Harrison v. State, No. 10-04-00155-CR (TX 10/19/2005)
| Decision Date | 19 October 2005 |
| Docket Number | No. 10-04-00155-CR.,10-04-00155-CR. |
| Parties | RICKEY LYNN HARRISON, SR., Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
Appeal from the 54th District Court, McLennan County, Texas, Trial Court No. 2003-993-C.
Reversed and Remanded.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY dissenting).
ON PETITIONS FOR DISCRETIONARY REVIEW1
As authorized by Rule 50 of the Rules of Appellate Procedure, we issue this modified opinion within thirty days after the State and Appellant filed petitions for discretionary review. TEX. R. APP. P. 50. We are persuaded by some aspects of both petitions.
Rickey Lynn Harrison was charged by indictment with murder and with injury to a child. A jury found him guilty of the lesser offense of manslaughter and the offense of injury to a child. The jury also found that Harrison used a deadly weapon in the commission of the offenses. The jury assessed punishment at fifteen-years' confinement for manslaughter and twenty-years' confinement for injury to a child.
Harrison was tried for murdering and causing serious bodily injury to his eight-month-old son. The baby lived with the baby's mother, grandmother, and his mother's brothers and sisters. The baby's mother testified that Harrison stayed at the house the night before the baby died. She had put the baby to bed in her room with Harrison while she took a shower. While she was showering, she heard the baby crying. When she returned to her room, the baby was having a hard time breathing and looked sleepy. A few minutes later, the baby vomited. The baby threw up twice more and also fell out of the bed during the night.
The following morning, the grandmother took the mother to school. The grandmother and one of the mother's brothers were taking the baby to the doctor when the baby stopped breathing. They stopped at a police station, and an officer attempted CPR on the baby. The baby was taken to a hospital.
A forensic pathologist testified that the baby died of blunt force trauma to the abdomen. He testified that the baby had many older injuries and bruises in addition to the trauma that resulted in his death. He estimated that the fatal injuries occurred within fourteen hours before the baby died. He said that after receiving this kind of injury, a baby would likely cry, have breathing difficulties, vomit, and appear sleepy.
Harrison did not testify. A statement made by Harrison to police was admitted into evidence. In the statement, Harrison states that he and his son would "play-fight" and that Harrison would "softly hit him" in the body. The officer who took the statement testified that Harrison told him that he could have hit the baby too hard. A different officer testified that in the course of being taken to jail, Harrison mumbled "I killed him" under his breath.
After booking Harrison, that officer said to Harrison, "Now you confessed to having killed your son, didn't you?" Harrison responded, Two child witnesses for the defense testified that the baby's mother's youngest sister told them that she had killed her nephew.
Harrison brings five issues on appeal: (1) the trial court erred in allowing the State, during guilt-innocence, to ask questions about Harrison's prior assault convictions; (2) the trial court erred in entering the deadly-weapon finding because the State failed to give proper notice of its intent to seek a deadly-weapon finding; (3) the evidence was factually and legally insufficient to support a deadly-weapon finding; (4) the evidence was factually and legally insufficient to prove that the manner and means of inflicting the injury was unknown to the grand jury; and (5) the evidence was factually and legally insufficient to support both counts because of inconsistent findings.
We will reverse the judgment and remand the case to the trial court.
Harrison's second issue argues that he did not receive adequate notice of the State's intent to seek a deadly-deadly "fied defendant was "he deadly-weapon finding and affirm.theweapon finding. The State responds that the indictment placed the defendant on notice because it charged Harrison with "an act clearly dangerous to human life, to-wit: striking [victim] about the body with a blunt object unknown to the grand jury, that caused the death of [victim]."
A defendant is entitled to notice that the State will seek an affirmative finding that a deadly weapon was used during the commission of the offense. Ex parte Brooks, 847 S.W.2d 247, 248 (Tex. Crim. App. 1993); see Grettenburg v. State, 790 S.W.2d 613, 614 (Tex. Crim. App. 1990) (). An allegation in the indictment that a weapon or object caused death or serious bodily injury is sufficient notice for a deadly weapon finding. Ex parte Beck, 769 S.W.2d 525, 526-27 (Tex. Crim. App. 1989).
Even if the object is not identified, a factfinder may affirmatively find that a deadly weapon was used. See Gordon v. State, 2005 WL 2158824 at *2 (); Regan v. State, 7 S.W.3d 813, 819-20 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd); Stanul v. State, 870 S.W.2d 329, 333 n.3 (Tex. App.-Austin 1994, pet. ref'd); Mixon v. State, 781 S.W.2d 345, 346-47 (Tex. App.-Houston [14th Dist.] 1989, aff'd, 804 S.W.2d 107, 108 (Tex. Crim. App. 1991) (). A deadly weapon can be "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." TEX. PEN. CODE § 1.07(a)(17)(B) (Vernon 2003). The deadly character of a weapon may be shown by the character of the wound inflicted. See Mixon, 781 S.W.2d at 347. Objects that are not deadly weapons per se become so only upon evidence on the manner in which they are used. Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983).
In this case, the indictment provided sufficient notice to Harrison of the State's intent to seek a deadly-weapon finding. Id. We overrule Harrison's second issue.
His third issue asserts that the evidence is legally and factually insufficient to support the jury's deadly weapon finding. Pointing to the autopsy report's finding that the cause of death was "blunt force injuries," Harrison claims that the evidence is insufficient to show that the cause of death was inflicted by any object and that the baby could have been injured by contacting the ground, a floor, or some other item not considered a deadly weapon.
We apply the established standards of review for legal and factual sufficiency on this issue. See Gordon, 2005 WL 2158824 at *1. When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The standard is the same for both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).
We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of the fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Instead, our duty is to determine if the findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); Matson, 819 S.W.2d at 843.
In a factual-sufficiency review, we view all of the evidence in a neutral light and consider only whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). However, there are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Id.
Zuniga also reminds us that we must defer to the jury's determination. See id. at 481. (citing Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)). The jury determines the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001). The evidence is not factually insufficient merely because the factfinder resolved conflicting views of evidence in favor of the State. Ca...
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