Bearnth v. State

• Decision Date: 16 May 2012
• Docket Number: No. 01–09–00906–CR.,01–09–00906–CR.
• Citation: 361 S.W.3d 135
• Parties: Michelle Elaine BEARNTH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

361 S.W.3d 135

Michelle Elaine BEARNTH, Appellant,

v.The STATE of Texas, Appellee.

No. 01–09–00906–CR.

Court of Appeals of Texas, Houston (1st Dist.).

Oct. 27, 2011.Rehearing Overruled Feb. 8, 2012.Discretionary Review Refused May 16, 2012.

Patrick McCann, Houston, for Appellant.

Dan McCrory, Asst. Dist. Atty., Houston, for State.

Panel consists of Justice JENNINGS, Justice SHARP, and Justice BROWN.

OPINION

HARVEY BROWN, Justice.

A jury found Michelle Elaine Bearnth guilty of the offense of felony murder, with the underlying felony of injury to a child, and assessed punishment at thirty-three years' confinement.¹ In five issues, Bearnth contends (1) the evidence is legally and factually insufficient to support the jury's verdict; (2) the trial court erred in denying her motion to quash the felony murder indictment because that offense is in pari materia with the offense of injury to a child, injury to a child is assaultive conduct that cannot underlie a felony murder charge, and the indictment was motivated by prosecutorial vindictiveness; and (3) she was entitled to a hearing on her motion for new trial.

We affirm.

Background

Bearnth lived in a home with her two children, her boyfriend Josh Perkins, and his three children from a prior relationship. Bearnth was the primary caregiver to the five children, including Perkins's two-year old daughter K.P., who was blind in her right eye. On September 30, 2008, Bearnth called Perkins at work to report that K.P. had fallen in the backyard and suffered a black eye after hitting a paving stone. Perkins saw the black eye when he returned home from work, but the child otherwise appeared unharmed and acted normally.

The next day, Bearnth, who was the only adult in the house, called 911 stating that K.P. had fallen in the bathroom. When paramedics arrived at the scene, K.P. was unconscious and barely breathing. She had bruises on her hip, arms, legs, chest, upper and lower back, and around her mouth. K.P. also had two skull fractures—one on the side of her head and one on the back of her head.

Bearnth remained unemotional the entire time the paramedics tended to K.P. She told the paramedics and police officers at the scene that K.P. was prone to accidents and fell frequently because of her limited vision, but she gave inconsistent accounts of how K.P. fell. K.P. never regained consciousness and died in the hospital one week later.

A grand jury indicted Bearnth for injury to a child. See Tex. Penal Code Ann. § 22.04. The indictment was later amended to allege felony murder with the underlying offense of injury to a child through intentional, knowing, reckless, or criminally negligent conduct. See Tex. Penal Code Ann. § 19.02(b)(3). Bearnth filed a motion to quash the indictment, which the trial court denied.

At trial, the jury heard testimony from the paramedics and police officers at the scene who described K.P.'s injuries, Bearnth's explanations of the events giving rise to the injuries, and Bearnth's demeanor. Several social workers and Child Protective Services representatives testified regarding their investigation into K.P.'s injuries. The jury also heard testimony from the doctor who treated K.P. in the hospital, the medical examiner, and a forensic anthropologist. All three doctors testified that K.P.'s injuries were not accidental or consistent with a short fall. K.P.'s father testified that K.P. acted normally the night before she was injured, and various relatives and friends testified that K.P. did not have bruises when she returned to Perkins and Bearnth's care after staying with her mother a few days earlier.

The defense presented testimony from several witnesses who described Bearnth's care and demeanor with K.P. and the other children. Dr. Emily Ward testified as an expert and contradicted the conclusions of the other three doctors that a short and accidental fall could not have caused K.P.'s complex skull fracture. Bearnth herself also testified that K.P.'s injuries were the result of an accidental fall from the toilet.

The jury found Bearnth guilty of felony murder and assessed punishment. Bearnth filed a motion for new trial, asserting that the behavior of several CPS employees present at trial and the exhibition presented by K.P.'s uncle across the street from the court house intimidated the jurors and witnesses. The trial court overruled the motion by operation of law.

Sufficiency of the Evidence

In her first issue, Bearnth contends the evidence is legally and factually insufficient to support her felony murder conviction. A defendant commits felony murder if she “commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, [she] commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.” Tex. Penal Code Ann. § 19.02(b)(3). The underlying felony offense in this case is injury to a child. See Tex. Penal Code Ann. § 22.04.

A. Standard of Review

This court reviews sufficiency-of-the-evidence challenges applying the same standard of review, regardless of whether an appellant raises a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49, 52–54 (Tex.App.-Houston [1st Dist.] 2010, pet. ref'd). This standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 912, 927–28 (Tex.Crim.App.2010). Under this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact-finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009). We can hold evidence to be insufficient under the Jackson standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 320, 99 S.Ct. at 2786, 2789. The sufficiency-of-the-evidence standard gives full play to the responsibility of the fact-finder to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). An appellate court presumes the fact-finder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that resolution is rational. See Jackson, 443 U.S. at 326, 99 S.Ct. at 2793.

B. Evidence of Felony Murder

Three medical experts opined that K.P.'s injuries could not have been caused by a short or accidental fall. Dr. Ezekiel Salinas, K.P.'s treating physician, described the injuries as the result of a “violent force” and consistent with her hitting, being hit with, or being pushed into a blunt object. He stated that the fracture on the side of her head was significant enough that she would not have been conscious for very long after the injury. He also testified that Bearnth's story about K.P. falling in the backyard was inconsistent with K.P.'s injuries; she had a black eye but no scrapes or abrasions.

Dr. Kathryn Haden–Pinneri performed the autopsy on K.P. She determined that the injury to the side of K.P.'s head caused her death. She also testified that the severity of K.P.'s skull fracture was inconsistent with a three-foot-tall child standing in the bathtub and falling, or sitting on the toilet and falling, because there was not enough force from that height to cause such a fracture. Dr. Haden–Pinneri did not believe K.P. slipped on the wet bathroom floor because the doctor observed bruises covering K.P.'s entire body, instead of significant bruising on only one side. She counted 72 bruises on K.P.'s body and testified that a short fall would not cause that degree of bruising. She agreed with Dr. Salinas that Bearnth's story about K.P. falling in the backyard did not explain K.P.'s black eye and that a particular bruise on K.P.'s hip was unlikely to have been caused by an accident. According to Dr. Haden–Pinneri, the fracture to the back of K.P.'s head appeared to be healing and therefore was older than the injury to the side of her head. Based on her findings, Dr. Haden–Pinneri determined that the manner of K.P.'s death was homicide as a result of blunt force trauma to the head.

Dr. Haden–Pinneri consulted with a forensic anthropologist regarding K.P.'s injuries. Dr. Jennifer Love, who specializes in the study of bones and fractures, testified that the fracture to the back of K.P.'s head occurred one or two weeks before the fracture to the side of her head. She disagreed that the fracture to the side of K.P.'s head was accidental. She testified that the injury was caused by the skull hitting a blunt object with a “significant force greater than [a] typical fall,” regardless of whether the object was swung or K.P. was pushed into the object. Finally, Dr. Love testified that three “red flags” for child abuse were all present with K.P.—the location of the fracture, the type of fracture, and the number of fractures.

In addition to the testimony of the State's medical experts, the jury heard testimony regarding K.P.'s physical state from various eyewitnesses. Several paramedics testified to the number of bruises on K.P.'s body, that some appeared to be partially healed, that the bruises did not appear to be the “usual kid-falling bruises,” and that they were not accompanied by the scraped and bruised knees common with a child who frequently falls. Two paramedics testified that some of the bruises on K.P.'s back and legs resembled handprints and that the bruises around...