court made a similar mistake in failing to overrule an objection to a statement by the prosecutor to the jury during the punishment phase that there was "something they had not heard." The statement, viewed in context, cannot be construed as extremely or manifestly improper, and it also fails to interject new facts into evidence. See Davis, 840 S.W.2d at 488. Point of error nine is overruled.

CONCLUSION

The judgment of the trial court is affirmed.

Jimmy Carroll, Chief Justice