Fletcher v. State
| Decision Date | 22 March 1993 |
| Docket Number | No. 05-92-00412-CR,05-92-00412-CR |
| Citation | 852 S.W.2d 271 |
| Parties | Cecil Lenard FLETCHER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
John Hagler, Robert M. Rose, Dallas, for appellant.
Susan L. Free, McKinney, for appellee.
Before THOMAS, MALONEY and KAPLAN 1, JJ.
Cecil Lenard Fletcher appeals his conviction for the offense of injury to a child. After returning a guilty verdict, the jury assessed punishment at four years' imprisonment, probated for four years. In three points of error, appellant complains that: (1) the evidence is insufficient to prove the offense as alleged in the indictment; (2) the State committed reversible error in referring to his post-arrest silence; and (3) the trial court erred in admitting testimony concerning the events that occurred at the time of his arrest. We overrule all points. Accordingly, we affirm the trial court's judgment.
The victim is appellant's granddaughter who was three months of age at the time of the offense. The infant was living with her parents and was being cared for by Kerri Gordon, the mother's sister, who also was residing with the family. Gordon related the facts and circumstances which formed the basis of this complaint. Gordon was watching television as the baby sat in an infant seat, 2 on the floor, by her side. Someone knocked on the door and Gordon went to see who was there. Leaving the security chain attached, Gordon opened the door. Appellant forced the door open, "busting" the security chain and damaging a substantial portion of the door's facing.
As appellant entered the apartment, he began yelling and asking the whereabouts of his son, Keith. 3 Appellant immediately raised his fist and began hitting Gordon. A struggle ensued. Appellant forced Gordon against a railing by the staircase. Gordon fell across a chair and ultimately landed on a bed. As appellant was holding her down, Gordon managed to shove him away with her foot.
As a result of this disturbance, the infant started crying. At this point, the baby was still sitting in the infant seat on the floor. After making additional derogatory comments about Keith, appellant walked over to the baby and kicked the back of the infant's seat. As a result of appellant's kick, the Velcro straps released and the baby was propelled forward. The infant fell to the floor where she landed on her face. Gordon grabbed the infant and ran out of the apartment.
The police and an ambulance were called. Gordon and the baby were treated at a local hospital. The baby suffered facial bruises, as well as contusions on her right leg and lower back. The medical testimony established that the injuries to the infant and Gordon were consistent with the events as reported by Gordon.
Appellant stated that he was upset and that he went to the apartment to talk to his son about a $5000 loan. Apparently, the loan was made by one of appellant's friends, without his knowledge. When Keith failed to repay the loan, the friend asked appellant to intercede on her behalf. According to appellant, he normally went by the apartment one to three times per week to see the baby. During the preceding few weeks, however, whenever appellant would go to the apartment, no one would answer the door. He said that he knew that they were inside because he could hear them. Appellant stated that the reason he was suddenly being denied access was because Keith discovered that he knew about the loan. On the day in question, he knocked and again no one answered. As he waited outside, appellant became more angry because he had arranged for the family to get into the apartment, and he was guaranteeing the rent. When the door was finally opened, he shoved his way through. Appellant admitted that he broke the security chain and damaged a portion of the door's molding. He stated that he immediately began yelling at Gordon and asked, "Where is that sorry S-B son of mine?" Appellant further admitted that he startled the baby and Gordon. According to appellant, Gordon immediately grabbed the baby and went out the door.
Appellant specifically denied that there was any type of altercation. Further, he stated that he loved his granddaughter and that he would never kick or hurt her in any manner. Appellant admitted, however, that he was very angry with Keith because this loan had not been repaid. Appellant characterized this as Keith having "stolen" $5000.
In the first point, appellant argues that there is insufficient evidence to support allegations in the indictment. Specifically, he asserts that the State failed to prove that he kicked the infant in the back.
In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). The trier of fact resolves questions concerning the credibility of witnesses and the weight to be given their testimony. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985). The jury may believe or disbelieve all or any part of a witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988); Smith v. State, 789 S.W.2d 419, 420 (Tex.App.--Houston [1st Dist.] 1990, pet. ref'd).
In relevant part, the indictment alleges that appellant:
intentionally and knowingly engage[d] in conduct that caused bodily injury to Corey Fletcher, a child younger than fifteen (15) years of age by kicking Corey Fletcher in the back causing Corey Fletcher's face to strike the floor....
(Emphasis added.) Appellant asserts that the evidence showing he kicked the infant's seat does not constitute evidence that he kicked the baby in the back as alleged in the indictment. We disagree.
The record contains ample evidence that the infant sustained a blow to her back. Gordon testified that appellant kicked the seat in which the baby was sitting. The medical testimony established that the baby had injuries which were consistent with being kicked in the back, including a bruise to her lower back. Further, the treating physician described a bruise on the infant's face that was also consistent with her having landed on her face as a result of being kicked in the back.
We cannot accept appellant's hyper-technical distinction between directly kicking a child in the back and kicking an infant's back through a cloth carrier. In fact, we fail to see any difference in this situation and in a child sustaining a blow through its clothing. Were we to accept appellant's contention that there was no offense because of the interposition of a layer of fabric, a variety of senseless results would follow. Compare with Resnick v. State, 574 S.W.2d 558, 560 (Tex.Crim.App. [Panel Op.] 1978) (touching through clothing in the context of sexual contact is an offense); Guia v. State, 723 S.W.2d 763, 766 (Tex.App.--Dallas 1986, pet. ref'd) (); see also Carroll v. State, 698 S.W.2d 278, 279 (Tex.App.--Fort Worth 1985, pet. ref'd) ().
We conclude that there was sufficient evidence from which the jury could have found that the essential elements of the offense were proven beyond a reasonable doubt. Accordingly, we overrule the first point of error.
In his second point of error, appellant contends that reversible error occurred as a result of a question and answer that referred to his post-arrest silence. Appellant's objection was sustained and, upon request, the trial court instructed the jury to disregard the line of questioning. Appellant, however, argues that the court's instruction to disregard was inadequate to cure the error. The State first responds that no error was committed. Alternatively, the State argues that any error was cured by the trial court's subsequent actions. Although we are not persuaded that the complained-of conduct constituted a reference to appellant's post-arrest silence, the trial court, out of an abundance of caution, sustained the objection and gave an instruction to disregard. Therefore, we will review this point as if there was an allusion to appellant's post-arrest silence.
Appellant's complaint arises out of the following colloquy:
Thereafter, the trial court denied the request for a mistrial. However, the trial court instructed the jury to disregard the the prosecutor's line of questioning.
In determining whether the trial court erred in denying the motion for mistrial, we...
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