Berry v. State

• Decision Date: 23 May 2007
• Docket Number: No. AP-74,913.,AP-74,913.
• Citation: 233 S.W.3d 847
• Parties: Kenisha Eronda BERRY, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

233 S.W.3d 847

Kenisha Eronda BERRY, Appellant, v. The STATE of Texas.

No. AP-74,913.

Court of Criminal Appeals of Texas.

May 23, 2007.

Rehearing Denied September 26, 2007.

Douglas M. Barlow, David W. Barlow, Beaumont, for Appellant.

Rodney D. Conerly, Assistant Criminal District Atty., Beaumont, Matthew Paul, State's Atty., Austin, for State.

OPINION

JOHNSON, J., delivered the opinion of the Court in which PRICE, WOMACK, HOLCOMB, and COCHRAN, JJ., joined.

Appellant was convicted in February 2004, of capital murder. TEX. PENAL CODE § 19.03(a). Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b), (e), the trial judge sentenced appellant to death. Art. 37.071, § 2(g).¹ Direct appeal to this Court is automatic. Art. 37.071, § 2(h). We have reviewed appellant's nine points of error. We affirm the trial court's judgment, but reform the sentence to life imprisonment.

STATEMENT OF FACTS

Appellant was indicted for the murder of an individual under six years of age. The evidence at trial showed that in the early morning hours of November 29, 1998, Roy Black discovered the victim's body while he and his wife, Ima, were looking for aluminum cans in a dumpster at an apartment complex in Beaumont, Texas. Roy found the deceased male infant inside a trash bag with duct tape over his mouth. His arms were secured across his chest with duct tape and there was fecal matter inside the trash bag. Ima alerted the police and named the infant "Baby Hope."

The case remained unsolved until the summer of 2003, when Debbie Beavers of the Jefferson County Sheriff's Department was investigating another case involving appellant. During the course of the investigation, appellant took Beavers to the dumpster where Baby Hope had been found. Beavers brought this to the attention of Beaumont police officer John Boles, who had appellant's fingerprints compared to those found on the duct tape and trash bag. A latent palm print on the trash bag matched appellant's right palm. A latent fingerprint on a piece of duct tape matched appellant's left index finger. DNA testing of the victim's blood and appellant's oral swabs indicated a 99.98% probability that appellant was the mother of the victim.

On June 27, 2003, Child Protective Services (CPS) worker Tracy Rideaux met with appellant, who was in jail on another charge. At that time, appellant had an infant daughter named Paris, who was in the care of CPS. She also had a nine-year-old daughter named Jasmine, a seven-year-old daughter named Keerstan, and a three-year-old son named Joskin. Rideaux testified that appellant's infant daughter was fathered by a man named Leonard Carrier and her three older children were fathered by a man named Joskin Love. At the first jail meeting, Rideaux and appellant discussed the removal of Jasmine, Keerstan, and Joskin, and the potential for a family placement. Rideaux met with appellant in jail again on July 10, 2003, after appellant had been charged with capital murder in the death of her son Malachi, known to authorities as Baby Hope. Rideaux asked appellant if her family knew anything about Malachi or other hidden pregnancies, because their knowledge would affect the placement of appellant's children. Appellant told Rideaux that "she knew how to hide a pregnancy" and her weight fluctuated a lot. She stated that "her family had absolutely nothing to do with Baby Hope or what was going on." She revealed that she gave birth to Malachi at home in her apartment, that it was an "easy delivery," and that he was "fine" when he was born. She went to the store and purchased a bottle and some formula after his birth. Her other children were with a relative at the time of his birth, and when the children returned home, she explained that "she was keeping a friend's baby." She did not give Rideaux any details about the duct tape other than acknowledging that she had duct tape "lying around the house." She did not confess that she killed Malachi, but stated that she borrowed her grandmother's car, placed the infant, "which was already inside the trash bag," in the trunk, and transported him to a dumpster without anyone's knowledge. She stated that "the baby was not kicking or moving" when she put him in the dumpster.

Appellant testified at trial that she did not kill her baby. She knew that she was pregnant in 1998, but she did not know how far along she was in her pregnancy. The father of the baby was a man named Nicholas Beard. She did not tell her family or anyone else about her pregnancy. She gave birth at home by herself and named the infant Malachi. He appeared to be healthy when he was born, and she fed him milk from a bottle. His nose started running the next day, and she went to the store that morning to buy milk. When she returned from the store, he was still asleep on the bed in her bedroom. She lay on the couch to watch television and later checked on him because she was concerned that he had not yet awakened. When she went into the bedroom, he was "limp" and was not moving or breathing. She realized that he was dead, but did not call for help because she was "scared" and did not know "if it was against the law to have a baby at home." She put duct tape over his arms because they were stiff and sticking out and she "wanted them in front of him." She put duct tape over his mouth because it bothered her that his mouth was open. She left her apartment with Malachi in a bag and later placed him in a dumpster.

The prosecutor questioned appellant on cross-examination regarding her infant daughter Paris. Appellant acknowledged that she hid her pregnancy with Paris, but avoided answering the prosecutor's questions about whether she had abandoned Paris on the side of a road.

Forensic pathologist Tommy Brown had performed the autopsy on Baby Hope and estimated that he was two to five days old. Duct tape had been used to cover his mouth and to constrain his arms around his abdomen, and he had been placed inside a plastic trash bag. His stomach contained a "milk-like product," which indicated that he had been fed before death, and there was fecal matter inside the plastic trash bag. He had "petechiae of the pleural surfaces of the lung," which was consistent with oxygen deprivation. The combination of being duct taped and covered with a plastic trash bag was also consistent with oxygen deprivation. Brown observed no indications of an infection or sudden-infant-death syndrome. He determined that the infant "died from asphyxia due to smothering," and he ruled the death a homicide. Brown opined that the infant was still alive when he was placed in the plastic trash bag, and "as the baby died, then there was a large release of fecal material from the rectum." The lividity on the anterior and posterior sides of the body led him to conclude that the infant was lying on his stomach when he died and that after he was discovered he was turned over and placed on his back for a short period of time.

Defense expert Stephen Pustilnik, a forensic pathologist, testified that he reviewed Brown's autopsy report and the photographs and microscopic slides that were taken at the autopsy. He observed "multiple areas of meconium² aspiration" in the microscopic slides of the victim's lungs, and he criticized Brown for failing to include an assessment of the microscopic slides in his autopsy report. He believed that the infant released meconium from his bowels while experiencing fetal distress prior to birth, which later caused "a significant pneumonia enough to explain this child being very sick and sick enough to die." He also observed petechiae on the surface of the infant's lungs, but stated this was a "nonspecific finding" that "should never be used as proof of anything." He testified that the duct tape on the infant's mouth would not necessarily cause asphyxia because most babies are "obliga[te] nose breathers." However, he acknowledged that the plastic trash bag could have caused asphyxia. He did not think that the fecal matter inside the plastic trash bag was indicative of the time of death because defecation could have occurred either at or after the time of death, nor did he think that the infant was struggling in the bag when the fecal matter was released from his rectum because the feces was confined to his buttocks, lower back, and "the back of the foot that was resting in it because the knee was flexed up and the foot was in the feces." He disputed that the lividity on the body necessarily indicated that the infant died on its stomach because "[t]here are always exceptions to this rule." Pustilnik could not specifically conclude what caused the death of the infant. He acknowledged the possibility of homicide and asphyxia, but testified that the "child could have died naturally prior to being placed in the bag with the tape on it." He had "two good guesses" as to why the infant died: "One is natural, one is homicide." He testified that "it's just as likely that this child died of a natural cause as it is that it died of a homicide."

Defense expert Carl Hunt, a medical doctor specializing in pediatrics and neonatology, testified that he reviewed the autopsy report and accompanying photographs. He testified that the duct tape on the victim's mouth "would not be suffocating to this infant" because "young infants prefer to breathe through their noses." He believed that the fecal material inside the plastic trash bag was insignificant because "the release of fecal material could have occurred at any time." He agreed that petechiae on the infant's lungs could have developed due to oxygen deprivation, but stated that petechiae are "not proof of any particular mode of death" and are "very common in autopsies of young infants who die in unexplained situations." Hunt "could not reach a conclusion as to how or why this baby died" until he spoke to Pustilnik, who informed him that he had discovered the presence of...