Johnson v. State

• Decision Date: 20 June 1984
• Docket Number: No. 031-83,031-83
• Citation: 673 S.W.2d 190
• Parties: Karl D. JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 190

673 S.W.2d 190

Karl D. JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 031-83.

Court of Criminal Appeals of Texas En Banc.

June 20, 1984.

Mark C. Hall, Lubbock, for appellant.

Jim Bob Darnell, Dist. Atty. and Hollis M. Browning, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This is an appeal from a conviction for injury to a child, V.T.C.A., Penal Code, § 22.04(a)(1) and (b), as amended in 1979. ¹ Punishment was assessed by the jury at 20 years' imprisonment.

On appeal the conviction was affirmed by the Amarillo Court of Appeals in an unpublished per curiam opinion. Johnson v. State, No. 07-81-0196-CR, November 17, 1982.

Appellant filed his petition for discretionary review contending the Court of Appeals erred in holding the evidence sufficient to sustain the conviction. He contends there was not as a matter of law sufficient proof of the corpus delicti, that the evidence was insufficient to prove an intentional and knowingly perpetrated criminal act, and the Courts of Appeals erred in holding that evidence which merely negated that the death was the result of an accident was thus also sufficient to sustain his conviction. Appellant also urges the Court of Appeals erred in holding the trial court did not abuse its discretion in allowing Dr. Mires to testify as an expert and to express an opinion as to an ultimate fact issue. We granted discretionary review to determine the correctness of the Court of Appeals' decision.

Count two of the indictment ² upon the trial proceeded reads in pertinent part that

"... on or about the 2nd day of February, A.D. 1980, and anterior to the presentment of this indictment, in the County and State aforesaid, Karl Johnston, ³ did then and there intentionally and knowingly engage in conduct that caused serious bodily injury to Brandon Fansler, a child younger than 14 years of age, by then and there striking the said Brandon Fansler on the head, manner and means of which is unknown to the grand jurors...."

We shall trace the evidence as it was presented. The State initially called Dr. Eugene Stalnaker of the staff, Methodist Hospital, Lubbock. On February 2, 1980, he was called to the emergency room when 19-month-old Brandon Fansler was brought to the hospital about 11:40 a.m. The child was not breathing adequately and the doctor observed fresh ⁴ abrasions on the child's forehead and chin. He ordered x-rays and attempted to resuscitate the child. Fifty minutes after arrival (12:30 p.m.) the child was dead.

Dr. Cadman Chaffin, radiologist at the Methodist Hospital, examined the x-rays taken of the child and observed a linear fracture to the right rear skull. He testified the fracture could have caused death.

Bill Drewell, Lubbock County deputy sheriff, responded to a call and went to the Methodist Hospital on February 2, 1980. There he encountered the appellant, and in trying to determine what had happened, asked the appellant. The appellant stated he had his car jacked up to work on the muffler, that he went inside the trailer house to get some tools and when he came outside the car had fallen off the jack and the child was underneath the vehicle.

Dr. Jose Diaz-Esquivel, a forensic pathologist, performed the autopsy on the child. On reflecting the scalp the doctor observed a contusion to the right rear of the skull and an underlying hematoma. He described this injury as fresh, but no time frame for the occurrence of the injury was established. Dr. Diaz-Esquivel testified the cause of death was mid-brain hemorrhage, secondary to a subdural hematoma, secondary to fractured skull, secondary to trauma. Dr. Diaz-Esquivel stated, in his opinion, the injuries sustained by the child were not consistent with a car falling and striking the child. ⁵ When asked within reasonable medical probability what caused the trauma which resulted in the death, the doctor replied:

"A blow with a blunt surface--or with a surface or with a very blunt instrument. By 'very blunt' I mean almost flat surface because I did not find--it was not a curved surface, let's put it that away. It had to be sort of a flat surface."

District attorney investigator Steve Holmes testified that on February 5, 1980, he and Texas Ranger Jackie Peoples went to the trailer park where the incident supposedly occurred. They observed a 1971 Pontiac LeMans automobile parked at the trailer house in question. Later they obtained a search warrant and returned about 11:15 p.m. with an assistant district attorney. Later the district attorney and a deputy sheriff and others arrived. They found a car jack and jack stand near the car. The "tab" or "lip" of the jack was bent. Holmes stated Peoples or deputy Ernest Rector straightened out somewhat the "tab" on the jack, that they had a little trouble with it, but thereafter the car was jacked up, and it would not fall despite several of the men pushing on the rocking car. The car was hauled away by a wrecker service.

Ranger Peoples generally corroborated Holmes' testimony. He related they had found an old jack near the car that night, and the "tip" or "teat" was bent to the side "a half inch off vertical," but it was used without anyone bending it "back out straight" as he recalled. The car was pushed and rocked, but it did not come off the jack.

Deputy sheriff Rector testified he was present when a jack was found and that the "prong" was slightly bent to the right and that he did not bend the jack to straighten it; that the jack was used without difficulty. The car was pushed and rocked, but the jack did not slip or fall. Rector testified that he saw the car again at the yard of the Lubbock Wrecker Service where the car was jacked up by use of the same jack and that the jack would not slip or fall after the car was rocked. He did observe that underneath the car the muffler was disconnected from the tailpipe.

Captain Alton Hobbs of the sheriff's office testified that he was present with others at the trailer park on the night of February 5, 1980; that he saw the car in question jacked up and that he tried to push it off the jack and could not. He observed that the muffler was disconnected from the exhaust pipe. Hobbs did not find any blood, hair or dents indicating the car had fallen on anyone. ⁶

Raymond W. Mires, Professor of Physics at Texas Tech University, testified on February 7, 1980, he went to the trailer park with two deputies (Rector and Drewell) and observed the area there and then went to the Lubbock Wrecker Service where the car in question was located. He had the car jacked up and tried to dislodge it, and took numerous measurements. Based on his tests he expressed the conclusion the jack would not fall while the car was jacked up and the dimensions above ground level of the undercarriage of the car would not permit a child to move underneath the car. On cross-examination Mires admitted that if the undercarriage was raised a child could get his head underneath the undercarriage.

The appellant moved for an instructed verdict at the close of the State's case-in-chief at the guilt stage of the trial. Attention was called to the allegations of the indictment and the lack of proof to support the same; that the corpus delicti was not proven, etc. The motion was overruled.

Appellant called Ricky Sharp, who testified that in late January, 1980 he, Kevin Bacon and appellant were driving in Calvin Evans' Pontiac LeMans automatic when the car hit a snow clod and broke the muffler loose. Evans, an airman, testified that he loaned his Pontiac LeMans to the appellant in November, 1979, as he (Evans) was going to be on temporary duty in North Dakota. On January 28, 1980, he talked to appellant over the telephone and was told the car hit a pile of snow and that the muffler was broken loose from the tailpipe. Appellant told him he planned to repair the car himself the next Saturday. Evans stated the lip of his car jack was not bent when he went to North Dakota.

The Owner's Manual for the car was introduced. It cautioned the owner to use the jack only to change tires, and not to get under the car while the jack was in use.

Reverend J.F. Campbell, Carlisle Baptist Church, testified on February 2, 1980, he went to the nearby Town ad Country Mobile Home Park to call upon the appellant to urge him to come to church the next day. He estimated his arrival at 11:05 a.m. He related the appellant came to the door of the trailer, and in the course of the conversation told him that he (appellant) was putting a muffler on his car. Campbell saw a car in the yard jacked up at the time.

Danny Weatherford testified for the defense ⁷ that he lived two trailers away from the appellant, whose name he did not know on February 2, 1980. That morning he was waxing his car about 11:15 or 11:20 a.m. when appellant Johnson approached and asked his help saying his car had fallen on his baby. Weatherford rushed with appellant to the car and Weatherford observed the child, Brandon Fansler, under the car, his head under the tailpipe just past the mid-portion of the car. Appellant requested Weatherford to jack the car up. Weatherford grabbed the nearby car jack, but noticed it had a bent "clip" or "lip." He ran and got his jack and jacked the car up, and appellant removed the child from under the car. Weatherford observed the child had on a jacket with the hood over his head. He pushed back the hood and saw the child was breathing but had grass in its teeth. He lowered the jack, got in the back seat of the car with the child, and appellant drove to the hospital. He stated the car made a loud muffler noise which he had heard previously when appellant had driven into the trailer park.

Mary Gomez testified she was a fellow employee at Lee Optical with Rhonda Fansler; that on February 2, 1980, Rhonda arrived at work about 10 a.m.; that...