Loven v. State

• Decision Date: 30 April 1992
• Docket Number: No. 07-90-0206-CR,07-90-0206-CR
• Citation: 831 S.W.2d 387
• Parties: Linda Ann LOVEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 387

831 S.W.2d 387

Linda Ann LOVEN, Appellant, v. The STATE of Texas, Appellee.

No. 07-90-0206-CR.

Court of Appeals of Texas Amarillo.

April 30, 1992.

Greta Rapstine Crofford, Amarillo, for appellant.

Randall L. Sherrod, Criminal Dist. Atty., John L. Davis, Asst. Dist. Atty., Canyon, for appellee.

Before REYNOLDS, C.J., and DODSON and POFF, JJ.

POFF, Justice.

Appellant Linda Ann Loven was convicted by a jury of the murder of her two-year-old son, Stephen Mathew Loven. The jury assessed punishment at sixty-five years confinement in the Texas Department of Corrections. ¹

In three points of error, appellant contends (1) the evidence is insufficient to support her conviction; (2) the trial court erred in admitting a videotape concerning seizure disorders; and (3) the trial court erred in allowing appellant's mother-in-law to testify because such testimony was in violation of "the Rule." We will overrule all three points of error and affirm the judgment.

In her first point of error, appellant contends the evidence is insufficient to support her conviction. In resolving this point, the applicable standard of review is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); see Ransom v. State, 789 S.W.2d 572 (Tex.Crim.App.1989).

It is undisputed that appellant's conviction was based on circumstantial evidence. While the Court of Criminal Appeals has recently rejected the "reasonable-hypothesis-of-innocence analytical construct" as a method of appellate review for evidentiary sufficiency in circumstantial evidence cases, Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991), the court's opinion only applies prospectively. In other words, the court's rejection of the construct applies only to the parties in the Geesa case and to those cases tried after the effective date of the Geesa opinion. The court's rejection of the construct does not apply to cases pending on direct review at the time of the Geesa opinion. Thus, in deciding this appeal, we are to apply the law as it existed prior to Geesa, and make use of the "reasonable-hypothesis-of-innocence analytical construct" in analyzing appellant's first point of error. "A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of guilt of the defendant." Goff v. State, 777 S.W.2d 418, 420 (Tex.Crim.App.1989) (emphasis added).

Appellant contends that the State did not exclude every reasonable hypothesis other than her guilt. The State concedes that while every hypothesis other than appellant's guilt may not have been excluded, every reasonable hypothesis was eliminated. "It is not required that the circumstances should, to a moral certainty, actually exclude every hypothesis [other than appellant's guilt], but the evidence must show that the hypothesis is a reasonable one, consistent with the circumstances and the facts proved." Stoker v. State, 788 S.W.2d 1, 6 (Tex.Crim.App.1989) (emphasis added). The question before this court is whether any hypotheses which exculpate appellant for the death of her son Stephen are reasonable. If so, the evidence is insufficient to support appellant's conviction.

On the morning of October 11, 1989, an Amarillo police officer was dispatched to appellant's residence regarding the death of an infant. The officer found Stephen Loven lying dead in his crib with his right hand bandaged, a bloated stomach and small bruises on the right side of his face. The next day, appellant gave a written statement to police, the pertinent part of which read:

On Tuesday evening, 10-10-89, I was at home with my two children, Stephen Mathew Loven, 2 years old and Lonnie Donald Loven, 3 years old. My husband Lonnie Floyd Loven was at work. Stephen and I were both sick with the flu. I had taken both of us to the doctor earlier that day. Then that evening sometime between 8:00 and 9:00 p.m. I was rocking Stephen because he had been throwing up and real fussy. I was real sick and getting frustrated with everything. This is when Donnie, my 3 year old, came into the room wanting some water. It seemed like everything kind of exploded. I then threw Stephen down in [sic] the floor. He landed on the back of his head. I just left him there while I tended to Donnie. When I came back, I realized that Stephen was hurt. I held him and he cried for a short time. When he stopped crying, I put him to bed. I knew that he was hurt but I was scared to call for an ambulance or take him to the hospital. I was afraid of what they would do to me.

Dr. Ralph Erdmann, a forensic pathologist, performed an autopsy on Stephen's body. He discovered a subdural hemorrhage in the skull area and a skull fracture. Dr. Erdmann testified that the hemorrhage was the result of a recent injury while the fracture had occurred on a previous occasion. He concluded that blunt force trauma had caused the hemorrhage.

Dr. Erdmann also found that Stephen's bloated stomach had been caused by a hemorrhage due to a laceration of his liver. Segments of his bowel were also badly bruised. Stephen's hand had been bandaged because of a burn injury. Dr. Erdmann also discovered evidence of an old injury, a fractured rib.

Dr. Erdmann opined that the cause of Stephen's death was blunt force trauma to the head. The laceration of Stephen's liver was also potentially fatal. Dr. Erdmann estimated the time of Stephen's death at about 1:30 a.m. on October 11. He estimated that Stephen sustained both the injury to his head and the injury to his liver about four to six hours prior to death. Dr. Erdmann testified that the injuries to Stephen's skull, liver and small bowel were all separate injuries and that all three of the injuries were caused by some sort of blunt force trauma. The injuries were not consistent with being tossed on the floor; rather, the injuries were consistent with direct impact from something such as a hand, a foot or the end of a broom.

Dr. Mark Krouse, a pathologist and the Deputy Chief Medical Examiner of the Tarrant Medical Examiner's District, examined the autopsy photographs of the deceased and the autopsy protocol of Dr. Erdmann. Consistent with Dr. Erdmann's opinion, Dr. Krouse testified that he believed Stephen had died as a result of blunt force trauma to the head. He noted that the injury to the liver was so severe that it was almost a fracture instead of a laceration. Dr. Krouse placed the time of death at 1:30 a.m. to 3:30 a.m. on October 11. He believed Stephen had incurred at least four blows to his body the evening prior to his death. Dr. Krouse testified that Stephen's multiple injuries were not consistent with being thrown to the ground a single time. Dr. Krouse further stated that in order for Stephen to have incurred the skull injury, he would have had to have been dropped from a height of twenty to thirty feet onto the carpeted floor in appellant's home.

While the foregoing evidence reasonably supports the hypothesis that appellant inflicted the injuries upon Stephen which resulted in his death, appellant contends the evidence supports three reasonable hypotheses other than her guilt. First, appellant claims that Stephen's three-and-one-half-year-old brother, Donnie, could have inflicted the injuries. On cross-examination, Dr. Erdmann admitted that a three-and-one- half-year-old child could have hit a two-year-old child on the head with a shovel and caused a contusion. Appellant told her husband that Donnie had thrown a toy at Stephen and hit him in the head. Dr. Erdmann also testified that a two-year-old's liver could be cut as a result of a three-and-one-half-year-old child kicking him in the stomach.

Second, appellant claims that Stephen's injuries may have been self-inflicted. Dr. Erdmann testified on cross-examination that if a two-year-old child such as Stephen was running very fast he could fall, slide and hit his head, causing an injury to the top of his head. Dr. Erdmann also admitted that a child could injure the top of his head by standing up suddenly under a table and hitting his head. Dr. Krouse, also on cross-examination, testified that Stephen could possibly have injured his head as the result of falling and hitting his head on a coffee table like the one in appellant's living room.

We do not find either of the foregoing hypotheses to be reasonable. The evidence clearly showed that Stephen had incurred at least three separate blunt force injuries a few hours before his death. The extent and severity of Stephen's injuries did not reflect a single freak accident or a single instance of injury at the hands of his brother. See Lindsey v. State, 501 S.W.2d 647, 648 (Tex.Crim.App.1973). Further, the fact that appellant admitted injuring Stephen the night before his death militates against the reasonableness of the foregoing hypotheses. Id. It is undisputed that, other than Stephen's three-and-one-half-year-old brother, no one except appellant was with Stephen the night before his death. Consistent with several similar cases, ² we find neither of the foregoing hypotheses to be reasonable.

Appellant advances a third allegedly reasonable hypothesis; namely, that she was in the midst of an epileptic seizure when she violently injured Stephen. We initially note that, if proven, a defendant's claim that he or she acted unconsciously during the throes of an epileptic seizure is a valid defense. Texas courts have held that states of unconsciousness or automatism, including epileptic states, are includable in the defense of insanity. Bradley v. State, 102 Tex.Crim. 41, 277 S.W. 147, 148-50 (1925) (somnambulism recognized as a form of insanity); Zimmerman v. State, 85 Tex.Crim. 630, 215 S.W. 101, 105-06 (1919) (same rule should apply for "epileptic...