Jackson v. State

• Decision Date: 17 March 1976
• Docket Number: No. 50911,50911
• Citation: 552 S.W.2d 798
• Parties: David Richard JACKSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 798

552 S.W.2d 798

David Richard JACKSON, Appellant, v. The STATE of Texas, Appellee.

No. 50911.

Court of Criminal Appeals of Texas.

March 17, 1976.

On Rehearing June 22, 1977.

Second Rehearing Denied July 13, 1977.

Charles D. Butts, San Antonio, for appellant.

Ted Butler, Dist. Atty., Charles T. Conaway, Lucien B. Campbell and Susan Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction of voluntary manslaughter. The jury assessed punishment at fifteen years.

Connie Lee Jones, the two-year-old stepdaughter of appellant, was killed. The main witness for the State was Mary Frances Kusenberger who was the mother of the child and wife of appellant at the time of the homicide. Hereafter she will be referred to as Mary Frances. The appellant contends that the court unduly limited cross-examination of Mary Frances and refused to admit testimony to impeach her credibility.

Mary Frances testified that on April 30, 1973, she married appellant. Her two daughters, Lola Jean Jones, age four, and Connie Lee Jones, age two, lived with them. Appellant supported the family from an insurance settlement for a work-related injury.

On January 5, 1974, the family was staying at the home of appellant's brother. Late that day the appellant borrowed his father's gun and took his family deer hunting. After shooting a deer, they returned to his brother's to dress the meat. His brother's family was not home at this time. The appellant became angry with Connie Lee for wetting her pants in the car. Because of this he made her stand behind a closet door. He also became angry with Lola Jean for playing with some toys she had been told not to touch. He made her stand behind another door.

While the appellant was dressing the deer in the bathroom, Connie, whom the appellant had told to hold her hands behind her back, had let her hands fall to her side. Seeing this he slammed the door against Connie. The child wet her pants again and this infuriated appellant. He then grabbed Connie and took her into the living room. He sat on the couch and threw the child on the floor. He then took off his shoe and threw it at her and hit her in the head. He then removed his belt and hit Connie between the legs, on her stomach and about the arms. Mary Frances testified that she tried to run out and get help but that the appellant prevented her from leaving the house or protecting her child. Following this beating Connie became unconscious. From then (January 5) until her death on January 9, 1974, Connie Lee could not use her left arm or leg, could no longer talk and could not hold down food or liquids. He refused to take her to a hospital because he did not want to have to answer any questions about her condition.

From the fifth to the ninth of January, the family drove from bar to bar and stayed in cheap motels. Mary Frances testified that she tried to get Connie to eat or drink but was unsuccessful. She said that she was unable to go for help because the appellant was with her continually. She also testified that she was afraid of the appellant and that she had many bruises on her body from his mistreatment of her.

Finally on the night of January 9th, thinking Connie was dead or near death, the appellant consented to take her to the hospital. At that time the appellant told his brother that Connie had fallen out of a truck and was injured. The appellant gave the same explanation to the attending doctor who had announced Connie Lee dead on arrival at the hospital. He also gave this explanation to the investigating officer who spoke with him at the hospital.

According to the pathologist who performed the autopsy on the body of Connie Lee Jones, the child died as a result of injuries to the head caused by multiple blows to the face and head. The doctor testified that the bruises on the deceased's body ranged in age from one to three weeks. On cross-examination the doctor stated that it was possible that the child could have died from a severe blow to the head inflicted as early as the latter part of November of 1973.

Mary Frances stated that the appellant had not mistreated the children until around December 1, 1973 when his insurance money ran short. She also testified that around December 17th the appellant kicked Connie in the chin with his boot for leaving a cold shower where he had put her for punishment. This kick caused a deep gash in Connie's chin. This gash was still prominent at the time of her death.

Most of appellant's grounds of error concern the limitation placed on his cross-examination and attempted impeachment of Mary Frances' testimony. At first the trial court limited the cross-examination about her treatment of the children to the time period from December 1, 1973 to January 9, 1974. Mary Frances had testified that this period covered the time that the appellant had abused the children. Later, after the pathologist testified that the injuries leading to Connie's death could have occurred during the latter part of November, the trial court permitted the appellant to cross-examine her about incidents from the middle of November, 1973 to January 9, 1974.

In ground of error number one, appellant contends that this limitation placed on his cross-examination of Mary Frances was error. He testified that the child had died from the innumerable beatings inflicted upon her by Mary Frances. The appellant related that Mary Frances had not wanted to take the child to the hospital because she believed that Connie only had a virus. She told the appellant that she was nursing Connie with aspirin and was feeding her baby food. During the trial, Mary Frances denied ever beating her children. Counsel for appellant stated that he wanted to show her motive, bias and animus for testifying against the appellant. Through cross-examination and through the testimony of other witnesses, he also sought to establish his defensive theory that Mary Frances and not he had caused Connie Lee's death.

Wide latitude is given in showing the motive, bias and prejudice of a particular witness. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), and Jackson v. State, 482 S.W.2d 864 (Tex.Cr.App.1972). In this case, unlike Davis v. Alaska, supra, and Jackson v. State, supra, the appellant was able to introduce much testimony tending to show possible prejudice and motive on Mary Frances' part.

On cross-examination, the appellant asked Mary Frances whether the gash on Connie's chin had not come from being pushed into the car's ashtray by her sister or from being struck by Mary Frances with a hair spray can instead of a kick from the appellant's boot. This she denied as well as practically all of his other accusatory questions. The appellant inquired of her if bruises on the child's body came from a barroom brawl with another woman and not from the appellant. He asked Mary Frances if she hadn't placed Connie in their car dressed in only a diaper for long periods of time after her injury. Mary Frances was asked on cross-examination if two women had tried to stop her from beating her children outside of a tavern. She was questioned if she was ever in a restroom with another woman and asked the woman for money to buy whiskey but said nothing about her seriously ill child. Mary Frances was questioned why, as the mother of a badly injured child, she did not make more of an effort to tell someone that her husband was letting her child die. She replied that she was afraid of the appellant. The record shows that he was a large man. During cross-examination she was asked if a waitress had ever admonished her against beating her children and whether Lola Jean had ever beaten Connie with a flashlight. In an effort to find inconsistencies in her testimony, the appellant elicited from her once more why they finally decided to take Connie to the hospital and under what circumstances the appellant had kicked Connie in the chin with his boot. Mary Frances was asked if she did not demand, on January 6, 1974, that the appellant spank the unresponsive Connie and when he refused if she did not beat the child about the head with her fist. As shown by the above examples, the appellant was able to cross-examine Mary Frances extensively about her treatment of her child within the allotted time period. Her answers to these questions were not favorable to the appellant. We cannot say that the appellant was unduly hampered in his cross-examination by the time limitation set by the trial court. See grounds of error four, seven, eight, nine and ten, infra.

In his second ground of error appellant argues that he should have been allowed to cross-examine Mary Frances about an incident at the Aristocrat Apartments in late November, 1973. In the bill of exception developed on his point, Mary Frances was asked if she had not hit Connie Lee with a hair brush causing a bad bruise on the right side of her face. Mary Frances was also asked if during her stay at the Aristocrat Apartments the manager did not tell her that she would have to stop mistreating her children.

After the pathologist testified that the fatal wound could have occurred as early as November, the trial court enlarged the time period to include the incidents at the Aristocrat Apartments. When this evidence became admissible, the appellant did not offer it again by recalling Mary Frances. By not recalling the witness, the appellant waived any objection he might have had to the exclusion of her testimony. Johnson v. State, 527 S.W.2d 525 (Tex.Cr.App.1975).

In ground of error number four, the appellant complains of being limited in his proof, through the testimony of other witnesses, that Mary Frances mistreated her children. Particularly in grounds of error seven, eight, nine and ten he complains that he was not allowed to introduce testimony that Mary Frances...