Michael Wayne Montgomery v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00373-CR
MICHAEL WAYNE MONTGOMERY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
TRIAL COURT NO. 2012-0052M-CR
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MEMORANDUM OPINION1
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Appellant Michael Wayne Montgomery appeals from his conviction for
injury to a child. In two issues, he raises alleged jury-charge errors. We affirm.
On March 21, 2012, A.M.’s mother, A.C., rushed six-week-old A.M. to the
hospital for seizures. Dr. Jamye Coffman examined A.M. and found multiple
injuries, including a fractured skull, a subdural hematoma, fractured ribs, and
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See Tex. R. App. P. 47.4.
severely bruised fingers, one of which was missing a nail. The extent of the
injuries indicated that A.M. had been physically abused and that the injuries
could not have been caused by an accidental drop.
An investigator with Child Protective Services, Michelle Hanson, spoke
with A.C. about A.M.’s injuries. A.C. told Hanson that A.M. had rolled off of two
mattresses stacked on top of one another and hit A.C.’s knee and then the floor.
Appellant, who was A.C.’s boyfriend, also told Hanson that A.M. had rolled off the
mattresses.
Detective Sherry Stone with the Bowie Police Department was called to
the hospital. Stone spoke with Coffman, who detailed A.M.’s injuries. A.C. told
Stone that a dog had jumped on the bed A.M. was on and caused her injuries.
The next day, Stone spoke with A.C., and A.C. admitted she previously had lied
about A.M.’s injuries. A.C. then told Stone that A.M. had rolled off the bed while
A.C. was changing her diaper. A.C. admitted that Appellant was in the home at
the time but claimed that he knew nothing about how A.M. fell. Stone also spoke
with Appellant, who averred that A.M. had fallen off the bed. Stone’s
investigation led Stone to rule A.C. out as the person who hurt A.M. and to obtain
an arrest warrant for Appellant. After Appellant was arrested on March 28, he
gave a statement admitting that he had forcefully thrown A.M. to the floor and
picked her up by her throat.
Appellant was indicted for injury to a child by intentionally or knowingly
causing serious bodily injury. See Tex. Penal Code Ann. § 22.04(a)(1) (West
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Supp. 2013). A.C. was indicted for endangering a child and received five years’
community supervision after pleading guilty. At trial, A.C. testified that she had
received probation and that a condition of her probation was that she testify
truthfully if she was called as a witness at Appellant’s trial. Coffman testified to
A.M.’s injuries and said that they could not have been accidental. Indeed,
Coffman’s opinion was that A.M.’s injuries were the result of intentional child
abuse. Appellant testified at trial that his confession after his arrest was a lie and
that he had accidentally dropped A.M., causing her to hit her head.
At the conclusion of the evidence, Appellant requested the following
instruction regarding the corroboration requirement for a defendant’s extrajudicial
confession:
An extrajudicial confession by the accused is insufficient to
support a conviction unless corroborated.
There must exist other evidence showing that a crime has, in
fact, been committed and this other evidence need not be sufficient
by itself to prove the offense. All that is required is that there be
some evidence which renders the commission of the offense more
probable than it would be without the evidence.
Now if you find or have reasonable doubt thereof that the
accused made an extrajudicial confession and you further find that
such extrajudicial confession is not corroborated by the evidence,
then you will not consider the extrajudicial confession for any
purpose.
The trial court denied the request. The jury found Appellant guilty of injury
to a child and assessed his punishment at twenty years’ confinement and a
$5,000 fine.
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Appellant now argues that the trial court erred by refusing to include his
requested instruction on the corroboration requirement. See Tex. Code Crim.
Proc. Ann. art. 36.19 (West 2006). We are to review all alleged jury-charge error
and first determine whether error occurred; if error did not occur, our analysis
ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
A trial court need not instruct the jury on corroboration of a defendant’s
extrajudicial confession when the corpus delicti of the offense is established by
other evidence. Baldree v. State, 784 S.W.2d 676, 686–87 (Tex. Crim. App.
1989). The corpus delicti rule requires some corroboration of a harm brought
about by the criminal conduct of some person; however, it does not “require any
independent evidence that the defendant was the criminal culprit.” Salazar v.
State, 86 S.W.3d 640, 644 (Tex. Crim. App. 2002); see also Gonzales v. State,
190 S.W.3d 125, 130–31 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d), cert.
denied, 549 U.S. 1000 (2006). The rule is satisfied “if some evidence exists
outside of the extra-judicial confession which, considered alone or in connection
with the confession, shows that the crime actually occurred.” Salazar, 86 S.W.3d
at 645. “The corroborating evidence need not prove the underlying offense
conclusively; there simply must be some evidence that renders the commission
of the offense more probable than it would be without the evidence.” Aguilera v.
State, 425 S.W.3d 448, 459 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).
Evidence that the defendant was the actor is not required. Salazar, 86 S.W.3d at
644.
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Here, the evidence showed that A.M.’s injuries were the result of an
intentional act and were not accidental. Although Appellant testified that he
accidentally dropped A.M., the remainder of the evidence showed that the
injuries were caused by an intentional act. Thus, the record contained other
evidence, outside of Appellant’s confession, that injury to a child had occurred.
The trial court did not err by denying Appellant’s requested instructions. We
overrule issue one.
In his second issue, Appellant argues that the trial court erred by failing to
instruct the jury that they could not consider Appellant’s confession if it was
involuntary. But the charge contained such an instruction; therefore, there was
no error. We overrule issue two.
Having overruled Appellant’s issues, we affirm the trial court’s judgment.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: WALKER, MCCOY, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 10, 2014
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