Bridget Renae Miller v. State ( 2015 )

ACCEPTED
01-14-00930-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/24/2015 3:33:56 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00930-CR
IN THE COURT OF APPEALS
FILED IN
1st COURT OF APPEALS
FIRST JUDICIAL DISTRICT HOUSTON, TEXAS
8/24/2015 3:33:56 PM
HOUSTON, TEXAS
CHRISTOPHER A. PRINE
Clerk
BRIDGET RENAE MILLER,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
APPELLANT'S BRIEF SPECIFYING ERROR OF WHICH
APPELLANT COMPLAINS ON APPEAL
APPEALED FROM THE 23 9TH JUDICIAL DISTRICT COURT
OF BRAZORIA COUNTY, TEXAS
IN CAUSE NUMBER 74,2 32
Oral Arguments are Not Requested
John J. Davis
P.O. Box 787
2 05 N. Chenango
Angleton, Texas 77516-0787
SBN 05515500
Telephone: (979) 849-4362
Email: d.attorne@sbcglobal.net
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
Attorney for Appellant, BRIDGET RENAE MILLER
Trial Counsel:
Dominique Gerard Sallie Godfrey
613 W. Mulberry 613 W. Mulberry
Angleton, Texas 77515 Angleton, Texas 77515
Telephone: (979) 549-0999 Telephone: (281) 802-1743
Facsimile: Facsimile:
SBN: 07813100 SBN: 24032231
Appellate Counsel:
John J. Davis
P.O. Box 787
2 05 N. Chenango
Angleton, Texas 77515
Telephone: (979) 849-4362
SBN: 05515500
d.attorne@sbcglobal.net
Attorneys for the State of Texas:
Jeri Yenne
Criminal District Attorney
Brazoria County Courthouse
111 East Locust, Suite 408A
Telephone: (979) 864-1230
Facsimile: (979) 864-8914
Trial Assistants:
Travis Townsend (SBN 24048843)
Lily Martinez (SBN 24045599)
Appellate Assistant:
David Bosserman
Trial Court
Judge Patrick Sebesta
239th Judicial District Court
Brazoria County Courthouse
111 East Locust, Room 310A
Angleton, Texas 77515
Telephone: (979) 864-1256
Facsimile: (979) 864-1056
li
TABLE OF CONTENTS
Identity of Parties and Counsel ii
Table of Contents iii
Index of Authorities v
Statement of the Case vi
Citations to the Record vi
Issues Presented vii
Statement of Facts 2
POINT OF ERROR ONE 9
THE EVIDENCE IS INSUFFICIENT TO SUPPORT A JURY CHARGE OR
JURY VERDICT ON INJURY TO A CHILD BY FAILING TO SEEK AND/OR
PROVIDE TIMELY MEDICAL CARE AS ALLEGED IN PARAGRAPH FIVE OF
THE INDICTMENT.
Relevant Facts 9
Summary of Argument 12
Argument and Authorities 14
POINT OF ERROR TWO 18
BECAUSE PARAGRAPH FIVE OF THE INDICTMENT WAS SUBMITTED
TO THE JURY IN THE DISJUNCTIVE, APPELLANT WAS DENIED THE
RIGHT TO A UNANIMOUS JURY VERDICT.
Relevant Facts 18
Summary of Argument 19
Argument and Authorities 21
Egregious Harm Analysis 24
in
POINT OF ERROR THREE 31
THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S
OBJECTIONS TO THE STATE'S ARGUMENTATIVE SIDEBAR COMMENTS.
Relevant Facts 31
Summary of Argument 32
Argument and Authorities 33
Harm Analysis 34
Prayer for Relief 37
Certificate of Service 38
IV
INDEX OF AUTHORITIES
CASES:
Arizona v. Fulminante, 111 S. Ct. 1246 (1991) 36,37
Brokenberry v. State, 853 S.W.2d 145
(Tex.App.-Houston [14th Dist] 1993) 33,34
37
Brooks v. State, 323 S.W.3d893 (Tex.Cr.App. 2010)... 15,17
Coble v. State, 330 S.W.3d 253 (Tex.Cr.App. 2010) .... 34
Cruz v. State, 122 S.W.3d 309
(Tex.App.-Houston [1st Dist] 2003) 34
Gonzalez Soto v. State, 267 S.W.3d 327
(Tex.App.-Corpus Christi 2008) 23,24
30,31
Guevara v. State, 152 S.W.3d 45 (Tex.Cr.App. 2004)... 15,17
In re W.G.W., 812 S.W.2d 409
(Tex.App.-Houston [1st Dist] 1991) 33,34
37
In re Winship, 90 S .Ct. 1068 (1970) 14,17
Jackson v. Virginia, 99 S .Ct. 2781 (1979) 14,17
Jimenez v. State, 240 S.W.3d 384
(Tex.App.-Austin 2007) 34,37
Johnson v. State, 43 S.W.3d 1 (Tex.Cr.App. 2001) 34,37
Jourdan v. State, 428 S.W.3d 86 (Tex.Cr.App. 2014)... 29
Landrian v. State, 268 S.W.3d 532 (Tex.Cr.App. 2008). 21-23
Martinez y. State, 190 S.W.3d 254
(Tex.App.-Houston [1st Dist] 2006) 23,24
Morales v. State, 32 S.W.3d 862 (Tex.Cr.App. 2000) ... 35
Ngo y. State, 175 S.W.3d 738 (Tex.Cr.App. 2005) 21-24
29-30
Stein v. State, 492 S.W.2d 548 (Tex.Cr.App. 1973).... 34
Stuhler v. State, 218 S.W.3d 706 (Tex.Cr.App. 2007) .. 15,21-24
29-31
Thompson v. Louisville, 80 S. Ct. 624 (1960) 14
Vick y. State, 991 S.W.2d 830 (Tex.Cr.App. 1999) 22
v
Warner v. State, 245 S.W.3d 458 (Tex.Cr.App. 2008)... 24
CONSTITUTION:
Article V, Section 13 Texas Constitution 21
Fourteenth Amendment to United States Constitution... 14
RULES:
Rule 44.2 Texas Rules of Appellate Procedure 34
Rule 613 Texas Rules of Evidence 35
STATEMENT OF THE CASE
Appellant was charged by indictment in five paragraphs
with the offense of Injury to a Child (CR p.751-752; V.4
p.199-202). Appellant entered a plea of "not guilty" before a
jury (V.4 p.202). Appellant was found guilty of Injury to a
Child (V.9 p.89). Punishment was assessed by the jury at
ninety-nine (99) years confinement in the Institutional
Division of T.D.C.J. (V.9 p.152). No fine was assessed (V.9
p.153) .
CITATIONS TO THE RECORD
The following abbreviations will be used to cite the record:
CR. refers to Clerk's record.
V. refers to volume of the Court Reporter's Statement of
Facts where the evidence referred to may be found.
p. refers to the page or pages where the cited material may
be found.
vi
ISSUES PRESENTED
POINT OF ERROR ONE: 9
THE EVIDENCE IS INSUFFICIENT TO SUPPORT A JURY CHARGE OR
JURY VERDICT ON INJURY TO A CHILD BY FAILING TO SEEK
AND/OR PROVIDE TIMELY MEDICAL CARE AS ALLEGED IN
PARAGRAPH FIVE OF THE INDICTMENT.
POINT OF ERROR TWO 18
BECAUSE PARAGRAPH FIVE OF THE INDICTMENT WAS SUBMITTED
TO THE JURY IN THE DISJUNCTIVE, APPELLANT WAS DENIED THE
RIGHT TO A UNANIMOUS JURY VERDICT.
POINT OF ERROR THREE 31
THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S
OBJECTIONS TO THE STATE'S ARGUMENTATIVE SIDEBAR COMMENTS.
vi 1
IN THE COURT OF APPEALS
FIRST JUDICIAL DISTRICT
HOUSTON, TEXAS
BRIDGET RENAE MILLER,
Appellant
VS. NUMBER 01-14-00930-CR
THE STATE OF TEXAS,
Appellee
APPELLANT'S BRIEF SPECIFYING ERROR OF WHICH
APPELLANT COMPLAINS ON APPEAL
APPEALED FROM THE 23 9TH JUDICIAL DISTRICT COURT
OF BRAZORIA COUNTY, TEXAS
IN CAUSE NUMBER 74,232
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, BRIDGET RENAE MILLER, hereafter referred to
as Appellant, and respectfully submits this his brief
specifying error of which Appellant complains on appeal.
Pursuant to the Texas Rules of Appellate Procedure, the
Appellant would show through his attorney the following
points of error of which he wishes to complain:
STATEMENT OF FACTS
For the sake of brevity and clarity in this brief, the
deceased child will hereafter be referred to as "C\W" or
"child". C/W's mother, Sandra Vela, will be referred to as
"mother". C/W's father, Clifton Floyd Tarrant, will be
referred to as "father". Defendant/Appellant Bridget Miller,
will be referred to as "appellant".
The name of the deceased child in this case is Clifton
Floyd Tarrant II, also called "Little Cliff", who was born
May 29, 2008 (V.5 p.43; see V.10 SX-4). Sandra Vela was the
child's mother and Clifton Floyd Tarrant was the child's
father (V.5 p.41; V.10 SX-4). C/W's mother and father
separated in April, 2011 (V.5 p.48). At first C/W stayed with
his mother but at the end of August, 2011, he went to stay
with his father (V.5 p.48). The mother and father did not
divorce until September, 2014 (V.5 p.73).
Appellant and the father were girlfriend and boyfriend
(V.7 p.38). Appellant began a relationship with the father
sometime after the mother and father separated (V.5 p.52) and
she started living with the father and the child off and on
three to five months prior to June 20, 2012 (V.5 p.74; V.6
p.134, V.7 p.153, 160). At 7:15 a.m. on June 20, 2012, C/W
arrived at the emergency room of Brazosport Memorial Hospital
in the arms of his father (V.5 p.187-189, 206). He was
unresponsive (V.5 p.2 01). Dr. Corey Anderson, the emergency
room physician, diagnosed C/W as having massive head and
brain injuries (V.6 p.13). The father told nurses that C/W
fell in the bathtub and hit his head (V.5 p.192-193, 195,
208). C/W was later Life Flighted to Hermann Hospital's
Department of Neurosurgery in Houston (V.6 p.15, 17-18) .
INTERVIEWS OF APPELLANT
Over the next five weeks prior to C/W's death, Appellant
related the events surrounding the child's injuries to no
less than five investigators through six interviews. They
were as follows:
1. Patrol Officer Maricruz Ramos, Lake Jackson Police
Department, at Brazosport Hospital Emergency Room on
June 20, 2012 (V.7 p.15-17);
2. Patrol Officer Slade Moran, Lake Jackson Police
Department, at Brazosport Hospital Emergency Room on
June 20, 2012. Slade was unable to identify Appellant in
court (V.7 p.31-34).
3. Robert Turner, Detective Sergeant, Lake Jackson Police
Department, at Brazosport Hospital Emergency Room on
June 20, 2012 (V.7 p.48-49) and at Hermann Hospital on
the same day (V.7 p.51-54);
4. Haley Deem, Child Protective Services investigator, at
Hermann Hospital on June 20, 2012 (V.7 p.103-105).
5. Eric Holmes, Child Protective Services supervisor, in a
conference room at Hermann Hospital I.C.U. (V.6 p.113,
121) .
The interviewers testified that their recollection of
the statements made by Appellant were as follows:
C/W's father went to work about 6:30 a.m. (V.7 p.48, 52,
113). After the father left, she received a call from him
asking her to see if his work badge had fallen in the yard
(V.7 p.103). She checked and came back in (V.7 p.103). She
then checked on C/W, smelled poop and noticed that C/W had
pooped his pants while he was sleeping (V.6 p.121; V.7 p.15,
48, 52, 103). The stool was dry on his body (V.7 p.16, 32,
52). She took him to the bathroom, cleaned him and placed him
in the shower (V.6 p.121; V.7 p.16, 20-21, 32, 48, 52, 103).
Appellant checked on C/W twice and he was okay (V.7 p.104).
Appellant left him in the shower to soak and went to make
coffee (V.6 p.121; V.7 p.16, 20-21, 32-33, 48, 52, 104).
When she heard a thud or thump and a cry, she ran back to the
bathroom (V.6 p.121; V.7 p.16, 33, 48, 52, 104). C/W was
laying in the bottom of the tub with his feet closest to the
drain (V.7 p.33, 49, 52). He had a blank stare on his face,
looked stunned, and wouldn't respond (V.7 p.16, 49, 53, 104).
Appellant felt a bump on his head (V.7 p.16, 33, 49, 53).
Appellant called C/W's father, told him he needed to come
home and waited till he arrived (V.7 p.17, 33-34, 49, 53-54,
104). The father returned about 7:10 a.m. (V.6 p.105, 113).
Appellant and the father took C/W to the hospital emergency
room (V.7 p.17, 34, 54, 105).
Although there were some inconsistencies and variations,
Appellant related the same basic facts throughout these
interviews. When Detective Turner went to the house where the
incident occurred, he found fecal matter in C/W's pants on
the floor of the bathroom (V.7 p.55, 57, 59-60, 64, 84).
APPELLANT'S TRIAL TESTIMONY
Appellant also testified before a grandjury (V.7 p.215-
216) and at trial (V.7 p.152-235; V.8 p.7-53). At trial,
Appellant related the same basic facts. Her trial testimony
relating to the events of the morning of June 20, 2012, is
set out below and supplemented with citations to where the
same basic facts may be found in the interviews:
1. C/W's father went to work about 6:25 a.m. (V.7 p.195;
see p.48, 52, 113) .
2. As passed C/W's room, she smelled poop (V.7 p.195; see
V.6 p.121; V.7 p.15, 48, 52, 103).
3. Appellant woke C/W up and took him to the shower (V.7
p.195; see V.6 p.121; V.7 p.16, 20-21, 32, 48, 52, 103).
4. C/W had a big ball of poop in his pants which she held
until she got him in the shower (V.7 p.195) .
5. During this period, the father called on and off because
he couldn't find his work badge. Father thought he might
have dropped it in the yard while moving. Appellant
looked, didn't find it, and came back in (V.7 p.196; see
p.103). This call came at 6:52 a.m. (V.8 p.28).
6. Appellant checked on C/W again twice and he was okay
(V.7 p.196-197; see p.104).
7. Appellant went to the kitchen to make coffee (V.7 p.197;
see V.6 p.121; V.7 p.16, 20-21, 32-33, 48, 52, 104).
8. When she heard a thud or thump and a cry, she ran back
to the bathroom (V.7 p.197; see V.6 p.121; V.7 p.16, 33,
48, 52, 104) .
9. C/W was laying on his back with his feet closest to the
drain (V.7 p.198; see p.33, 49, 52).
10. C/W had a bump on his head (V.7 p.198; see p.16, 33, 49,
53) .
11. Appellant tried to talk to C/W but he wouldn't answer.
C/W moaned but didn't look at Appellant. He looked like
he knocked himself out (V.7 p.198; see p.16, 49, 53,
104) .
12. Appellant called C/W's father at 7:03 a.m. and told him
he needed to come home (V.7 p.198-199; see p.17, 33-34,
49, 53-54, 104; (V.8 p.36).
13. At 7:08 a.m., the father called Appellant back (V.8
p.36). Appellant was crying (V.7 p.199). The father told
her not to drive that he would pick them up (V.7 p.199).
Appellant did not want to drive because she would have
to put C/W down (V.7 p.199).
14. Appellant did not think C/W's injury was life-
threatening (V.7 p.199).
DOCTOR FINDINGS & OPINIONS
The State called five doctors including the medical
examiner to discredit Appellant's version of how C/W
sustained his injuries:
Dr. Corey Anderson, emergency room physician Brazosport
Hospital, diagnosed C/W as having massive head and brain
injuries and was having trouble breathing (V.6 p.13). A CT
scan confirmed Dr. Anderson's diagnosis, and arrangements
were made to transfer C/W to Hermann Hospital (V.6 p.16).
Anderson testified that C/W's injuries were "absolutely not"
consistent with a slip-and-fall in a bathtub (V.6 p.49). He
opined that it is unlikely that a standing ground-level fall
in a bathtub would produce such significant injuries (V.6
p.50, 67-70) .
Dr. Rebecca Girardet, associate professor of pediatrics
and specialist in child abuse at the University of Texas
Medical School, testified that she consulted with Hermann
Hospital on C/W's case looking for signs of abuse and neglect
(V.6 p.143). Her investigation included an exam of C/W after
he got out of surgery (V.6 p.143-145). She noted his head was
"grossly swollen" due to trauma (V.6 p.145-146). The CT scan
from Brazosport Hospital showed a lot of subdural hemorrhage
with active bleeding and swelling of the brain (V.6 p. 146-
147). The ophthalmic exam showed hemorrhages in the back of
both eyes and a shearing of the layers of the right retina
(V.6 p.150). Dr. Girardet opined that C/W's injuries were not
consistent with a routine household injury or a slip-and-fall
in the bathtub but could have resulted from a blow to the
head (V.6 p.155) .
Dr. Judianne Kellaway, ophthalmologist at the University
of Texas Medical School, examined C/W and found multiple
intraretinal hemorrhages throughout the back of both eyes and
retinoschisis in the right eye (V.6 p.202-203). Retinoschisis
is a shearing or separation of the three layers of the retina
(V.6 p.181-182). It does not result from a direct impact (V.6
p. 204) but is the result of a severe shaking and is
indicative of abusive head trauma or shaken baby (V.6 p.197).
Retinoschisis cannot be caused by a slip-and-fall or by
slapping (V.6 p.211, 216). Dr. Kellaway opined that C/W's eye
injuries could only be caused by a severe and violent shaking
(V.6 p.203, 211-212) .
On the State's rebuttal, Dr. Marcella Donaruma, a child
abuse pediatrician for the Baylor College of Medicine at
Texas Children's Hospital, testified that she reviewed C/W's
medical records from Dr. Vavich at Parking Way Pediatrics,
Brazosport Hospital, Hermann Children's Hospital, and the
autopsy report (V.8 p.67, 77). It was her opinion that C/W
was "most likely" the victim of fatal physical abuse and that
"trauma to the head was responsible for his death (V.8 p.71).
She testified that the injuries could have been caused by
shaking the child, striking the head of the child with an
unknown object or causing the head of the child to strike an
unknown object (V.8 p.79). She opined that the injury
occurred more than one (1) hour and less than six (6) hours
from the CT scan which was performed at 7:53 a.m. (V.8 p. 72-
74). She testified that C/W would not have been able to walk
or talk after suffering such massive head trauma (V.8 p.79).
It was her opinion that there was "no way" the child could
have sustained these injuries if he slipped and fell in the
bathtub (V.8 p.76-77).
C/W died at Herman Hospital on July 27, 2012, after life
support was removed (V.5 p.68-69; V.10 SX 16; V.15 SX 43),
five weeks (37 days) after he was first seen at Brazosport
Hospital (V.6 p.84, 98). The medical examiner opined that the
manner of death was a homicide and the cause of death was
blunt trauma of the head (V.6 p.95-96; see also V.5 p.69-70;
V.10 SX 16) .
POINT OF ERROR ONE
THE EVIDENCE IS INSUFFICIENT TO SUPPORT A JURY CHARGE OR
JURY VERDICT ON INJURY TO A CHILD BY FAILING TO SEEK AND/OR
PROVIDE TIMELY MEDICAL CARE AS ALLEGED IN PARAGRAPH FIVE OF
THE INDICTMENT.
RELEVANT FACTS
Paragraph five of the indictment alleges that Appellant
caused serious bodily injury to C/W by omission "by failing
to seek and/or provide timely medical care" (CR p.752; V.4
p.201-202) . At guilt-innocence, the court charged the jury on
this theory of culpability (CR p.929-930; V.9 p.14-15).
C/W's father went to work about 6:30 a.m. (V.7 p.48, 52,
113). After the father left, she received a call from him
asking her to see if his work badge had fallen in the yard
(V.7 p.103). This called came at 6:52 a.m. (V.8 p.28). At
6:55 a.m., C/W's father signed in for work at Dow Chemical
(V.7 p.91). When Appellant found C/W injured in the bathtub
she called C/W's father and told him he needed to come home
(V.7 p.17, 33-34, 49, 53-54, 104). The father received this
call from Appellant who was hysterical at 7:03 a.m. (V.7
p.91-92). The Father called Appellant back to tell her not
to drive at 7:08 a.m. (V.7 p.92). He arrived home at about
7:10 a.m. (V.6 p.105, 113) and took C/W and Appellant to the
hospital emergency room (V.7 p.17, 34, 54, 105). They arrived
at the emergency room at 7:15 a.m. (V.5 p.187, 205).
Appellant testified that they arrived at the hospital in
under 30 minutes from the time she found him injured (V.7
p.199). Detective Robert Turner opined that paramedics could
not have responded from the fire station to the house, done
their evaluation, and transported C/W to the hospital any
faster than it took Appellant's husband to drive home, pick
them up, and take them to the emergency room (V.7 p.94).
There was no evidence to support a finding that C/W's injury
was caused by or exacerbated by any delay in getting him to
the emergency room. The evidence is insufficient to show that
Appellant failed to seek and/or provide timely medical care
or that this led to, caused, or exacerbated C/W's injury.
However, the prosecutor used the allegations in Paragraph
Five to urge jury conviction based on a completely different
theory which was likewise not supported by the evidence. The
State' third witness was Aimee Mitchell, friend of Appellant.
10
Mitchell was using phone number 832-508-8992 (V.5 p.141).
Mitchell identified Appellant's number as 979-824-8273 (V.5
p. 146) . Using phone records, the State showed that on the
morning of June 20, 2012, Mitchell sent text messages to
Appellant at 6:01, 6:05, 6:29, 6:32, 6:41, 6:50, and 6:52
a.m. (V.5 p.146-148). During this same period Appellant sent
text messages to her at 6:02, 6:27, 6:28, 6:29, 6:40, 6:50,
and 6:51 a.m. (V.5 p.146-148). Noting the texts sent by
Appellant at 6:02, 6:27 and 6:28, Mitchell testified that
Appellant said "somebody was going to the hospital and she
might need a place to stay because they were going to be in
the hospital in Houston." (V.5 p.151). The prosecutor then
attempted to use the text from Appellant at 6:02 to establish
the time at which Appellant told Mitchell that somebody needs
to go to the hospital (V.5 p.153). On cross examination,
however, Mitchell admitted she did not remember why she sent
the first text to Appellant at 6:01 a.m. (V.5 p.162-163) nor
could she recall what time she received the message asking
about possibly staying at Mitchell's house in Houston because
someone was going to the hospital (V.5 p.169, 175) .
On final jury argument, the State laid out the
preposterous theory that C/W was not injured between 6:30 and
7:15 a.m. but, in fact, was injured prior to 6:01 a.m. before
the father left for work (V.9 p.56-57). To make this theory
work, the State relied on the testimony of Aimee Mitchell
that Appellant sent a text message at 6:02 a.m. saying she
11
would need a place to stay because someone was going to the
hospital (V.9 p.57). However, Mitchell admitted she did not
know when she received this text. So 6:01 a.m. is pure
conjecture on the part of the prosecutor and is not supported
by the evidence.
In addition, the second and more substantial problem
with the prosecutor's theory is that uncontroverted evidence
shows that C/W and Appellant did not arrive at Brazosport
Hospital until 7:15 a.m. on June 20, 2012 (V.5 p.187, 205).
The decision to send C/W to Houston was not made until after
he was seen by the emergency room doctor and was sent for a
CT scan (see V.6 p.15-16). Thus, it is impossible for
Appellant to have known C/W would be sent to Houston or that
she might need a place to stay in Houston until some time
after 7:15 a.m., well after her last text message to Mitchell
at 6:51 a.m. (V.5 p.146-148). There is simply no support in
the evidence for Paragraph 5 of the indictment.
SUMMARY OF ARGUMENT
Paragraph five of the indictment alleges that Appellant
caused serious bodily injury to C/W by omission "by failing
to seek and/or provide timely medical care" and the court
charged the jury on this theory of culpability at the guilt
phase of the trial. The evidence strongly supports a finding
that the child was injured sometime between 6:52 a.m. when
the father called Appellant regarding his lost work badge and
7:03 a.m. when Appellant called the father in hysterics
12
saying C/W had been injured and that he needed to come home
immediately. The father immediately went home and took C/W
and Appellant to the hospital emergency room where they
arrived at 7:15 a.m. There was no credible evidence to
suggest Appellant failed to seek immediate medical care.
Likewise, there was absolutely no evidence that any delay in
seeking medical care caused or exacerbated the serious bodily
injury which had already been sustained by the child.
However, the prosecutor argued that C/W was not injured
between 6:30 and 7:15 a.m. but, in fact, was injured prior to
6:01 a.m. before the father left for work. To make this
theory work, the prosecutor relied on the testimony of Aimee
Mitchell that Appellant sent a text message at 6:02 a.m.
saying she would need a place to stay in Houston because
someone was going to the hospital. However, Mitchell admitted
she did not know when she received the text from Appellant
regarding someone going to the hospital and no one knew that
C/W would be sent to the Hospital in Houston until after 7:15
a.m. when C/W was examined at the emergency room and a CT
scan was performed. This occurred well after Appellant's last
text to Mitchell at 6:51 a.m. This theory constituted pure
conjecture on the part of the prosecutor and the evidence not
only failed to support it, the evidence disproved it. There
is simply no support in the evidence for Paragraph 5 of the
indictment.
13
ARGUMENT AND AUTHORITIES
The standard of review for sufficiency of the evidence
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. Jackson v. Virginia, 99 S. Ct. 2781, 2789
(1979). The issue in Jackson was the distinction between a
review for "evidentiary sufficiency" and the "no evidence"
doctrine set out in Thompson v. Louisville, 80 S. Ct. 624, 628
-629 (1960). Jackson, 99 S. Ct. at 2786. The "no evidence"
doctrine addresses cases where the record is totally devoid
of any relevant evidence to support a crucial element of the
offense charged. Thompson, 80 S. Ct. at 628.
In addressing evidentiary sufficiency, the Jackson court
noted that the Due Process Clause of the Fourteenth Amendment
protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged. Jackson 99
S. Ct. at 2787; In re Winship, 90 S. Ct. 1068, 1073 (1970).
Requiring proof beyond a reasonable doubt of every fact
necessary to constitute the crime reduces the risk of factual
error "by impressing upon the factfinder the need to reach a
subjective state of near certitude of the guilt of the
accused." Jackson, 99 S. Ct. at 2787. Thus, proof beyond a
reasonable doubt goes beyond a mere "modicum" of evidence
which cannot by itself rationally support a conviction beyond
14
a reasonable doubt. Jackson, 99 S. Ct. at 2789.
In Texas, Jackson v. Virginia is the only standard a
reviewing court should apply in determining whether evidence
is sufficient to support each element of an offense. Brooks
v. State, 323 S.W.3d 893, 912 (Tex.Cr.App. 2010). But Brooks
emphasized that the State is required to prove each element
beyond a reasonable doubt. Brooks, 323 S.W.3d 912. Therefore
if, given all of the evidence, a rational jury would
necessarily entertain a reasonable doubt as to the
defendant's guilt, due process requires the appellate court
to reverse and order a judgment of acquittal. Guevara v.
State, 152 S.W.3d 45, 49 (Tex.Cr.App. 2004).
Injury to a child is a "result of conduct offense."
Stuhler v. State, 218 S.W.3d 706, 718 (Tex.Cr.App. 2007). The
gravamen of the offense is the resulting injury the conduct
caused, not the conduct that caused the injury. Stuhler at
718. Paragraph Five of the indictment alleges an omission in
failing to seek medical care. Any such omission would, of
necessity, have occurred subsequent to C/W's injury and did
not cause the injury. This is a completely different
transaction from the act which caused the injury. Thus,
Paragraph Five alleges a different and distinct offense from
those alleged in Paragraphs One through Four (see Point of
Error Two). The uncontroverted evidence shows that this child
was injured sometime after C/W's father went to work about
6:30 a.m. The father signed in for work at Dow Chemical at
15
6:55 a.m. C/W's injuries were totally incapacitating. When
Appellant found that C/W was injured, she called C/W's father
in hysterics and told him he needed to come home. The father
received this call at 7:03 a.m. He immediately drove home,
picked up Appellant and the child, and drove them to the
emergency room where they arrived at 7:15 a.m., twelve (12)
minutes after Appellant called him and told him to come home.
As Lake Jackson Detective Robert Turner opined, E.M.S. could
not have done any better.
On final jury argument, the State laid out the
preposterous theory that C/W was not injured between 6:30 and
7:15 but, in fact, was injured prior to 6:01 prior to the
father leaving for work. Barely a scintilla of evidence
supported this argument and the allegations set out in
Paragraph Five. Using phone records, the State relied on an
exchange of text messages between Aimee Mitchell and
Appellant which evidently occurred between 6:01 a.m. and 6:52
a.m. The content of the messages was not shown. Noting the
texts sent by Appellant at 6:02, 6:27 and 6:28, Mitchell
testified she thought Appellant told her "somebody was going
to the hospital and she might need a place to stay because
they were going to be in the hospital in Houston." On cross,
however, Mitchell admitted she did not remember why she sent
the first text to Appellant at 6:01 a.m. nor could she recall
what time she received the message asking about possibly
staying at Mitchell's house in Houston because someone was
16
going to the hospital. C/W did not arrive at Brazosport
Hospital until 7:15 a.m. and the decision to send him to
Houston was not made until he was examined and a CT scan was
performed, well after 7:15 a.m. On the thin thread of an
unrecalled text message, the prosecutor claimed the injury
occurred prior to 6:01 a.m. This was his evidentiary support
for Paragraph Five that Appellant was guilty by omission in
failing to seek and/or provide timely medical care. This is
not even a scintilla of evidence, and does not rise to the
level of a mere "modicum" of evidence which cannot by itself
rationally support a conviction beyond a reasonable doubt.
Jackson, 99 S. Ct. at 2789. The evidence does not prove beyond
a reasonable doubt that Appellant or the father failed to
seek and/or provide timely medical care or that any such
failure caused serious bodily injury to C/W or in any way
exacerbated C/W's injury. Any such failure to seek medical
care would have occurred after C/W sustained the serious
bodily injury. The State failed to prove each element of
Paragraph Five beyond a reasonable doubt. Brooks, 323 S.W.3d
912; Jackson 99 S. Ct. at 2787; In re Winship, 90 S. Ct. 1068,
1073 (1970). A rational jury would necessarily entertain a
reasonable doubt as to Appellant's guilt regarding Paragraph
Five of the indictment and due process requires the appellate
court to reverse and order a judgment of acquittal as to
Paragraph Five of the indictment. Guevara v. State, 152
S.W.3d 45, 49 (Tex.Cr.App. 2004).
17
POINT OF ERROR TWO
BECAUSE PARAGRAPH FIVE OF THE INDICTMENT WAS SUBMITTED
TO THE JURY IN THE DISJUNCTIVE, APPELLANT WAS DENIED THE
RIGHT TO A UNANIMOUS JURY VERDICT.
RELEVANT FACTS
The indictment in this cause alleges the offense of
Injury to a Child in five paragraphs (CR p.751-752; V.4 p.
199-202). Paragraphs one through four alleged that Appellant
caused serious bodily to C/W by (1) causing C/W's head to
strike an unknown object; (2) causing an unknown object to
strike C/W's head; (3) by shaking C/W; and (4) by causing
trauma to C/W's head, the exact manner and means unknown (CR
p.751; V.4 p.200-201). Paragraph Five of the indictment
alleges that Appellant caused serious bodily injury to C/W
by omission "by failing to seek and/or provide timely medical
care...." (CRp.752; V.4 p.201-202).
The evidence supporting Paragraphs One through Four was
mainly provided by Appellant's statements to investigators,
her trial testimony, and by the five medical doctors who
testified to the serious bodily injury sustained by C/W and
to the fact that, in their opinion, these injuries could not
have been caused by the slip and fall described by Appellant.
(V.5 p.69-70; V.6 p.49-50, 67-70, 95-96, 155, 203, 211-212;
V.8 p.76-77; V.10 SX 16; See the Statement of Facts above).
However, as set out in Point of Error One which is here
incorporated by reference, the evidence supporting Paragraph
Five was insufficient. The evidence was insufficient in two
ways: (1) it failed to show that Appellant or the father
failed to seek and/or provide timely medical care and (2) it
failed to show that any such omission caused, aided, enhanced
or in any way exacerbated C/W's serious bodily injury.
At the guilt phase of the trial, the trial court charged
the jury in the alternative with regard to each of the
application paragraphs for the five respective indictment
paragraphs (CR p.926-930; V.9 p.11-15) and the verdict forms
only allowed for a general verdict of "guilty" or "not
guilty" as to the whole (CR p.934-935; V.9 p.19-20).
SUMMARY OF ARGUMENT
The Texas Constitution requires a unanimous jury verdict
in all felony cases. Injury to a child is a "result of
conduct offense." The gravamen of the offense is the
resulting injury the conduct caused, not the conduct that
caused the injury. Paragraphs One through Four of the
indictment and application paragraphs of the jury charge
allege four different manner and means of causing C/W's
injury. The jury is not required to unanimously agree upon a
single manner and means.
Paragraph Five of the indictment and jury charge allege
that Appellant caused serious bodily injury to C/W by
omission "by failing to seek and/or provide timely medical
care...." This alleges a different incident and distinct
criminal conduct from the incident and conduct alleged in
19
Paragraphs One through Four. Paragraph Five alleges an
omission after the incident and conduct which caused the
serious bodily injury were complete. As set out in Point of
Error One, there is no evidence in the record supporting the
allegation that failure to promptly seek medical care caused
C/W's injury or added to it or exacerbated the injury C/W had
already sustained. Furthermore, any conduct in failing to
promptly seek medical care occurred after C/W's injury was
inflicted, constitutes distinct criminal conduct and is a
completely different incident. If disjunctive paragraphs
contain different criminal incidents and conduct, then a
jury must be instructed that it cannot return a guilty
verdict unless it unanimously agrees that the defendant
committed that conduct. The trial court committed jury
charge error when it submitted Paragraph 5 in the
disjunctive with Paragraphs One through Four without
requiring the jury to reach a unanimous with regard to
Paragraph Five.
That Appellant suffered egregious harm is amply
demonstrated in the record. The State spent a considerable
time in its insistence during voir dire and jury argument
that unanimity was not required. The State also made a
forceful and extensive argument urging the jury to find
Appellant guilty of Paragraph Five. Nowhere in the jury
charge or arguments of counsel was the jury ever informed
that it could (1) unanimously agree on one or more of the
20
paragraphs numbered one through four but (2) must unanimously
agree on Paragraph Five. Read as a whole, the charge misled
the jury into believing that only its ultimate verdict of
"guilty" need be unanimous. Appellant's right to a unanimous
jury verdict was violated and this violation caused egregious
harm to his right to a fair and impartial trial.
ARGUMENT AND AUTHORITIES
Article V, Section 13 of the Texas Constitution requires
a unanimous jury verdict in all felony cases. Nero v. State,
175 S.W.3d 738, 745 (Tex.Cr.App. 2005); Stuhler v. State, 218
S.W.3d 706, 716 (Tex.Cr.App. 2007). Jury unanimity requires
that the jury agree upon a single and discrete incident that
would constitute the commission of the offense alleged.
Stuhler at 717. "What matters is that the conduct (whatever
it may be) is done with the required culpability to effect
the result the Legislature specified." Landrian v. State, 268
S.W.3d 532, 537 (Tex.Cr.App. 2008).
Injury to a child is a "result of conduct offense."
Stuhler at 718. The gravamen of the offense is the resulting
injury caused by the conduct, not the conduct that caused the
injury. Stuhler at 718. Paragraphs One through Four allege
that Appellant intentionally or knowingly caused serious
bodily injury to the child by various acts and an act
unknown, in other words, by various manner and means. Using
the eighth-grade grammar exercise to determine the elements
of the offense which require a unanimous verdict, "Appellant"
21
is the subject, "caused" is the main verb, and "bodily
injury" is the direct object. Stuhler at 718; see Landrian at
537. The Legislature has thus defined Injury to a Child
according to the kind and degree of injury that results.
Stuhler, 718. Jury unanimity is required for these elements.
Stuhler, 718. Adverbial phrases introduced by the preposition
"by" describe manner and means and are not elements or the
gravamen of the offense. Stuhler at 718. Likewise, whether
the injury is caused by act or omission is not elemental and
does not require unanimity. Stuhler at 718. The jury is not
required to agree upon a single manner and means. Nqo at 746.
As set out above, what matters is that the conduct (whatever
it may be) is done with the required culpability to effect
the result the Legislature has specified. Landrian at 537.
Paragraphs One through Four allege different manner and means
for causing the same injury. Unanimity was not required.
However, Paragraph Five of the indictment alleges a
different incident and distinct criminal conduct from the
incident and conduct alleged in Paragraphs One through Four.
Paragraph Five alleges an omission after the act or acts of
causing serious bodily injury were complete. As set out
above, injury to a child is a "result of conduct offense."
Stuhler at 718. The gravamen of the offense is the resulting
injury caused by the conduct. Stuhler at 718. The offense is
complete when the gravamen of the offense is complete. See
Vick v. State, 991 S.W.2d 830, 833 (Tex.Cr.App. 1999);
22
Gonzalez Soto v. State, 267 S.W.3d 327, 336 (Tex.App.-Corpus
Christi 2008). Here, the indictment does not allege that
Appellant failed or omitted to apply the brakes causing a
vehicle to run over C/W causing the injury. It does not
allege that Appellant omitted or failed to supervise C/W
resulting in C/W's injury. To the contrary, Paragraph 5
alleges Appellant failed to seek medical care which would
have occurred at a time subsequent to C/W's sustaining
serious bodily injury. This alleges a different incident and
distinct criminal conduct from the conduct which was done
with the required culpability to effect the result. Landrian
at 537. Seeking medical care is intended to mitigate and
ameliorate the injury, not cause or add to it and there is no
evidence in the record supporting the allegation that failure
to promptly seek medical care would have caused C/W's injury
or added to it or exacerbated the injury he had already
sustained. Furthermore, the evidence does not support an
omission by Appellant in failing to seek medical care. Any
conduct in failing to promptly seek medical care occurred
after C/W's injury was inflicted and constitutes distinct
criminal conduct and is a completely different incident from
the conduct and incident which caused the injury. If
disjunctive paragraphs contain different criminal incidents
and conduct, then a jury must be instructed that it cannot
return a guilty verdict unless it unanimously agrees that the
defendant committed that conduct. Martinez v. State, 190
23
S.W.3d 254, 259 (Tex.App.-Houston [1st Dist] 2006). The
trial court committed jury charge error when it submitted
Paragraph 5 in the disjunctive with Paragraphs One through
Four without requiring the jury to reach a unanimous with
regard to Paragraph Five. Stuhler at 718; Gonzalez Soto, 267
S.W.3d at 334.
EGREGIOUS HARM
At the charging conference of the guilt phase of the
trial, Appellant's counsel did not object to any portion of
the jury charge (V.8 p.83). When a defendant fails to object
to the jury charge, the appellate court may reverse only if
the record shows egregious harm. Nqo, 175 S.W.3d at 749;
Martinez, 190 S.W.3d 259. For egregious harm to exist, the
record must show the defendant suffered actual harm from the
jury instruction error that affected the very basis of the
case or deprived the defendant of a valuable right. Nqo at
750. Neither party has a burden to show harm and ordinarily
there is no way to prove actual harm. Warner v. State, 245
S.W.3d 458, 463-464 (Tex.Cr.App. 2008). To determine whether
a defendant has suffered egregious harm, the court must
consider (1) the entire charge; (2) the state of the
evidence; (3) argument of counsel; and (4) any other relevant
information. Martinez at 259-260. A review of these factors
is as follows:
JURY CHARGE. Each of the application paragraphs begins
"if you find from the evidence beyond a reasonable doubt" and
24
all succeeding paragraphs after the first begin with "or" (CR
p.926-930; V.9 p.11-15). Application paragraphs end with "But
unless you so believe from the evidence beyond a reasonable
doubt, or if you have a reasonable doubt thereof, you will
acquit the defendant of Injury to a Child, as alleged in the
indictment, and say by your verdict not guilty." (CR p.930;
V.9 p.15-16).
The only other references concerning what must be proved
are boiler plate instructions. "No person may be convicted
unless each element of the offense is proved beyond a
reasonable doubt." (CR p930; V.9 p.16). The prosecution must
prove "each and every element of the offense charged beyond a
reasonable doubt...." (CR p.931; V.9 p.16). "In the event you
have a reasonable doubt as to the defendant's guilt after
considering all the evidence before you, and these
instructions, you will acquit her and say by your verdict
vNot Guilty'." (CR p.931; V.9 p.17). The jury was provided
with only two verdict forms, the first stating, "We, the
jury, find the defendant,...guilty of the offense of Injury
to a Child, as charged in the indictment." (CR p.934; V.9 p.
19). The court orally instructed the jury, "If this is your
unanimous verdict, there's a space for your presiding juror's
signature." (V.9 p.19). The second verdict form states, "We,
the jury, find the defendant,...not guilty of the offense of
Injury to a Child, as charged in the indictment." (CR p. 935;
V.9 p.19-20). The court followed with "Again, if that is your
25
unanimous verdict, there's a space for your presiding juror's
signature." (V.9 p.20).
THE STATE OF THE EVIDENCE. As set out above, the evidence
supporting Paragraphs One through Four was mainly provided by
Appellant's statements to investigators, her trial testimony,
and by five medical doctors who testified to the serious
bodily injury sustained by C/W and to the fact that these
injuries could not have been caused by the slip and fall
described by Appellant. As shown in Point of Error One, the
evidence supporting Paragraph Five was insufficient to
sustain a guilty verdict on that paragraph.
ARGUMENTS OF COUNSEL. On voir dire, the prosecutor
pointed out that the indictment contained five separate
paragraphs and that this meant that there were five different
ways the State could prove its case (V.4 p.74-75). He then
told the venire that if four jurors believe the top paragraph
beyond a reasonable doubt and two believe Paragraph 2 and two
believe Paragraph 3 and two believe Paragraph 4 and two
believe Paragraph 5, "as long as that number adds up to all
12 -- okay. You have a unanimous verdict, all 12 -- then
you've reached a verdict of guilt." (V.4 p.75). The State
argued that if one juror thinks the State proved the first
paragraph and the other 11 disagree but think the State
proved Paragraph 5, "...one plus the other 11 makes 12." (V.4
p.76, see also p.81).
On final argument, the prosecutor pointed out that there
26
were five application paragraphs separated by the word "or"
(V.9 p.22-23). The prosecutor then argued for a non-unanimous
verdict stating that two could believe Paragraph 1, two can
believe Paragraph 2, two can believe Paragraph 3, four can
believe Paragraph 4, and two can believe Paragraph 5 (V.9 p.
24). "So, what does that mean? 12 to guilty." (V.9 p.25).
Only in the closing of final argument, does the State's
ulterior motive regarding Paragraph Five become clear. They
used Paragraph Five of the indictment to attempt to hem
Appellant in stating:
"She can't all of a sudden change her story -- because
there's Paragraph 5 -- she can't all of a sudden change
her story and say you know what? I'm going to get on the
stand and say, well, I was present when Clifton did
these terrible things to his son and I did nothing and
stood by.
"She can't do that. Paragraph 5 of the indictment
prevents her from changing her story to that."
(V.9 p.50-51). The prosecutor again emphasized Paragraph 5
close to the end of the State's summation stating:
"I'm telling you, ladies and gentlemen, this fifth
paragraph right here -- fifth paragraph right here, you
take that in concert with the phone calls that she made
to Aimee Mitchell at 6:01. These events happened prior
to 6:00 o'clock that morning. She needed a place to
stay. Somebody's going to the hospital."
27
"Why does she need a place to stay because
somebody's going to the hospital? Could it be because
she's trying to further herself from Clifton? Maybe she
didn't want to be a part of what just happened? Or maybe
she's worried Clifton is going to come after her for
what she did. Either way, she's trying to create her
distance there."
"....That fifth paragraph gets her -- keeps her from
actually not changing her story again. That fifth
paragraph says, yeah, I was there and I did nothing and
I am criminally responsible. That kid was in bad shape,
and I did nothing."
"Ladies and gentlemen, we've proven that...paragraph
beyond a reasonable doubt."
(V.9 p.81).
"All 12 of you should go back on the very first time
you vote and agree to Paragraph 5."
(V.9 p.84).
The prosecutor then went on as he had previously to
argue that Appellant caused the injury rather than failed to
seek medical care (V.9 p.49-50, 68-76, 82-83). To use the
prosecutor's own words, "I mean you just literally have
totally contradicted yourself." (V.8 p.17). The evidence is
legally insufficient to support the allegations set out in
Paragraph 5. The prosecutor's argument did not constitute
reasonable deductions from the evidence. It was pure
28
conjecture from facts the State manufactured, not the
witnesses. Yet it gave the jury an easy out which was the
precise intention of the State.
In this case, there is a laundry list of factors which
lead to the ultimate conclusion that Appellant suffered
egregious harm from the court's failure to require a
unanimous verdict for Paragraph Five.
First of all, the court's failure to instruct the jury
that it must be unanimous in deciding whether Appellant was
guilty of injury to a child as alleged in Paragraph Five
deprived Appellant a valuable right, the right to a unanimous
verdict. See Nqo, 175 S.W.3d at 750. Stuhler, 218 S.W.3d at
719. In addition, numerous factors show that Appellant
suffered actual harm that affected the very basis of the
case. Nqo at 750.
On voir dire and at the close of evidence on final
argument, the State spent considerable time explaining to the
jury how its verdict need not be unanimous with regard to the
various paragraphs in the indictment. See Nqo at 750-751;
Stuhler at 719. The State's insistence during voir dire and
jury argument that unanimity was not required is an important
consideration in an egregious harm analysis. Jourdan v. State
428 S.W.3d 86, 98 (Tex.Cr.App. 2014).
However, the prosecutor didn't confine himself to his
argument for a non-unanimous verdict. He made a forceful and
extensive argument urging the jury to find Appellant guilty
29
of Paragraph Five. This court cannot be certain that none of
the jurors relied on the allegations of Paragraph 5 in
finding Appellant guilty. See Gonzalez Soto at p.327. If even
a single juror believed that Appellant was not guilty of
Paragraphs One through Four but was guilty of Paragraph Five
as argued by the State, the verdict was not unanimous and,
furthermore, was based on an allegation for which there was
insufficient evidence. See Nqo at 752. This focus of the jury
argument on Paragraph Five could only have increased the
already substantial risk that the jury would not find it
necessary to agree on whether Appellant caused the injury as
in Paragraphs One through Four or was guilty of failing to
promptly seek medical care after the injury as alleged in
Paragraph Five. See Stuhler at 720.
There was no separate unanimity instruction in the
application paragraphs of the jury charge. See Gonzalez Soto,
267 S.W.3d at 336. In no part of the jury charge or the
arguments of counsel was the jury ever informed that it must
(1) unanimously agree on one or more of the paragraphs
numbered one through four or (2) unanimously agree on
Paragraph Five or both (1) and (2). See Stuhler at 719-720.
Read as a whole, the charge misled the jury into believing
that only its ultimate verdict of "guilty" need be unanimous.
See Gonzalez Soto at p.337. The boilerplate unanimity
instructions in the charge are insufficient to mitigate the
harm caused by the prosecutor's confusing and erroneous
30
argument for a non-unanimous verdict and for a conviction
based on Paragraph Five of the indictment. See Gonzalez Soto
at p.338. Failure to instruct the jury that it must (1)
unanimously agree that Appellant was guilty of one or more
paragraphs numbered one through four or (2) unanimously agree
that Appellant was guilty pursuant to Paragraph Five or both
(1) and (2) deprived Appellant of a fair and impartial trial.
Stuhler at 720. Appellant's constitutional and statutory
right to a unanimous jury verdict was violated and this
violation caused egregious harm to his right to a fair and
impartial trial. Nqo at 752.
POINT OF ERROR THREE
THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S
OBJECTIONS TO THE STATE'S ARGUMENTATIVE SIDEBAR COMMENTS.
RELEVANT FACTS
On voir dire, the State asserted that "A proven lie is
just as good as a confession." (V.4 p.96). The prosecutor
used this statement to argue that the jury should use proof
of a lie as tantamount to a confession and therefore direct
evidence of guilt (V.4 p.96). On opening statement, the
prosecutor's first and last words were "A proven lie is just
as good as a confession" (V.5 p.16, 34).
On cross-examination of Appellant, the prosecutor, tried
to establish that Appellant lied about whether the father,
who was on probation, had consumed alcohol and the following
exchange took place:
31
Q: So, you were lying to protect him. Is that what you were
saying?
A: I just didn't tell her.
Q: You didn't tell her what? The truth?
A: That he was -- that he drank, yes. That -- just because
I didn't tell her doesn't mean I was lying to her.
Q: Yes, it does.
A: Well, I mean --
Q: I mean you just literally have totally contradicted
yourself.
DEFENSE ATTORNEY: Objection, argumentative, Your Honor.
THE COURT: Overruled.
(V.8 p.17).
SUMMARY OF ARGUMENT
On cross-examination of Appellant, the prosecutor, in
trying to show Appellant lied in order to bolster his
assertion that "A proven lie is just as good as a confession"
used sidebar remarks to argue with Appellant that her failure
to tell an investigator about her husband's, the father's,
drinking was a lie. Specifically, the prosecutor stated,
"Yes, it does." and "I mean you just literally have totally
contradicted yourself." Appellant objected and was overruled.
Sidebar comments and improper argumentative questions
are grounds for reversal if they interfere with Appellant's
right to a fair trial. Here, the questions preceding these
sidebar comments also constituted sidebar comments and
32
argumentative questions. They were intended to demean
Appellant but the prosecutor had an ulterior motive that went
beyond mere impeachment. He was attempting to bolster his
assertion to the jury that "A proven lie is just as good as a
confession." He asserted this on voir dire and twice in
opening statement. His also asserted that proof of a lie was
therefore direct evidence of guilt. A defendant's confession
is probably the most probative and damaging evidence that can
be admitted against him. Because proving lies was so crucial
to the State's theory, these sidebar comments and improper
argument went to the very essence of the case. They
interfered with Appellant's right to a fair trial and
constitute grounds for reversal.
ARGUMENT AND AUTHORITIES
Sidebar remarks are remarks of counsel that are neither
questions to the witness nor comments addressed to the court.
In re W.G.W. , 812 S.W.2d 409, 416 (Tex.App.-Houston [1st
Dist] 1991); Brokenberry v. State, 853 S.W.2d 145, 152 (Tex.
App.-Houston [14th Dist] 1993). Here the prosecutor's sidebar
remarks were assertions used purely to argue with Appellant:
"Yes, it does." and "I mean you just literally have totally
contradicted yourself." Appellant objected and was overruled.
"Improper arguments and sidebar remarks by the prosecutor
have forced us to reassert the critical importance of
convicting an accused only upon the evidence presented,
without attempting to inflame or prejudice the minds of
33
the jurors."
Stein v. State, 492 S.W.2d 548, 551 (Tex.Cr.App. 1973). Here,
the prosecutors remarks were clearly argumentative sidebar
remarks and the trial court erred when it overruled
Appellant's objection.
HARM ANALYSIS
A misapplication of the rules of evidence is not
constitutional error and harm is assessed under Rule 44.2(b)
Rules of Appellate Procedure. Cruz v. State, 122 S.W.3d 309,
313 (Tex.App.-Houston [1st Dist] 2003). Under Rule 44.2(b),
error must be disregarded unless a substantial right has been
affected. Johnson v. State, 43 S.W.3d 1, 4 (Tex.Cr.App.
2001). A substantial right is affected when the error has a
substantial and injurious effect or influence in determining
the jury's verdict. Johnson at 4. Other caselaw has held that
sidebar comments and improper argumentative questions are
grounds for reversal only if they interfered with Appellant's
right to a fair trial. In re W.G.W. at 416; Brokenberry at
152; Jimenez v. State, 240 S.W.3d 384, 407 (Tex.App.-Austin
2007). But the right to a fair trial differs little from the
definition of "substantial right." Nevertheless, the burden
to demonstrate whether Appellant was harmed by a trial court
error does not rest on either the appellant or the State.
Coble v. State, 330 S.W.3d 253, 280 (Tex.Cr.App. 2010);
Johnson at 4 .
In assessing harm under Rule 44.2(b), the appellate court
34
should consider everything in the record including all the
evidence, the character of the alleged error and how it might
be considered in connection with other evidence in the case,
jury instructions, the State's theory, voir dire, and closing
arguments. Morales v. State, 32 S.W.3d 862, 867 (Tex.Cr.App.
2000).
To put the above facts in context, it is relevant to
show that the State began its cross-examination of Appellant
by stating, "Ms. Miller, is that the best story you can come
up with?" (V.7 p.212). Defense counsel's objection was
sustained (V.7 p.212). The prosecutor followed with "When you
testified, you left out so many details." and a defense
objection was again sustained (V.7 p.213). When the
prosecutor asked, "Why do you refused to go into detail?",
defense counsel objected but failed to obtain a ruling (V.7
p.213). This set the tone for cross-examination. These
questions and sidebar remarks were calculated to embarrass
and demean Appellant.
The State is entitled to impeach a witness by showing
bias or interest and prior inconsistent statements. Rule 613
Texas Rules of Evidence. But the prosecutor had a much more
sinister motive than merely impeaching credibility. He had
already told the jury on voir dire and twice in opening
statement that "A proven lie is just as good as a confession"
and that proof of a lie was therefore direct evidence of
guilt. That Appellant did not lie but refrained from telling
35
one of the investigators that her husband, the baby's father,
had been drinking in violation of his probation did phase the
prosecutor or his sense of ethics. He needed this to be a
lie. The fact that it in no way constituted a confession to
felony injury to a child likewise did not phase him.
Even if this could be considered a lie as the prosecutor
vehemently suggested, a lie is not necessarily a confession.
Here, the prosecutor's nit-picking went on ad nauseum with
the prosecutor pointing out minor variances in Appellant's
numerous statements to investigators, six in all to five
different investigators, her grand jury testimony and trial
testimony. By this tactic the prosecutor was suggesting that
Appellant was repeatedly lying and therefore repeatedly
confessing. He understood that a defendant's confession is
probably the most probative and damaging evidence that can be
admitted against him, so damaging that a jury should not be
expected to ignore it even if told to do so. (1255 and 1257).
Arizona v. Fulminante, 111 S. Ct. 1246, 1255, 1257 (1991).
On final argument, the State returned to this theme.
In opening, the State repeated the premise that "A proven lie
is just as good as a confession" and then proceeded to list
all the people to whom the State contended Appellant lied
(V.9 p.20). On closing, the State again repeated the premise
(V.9 p.49) and again began the nit-picking pointing out all
the minor variances in Appellant's numerous statements which
the State categorized as lies. This included failing to tell
36
the investigator Haley Deem about her husband, the father,
drinking alcoholic beverages which prompted the sidebar
remarks (V.9 p.53-54). At the end of closing, the State
reinforced the premise stating:
"Why does she have to lie? Because she's confessing to
her crime."
(V.9 p.83). Thus, the sidebar remarks went to demean
Appellant and reenforce the State's premise which constituted
the basis of this case. Because a defendant's confession is
probably the most probative and damaging evidence that can be
admitted against him, Fulminante, 111 S. Ct. at 255, 1257, and
because proving lies was so crucial to the State's theory,
these sidebar comments and improper argument went to the very
essence of the case. They interfered with Appellant's right
to a fair trial and constitute grounds for reversal. In re
W.G.W. , 812 S.W.2d at 416; Brokenberry, 853 S.W.2d at 152;
Jimenez, 240 S.W.3d at 407. Appellant suffered egregious
harm. Johnson, 43 S.W.3d at 4.
PRAYER
For the above reasons, Appellant respectfully requests
the judgment of the trial court be reversed. Appellant
further requests that:
1. the trial court be instructed to enter a verdict of
not guilty as to Paragraph Five of the indictment and
that Paragraph Five be dismissed with prejudice;
2. this cause be remanded for a new trial on guilt-
37
innocence and/or punishment.
Respectfully submitted.
/s/ John J. Davis
John J. Davis
P.O. Box 787
Angleton, Tx 77516-0787
SBN 05515500
Telephone: (979) 849-4362
d.attorne@sbcglobal.net
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I, hereby certify that a copy of this APPELLANT'S BRIEF
SPECIFYING ERROR OF WHICH APPELLANT COMPLAINS ON APPEAL was
hand delivered to David Bosserman, Appellate Assistant for
the Brazoria County District Attorney's Office, Brazoria
County Courthouse, 111 East Locust, Suite 408A, Angleton,
Texas 77515 on this the 4th day of May, 2015.
/s/ John J. Davis
John J. Davis
38