Alexander v. State

• Decision Date: 02 May 2007
• Docket Number: No. 04-06-00082-CR.,04-06-00082-CR.
• Citation: 229 S.W.3d 731
• Parties: Kimberly Michele ALEXANDER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

229 S.W.3d 731

Kimberly Michele ALEXANDER, Appellant, v. The STATE of Texas, Appellee.

No. 04-06-00082-CR.

Court of Appeals of Texas, San Antonio.

May 2, 2007.

Cornelius N. Cox, Law Office of Cornelius N. Cox, San Antonio, for appellant.

Daniel Thornberry, Asst. Crim. Dist. Atty., San Antonio, for appellee.

Sitting: ALMA L. LÓPEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.

MEMORANDUM OPINION

Opinion by PHYLIS J. SPEEDLIN, Justice.

Kimberly Michele Alexander appeals her conviction for the capital murder of her daughter Diamond Alexander-Washington. We affirm the trial court's judgment.

BACKGROUND

When Diamond Alexander was born, she was placed into the custody of Child Protective Services (CPS), and later with a foster family, where she remained until she was two years old. On March 31, 2004, Diamond was placed back with her biological mother, Kimberly Alexander. On June 5, 2004, at approximately 4:00 p.m., police and EMS received a call that a child was in cardiac arrest. When EMS arrived at the apartment, they found two-year old Diamond lying on the living room floor, unresponsive. Diamond had no pulse or respiration, and her EKG was a "flat line." Her mother, Kimberly Alexander, was present along with a friend, Elizabeth Youngblood, who was also living in the apartment. When questioned at the scene about Diamond's medical history and what happened to her, Alexander made no response and her demeanor was detached and unemotional; Alexander later told police that Diamond had fallen off her training potty. Diamond was airlifted to a hospital where she was diagnosed as being in complete cardiopulmonary arrest; she was removed from life support and pronounced dead the next day. Diamond's body exhibited extensive bruising on her forehead, chest, back, both arms and both legs, along with hemorrhaging around her optic nerves, and a closed head injury, with swelling and bleeding in the brain. Her liver also had a significant laceration, which was a potentially fatal injury. The medical examiner who performed the autopsy concluded that all the injuries were the result of blunt force trauma occurring within the same time period, and that at least three different instruments were used to inflict a minimum of 26 blows. Diamond's cause of death was determined to be blunt trauma to the head and thorax. Alexander was indicted for capital murder. After a jury trial, Alexander was convicted of capital murder, and sentenced to life in prison. This appeal followed.

ANALYSIS

Sufficiency of the Evidence

In her first issue, Alexander argues the evidence is legally and factually¹ insufficient to support the jury's finding that she intentionally or knowingly caused Diamond's death; she asserts she merely intended to discipline her child, and there is nothing in the record to suggest she intended to cause her death. In determining legal sufficiency, we review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App.2005). The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony; therefore, reconciliation of any conflicts in the evidence is within the exclusive province of the jury. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App.1998). The jury is also permitted to make reasonable inferences from the evidence. Id. at 254-55.

In determining factual sufficiency, we view all the evidence in a neutral light, both for and against the jury's verdict, and only set aside the verdict if "proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Vodochodsky, 158 S.W.3d at 510; Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997) (court views "all the evidence without the prism of `in the light most favorable to the prosecution' and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust"). The factual sufficiency analysis consists of two prongs: (1) "whether the evidence introduced to support the verdict, though legally sufficient, is nevertheless `so weak' that the jury's verdict seems `clearly wrong and manifestly unjust;'" and (2) "whether, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence." Watson, 204 S.W.3d at 414-15. The appellate court is authorized to disagree with the jury's determination, even if probative evidence exists which supports the verdict, but must avoid substituting its judgment for that of the fact-finder. Id. at 415, 417; Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000) (factual sufficiency review requires appellate court to afford "due deference" to jury's determinations).

The indictment charged Alexander with capital murder by alleging she "intentionally and knowingly caus[ed] the death of Diamond . . . by striking [her] with a plastic tube, by striking [her] with the hand of the defendant, by striking [her] with an object or objects unknown to the grand jury, and by striking [her] against an object or objects unknown to the grand jury, and Diamond . . . was a child under six years of age." See TEX. PENAL CODE ANN. §§ 19.03(a)(8), 19.02(b)(1) (Vernon Supp 2006 & 2003) (providing a person commits the offense of capital murder if she "intentionally or knowingly causes the death of an individual," and the individual is under six years of age). The jury charge instructed the jury to convict Alexander if they found beyond a reasonable doubt that she intentionally or knowingly caused Diamond's death by one of the alleged means listed in the disjunctive. The jury was further instructed that a person acts "intentionally" with respect to a result of her conduct when it is her conscious objective or desire to cause the result; a person acts "knowingly" with respect to a result of her conduct when she is aware that her conduct is reasonably certain to cause the result. See TEX. PENAL CODE ANN. § 6.03(a), (b) (Vernon 2003).

The State asserts that under the jury charge, proof that Alexander either intentionally or knowingly caused Diamond's death through any of the alleged means is sufficient, and the jury need not have unanimously agreed on the particular means of commission. We agree. It is well settled that even though an indictment may allege different methods of committing the offense in the conjunctive, it is appropriate for the jury to be charged in the disjunctive and to return a general verdict if the evidence is sufficient to support a finding under any of the alternative theories. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991); Cameron v. State, 988 S.W.2d 835, 849-50 (Tex.App.-San Antonio 1999, pet. ref'd). Therefore, we must examine the trial evidence to determine whether it is legally and factually sufficient to support the jury's finding that Alexander intentionally or knowingly caused Diamond's death by one of the alternative means.

At trial, Elizabeth Youngblood, who was living in Alexander's apartment, testified that she witnessed almost the entire incident between Alexander and Diamond. At about noon on June 5, 2004, Alexander pulled Diamond by the arm from her bedroom into the living room, saying, "this pissy bitch, she pissed again." Alexander made Diamond stand up in front of her while she sat on the couch and "hit her on the bottom quite a few times" with a remote control; Diamond was then made to remain standing there for approximately 30 minutes. Youngblood stated it was not unusual for Diamond to be punished for wetting herself by being made to stand in one place and not move. After 30 minutes, Alexander exclaimed, "Look, look at this bitch. She stood right here and peed on my rug." Alexander then punched Diamond in the chest with a closed fist, knocking her to the floor; Alexander told Diamond to "get up and come here," which she slowly did; Alexander told her she knew better and punched her in the chest a second time, again knocking her down; Alexander called Diamond over again, and told her in a raised voice, "you're going to quit pissing . . .," and punched her a third time, harder, causing Diamond to fly backward and land on her back. Again, Alexander called Diamond back over to the couch. Youngblood stated the first punch was hard, but the third punch was even harder and Diamond was slower to get up and creep back to Alexander. Youngblood asked Alexander, "what are you doing?" but Alexander told her to mind her own business.

After Diamond had stood up in front of the couch for about 15 more minutes, Alexander asked Youngblood to bring her the "black hose" from the hall closet. Youngblood brought a hard plastic vacuum cleaner attachment to Alexander, who tapped it on the ground and pointed it at Diamond, saying, "pissy bitch, you're going to quit pissing in my house. I'm tired of you. I frankly wouldn't give a f* * * if you went back." Alexander put the attachment down for a while, but after about 15 more minutes she picked it back up and started pounding it on Diamond's feet, repeatedly calling her a "pissy bitch," and saying she was tired of her "pissing in my house." Diamond stayed in place, "whining," as Alexander began hitting her on her legs and then on her back, side and chest. Youngblood stated she knew that it hurt Diamond, and told Alexander, "that's enough. What are you doing?!" But Alexander continued, and started hitting Diamond on her head — the first hits were "hard, too hard to hit a two year old," and the more...