Duren v. State

• Decision Date: 14 August 2002
• Docket Number: No. 06-01-00122-CR.,06-01-00122-CR.
• Parties: Todd Michael DUREN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

87 S.W.3d 719

Todd Michael DUREN, Appellant, v. The STATE of Texas, Appellee.

No. 06-01-00122-CR.

Court of Appeals of Texas, Texarkana.

Submitted July 16, 2002.

Decided August 14, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William D. Schubert, Crisp, Boyd & Poff, LLP, Texarkana, for appellant.

Nicole Habersang, Asst. Dist. Atty., Texarkana, for appellee.

Before MORRISS, C.J., GRANT and ROSS, JJ.

OPINION

Opinion by Justice GRANT.

Todd Michael Duren appeals his conviction and mandatory life sentence for capital murder of a child. He was convicted of knowingly causing the death of Damon Chamless, a child under the age of six, by inflicting severe blunt trauma to the child's head.

Duren contends that the evidence was legally and factually insufficient to support the jury's verdict, that the trial court erred in admitting evidence of a prior extraneous offense, that his sentence violates the Eighth Amendment to the United States Constitution, and that he received ineffective assistance of counsel.

The following facts are uncontested and supported by testimony. At the time of the incident, Duren lived with his girlfriend, Michelle Chamless, and her two young children, three-year-old Damon and ten-month-old Kaitlin. On February 14, 2000, Duren was watching the children at home after having taken Michelle to work. Duren called Michelle at work, telling her she needed to go to the hospital because Damon had hurt himself falling off his bunk bed, the same story he told to the 9-1-1 operator, the fire chiefs who responded to the 9-1-1 call, and the criminal investigator who later interviewed Duren at his home. The first fire chief to arrive on the scene found Damon facedown on the kitchen's hard floor, unconscious and not breathing properly. Suspecting child abuse, the chief contacted the sheriff's department.

Damon was taken to the hospital in Texarkana and then transported to a hospital in Little Rock, where neurosurgeons performed an emergency craniotomy. Damon had sustained a severe trauma force to the head and had multiple external bruises on his body, consistent with impacting a hard surface and being forcefully grabbed. Damon suffered brain death and died the next day from the blunt force head trauma.

Facts regarding how the injury was inflicted are in dispute. At trial, Duren testified Damon was injured while Damon and he were wrestling. Duren imitated a wrestling move he had seen on television on Damon, aiming for a padded chair, but he dropped Damon, causing Damon's head to strike the floor instead. Duren testified Damon started to get up, but then collapsed unconscious, at which time Duren began to shake him to rouse him, to no avail. Duren testified he often "hung out" with Damon and watched wrestling on television, and the two would engage in their own wrestling matches. The State called several expert witnesses who suggested that due to the extent of the injuries, Damon's injuries could not have been caused by playful rough housing, being tossed from a few feet up in the air, or from falling from an insignificant height, because tremendous force was required.

Legal Sufficiency of the Evidence

Duren contends the evidence was legally insufficient to prove the mens rea element of capital murder of a child. Because Duren claims the evidence is insufficient to prove the elements of the offense, he is asserting his federal constitutional due process rights. Such claims are reviewed by measuring evidentiary sufficiency against the "substantive elements of the criminal offense as defined by state law." See Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002).

In conducting a legal sufficiency review, we view the evidence in the light most favorable to the prosecution and ask if any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). Because in a jury trial the jury serves as the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, the jury is free to accept or reject any or all of any witness's testimony and reconcile any conflicts in the evidence. Id. In reviewing the evidence for legal sufficiency, the court must presume the trier of fact resolved any conflicting inferences in favor of the prosecution and must defer to that resolution. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). The fact-finder may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence and may infer knowledge or intent from the acts, words, and conduct of the accused. See Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim.App.1999) (Meyers, J. concurring); Wawrykow v. State, 866 S.W2d 87, 88-89 (Tex.App.-Beaumont 1993, pet. refd).

The capital murder of a child statute provides that an offender who intentionally or knowingly causes the death of an individual shall bear the risk of a capital murder conviction if the victim is under six years of age. See TEX. PEN.CODE ANN §§ 19.02(b)(1) & 19.03(a)(8) (Vernon 1994). Under the indictment and jury charge of this case, the facts required to support Duren's conviction for capital murder of a child are on February 14, 2000, Todd Michael Duren knowingly caused the death of an individual, Damon Chamless, under six years of age, by inflicting trauma to the head of the victim. See id. Duren admitted causing Damon's injuries. Both Duren and the State agree that the only element in dispute is whether Duren acted knowingly when he inflicted the trauma to Damon's head. The facts regarding how Duren inflicted the injuries, what physically took place, are also in dispute.

Under the Penal Code, "[a] person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result." TEX. PEN.CODE ANN. § 6.03(b) (Vernon 1994). Mental culpability generally must be inferred from circumstances of the act. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App.1991). The requisite mental state to commit capital murder can be inferred from acts, words, and conduct of an accused, as well as from any facts in evidence which, to the jurors' minds, prove the existence of knowing conduct or an intent to kill. Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App.1995). A defendant's mental state may be inferred from the extent of injury and the relative size and strength of the parties. Id.

The jury heard testimony indicating that Duren had told conflicting stories regarding how Damon's injuries occurred. The jury heard testimony that Duren knew a child must wear a helmet while riding a bicycle. The jury heard testimony regarding the height and weight disparity between Duren (6', 175 lbs.) and Damon (3' 4½" 37 lbs.). The jury also heard the testimony of the fire chiefs responding to Duren's 9-1-1 call that Damon was found facedown in the kitchen, that Duren was slow in providing answers to their repeated questions regarding how the injuries occurred, that they found the circumstances around Damon's injuries a little strange, thought the incident needed to be investigated, and suspected child abuse.

The jury heard Duren's testimony that he was capable of losing his temper, that he had argued with Michelle Chamless, she had slapped him and he had slapped her back, and that before wrestling with Damon, Duren had talked with Michelle on the telephone and they had a disagreement. The jury also heard Duren testify that he did not know it would be wrong for anybody to take a child's head and strike it with great force on any object, but that it would be wrong to throw a baby.

Dr. Charles James, a radiologist, testified that he had frequently seen injuries like Damon's and that the injuries were not caused by a mild bump, but by a severe trauma force to the head, either a severe direct blow or severe shake, such as he had seen in severe car wrecks, or a patient thrown from or kicked in the head by a horse. Dr. James said that injuries such as Damon's could occur from being thrown high up into the air and landing on a concrete surface, but that it would be very unlikely such injuries could be sustained from being thrown in the air inside a house with eight-foot ceilings and landing on carpet. He said he has seen children playing, roughhousing, and tumbling, and it is uncommon to see this degree of injury from those instances.

Dr. Mark Linskey, a neurosurgeon who treated Damon, testified that the constellation of Damon's injuries was not consistent with a fall from a small height or exuberant roughhousing, but rather was the kind of injury he had seen in highspeed automobile accidents, a fall from a height of several stories, or in children who had been shaken or who had suffered blows to the head combined with shaking. Dr. Linskey testified the constellation of injuries could not all result from a fall combined with resuscitative shaking. However, he agreed it would be possible, although highly unlikely, that tossing a child in the air and the child landing on a very hard surface could cause hematomas as severe as Damon's, if you threw the child into the air hard enough and the child landed directly on his or her head. Although he agreed the retinal hemorrhages could have been produced by an effort to resuscitate, he emphasized one would have to be imparting a very severe force, or over-vigorously shaking another, because "[t]his is not something that, `Honey, Honey, are you awake,' will cause." Dr. Linskey said the fall and subsequent shaking would not account for the multiple bruises of multiple ages on the body.

Dr. Jennie Duval, the medical examiner who performed the autopsy on Damon's body, testified there were recent and contemporary bruises on the back and left side of the head, the...