Johnson v. State
| Decision Date | 05 April 1984 |
| Docket Number | No. C14-83-495CR,C14-83-495CR |
| Citation | 681 S.W.2d 648 |
| Parties | Ricky Ricardo JOHNSON, Appellant, v. The STATE of Texas, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Randy Schaffer, Houston, for appellant.
James Brough, Houston, for appellee.
Before JUNELL, MURPHY and SEARS, JJ.
This appeal is from a conviction of injury to a child pursuant to TEX.PENAL CODE ANN. § 22.04 (Vernon Supp.1982-1983). Appellant pled not guilty. The jury found him guilty, and the court assessed punishment at thirty-five years' confinement in the Texas Department of Corrections. We affirm.
Appellant lived in a two-bedroom apartment with Betty Rose Bankhead and her three minor children, one of whom was the victim, five-year-old Lakeasha Bankhead.
On January 20, 1983, Ms. Bankhead went to the home of a Reverend Ivory to collect money due her. She left her children in appellant's care and in good health.
Ms. Bankhead did not return until about 2:15 a.m. the next morning, January 21, 1983. Appellant admitted that he had whipped Lakeasha because she had urinated in the bed. Ms. Bankhead checked on Lakeasha, who was in bed, but did not awaken the sleeping child. About thirty minutes later the child, crying softly, came to her mother's bedside. She told Ms. Bankhead she could not keep her eyes open. Ms. Bankhead got up and noticed Lakeasha's eyes were swollen, and her left eye was red. While appellant was asleep Lakeasha confided to her mother that appellant had whipped her.
Lakeasha's brother Cleshaun testified that appellant had not actually whipped Lakeasha in the usual manner but had forced the girl to make her hands into fists and hold them in front of her eyes. He then hit his hand "real hard" against her fists, thus causing her to strike her own eyes. Crying, she fell down. Appellant made her shut up, get up, and sit on his lap. He then pushed her down again.
About 6:00 p.m. that evening appellant, Ms. Bankhead, the three children, and a friend, Karella Davis, left to walk to a surprise birthday party. Appellant and the children arrived at the party a few minutes ahead of Ms. Bankhead and Davis. One of Lakeasha's front teeth had been knocked out. Cleshaun testified that appellant had pushed Lakeasha down during the walk, causing her tooth to come out.
About an hour later Ms. Bankhead and appellant argued about his whipping the children. Appellant then struck Ms. Bankhead. A little after midnight Ms. Bankhead discovered appellant, who was again infuriated with Lakeasha's bedwetting, whipping the nude girl with a wide belt. Around 3:00 a.m. January 22, 1983, Ms. Bankhead, while checking on her children, realized that Lakeasha was limp and would not awaken. The child was rushed by ambulance to Hermann Hospital. She never regained consciousness and was pronounced dead the evening of January 22, 1983.
Appellant urges five grounds of error. In ground of error one he contends that the evidence was insufficient to establish that he caused serious bodily injury to the child by hitting her with his hands. By means of a rather convoluted process of reasoning, appellant seems to be suggesting that because his hand did not touch her face, he was not guilty of causing serious bodily injury.
However, according to the testimony of Dr. Aurelio Espinola, Lakeasha's death resulted from a subdural hemotoma. Even though Lakeasha's condition was complicated by pneumonia, Dr. Espinola stated that, in his best opinion, Lakeasha would have died even without having contracted pneumonia.
TEX.PENAL CODE ANN. § 22.04 (Vernon Supp.1982-1983) indicates that a person commits the offense of injury to a child "if he intentionally ... engages in conduct that causes to a child who is 14 years of age or younger ...:
(1) serious bodily injury;
(2) serious physical or mental deficiency or impairment;
(3) disfigurement or deformity; or
(4) bodily injury.
Testimony by Lakeasha's brother Cleshaun establishes that appellant intentionally forced Lakeasha to hold her fists before her eyes and then with his hand pounded her fists into her eyes. Doctor Espinola's testified that such an act could cause the subdural hematoma and Lakeasha's resulting death. We hold that the evidence was sufficient to prove that appellant intentionally caused serious bodily injury, and we overrule appellant's first ground of error.
In his second ground of error appellant argues that the trial court committed reversible error by permitting the state to impeach its own witness despite the absence of any evidence establishing surprise on the state's part or injury to its case. The witness in question was Ms. Bankhead, the child's mother. When first asked if appellant had ever told her he had slapped or hit Lakeasha in the face, Ms. Bankhead replied, "No, he didn't." The prosecutor then produced State's Exhibit 10, a statement Ms. Bankhead had previously given to the Houston Police Department. After reading the statement to refresh her recollection, Ms. Bankhead was asked, "Did Ricky tell you anything about the location or where on Lakeasha he had hit her?" She responded, "On the face." We do not view the above as a situation of impeachment but rather one of refreshing the memory. See Morgan v. State, 491 S.W.2d 903 (Tex.Crim.App.1973).
The Morgan case involved a complaint, in a robbery by assault case, that the state had been permitted to impeach one of its witnesses, a Billie Jean Mitchell, by improperly using her prior affidavit. Duri...
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