Lyons, Christina ( 2015 )

PD-0833-15
PD-0833-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/2/2015 7:05:48 PM
Accepted 7/7/2015 2:15:57 PM
ABEL ACOSTA
NO. _________________ CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
CHRISTINA LYONS,
Appellant
V.
STATE OF TEXAS,
Appellee
ON PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
IN CAUSE NUMBER 03-12-00474-CR
AFFIRMING THE JUDGMENT
IN CAUSE NUMBER CR-11-0101
22ND DISTRICT COURT, HAYS COUNTY, TEXAS
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
MICHAEL C. GROSS
106 South St. Mary’s Street, Suite 260
San Antonio, Texas 78205
Lawofcmg@gmail.com
July 7, 2015
(210) 354-1919
(210) 354-1920 FAX
Attorney for the Appellant,
CHRISTINA LYONS
ORAL ARGUMENT REQUESTED
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
Honorable William Henry, 22nd Judicial District Court, Hays County, Texas
Ms. Christina Lyons, Appellant
Michael C. Gross, Attorney for the Appellant (Appeal Only)
106 South St. Mary’s Street, Suite 260
San Antonio, Texas 78205
Ariel Payan, Attorney for the Appellant (Trial and Appeal)
1012 Rio Grande
Austin, Texas 78701
Sherri Tibbe, District Attorney
712 South Stagecoach Trail, Suite 2057
San Marcos, Texas 78666
Amy L. Lockhart, Assistant District Attorney (Trial Only)
712 South Stagecoach Trail, Suite 2057
San Marcos, Texas 78666
Cathy Compton, Assistant District Attorney (Trial Only)
712 South Stagecoach Trail, Suite 2057
San Marcos, Texas 78666
Angie D. Roberts-Huckaby, Assistant District Attorney (Appeal Only)
712 South Stagecoach Trail, Suite 2057
San Marcos, Texas 78666
ii
TABLE OF CONTENTS
IDENTITY OF JUDGE, PARTIES, AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
GROUND FOR REVIEW NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
THE COURT OF APPEALS ERRED BY RULING
THAT THE TRIAL JUDGE’S DENIAL OF
ADDITIONAL TIME FOR A DEFENSE EXPERT TO
BE ABLE TO ASSIST IN THE PREPARATION OF
AND PRESENTATION OF THE DEFENSE IS
SUBJECT TO AN ABUSE OF DISCRETION
STANDARD.
Reason for Review of Ground One
The Court of Appeals has decided an important question of
state law in a way that conflicts with applicable decisions
of the Court of Criminal Appeals. Rey v. State, 897 S.W.2d
333 (Tex. Crim. App. 1995); DeFreece v. State, 848
S.W.2d 150 (Tex. Crim. App.), cert. denied, 510 U.S. 905,
114 S. Ct. 284, 126 L. Ed. 2d 234 (1993).
iii
ARGUMENT AND AUTHORITIES IN SUPPORT
OF GROUND FOR REVIEW NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . 5
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
APPENDIX A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
TABLE OF AUTHORITIES
Ake v. Oklahoma, 470 U.S. 68,
105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8
DeFreece v. State, 848 S.W.2d 150 (Tex. Crim. App.), cert. denied,
510 U.S. 905, 114 S. Ct. 284, 126 L. Ed. 2d 234 (1993).. . . . . . . . . . . . . 5, 7, 8
Lyons v. State, No. 03-12-00474-CR
(Tex. App. - Austin, February 26, 2015, no pet. h.). . . . . . . . . . . . 2, 3, 5, 8, 9
Rey v. State, 897 S.W.2d 333
(Tex. Crim. App. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7, 8, 12
Statutes
Tex. R. App. P. 68. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
iv
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW CHRISTINA LYONS, the Appellant in the above styled cause
and, pursuant to Rule 68 of the Texas Rules of Appellate Procedure, files this, her
Petition for Discretionary Review. In support of this petition, she would respectfully
show the Court the following:
STATEMENT REGARDING ORAL ARGUMENT
Counsel for the Appellant respectfully requests leave, pursuant to Tex. R. App.
P. 68, to make oral argument to this Honorable Court. Counsel believes that oral
argument is necessary for a full and complete understanding of the facts and
constitutional issues presented herein. This request is made so that justice may be
done.
STATEMENT OF THE CASE
The Appellant was indicted in Cause Number CR-11-0101 with capital murder
allegedly occurring on November 25, 2010. (T - 6).1 The jury trial began on June 18,
2012 before the Honorable William Henry, presiding judge. (R - v.5 - 1, 40). On
July 2, 2012, the jury found the Appellant guilty, contrary to her plea. (R - v.15 - 1,
4). On July 2, 2012, the judge, as required by law, sentenced the Appellant to
imprisonment for life without the possibility of parole in the Texas Department of
1
The clerk’s record will be referred to as “T and page number.” The court reporter’s
record will be referred to as “R and volume and page number.”
1
Criminal Justice, Institutional Division. (T - 154). A motion for new trial was timely
filed on July 11, 2012 and overruled. Id. at 157-167. Notice of appeal was timely
filed on July 11, 2012. Id. at 156.
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals for the Third District of Texas rendered its unpublished
opinion and judgment by panel on February 26, 2015. Lyons v. State, No. 03-12-
00474-CR (Tex. App. - Austin, February 26, 2015, no pet. h.). A motion for
rehearing was timely filed on May 18, 2015, given the granting of extensions, and
was denied on June 9, 2015.
GROUND FOR REVIEW
GROUND FOR REVIEW NUMBER ONE
THE COURT OF APPEALS ERRED BY RULING THAT THE TRIAL
JUDGE’S DENIAL OF ADDITIONAL TIME FOR A DEFENSE EXPERT
TO BE ABLE TO ASSIST IN THE PREPARATION OF AND
PRESENTATION OF THE DEFENSE IS SUBJECT TO AN ABUSE OF
DISCRETION STANDARD. (T - 104-106, 110, 157-167; R - v.2 - 27).
STATEMENT OF FACTS
Trial counsel was appointed on January 17, 2012 to represent the Appellant in
this capital murder case. Lyons v. State, supra, at 8. Trial was scheduled for June
2012. Id. Counsel timely requested discovery but was not initially provided with the
crucial medical records or radiological films of the complainant. (R - v.2 - 5-6). Three
weeks prior to trial, counsel received these discovery items totaling approximately
2
1000 pages and obtained a neuro-radiologist expert to review these records. Id. On
May 23, 2012, the defense expert informed counsel that a pathologist would be
needed to explain to the jury that the injuries to the complainant could have been
caused by a fall to the ceramic floor or by the Appellant’s other child. Id. Counsel
located a pathologist, but that expert informed counsel that the expert could not be
prepared for trial in the time remaining before trial was scheduled to begin. Id. at 8.
Counsel filed with the trial judge an ex parte motion for continuance which outlined
the pathologist’s (Dr. Willey’s) concerns:
Dr. Willey would be willing to testify in this case, but
cannot do so in the time frame currently provided. Dr.
Willey has made a preliminary review of the evidence in
this case, and although he cannot make a final
determination, and indeed is requesting more information
than what Counsel currently has in his possession, Dr.
Willey has informed the defense that these types of injuries
could have been caused by a short fall onto a hard surface,
like the ceramic floors of Defendant’s home (located by the
back door). In addition, the injuries could have been caused
by another child who was present in the home, and has
admitted to injuring the victim in this case. Dr. Willey’s
initial analysis is consistent with the defensive theory.
Lyons v. State, supra at 7.
The trial judge refused to provide to the defense additional time for this defense
pathology expert to be able to assist in the preparation and presentation of the
defense. The State called the following expert witnesses: a pediatric radiologist, a
3
department head of pediatric neurosurgery, a program director for pediatrics
residency training, and a medical examiner pathologist. Lyons v. State, supra at 16-
17. No defense expert testified in support of the defense theory that the injuries could
have been caused by a fall on a hard surface or could have been caused by another
child in the house. Id. at 5. Additionally, no defense expert pathologist assisted
counsel in the cross-examination of the State’s experts.
The defense expert pathologist would have been able to explain to the jury that
the complainant suffered from weak bone density and fragility of the skull bones in
particular. (T - 104-106, 110, 157-167). The defense expert pathologist would have
been able to then explain to the jury that the complainant was susceptible to the
injuries sustained by the complainant by means of a short fall or by the actions of a
four-year-old person. Id. This was the key to the Appellant’s defense. Id. The defense
expert would have been able to assist the defense in cross-examination of the State’s
expert witnesses who all disagreed that a four-year-old could have caused the injuries
to the complainant. Id. Previous counsel withdrew from the case after being denied
the assistance of court-appointed experts.
4
GROUND FOR REVIEW NUMBER ONE
THE COURT OF APPEALS ERRED BY RULING
THAT THE TRIAL JUDGE’S DENIAL OF
ADDITIONAL TIME FOR A DEFENSE EXPERT TO
BE ABLE TO ASSIST IN THE PREPARATION OF
AND PRESENTATION OF THE DEFENSE IS
SUBJECT TO AN ABUSE OF DISCRETION
STANDARD.
Reason for Review of Ground One
The Court of Appeals has decided an important question of
state law in a way that conflicts with applicable decisions
of the Court of Criminal Appeals. Rey v. State, 897 S.W.2d
333 (Tex. Crim. App. 1995); DeFreece v. State, 848
S.W.2d 150 (Tex. Crim. App.), cert. denied, 510 U.S. 905,
114 S. Ct. 284, 126 L. Ed. 2d 234 (1993).
ARGUMENT AND AUTHORITIES IN SUPPORT
OF GROUND FOR REVIEW NUMBER ONE
In the case at bar, the court below held that a trial judge’s denial of additional
time in order for a defense expert to be able to assist in the preparation and
presentation of the defense was subject to an abuse of discretion standard. Lyons v.
State, No. 03-12-00474-CR at 6-9, 20 (Tex. App. - Austin, February 26, 2015). This
Court has held, however, that a trial judge’s denial to the defense of access to expert
assistance to assist in the preparation and presentation of a defense was structural
error and not subject to a harmless error analysis. Rey v. State, 897 S.W.2d 333 (Tex.
Crim. App. 1995). Where a capital defendant has an interest in the accuracy of the
proceedings, the State maintains an interest in the accuracy of the result of the trial,
5
and a defense expert is required to assist in the defensive theory of the case and
present the jury with alternative theories, a trial judge’s denial of access to such a
defense expert is structural error and not subject to a harm analysis. Id.
In Rey v. State, the defendant was charged with capital murder. Id. The State
alleged that the defendant caused the death of the complainant in the course of
committing burglary of a house during which time the complainant received injuries
to the head. Id. The defense claimed that the complainant died of a heart attack, not
injuries to the head, and the defense informed the trial judge prior to trial and again
during trial that an expert pathologist was needed to assist the defense in this regard.
Id. The trial judge denied the defense access to such an expert. Id. This Court held
that access to such an expert pathologist was a “‘basic tool’ essential to developing
and presenting his defensive theory.” Id. This Court held that the denial of access to
such a “basic tool” was structural error not subject to a harm analysis. Id.
Rey v. State cited Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d
53 (1985) for the proposition that a defendant must be provided with “the basic tools
to present his defense within our adversarial system.” Id. The Rey court recognized
that Ake “placed the greatest emphasis on the third factor, discussing the importance
of [defense expert] testimony in conveying to the factfinder an understanding of the
defendant’s [defensive issues] . . .” Id. The Rey court also recognized that Ake was
concerned that “the risk of an inaccurate verdict was high where the defendant was
6
not assisted by a [defense expert] to ‘help determine whether the [] defense is viable,
to present testimony, and to assist in preparing the cross-examination of a State’s
[expert] witnesses.” Id. Where a scientific issue is likely to be a significant factor, “a
defense may be devastated by the absence of a [defense expert’s] examination and
testimony; with such assistance, the defendant might have a reasonable chance of
success.” Id.
The Rey court stated that, “The adversarial model rests on the assumption that
each party to a dispute, motivated by self-interest, will develop his position to the
greatest extent possible . . . thus providing the factfinder an optimal vantage from
which to gauge all relevant facts and make an informed decision on the merits.” Id.,
citing DeFreece v. State, 848 S.W.2d 150 (Tex. Crim. App.), cert. denied, 510 U.S.
905, 114 S. Ct. 284, 126 L. Ed. 2d 234 (1993). This Court further explained:
In an adversarial system due process requires at least a
reasonably level playing field at trial . . . It also means the
appointment of a [defense expert] to provide technical
assistance to the accused, to help evaluate the strength of
his defense, to offer his own expert diagnosis at trial if it is
favorable to that defense, and to identify the weaknesses in
the State’s case, if any, by testifying himself and/or
preparing counsel to cross-examine opposing experts.
Id.
Rey v. State determined that this type of error is structural and cannot be
evaluated for harm:
7
This analysis leads us to ask whether the error in the instant
case was structural error or trial error. We conclude the
error is structural. We would first point out, as we have
previously noted, that the Supreme Court in Ake reversed
and remanded for a new trial without conducting a harm
analysis. See DeFreece, 848 S.W.2d at 160. It is clear from
a reading of Ake that the error at issue is structural in
nature. The Court’s analysis in Ake began with a revisiting
of the “elementary principle” that every criminal defendant,
indigent or otherwise, must have “a fair opportunity to
present his defense.” Ake, 470 U.S. at 76. The Court spoke
in terms of the “basic tools of an adequate defense” and the
“raw materials integral to the building of an effective
defense” in concluding that in certain defined
circumstances, discussed at length earlier in this opinion,
a defense expert is such an element . . . We can conceive of
few errors that are more structural in nature than one which
eliminates a basic tool of an adequate defense and in doing
so dramatically affects the accuracy of the jury’s
determination . . .
Id. (Emphasis added).
In the case at bar, counsel was appointed on January 17, 2012 to represent the
Appellant in this capital murder case. Lyons v. State, supra, at 8. Trial was scheduled
for June 2012. Id. Counsel timely requested discovery but was not initially provided
with the crucial medical records or radiological films of the complainant. (R - v.2 -
5-6). Three weeks prior to trial, counsel received these discovery items totaling
approximately 1000 pages and obtained a neuro-radiologist expert to review these
records. Id. On May 23, 2012, the defense expert informed counsel that a pathologist
would be needed to explain to the jury that the injuries to the complainant could have
8
been caused by a fall to the ceramic floor or by the Appellant’s other child. Id.
Counsel located a pathologist, but that expert informed counsel that the expert could
not be prepared for trial in the time remaining before trial was scheduled to begin. Id.
at 8. Counsel filed with the trial judge an ex parte motion for continuance which
outlined the pathologist’s (Dr. Willey’s) concerns:
Dr. Willey would be willing to testify in this case, but
cannot do so in the time frame currently provided. Dr.
Willey has made a preliminary review of the evidence in
this case, and although he cannot make a final
determination, and indeed is requesting more information
than what Counsel currently has in his possession, Dr.
Willey has informed the defense that these types of injuries
could have been caused by a short fall onto a hard surface,
like the ceramic floors of Defendant’s home (located by the
back door). In addition, the injuries could have been caused
by another child who was present in the home, and has
admitted to injuring the victim in this case. Dr. Willey’s
initial analysis is consistent with the defensive theory.
Lyons v. State, supra at 7.
The trial judge refused to provide to the defense additional time for this defense
pathology expert to be able to assist in the preparation and presentation of the
defense. The State called the following expert witnesses: a pediatric radiologist, a
department head of pediatric neurosurgery, a program director for pediatrics
residency training, and a medical examiner pathologist. Lyons v. State, supra at 16-
17. No defense expert testified in support of the defense theory that the injuries could
have been caused by a fall on a hard surface or could have been caused by another
9
child in the house. Id. at 5. Additionally, no defense expert pathologist assisted
counsel in the cross-examination of the State’s experts.
The defense expert pathologist would have been able to explain to the jury that
the complainant suffered from weak bone density and fragility of the skull bones in
particular. (T - 104-106, 110, 157-167). The defense expert pathologist would have
been able to then explain to the jury that the complainant was susceptible to the
injuries sustained by the complainant by means of a short fall or by the actions of a
four-year-old person. Id. This was the key to the Appellant’s defense. Id. The defense
expert would have been able to assist the defense in cross-examination of the State’s
expert witnesses who all disagreed that a four-year-old could have caused the injuries
to the complainant. Id. Previous counsel withdrew from the case after being denied
the assistance of court-appointed experts. It appears that the trial judge in the case at
bar circumvented the decision whether or not to appoint the defense expert
pathologist by merely denying the continuance request. This, in effect, was the denial
of expert assistance. The defense expert pathologist was not appointed to assist
counsel during this capital murder trial.
The Appellant was not provided with the basic tools to present her defense
within our adversarial system. It was crucial in the Appellant’s trial that a defense
expert pathologist convey to the jury an understanding of the defense regarding the
10
bone condition of the complainant and the fact that a four-year-old could have caused
the injuries sustained by the complainant. Given the lack of assistance by a defense
expert pathologist, the risk of an inaccurate verdict is high since the Appellant was
not assisted by a defense expert pathologist to present testimony and to assist in
preparing the cross-examination of the State’s four expert witnesses. The Appellant’s
defense was devastated by the absence of the defense expert’s examination and
testimony and assistance to defense counsel for the cross-examination of the State’s
four expert witnesses.
The adversarial model was not followed in the Appellant’s case since the
Appellant, without the assistance of a defense expert pathologist, was unable to
develop her defense to the greatest extent possible. This resulted in the jury not
receiving an optimal vantage from which to gauge all relevant facts and make an
informed decision on the merits. The Appellant’s right to due process was violated
since the Appellant was denied at least a reasonably level playing field at trial given
the State’s four expert witnesses as opposed to no defense expert pathologist.
Additionally, the Appellant was deprived of the technical assistance of a defense
expert pathologist to help evaluate the strength of her defense, to offer his own expert
diagnosis at trial favorable to that defense, and to identify the weaknesses in the
State’s case by testifying himself and preparing counsel to cross-examine opposing
11
experts. The Appellant’s access to such an expert pathologist was a basic tool
essential to developing and presenting her defensive theory just as in Rey v. State.
This denial of access to such a basic tool was structural error not subject to a harm
analysis. The court below, however, improperly applied an abuse of discretion
standard.
The decision of the court below conflicts with the above-cited cases of this
Court and should be reversed. Based upon the above, this Honorable Court should
hold that the denial of additional time for a defense expert in pathology to be able to
assist in the preparation and presentation of the defense was structural error, sustain
the Appellant’s points of error, and remand this cause to the trial court for a new trial.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Appellant respectfully
requests that this Honorable Court grant her Petition for Discretionary Review and,
after considering the Ground for Review raised herein, remand this cause back to the
court of appeals with instructions to withdraw its opinion of February 26, 2015,
address the issues raised herein, sustain the Appellant’s Points of Error, and reverse
the judgment and sentence of the trial court and remand for a new trial.
12
Respectfully submitted,
/s/ Michael C. Gross
Michael C. Gross
State Bar No. 08534480
106 South St. Mary’s Street, Suite 260
San Antonio, Texas 78205
(210) 354-1919
(210) 354-1920 Fax
Attorney for the Appellant,
CHRISTINA LYONS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Appellant’s
Petition for Discretionary Review was emailed to Angie D. Roberts-Huckaby,
Assistant District Attorney, angie.roberts@co.hays.tx.us, on the 2nd day of July 2015.
/s/ Michael C. Gross
CERTIFICATE OF COMPLIANCE
1. The brief complies with the type-volume limitation imposed by Rule 9.4(i) of
the Texas Rules of Appellate Procedure because the brief contains 3,004 words
excluding the caption, identity of parties and counsel, statement regarding oral
argument, table of contents, table of authorities, statement of the case, statement of
issues presented, statement of procedural history, signature, proof of service,
certification, certificate of compliance, and appendix.
2. The brief complies with the typeface and the type style requirements of Rule
9.4(e) of the Texas Rules of Appellate Procedure because this brief has been prepared
in a proportionally spaced typeface using WordPerfect 6.1 in 14 point font and Times
New Roman type style.
/s/ Michael C. Gross
13
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00474-CR
Christina Lyons, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-11-0101, HONORABLE WILLIAM HENRY, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Christina Lyons of the offense of capital murder.1 The
district court rendered judgment on the verdict and automatically sentenced Lyons to life
imprisonment without the possibility of parole. In five points of error on appeal, Lyons asserts that
the district court: (1) abused its discretion by denying her motion for continuance; (2) erred by
denying her motion to quash the indictment; (3) abused its discretion by admitting hearsay evidence;
(4) erred by admitting evidence in violation of the Confrontation Clause of the United States
Constitution;2 and (5) abused its discretion by excluding evidence that Lyons contends was critical
to her defensive theory of the case. We will affirm the district court’s judgment.
1
See Tex. Penal Code §§ 19.02(b)(1), 19.03(a)(8).
2
See U.S. Const. amend. VI.
BACKGROUND
The jury heard evidence that on November 18, 2010, ten-week-old B.S. suffered
serious injuries at a day-care facility owned and operated by Lyons at her residence in Kyle. EMS
was called to the scene in response to a reported “ground-level fall involving an infant.” Jonathan
Newcomb, one of the paramedics who responded to the dispatch, testified that when he arrived at
the residence, he found Lyons “cradling a young infant” who “was in really bad shape.” Newcomb
recounted that the infant, later identified as B.S., had “probably a three-inch welt on the side of his
head, he wasn’t breathing properly, he was breathing slowly and just not responding.” Newcomb
testified that the injuries appeared to be significantly more serious than those that could result
from a “ground-level fall,” and he immediately took the infant away from Lyons and departed
for Dell Children’s Hospital in Austin. Before he left, however, Newcomb asked Lyons what had
happened to B.S. According to Newcomb, Lyons responded by “point[ing] to a couch in the living
room that was sitting on a hardwood floor.” On the way to the hospital, Newcomb requested that
law enforcement be dispatched to the residence.
Another emergency responder, Officer Diane Talamantes of the Kyle Police
Department, testified that she had observed eight children at the residence, including Lyons’s four-
year-old daughter, M.L. According to Talamantes, Lyons told her that she was the only adult at the
residence at the time B.S. fell. After securing the scene and sending the children to the backyard,
Talamantes asked Lyons what had happened to B.S. Talamantes recounted that Lyons “said that she
had gone to the bathroom; she had placed [B.S.] on the sofa; and she was gone for a short while; she
returned and she found [B.S.] on the floor, face up.” When Talamantes asked Lyons how B.S. had
2
fallen from the couch to the floor, Lyons “said she didn’t know if [M.L.] or [another child] had
pulled [B.S.] or pulled the blanket causing [B.S.] to fall.” Talamantes further testified that Lyons
also divulged that she had not immediately called 911 after discovering B.S. had fallen. Instead,
Lyons explained to Talamantes, she had first called her mother, her husband, and B.S.’s mother.
Lyons estimated that approximately five to ten minutes had elapsed between the time she discovered
that B.S. had fallen and the time she called 911.
Soon after B.S. arrived at the hospital, doctors began performing emergency brain
surgery on the infant. Several doctors who had treated B.S. or had consulted on his case testified to
the seriousness of B.S.’s injuries. The doctors all testified that B.S.’s injuries were not consistent
with Lyons’s description to the police of what had occurred. They explained that B.S. had multiple
skull fractures on both sides of his head, significant swelling and bleeding in and around his brain,
torn ligaments in his spinal cord, and numerous rib fractures that had predated his head injuries. The
doctors testified that it was unlikely that such injuries to the head could have been caused by a fall.
Instead, according to the doctors, the injuries were more consistent with what they variously
described as “blunt force trauma” to the head, “high force” and multiple impacts against hard
surfaces, and “violent” forward movement of the head, resulting in rapid “acceleration and
deceleration” of the brain within the skull.
While at the hospital, B.S. died from his injuries. Dr. David Dolinak, the medical
examiner in the case, identified B.S.’s cause of death as “blunt force head injury” and testified that
the force could have been caused by “a variety of surfaces, anything . . . that’s hard and reasonably
smooth.” He listed possible surfaces as “anything like a countertop, a table, a wall, a door, anything
3
that’s fairly hard, fairly flat, fairly smooth.” Dolinak ruled the death a homicide and testified that
the “violent nature” of the injuries that had resulted in B.S.’s death were not consistent with an
accidental cause such as a short fall. He testified:
[T]hey’re not simple injuries, they’re complex injuries. By a simple injury, I would
explain that as being, like, a single fracture in a straight line, like . . . a linear fracture
in the skull where a kid is hurt, but they’re not gonna die from that most of the time.
What we have here is complex fractures, fractures that extend out or radiate out from
an area. And there are multiple fractures and there’s severe associated brain injury.
So it’s not a simple fall, it’s not a simple injury mechanism, it’s much more than that,
it’s more forceful and when the brain was severely damaged here [sic].
Lyons’s defensive theory at trial was that Lyons’s four-year-old daughter, M.L., had
caused the injuries to B.S. Lyons did not call any expert witness to testify in support of this theory
(although, as we explain below, she had filed a motion for continuance asking for additional time
to secure such a witness). However, other defense witnesses, including Lyons’s husband, mother,
and fifteen-year-old sister, claimed to have observed M.L. playing “rough” with a baby doll on the
night following the incident, including “swinging” the doll through the air and “slamming” its head
against a kitchen table, and they testified that they suspected that M.L. had engaged in similar
behavior with B.S. The State’s expert witnesses, when asked about this theory, testified that such
an explanation was unlikely because of the severity of the injuries that B.S. had sustained.
According to the State’s witnesses, a four-year-old child, in all likelihood, would be physically
unable to exert enough force to cause such serious injuries.
Lyons also testified in her defense. According to Lyons, on the day that B.S. was
injured, she had left him alone in the living room for approximately six to seven minutes. When she
4
returned to the living room, Lyons recounted, she saw that it was empty. Lyons testified that she
then opened the back door and saw M.L. standing on the deck, holding B.S. Lyons explained
that she took B.S. from M.L., returned B.S. to the chair in the living room, and saw “a big knot on
the right side of his head.” Lyons then turned to M.L. and asked her, “Where did you drop him?”
Lyons testified that M.L. eventually “pointed to the deck.” Lyons acknowledged that she did not
immediately call 911 after discovering that B.S. had been injured. She further acknowledged that
she had lied to the first responders about how B.S. had been injured. When asked why she had lied
about what had happened to B.S., Lyons testified that she was “scared” of what would happen to her
and her daughter if she had told the truth. Lyons accepted responsibility for leaving B.S. alone and
unsupervised and agreed that she had been negligent in doing so, but she denied causing his injuries.
The jury found Lyons guilty of capital murder as charged, and the district court
rendered judgment on the verdict. Lyons subsequently filed a motion for new trial that was
overruled by operation of law. This appeal followed.
ANALYSIS
Motion for continuance
In Lyons’s first point of error, she asserts that the district court abused its discretion
by denying her motion for continuance. In the motion, which was filed less than two weeks before
trial was scheduled to begin, Lyons asserted that, based on information that counsel had received
from her court-appointed expert, Lyons would be in need of a “second expert” to review the medical
and forensic files in the case and that Lyons would be unable to secure this expert by the start of trial.
At the hearing on the motion, counsel elaborated on why he believed this second expert was
5
necessary. According to counsel, the court-appointed expert, Dr. Jill Hunter, a neuroradiologist, had
informed counsel that she could not testify to certain matters related to the defensive theory of the
case because they were outside her purview as a neuroradiologist and had recommended that counsel
obtain a second expert to address these matters. Counsel represented to the court that he had found
at least one such expert, Dr. Ed Willey, a forensic pathologist located in Florida, but that Willey had
informed counsel that he could not be ready for trial on the date it was scheduled to begin. Counsel
acknowledged that because Willey had not yet had time to review the medical files and form an
opinion, the defense did not know if Willey could actually offer “the testimony that we vitally need.”
The State opposed the continuance. At the hearing, the State argued that a
continuance would inconvenience the numerous doctors and other witnesses who were scheduled
to testify, and urged that defense counsel had known about the trial setting for months. In reply,
while acknowledging his awareness for months of the date of the trial setting, counsel maintained
that he had only recently discovered the need for a continuance, after speaking with the court-
appointed expert. At the conclusion of the hearing, the district court denied the motion for
continuance but indicated that it might reconsider the matter at a later date if more specific
information concerning Dr. Willey’s potential testimony became available.
Counsel subsequently filed an ex parte supplemental motion for continuance,
providing additional information concerning the matters to which he believed Dr. Willey would
testify. The motion contained the following representations:
Dr. Willey would be willing to testify in this case, but cannot do so in the time frame
currently provided. Dr. Willey has made a preliminary review of the evidence in this
case, and although he cannot make a final determination, and indeed is requesting
6
more information than what Counsel currently has in his possession, Dr. Willey has
informed the defense that these types of injuries could have been caused by a short
fall onto a hard surface, like the ceramic floors of Defendant’s home (located
by the back door). In addition, the injuries could have been caused by another child
who was present in the home, and has admitted to injuring the victim in this case.
Dr. Willey’s initial analysis is consistent with the defensive theory.
Counsel further represented in the supplemental motion that the court-appointed expert, Dr. Hunter,
“is not familiar with bio-mechanics and forensic pathology, and is therefore not medically competent
to testify as to the possibility of a short fall causing this type of injury, and therefore she is not
capable of establishing and proving the defense in this case.” After reviewing the motion, the
district court again denied the motion for continuance, and the case proceeded to trial.
Following her conviction, Lyons filed a motion for new trial. In the motion, Lyons
alleged, among other grounds, that her “motion for continuance should have been granted, and
she should have been allowed time to procure experts to support her defensive theory.” Attached
to her motion for new trial was an affidavit by Dr. Willey, in which he summarized his analysis and
opinions in the case. The motion for new trial was overruled by operation of law.
“The granting or denying of a motion for continuance is within the sound discretion
of the trial court.”3 Therefore, “[w]e review a trial court’s ruling on a motion for continuance
for abuse of discretion.”4 A trial court abuses its discretion when it acts without reference to any
guiding rules or principles or when its decision is so clearly wrong that it lies outside the zone of
3
Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006) (citing Heiselbetz v. State,
906 S.W.2d 500, 511-12 (Tex. Crim. App. 1995)).
4
Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007) (citing Janecka v. State,
937 S.W.2d 456, 468 (Tex. Crim. App. 1996)).
7
reasonable disagreement.5 To establish an abuse of discretion in this context, the Court of Criminal
Appeals has held that at least two showings must be made. First, “[a] defendant must preliminarily
demonstrate that . . . ‘the case made for delay was so convincing that no reasonable trial judge could
conclude that scheduling and other considerations as well as fairness to the State outweighed the
defendant’s interest in delay of the trial.’”6 Second, there must be a showing that the denial resulted
in actual harm or prejudice to the defendant.7 “‘Denial of [a pretrial motion for delay or continuance]
will be found an abuse of discretion on appeal only if the record shows with considerable specificity
how the defendant was harmed by the absence of more preparation time than he actually had.’”8
“‘This showing can ordinarily be made only at a hearing on a motion for new trial, because almost
always only at that time will the defendant be able to produce evidence as to what additional
information, evidence or witnesses the defense would have had available if the motion for delay had
been granted.’”9
5
See id. at 777; Gonzalez v. State, 117 S.W.3d 831, 839 (Tex. Crim. App. 2003);
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g); Seghelmeble
v. State, 390 S.W.3d 576, 581 (Tex. App.—Dallas 2012, no pet.).
6
Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App. 2010) (quoting 42 George E. Dix
& Robert O. Dawson, Texas Practice Series: Criminal Practice and Procedure § 28.56 (2d ed.
2001)).
7
See id.
8
Id. (quoting 42 Dix & Dawson, Texas Practice Series: Criminal Practice and Procedure
§ 28.56).
9
Id. (quoting 42 Dix & Dawson, Texas Practice Series: Criminal Practice and Procedure
§ 28.56).
8
The motion for continuance in this case was also governed by article 29.06 of the
Code of Criminal Procedure, which provides that when a continuance is sought to secure an absent
witness, “it shall be necessary to state,” among other requirements, “[t]he diligence which has
been used to procure [the witness’s] attendance.”10 The diligence requirement applies even when
the missing witness is expected to provide expert assistance at trial.11 The Court of Criminal
Appeals has “interpreted the diligence requirement to mean not only diligence in procuring the
presence of the witness, but also diligence as reflected in the timeliness with which the motion for
continuance was presented.”12 When a defendant has failed to demonstrate the necessary diligence,
a trial court does not abuse its discretion in denying a motion for continuance on that ground alone.13
Here, the district court would not have abused its discretion in finding that Lyons
failed to demonstrate diligence in either procuring the presence of the witness or in presenting the
motion to the district court. The record reflects that counsel was appointed to represent Lyons on
January 17, 2012, after Lyons’s prior counsel withdrew, and was informed in March of the trial
setting. Counsel filed his first motion for continuance on June 6, 2012, less than two weeks before
trial was scheduled to begin. In that motion, counsel made no representation regarding diligence as
required by article 29.06. At the hearing on the motion, held on the same day that the motion was
10
Tex. Code Crim. Proc. art. 29.06(2), (3); see Harrison v. State, 187 S.W.3d 429, 434
(Tex. Crim. App. 2005).
11
See Wright v. State, 28 S.W.3d 526, 532-33 (Tex. Crim. App. 2000).
12
Dewberry v. State, 4 S.W.3d 735, 756 (Tex. Crim. App. 1999).
13
See Gonzales, 304 S.W.3d at 843; Wright, 28 S.W.3d at 532-33; Dewberry, 4 S.W.3d
at 756.
9
filed, counsel represented that he had already received discovery from both prior counsel and the
State, with the most recent discovery, the victim’s medical files, having been received by counsel
between three to four weeks earlier. On May 23, counsel spoke with the court-appointed expert, who
at that time recommended that counsel obtain a second expert. Thus, counsel did not file his motion
for continuance until two weeks after he had received the information indicating that an additional
expert might be required. Also, counsel further represented that he had not spoken with Dr. Willey
and two other possible experts until Sunday, June 3, which was eleven days after being notified by
the expert that additional assistance might be required. Counsel attempted to justify this delay by
explaining that he was counsel on other capital cases at the time, and was thus unable to contact the
witnesses earlier.
When counsel later filed his supplemental motion for continuance, less than
one week before trial was scheduled to begin, he stated for the first time that he had been “diligent
in attempting to secure [Dr. Willey’s] attendance but due to the doctor’s schedule, the time frame
of Counsel’s notice of the need for this witness and all the other factors listed herein has been
unable to do so.” These other factors included counsel’s previously mentioned caseload and the fact
that co-counsel, who had been appointed to assist the defense on May 1, had been “out of town for
10 days since the appointment on prior commitments.” Counsel added that Dr. Willey would not
be available to testify until September, approximately two months after trial was set to begin. In the
motion, counsel did not explain why the doctor’s schedule made him unavailable for that length of
time; what attempts, if any, counsel had made to secure an alternative witness who could be available
for trial on schedule; or what “prior commitments” had prevented co-counsel from taking any action
10
either to file the motion for continuance earlier than June 6 or to secure a witness himself. On this
record, it would not be outside the zone of reasonable disagreement for the district court to find
that counsel did not exercise diligence in attempting to secure a witness and to deny the motion
for continuance on that ground.14 Accordingly, we cannot conclude that the district court abused its
discretion in denying Lyons’s motion for continuance.
We overrule Lyons’s first point of error.
Motion to quash
In Lyons’s second point of error, she asserts that the district court erred in denying her
pretrial motion to quash the indictment. In her motion to quash, Lyons argued that the indictment
failed to properly allege the manner and means of [B.S.]’s death.15 In relevant part, the indictment
alleged that Lyons “intentionally and knowingly cause[d] the death of an individual, [B.S.], by
causing blunt force trauma to the head of [B.S.]” According to Lyons, the manner of death—“blunt
force trauma to the head”—was properly alleged, but, in her view, the indictment needed to
further allege the means, or weapon, by which Lyons had inflicted the blunt force trauma. Without
14
See Gonzales, 304 S.W.3d at 843; Wright, 28 S.W.3d at 532-33; Dewberry, 4 S.W.3d
at 756; see also Garay v. State, No. 08-01-00336-CR, 2003 Tex. App. LEXIS 7407, at *10-12
(Tex. App.—El Paso Aug. 28, 2003, pet. ref’d) (mem. op.) (no abuse of discretion in denying motion
for continuance to obtain expert witness when defendant failed to exercise reasonable diligence to
obtain expert).
15
The manner and means of death are separate elements of the offense of murder. The Court
of Criminal Appeals has described the manner of death as “the actus reus” of the offense, while
describing the means as “the instrument of death.” See Sanchez v. State, 376 S.W.3d 767, 773
(Tex. Crim. App. 2012).
11
such an allegation, Lyons claims, the indictment failed to provide her with sufficient notice of the
charged offense.
The sufficiency of an indictment is a question of law that we review de novo.16 “The
Texas and United States Constitutions grant a criminal defendant the right to fair notice of
the specific charged offense.”17 “To satisfy this notice requirement, an indictment must be ‘specific
enough to inform the accused of the nature of the accusation against him so that he may prepare
a defense.’”18 “A motion to quash should be granted only where the language concerning the
defendant’s conduct is so vague or indefinite as to deny the defendant effective notice of the acts
she allegedly committed.”19 In most cases, “a charging instrument that tracks the statutory text of
an offense is sufficient to provide a defendant with adequate notice.”20 However, “when the statutory
language fails to be completely descriptive” of the offense, an indictment “that tracks the statutory
16
See Smith v. State, 309 S.W.3d 10, 13-14 (Tex. Crim. App. 2010); State v. Barbernell,
257 S.W.3d 248, 251-52 (Tex. Crim. App. 2008); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim.
App. 2004).
17
Barbernell, 257 S.W.3d at 250 (citing Lawrence v. State, 240 S.W.3d 912, 916
(Tex. Crim. App. 2007)); see U.S. Const. amend. VI; Tex. Const. art. I, § 10.
18
Lawrence, 240 S.W.3d at 916.
19
DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988); Herrera v. State,
367 S.W.3d 762, 774 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Yanes v. State, 149 S.W.3d
708, 709 (Tex. App.—Austin 2004, pet. ref’d).
20
Barbernell, 257 S.W.3d at 251.
12
language may be insufficient to provide a defendant with adequate notice.”21 “In such cases, ‘more
particularity is required to provide notice.’”22
A person commits the offense of murder if she intentionally or knowingly causes the
death of an individual.23 The indictment here tracks the statutory language by alleging that Lyons
intentionally and knowingly caused the death of B.S., and it also provides more particularity than
what is provided in the statute by further alleging that B.S.’s death was caused by “blunt force
trauma to the head” of B.S. Nevertheless, Lyons maintains that the indictment needed to go one
step further and also allege the means used to inflict blunt force trauma to B.S.’s head.24 Assuming
21
Id.
22
Id.
23
Tex. Penal Code § 19.02(b)(1).
24
As support for this contention, Lyons relies on a line of older cases holding that an
indictment for murder must allege the means used to cause death. See, e.g., Garrett v. State,
682 S.W.2d 301, 308 (Tex. Crim. App. 1984) (“It is well settled that an indictment for murder
should set forth the means, instrument, or weapon used; or if not known, that fact must be stated.”);
Ridgely v. State, 756 S.W.2d 870, 871 (Tex. App.—Fort Worth 1988, pet. ref’d) (reversing murder
conviction when indictment failed to allege means by which victim was strangled); see also Gragg
v. State, 186 S.W.2d 243, 243 (Tex. Crim. App. 1945) (reversing murder conviction when indictment
failed to allege means by which victim was drowned); Jackson v. State, 28 S.W. 815 (Tex. Crim.
App. 1894) (reversing murder conviction when indictment failed to allege means by which victim
was shot).
Although these cases have not been overruled, we note that the continued viability of the
rule upon which the cases rely has been questioned in light of modern, more relaxed pleading
practices. See 42 George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice
and Procedure § 25.101 (3d ed. 2011) (“The traditional requirement that the manner and means of
death be specified to charge a homicide offense, whatever its original rationale, can no longer be
justified as a matter of Texas pleading law. Should the issue be squarely presented to it, the Court
of Criminal Appeals most likely would hold that homicide offenses, like other statutory crimes, can
be charged in the language of the Penal Code.”).
13
without deciding that the indictment was insufficient in that regard, we cannot conclude on this
record that Lyons was harmed by any error in denying the motion to quash.25
If an indictment fails to allege facts sufficient to give the defendant notice of the
precise offense with which she is charged, “a conviction may be affirmed as long as the defect
did not prejudice the defendant’s substantial rights.”26 In this context, “[t]he important question is
whether a defendant had notice adequate to prepare [her] defense.”27 “[I]n order to prove reversible
error, an appellant must show that the omission of the requested information had a deleterious impact
on [her] ability to prepare a defense.”28
No such showing was made here. Lyons’s defense was that her daughter had caused
B.S.’s injuries, and she claims that without knowing the specific means used to commit the offense,
she could not fully develop that theory at trial. However, the record reflects that in this case, the
defendant was in the same position as the State—the specific means used to commit the offense
were unknown to both parties. At the hearing on the motion to quash, the State represented,
and Lyons did not dispute, that it could allege only that the blunt force trauma was caused by “an
25
See Chambers v. State, 866 S.W.2d 9, 17 (Tex. Crim. App. 1993) (assuming without
deciding that “failure to specify the manner and means of strangulation was error” and proceeding
immediately to harm analysis).
26
Sanchez v. State, 120 S.W.3d 359, 367 (Tex. Crim. App. 2003) (citing Tex. Code Crim.
Proc. art. 21.19; Adams v. State, 707 S.W.2d 900, 901-04 (Tex. Crim. App. 1986)); see also Tex. R.
App. P. 44.2(b); Mercier v. State, 322 S.W.3d 258, 264 (Tex. Crim. App. 2010).
27
Adams, 707 S.W.2d at 903; Yandell v. State, 46 S.W.3d 357, 362 (Tex. App.—Austin
2001, pet. ref’d).
28
Chambers, 866 S.W.2d at 17; Peck v. State, 923 S.W.2d 839, 841 (Tex. App.—Tyler
1996, no pet.).
14
object unknown to the grand jury.”29 There is nothing in the record to suggest that the failure of the
indictment to allege that B.S.’s death was caused by “an object unknown to the grand jury” had a
deleterious impact on Lyons’s ability to prepare a defense. On the contrary, the record reflects that
Lyons was aware that the object used to cause death was unknown, and she used that fact to her
advantage during trial to cast doubt on the State’s theory of the case and to suggest, through the
testimony of her own witnesses and her cross-examination of the State’s witnesses, that it was
possible that Lyons’s daughter had caused the injuries to B.S.30 We also observe that, although the
indictment did not allege the means of death, it did allege a fairly specific manner of death—“blunt
force trauma to the head” of B.S.—which provided Lyons with at least some specific notice
concerning the cause of death so as to enable her to prepare her defense. Moreover, the record
reflects that at the time of the hearing on the motion to quash, the State had already provided Lyons
with ample discovery in the case, including the victim’s medical records from the hospital. Thus,
Lyons had access to the State’s evidence concerning the cause of death several weeks prior to trial,
which suggests that her ability to prepare a defense was not prejudiced by any failure of the
29
On appeal, Lyons asserts that the State could have alleged a means that was consistent
with Dr. Dolinak’s trial testimony that the blunt force trauma was caused by “anything like a
countertop, a table, a wall, a door, anything that’s fairly hard, fairly flat, fairly smooth.” However,
Dolinak was merely listing possible means of committing the offense; he did not testify to what
actually caused the blunt force trauma. Nor did any other witness for the State. Thus, the record
reflects that the means of death were, as the State claimed, unknown.
30
See Flores v. State, 33 S.W.3d 907, 919-20 (Tex. App.—Houston [14th Dist.] 2000,
pet. ref’d) (no prejudice when there was nothing in record to suggest that “defense strategy turned”
on information missing from indictment).
15
indictment to specify the means of death.31 On this record, we cannot conclude that the denial of
the motion to quash, even if erroneous, had a deleterious impact on Lyons’s ability to prepare
her defense.32
We overrule Lyons’s second point of error.33
Hearsay
In her third point of error, Lyons asserts that the district court abused its discretion
by admitting hearsay evidence.34 The testimony at issue was elicited from Officer Diane Talamantes,
the police officer first dispatched to the residence, and Detective Pedro Carrasco, the lead
investigator in the case who had interviewed B.S.’s doctors at the hospital. Both officers were asked
questions by the State concerning information that they had received and acted upon during the
course of their investigation. Lyons repeatedly objected to the questions on the basis of hearsay,
arguing that the questions called for testimony that went beyond any information upon which
the officers acted. The district court overruled the objections but provided a limiting instruction,
31
See Dodson v. State, 800 S.W.2d 592, 595 (Tex. App.—Houston [14th Dist.] 1990,
pet. ref’d) (no prejudice when defense counsel was provided with discovery prior to trial); DeVaughn
v. State, 759 S.W.2d 510, 512 (Tex. App.—San Antonio 1988, no pet.) (op. on remand) (same).
32
See Adams, 707 S.W.2d at 904; Flores v. State, 102 S.W.3d 328, 332-33
(Tex. App.—Eastland 2003, pet. ref’d).
33
Lyons also asserts under this point that, “without some limiting factor as to how the blunt
force trauma was caused, it allows the State to re-indict [her] for the same offense at a later date.”
That complaint is not properly before us. See Burks v. State, 876 S.W.2d 877, 889 (Tex. Crim.
App. 1994) (“In regards to any potential claim of jeopardy which appellant might have to assert in
a future prosecution, the proper time to argue this issue is after [she] has been charged or indicted
for that unnamed future offense. As of now, that issue is far from ripe.”).
34
See Tex. R. Evid. 801.
16
informing the jury that the testimony was not being offered for the truth of the matter asserted and
could be considered, if it was considered at all, only for the purpose of establishing the information
upon which the officers acted during the course of their investigation.35
We review a trial court’s ruling on the admission or exclusion of evidence for an
abuse of discretion.36 A trial court abuses its discretion in the admission or exclusion of evidence
only if its decision “lies outside the zone of reasonable disagreement.”37
Hearsay is a statement, other than one made by the declarant while testifying at trial,
that is offered to prove the truth of the matter asserted.38 Hearsay is inadmissible except as provided
by statute or the rules of evidence.39 A statement not offered to prove the truth of the matter asserted
is not hearsay.40 “[T]estimony by an officer that he went to a certain place or performed a certain
act in response to generalized ‘information received’ is normally not considered hearsay because
the witness should be allowed to give some explanation of his behavior.”41 “But details of the
information received are considered hearsay and are inadmissible.”42 In determining whether such
35
See Tex. R. Evid. 105(a).
36
Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).
37
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Montgomery v. State,
810 S.W.2d at 391.
38
Tex. R. Evid. 801(d).
39
Tex. R. Evid. 802.
40
Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); Sandoval v. State,
409 S.W.3d 259, 281 (Tex. App.—Austin 2013, no pet.).
41
Poindexter v. State, 153 S.W.3d 402, 408 n.21 (Tex. Crim. App. 2005).
42
Id.
17
testimony is permissible, “[t]he appropriate inquiry focuses on whether the ‘information received’
testimony is a general description of possible criminality or a specific description of the defendant’s
purported involvement or link to that activity.”43 The former is admissible, the latter is not.44 An
officer “should not be permitted to relate historical aspects of the case, replete with hearsay
statements in the form of complaints and reports, on the ground that she was entitled to tell the jury
the information upon which she acted.”45
We first consider the statements elicited from Officer Talamantes. On appeal, Lyons
complains of the following testimony:
Q. Let’s back up. You said that when you first arrived, who did you
immediately speak to?[46]
A. I spoke with the first responder who advised there was a ten-month-old baby
en route to Dell Children’s Hospital.
Q. Now, you said ten months, is that what he advised you?
A. Yes.
Q. Is that what it says in your report?
A. I’m sorry. Ten weeks.
43
Id.
44
See id.
45
Schaffer v. State, 777 S.W.2d 111, 114-15 (Tex. Crim. App. 1989); Sandoval, 409 S.W.3d
at 282.
46
Prior to asking this question, the State had asked three similar questions to which
Lyons objected on the basis of hearsay. However, the State either withdrew the questions or the
district court sustained the objections before the answer was elicited from the witness.
18
Q. Okay.
A. Ten-week infant en route to Dell Children’s Hospital with swelling to the left
side of the head and he was unresponsive and having trouble breathing.
It would not be outside the zone of reasonable disagreement for the district court to find that
this testimony was permissible “information received.” The district court would not have abused
its discretion in finding that the officer was simply explaining the reason why she was dispatched
to the residence—to investigate a serious injury to a child—and that this explanation was not a
specific description of Lyons’s purported involvement in that injury.
We next consider the complained-of testimony from Detective Carrasco:
Q. And then, did you also find out any other information when you were [at the
hospital] on the evening of the 18th that led you in any certain direction in
your investigation?
A. Yes, I did.
Q. And what was that?
A. Upon initially arriving at Dell Children’s Hospital, I was informed by one of
the social workers that [B.S.] was immediately placed into brain surgery. I
was advised that he had multiple skull fractures, subdural bleeding, brain
hemorrhaging, along with multiple rib fractures. And I later confirmed this
information by speaking directly to Dr. Meyers.
Q. Okay. And Dr. Meyers, was he one of the doctors that worked on [B.S.] at
the hospital?
A. Yes, he was the emergency room trauma doctor.
....
Q. Okay. So the specific injuries that you were told about and that you—the
information that you got that night, you went through it pretty quickly and I
19
just want to make sure that we’re clear on what you understood. What did
you understand with regard to the injuries that [B.S.] had to his head?
A. There [were] multiple fractures to the skull as well as brain hemorrhaging,
which was explained to me that there was also a lot of brain pressure, as well.
....
Q. And what did you come—what conclusion did you come to, as an
investigator, with the information that you had received?
A. According to the information that I gathered and the information that I had,
it was my opinion that those—the trauma that he suffered was not from a
two-foot fall off of the couch, considering there were multiple, multiple
injuries.
....
Q. And what—what, if any, information did you receive about what was going
on or what was being done to him in surgery that was significant to you or not
for your investigation?
A. One of the things that was told to me was that a piece of his skull had to be
removed to relieve the pressure from his brain.
This testimony, although considerably more detailed than the testimony from Talamantes, is
nevertheless limited to explaining the nature of B.S.’s injuries. The district court would not have
abused its discretion in finding that this testimony was offered to explain how the police
investigation, which began as a report of an accidental injury, became an investigation into possible
criminal activity based on the information that Carrasco had received from the doctors at
the hospital.47
47
See Dinkins, 894 S.W.2d at 347 (no abuse of discretion in admitting evidence that tended
to show how appellant became suspect in investigation); Lacaze v. State, 346 S.W.3d 113, 121
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (no abuse of discretion when officer “took the
20
Moreover, even if Talamantes’s or Carrasco’s testimony went beyond any permissible
non-hearsay purpose, we could not conclude on this record that Lyons was harmed by its admission.
The erroneous admission of evidence is nonconstitutional error.48 We may not reverse a conviction
for nonconstitutional error unless the error affected the defendant’s substantial rights.49 The
erroneous admission of evidence does not affect substantial rights if, after examining the record as
a whole, the reviewing court is reasonably assured that the error did not influence the verdict or had
but a slight effect.50 Here, numerous doctors testified during trial to the nature and seriousness of
B.S.’s injuries, and their testimony was much more detailed and extensive than the limited testimony
of Talamantes and Carrasco on that issue.51 Moreover, the district court provided a limiting
instruction prohibiting the jury from considering the evidence for impermissible purposes, and
we generally presume that juries follow such instructions.52 On this record, we are reasonably
jury step-by-step through the investigation to explain how all of the pieces of evidence fit together”
and “helped explain why the investigation turned away” from initial focus of investigation to another
theory).
48
See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
49
See Tex. R. App. P. 44.2(b).
50
See Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010).
51
See Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986) (“If the fact to which
the hearsay relates is sufficiently proved by other competent and unobjected-to evidence, as in the
instant case, the admission of the hearsay is properly deemed harmless and does not constitute
reversible error.”); Land v. State, 291 S.W.3d 23, 28 (Tex. App.—Texarkana 2009, pet. ref’d) (“The
admission of inadmissible evidence becomes harmless error if other evidence proving the same fact
is properly admitted elsewhere (or comes in elsewhere without objection).”).
52
See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009); Thrift v. State,
176 S.W.3d 221, 224 (Tex. Crim. App. 2005); Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim.
App. 1998); Waldo v. State, 746 S.W.2d 750, 753 (Tex. Crim. App. 1988).
21
assured that any error in admitting the complained-of testimony did not influence the jury or had but
a slight effect.
We overrule Lyons’s third point of error.
Confrontation Clause
In addition to objecting to the admission of Detective Carrasco’s interview with
Dr. Meyers on the basis of hearsay, Lyons further objected on the ground that its admission violated
her right to confront the witnesses against her because Dr. Meyers did not testify at trial.53 The
district court overruled this objection, concluding that the statements made by Dr. Meyers to
Detective Carrasco were non-testimonial in nature and thus did not implicate the Confrontation
Clause. In her fourth point of error, Lyons asserts that the district court erred in so concluding.
“The Confrontation Clause of the Sixth Amendment to the United States Constitution,
applicable to the states through the Fourteenth Amendment, provides that ‘[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
[her.]’”54 “In accordance with this constitutional right, out-of-court statements offered against the
accused that are ‘testimonial’ in nature are objectionable unless the prosecution can show that the
out-of-court declarant is presently unavailable to testify in court and the accused had a prior
opportunity to cross-examine him.”55 Testimonial statements include those “that were made under
53
See U.S. Const. amend. VI.
54
Langham v. State, 305 S.W.3d 568, 575 (Tex. Crim. App. 2010) (quoting U.S. Const.
amend. VI).
55
Id. at 575-76 (citing Crawford v. Washington, 541 U.S. 36, 59, 68 (2004); Wall v. State,
184 S.W.3d 730, 734-35 (Tex. Crim. App. 2006)).
22
circumstances which would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.”56 With regard to statements made in response to police
inquiries, a statement is testimonial “if the circumstances, viewed objectively, show that it was
not made ‘to enable police assistance to meet an ongoing emergency’ and ‘the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later criminal prosecution.’”57
Whether a particular out-of-court statement is testimonial is a question of law that we review
de novo.58
In Crawford, the Supreme Court noted that the Confrontation Clause “does not
bar the use of testimonial statements for purposes other than establishing the truth of the matter
asserted.”59 The State, in reliance on this exception to the general rule that testimonial statements
are inadmissible, argued both below and on appeal that Dr. Meyers’s statements to Carrasco did
not violate the Confrontation Clause because they were offered only to provide a “background
explanation as to why law enforcement furthered the investigation.” However, the Court of Criminal
Appeals has instructed lower courts to use caution in justifying the admission of testimonial
statements on the ground that they were offered only to provide the jury with “background
information.” The court has explained:
56
Crawford, 541 U.S. at 52.
57
Langham, 305 S.W.3d at 576 (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).
58
Id.; De la Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008); Wall, 184 S.W.3d
at 742.
59
541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)).
23
Typically, so-called ‘background’ evidence is admissible, not because it has
particularly compelling probative value with respect to the elements of the alleged
offense, but simply because it provides the jury with perspective, so that the jury is
equipped to evaluate, in proper context, other evidence that more directly relates
to elemental facts. But it is not necessary to go into elaborate detail in setting the
evidentiary scene, and there is a danger inherent in doing so. Because the relevance
of ‘background’ evidence is marginal to begin with, the introduction of too much
incriminating detail may, whenever the evidence has some objectionable quality not
related to its marginal relevance, prove far more prejudicial than probative. . . . And
the greater and more damning the detail contained in that out-of-court statement, the
greater the likelihood that the jury will gravitate toward the improper use. . . . [T]oo
much damning information will erode judicial confidence that the accused has truly
enjoyed his Sixth Amendment right to confront all of “the witnesses against him[.]”60
Assuming without deciding that the admission of Dr. Meyers’s out-of-
court statements to Detective Carrasco violated the Confrontation Clause, we conclude that any error
in their admission was harmless. Because the alleged error implicates the Confrontation Clause, in
order to find the error harmless, we “must be convinced, beyond a reasonable doubt, that the
admission of the evidence would probably not have had a significant impact on the mind of an
average juror.”61 “Put another way, is there a reasonable possibility that the Crawford error, within
the context of the entire trial, ‘moved the jury from a state of non-persuasion to one of persuasion’
on a particular issue?’”62 On this record, we conclude that there is not. Even though Dr. Meyers did
not testify at trial, numerous other doctors did, and they provided detailed and extensive testimony
concerning the nature and seriousness of B.S.’s injuries. These doctors and their testimony included
the following:
60
Langham, 305 S.W.3d at 580 (quoting U.S. Const. amend. VI).
61
Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006).
62
Id. at 852-53.
24
• Dr. Gael Lonergan, a pediatric radiologist at Dell Children’s Hospital, reviewed the radiological
images that had been taken of B.S. Lonergan testified that a CT scan of B.S.’s head revealed a
“big and wide” skull fracture with swollen brain tissue protruding out from it, along with “many
areas of blood both near the fracture site and actually quite far away from it on the other
complete side of the brain.” Additionally, according to Lonergan, an MRI revealed that there
were torn ligaments in B.S.’s cervical spinal cord, which indicated that his head went “very
violently forward.” Lonergan added that B.S. “had fractures on both sides of the skull.”
Lonergan further testified that B.S. had “a total of 14 rib fractures,” some of which were in the
process of healing at the time the image was taken, which indicated to her that “these aren’t
things that happened at the same time as the [head] injuries.” According to Lonergan, both the
rib and head injuries required a large amount of force. Lonergan testified that the head injuries
were caused by what she characterized as “blunt force trauma,” which she defined as the “head
hitting something hard.” Lonergan also testified that she had never seen a fall from rolling off
a sofa onto the floor—even a wood floor—cause the type of injuries that she had observed in
B.S. Lonergan added that the multiple fractures on both side of the head “can’t be explained
from a single fall.” Lonergan concluded that what had happened to B.S.’s head was “one of the
very worst” cases of head trauma she had ever seen.
• Dr. Timothy George, the head of Pediatric Neurosurgery at Dell, testified that when B.S. was
admitted into the hospital, a CT scan of B.S.’s head revealed “evidence of significant bleeding”
in the space between B.S.’s brain and his skull, which indicated to George that B.S. “needed to
go to surgery right away.” The scan also revealed “several skull fractures” and a “subdural
hematoma,” or blood clot, on the left side of B.S.’s head. During surgery, George confirmed the
nature of the injuries, which he testified were consistent with “blunt force trauma,” and
proceeded to treat them. George testified that there were “multiple injuries on both sides
affecting the brain and swelling,” which George described as “injuries of high force” and “very
substantial.” George concluded that such injuries could be consistent with a “high fall,
possibly,” but a low fall was “much less likely.”
• Dr. George Edwards, the Program Director for the Pediatrics Residency Training Program at
Dell, consulted on the case. Edwards testified that the “multiple fractures involving so many
bones on both sides of [B.S.’s] head” was “pretty strong evidence that he had more than one
impact.” Edwards also testified that “it’s unusual to get any fracture with a household fall,” and
he did not believe such a fall was the cause of B.S.’s injuries. Instead, he believed that there
were multiple “impacts to his head” that had caused severe brain damage to the infant.
The above evidence was in addition to the testimony of Dr. Dolinak, the medical examiner, whose
extensive and detailed account of the nature of B.S.’s injuries and the cause of death we have already
25
summarized. On this record, we are convinced, beyond a reasonable doubt, that any error in
admitting the statements of Dr. Meyers to Detective Carrasco “would probably not have had a
significant impact on the mind of an average juror.”63 Accordingly, any error was harmless.64
We overrule Lyons’s fourth point of error.
Exclusion of defensive evidence
In her fifth point of error, Lyons asserts that the district court abused its discretion by
excluding evidence that she claims was critical to her defensive theory of the case. The excluded
evidence was testimony by Lyons’s fifteen-year-old sister, M.C., pertaining to statements that
Lyons’s four-year-old daughter, M.L., had allegedly made to M.C. on the night following the
incident.65 The district court excluded this evidence on the ground that it was inadmissible hearsay.
Lyons first argues that the district court abused its discretion by excluding the
statements as hearsay because they were actually “statements against interest,” a recognized
exception to the hearsay rule.66 “The exception for statements against pecuniary, penal, or social
interest stems from the commonsense notion that people ordinarily do not say things that are
damaging to themselves unless they believe they are true.”67 “Thus, a reasonable person would not
63
See id. at 852-53
64
See Tex. R. App. P. 44.2(a).
65
The statements were that “[Another child] was over [B.S.]”; “Baby is crying”; “Saw [B.S.]
on the floor”; “Hit his head”; “It’s my fault Baby [B.S.] hurt”; and “I hit his head.”
66
See Tex. R. Evid. 803(24).
67
Walter v. State, 267 S.W.3d 883, 890 (Tex. Crim. App. 2008).
26
normally claim that he committed a crime, unless it were true.”68 “The rule sets out a two-step
foundation requirement for admissibility.”69 “First, the trial court must determine whether the
statement, considering all the circumstances, subjects the declarant to criminal liability and whether
the declarant realized this when he made that statement.”70 “Second, the court must determine
whether there are sufficient corroborating circumstances that clearly indicate the trustworthiness of
the statement.”71 When analyzing the sufficiency of corroborating circumstances, factors that may
be considered include, but are not limited to: (1) whether the declarant’s guilt is inconsistent with
the defendant’s guilt; (2) whether the declarant was so situated that he or she might have committed
the crime; (3) the timing of the declaration; (4) the spontaneity of the declaration; (5) the relationship
between the declarant and the party to whom the statement was made; and (6) the existence of
independent corroborating facts.72
On this record, the district court would not have abused its discretion in finding
that the statements did not qualify for the hearsay exception because there were not sufficient
corroborating circumstances that clearly indicated their trustworthiness. The statements were
allegedly made by a four-year-old child to a fifteen-year-old child. The fifteen-year-old-child was
the defendant’s sister, who, the district court could have reasonably found, had an incentive to lie
68
Id.
69
Id.
70
Id. at 890-91.
71
Id. at 891.
72
Dewberry, 4 S.W.3d at 751; Davis v. State, 872 S.W.2d 743, 749 (Tex. Crim. App. 1994).
27
about what she had heard. Moreover, several witnesses had earlier testified that a four-year-old
child, even if present in the home at the time of the incident, would not be capable of causing such
serious injuries to an infant. Thus, the district court would not have abused its discretion in
finding that M.L. was not “so situated that she might have committed the crime.” Additionally,
the statements were allegedly made several hours after the crime had been committed, which, the
district court could have reasonably inferred, indicated that the child could have been coached
into making the statements. Also, it would not be outside the zone of reasonable disagreement for
the district court to find that the statements were not necessarily inconsistent with the defendant’s
guilt—it was possible that the child blamed herself for what had happened to B.S. even if she herself
did not injure the infant. In only one statement—“I hit his head”—did the child directly admit to
injuring B.S., and the district court would not have abused its discretion in finding that this statement
was not sufficiently specific as to the nature of B.S.’s injuries so as to corroborate the four-year-old’s
involvement in the crime. We also observe that in one of the statements, the child attempted to shift
blame to another child who, she claimed, was standing over B.S. The Court of Criminal Appeals
has held that “[s]elf-exculpatory statements that shift blame to another must be excluded.”73 In
summary, it would not be outside the zone of reasonable disagreement for the district court to find
that the alleged statements were not sufficiently corroborated, not necessarily self-inculpatory, vague,
and made by a four-year-old child to a fifteen-year-old child, both of whom, the district court could
have reasonably inferred based on their age and their relationship to the defendant, were unreliable
sources. We cannot conclude on this record that the district court abused its discretion by finding
73
Walter, 267 S.W.3d at 886.
28
that the testimony did not qualify as statements against interest and, therefore, in excluding the
testimony as inadmissible hearsay.74
Lyons next argues that, even if the statements were inadmissible hearsay, their
exclusion violated her constitutional right to present a complete defense.75 It is true that “the
exclusion of a defendant’s evidence can sometimes amount to a violation of [her] right to compel
the attendance of witnesses in [her] favor.”76 “However, ‘evidentiary rulings rarely rise to the level
of denying the fundamental constitutional rights to present a meaningful defense.’”77 “There are two
circumstances in which the improper exclusion of evidence may establish a constitutional violation:
(1) when a state evidentiary rule categorically and arbitrarily prohibits the defendant from offering
relevant evidence that is vital to his defense; or (2) when a trial court erroneously excludes relevant
evidence that is a vital portion of the case and the exclusion effectively precludes the defendant
from presenting a defense.”78 Both of these scenarios presume an “improper” or erroneous exclusion
74
See Tex. R. Evid. 803(24); Davis, 872 S.W.2d at 749.
75
See Holmes v. South Carolina, 547 U.S. 319, 324-25 (2006) (holding that state evidentiary
rules should, in some cases, be set aside when they prevent defendant from “a meaningful
opportunity to present a complete defense”).
76
Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005) (citing Potier v. State,
68 S.W.3d 657, 665 (Tex. Crim. App. 2002)).
77
Id.
78
Id. (emphasis added).
29
of evidence.79 As we have already established, the district court did not abuse its discretion in
excluding the alleged statements of the four-year-old child as hearsay.80
However, even if the statements were improperly excluded, we could not conclude
on this record that their exclusion prevented Lyons from presenting her defense. Several witnesses
for the defense testified to Lyons’s theory that her four-year-old daughter committed the crime.
These witnesses included: (1) Lyons’s husband, Robert, who testified that M.L. had told him that
she had pushed the infant down a playground slide in their backyard on the day of the incident and
that he had later observed M.L. “swinging a baby doll . . . by the feet and hitting the end table” with
the doll’s head; (2) one of Lyons’s day-care clients, Lindsey Sutton, who testified that she had
observed M.L. on one occasion “trying to take [B.S.] from [Lyons’s]” arms and “trying to fight for
the baby”; (3) Lyons’s fifteen-year-old sister, M.C., who testified that on the evening of the incident,
she had seen M.L. “grab[] a doll out of a toy box,” push the doll down a slide, kick the doll off the
slide once it reached the bottom, and then pick up the doll, walk to the kitchen, “and slam[] the doll’s
head on the kitchen table”; (4) Lyons’s friend, Lori Wimberly, who testified that M.L. was “a very
strong four-year-old” and “looked big” for her age; and (5) Lyons’s mother, Cynthia Cook, who
testified that she had also observed M.L. “slam” the baby doll on the kitchen table on the night of
the incident. Additionally, Lyons testified in her defense and spent a significant portion of her
testimony explaining why she believed her daughter was responsible for B.S.’s injuries. We cannot
79
See id.
80
See Williamson v. United States, 512 U.S. 594, 598 (1994) (explaining why hearsay is
properly excluded as unreliable); Walter, 267 S.W.3d at 889-90 (explaining rationale for admitting
statements under recognized exceptions to hearsay rule).
30
conclude on this record that Lyons was harmed by the exclusion of M.L.’s statements to M.C.,
assuming such exclusion was erroneous.81
Under this point of error, Lyons also repeats her earlier arguments regarding the
district court’s denial of her motion for continuance, which she claims resulted in the improper
“exclusion” of Dr. Willey’s testimony. We have already explained why the district court did not
abuse its discretion by denying Lyons’s motion for continuance, and that analysis is dispositive of
Lyons’s complaint here.
We overrule Lyons’s fifth point of error.
CONCLUSION
We affirm the judgment of conviction.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Rose, Justices Puryear and Pemberton
Affirmed
Filed: February 26, 2015
Do Not Publish
81
See Potier, 68 S.W.3d at 665-66.
31
FILE COPY
COURT OF APPEALS
THIRD DISTRICT OF TEXAS
P.O. BOX 12547, AUSTIN, TEXAS 78711-2547
www.txcourts.gov/3rdcoa.aspx
(512) 463-1733
JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK
DAVID PURYEAR, JUSTICE
BOB PEMBERTON, JUSTICE
MELISSA GOODWIN, JUSTICE
SCOTT K. FIELD, JUSTICE
CINDY OLSON BOURLAND, JUSTICE
June 9, 2015
Ms. Angie D. Roberts-Huckaby Mr. Michael C. Gross
Assistant Criminal District Attorney 106 South St. Mary's Street, Suite 260
Hays County Government Center San Antonio, TX 78205
712 South Stagecoach Trail, Ste. 2057 * DELIVERED VIA E-MAIL *
San Marcos, TX 78666
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 03-12-00474-CR
Trial Court Case Number: CR-11-0101
Style: Christina Lyons
v. The State of Texas
Dear Counsel:
Appellant's motion for rehearing was overruled by this Court on the date noted above.
Very truly yours,
JEFFREY D. KYLE, CLERK
BY: E. Talerico
Liz Talerico, Deputy Clerk