Jones v. State, 3-84-200-CR

• Citation: 716 S.W.2d 142
• Decision Date: 13 August 1986
• Docket Number: No. 3-84-200-CR,3-84-200-CR
• Parties: Genene JONES, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 142

716 S.W.2d 142

Genene JONES, Appellant, v. The STATE of Texas, Appellee.

No. 3-84-200-CR.

Court of Appeals of Texas Austin.

Aug. 13, 1986.

Laura M. Little, Austin, for appellant.

Ronald L. Sutton, Dist. Atty., Junction, for appellee.

Before SHANNON, C.J., and EARL W. SMITH and GAMMAGE, JJ.

EARL W. SMITH, Justice.

Appellant was convicted, in a jury trial, of the offense of murder and sentenced to 99 years. She brings nine grounds of error: the trial court erred in denying the requested instruction on the lesser included offense of involuntary manslaughter; it erred in overruling appellant's motion to suppress results of tests performed on the The State sought to prove that appellant, a licensed vocational nurse (L.V.N.) employed as an office nurse by Dr. Kathleen Holland, a pediatrician who opened an office in Kerrville, Texas on August 23, 1982, murdered Chelsea McClellan by injecting her with succinylcholine chloride, a muscle relaxant similar in its effect to curare, inducing respiratory arrest and, eventually, death. The motive advanced by the State was that appellant sought to demonstrate the need for a pediatric intensive care unit at Sid Peterson Hospital in Kerrville by, over a one-month period, causing respiratory arrests in a total of six children by injecting them with succinylcholine.

body of the deceased; the evidence is insufficient to support a conviction because the State failed to prove that appellant committed an act clearly dangerous to human life; the evidence is insufficient to support a conviction because the State failed to prove the "corpus delecti" of the offense; and the court erred in admitting evidence of five extraneous transactions. We will overrule all of appellant's grounds of error and affirm the judgment of conviction.

The drug succinylcholine chloride (trade name Anectine, hereafter succinylcholine or Anectine) is a drug which is usually used in connection with surgery. It is a muscle relaxant and is used so that intubation tubes may be placed down the throat without causing damage to the trachea. Appellant had knowledge of the use and effects of the drug. The drug was kept in Dr. Holland's office. Appellant had purchased an additional vial of the drug without Dr. Holland's knowledge.

Chelsea McClellan's mother, Petti McClellan, took Chelsea to Dr. Holland's office on August 24, 1982 because she thought Chelsea had a cold. While the mother gave Chelsea's medical history to Dr. Holland, appellant took Chelsea to another room. Shortly thereafter, appellant called for Dr. Holland. Mrs. McClellan was told that Chelsea had suffered a seizure. Chelsea remained in Sid Peterson Hospital for eight days of follow-up treatment after the emergency. A later EEG gave normal results, with no indication of seizure activity.

Mrs. McClellan returned to the clinic on September 17, 1982, not for Chelsea but for her son Camron, who had the flu. When she arrived, Dr. Holland decided that Chelsea should receive routine "baby shots." Mrs. McClellan accompanied appellant and Chelsea to the other room, in which there were already two prepared syringes on the counter. Appellant gave Chelsea an injection in the left upper thigh. Mrs. McClellan testified that Chelsea was not breathing right and that her eyes looked abnormal. Appellant told her that Chelsea was just acting up and being mad because of the shot. Appellant gave Chelsea another shot in the upper right thigh, and then Chelsea "went limp" with her eyes open. Appellant said that Chelsea had had a "seizure" and called for Dr. Holland. Chelsea was transferred to Sid Peterson Hospital.

A physician in the emergency room, Dr. Richard Mason, testified that Chelsea did not show signs of seizure, but the signs that he observed were consistent with a person "coming out from under" succinylcholine.

Dr. Holland decided to transfer Chelsea to San Antonio. Appellant was to accompany Chelsea in the ambulance. Chelsea appeared to be stable before being placed in the ambulance. Deanna Armour, a family friend and baby-sitter for Chelsea, testified that she saw appellant give Chelsea another injection in the upper leg just before Chelsea was loaded in the ambulance. Appellant told her it was Valium. Sharon Keith, an R.N., testified that she had already administered Valium on Dr. Holland's orders.

When the ambulance left for San Antonio, appellant accompanied Chelsea in the ambulance. Dr. Holland followed in her car because riding in the closed portion of a vehicle such as the ambulance made her quite ill. About twelve miles outside of Kerrville, Chelsea again quit breathing. The ambulance stopped so that Dr. Holland could attempt to resuscitate Chelsea. They The first autopsy done on Chelsea by Dr. James Fletes of Severance & Associates, a group of pathologists in San Antonio, was inconclusive. No toxicological screen was done. He was unable to find a cause of death. Neither could his supervisor, Dr. Robert Galbreath, who requested a brain stem review by Dr. Kagen-Hallett, a neuropathologist (one who specializes in autopsying the brain).

then drove to the Comfort Community Hospital where Chelsea was pronounced dead.

Dr. Kagen-Hallet performed a review on the brain stem. She found what she reported as a "subtle gliosis" (scarring) in the brain stem area. Based on this and the medical records showing hyaline membrane disease, she initially arrived at a diagnosis of sudden infant death syndrome (SIDS). She later said that, even without the presence of succinylcholine, the more complete medical history that she later received would have ruled out SIDS.

Several other children had suffered seizures in Dr. Holland's office, while under appellant's care. These all occurred within the same one-month period. The hospital administration became concerned and at some point, the fact that a bottle of Anectine was unaccounted for became cause for concern. The missing bottle was later found, but it had unexplained holes in the stopper. Dr. Holland turned the bottle over to the hospital administrator.

In May of 1983, Dr. Galbreath provided Dr. Fredric Rieders with tissue samples that he had maintained. Chelsea's body was exhumed and additional samples taken. Dr. Rieders took these samples to the Karolinska Institute in Stockholm, Sweden, where he analyzed the tissue using a test developed by Dr. Bo Roland Holmstedt. The test used ion-pair extraction techniques (a way of separating small quantities of a substance from a large tissue sample) combined with gas chromatography mass spectrometry (GCMS), a method for separating and identifying substances. Dr. Rieders testified that his tests showed succinylcholine in Chelsea's tissue, with the highest concentration being in the thigh tissue. The original pathological findings were revised to reflect death due to the injection of succinylcholine.

Evidence was also introduced to show that five other children suffered similar incidents while under appellant's care and that these incidents were similar to the one involving Chelsea and to each other and were indicative of a common plan or scheme.

We will first discuss appellant's challenge to the admissibility of the test results showing succinylcholine (ground of error two). We will then discuss the other grounds of error in order.

The traditional standard governing the admissibility of scientific evidence produced by novel techniques was enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), in which the court considered the admissibility of lie detector evidence as a case of first impression. The Frye court, without explanation, analysis, or citation of authority, set out what was to become the prevailing test for the next half-century:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Id. at 1014. Frye thus imposed a special burden--the "general acceptance" test--on scientific evidence.

Frye has generated a great deal of controversy and criticism in recent years. See, e.g., Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a HalfCentury Later, 80 Colum.L.Rev. 1197 (1980); Imwinkelried, A New Era in the Evolution of Scientific Evidence, 23 Wm. & Mary L.Rev. 261 (1981); Imwinkelried, The Standard for Admitting Several arguments are usually advanced to support the use of the general acceptance test: that it establishes a method for insuring the reliability of scientific evidence; that it establishes a degree of uniformity of decision; that it eliminates hearings on the validity of scientific techniques; and that it insures that at least a "minimal reserve" of experts will be available to evaluate the technique's use in any given case. Giannelli, supra, at 1207; McCormick, supra, at 883.

Scientific Evidence: A Critique from the Perspective of Juror Psychology, 28 Villanova L.Rev. 554 (1982-83); McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 Iowa L.Rev. 879 (1982); Moenssens, Admissibility of Scientific Evidence--An Alternative to the Frye Rule, 25 Wm. & Mary L.Rev. 545 (1984).

The arguments against Frye are that it is extremely difficult to apply and that it does not really accomplish its goals because it is too vague. For example, the Frye test has been applied to a wide range of disparate evidence--united only by being classed as "scientific"--such as polygraphs, voiceprints, neutron activation analysis, gunshot residue tests, bitemark impressions, and "truth serum" tests. It has been applied when the scientific evidence...