Luna v. State

• Decision Date: 26 June 2008
• Docket Number: No. 11-07-00141-CR.,11-07-00141-CR.
• Citation: 264 S.W.3d 821
• Parties: Tracy LUNA, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

264 S.W.3d 821

Tracy LUNA, Appellant, v. STATE of Texas, Appellee.

No. 11-07-00141-CR.

Court of Appeals of Texas, Eastland.

June 26, 2008.

Rehearing Overruled July 24, 2008.

Frank W. Conard II, Frank Conard Law Firm, Sweetwater, TX, for Appellant.

Dana Cooley, District Attorney, Scurry County, Snyder, TX, for Appellee.

Panel consists of WRIGHT, C.J., McCALL, J., and STRANGE, J.

OPINION

RICK STRANGE, Justice.

Tracy Luna was indicted for capital murder. The jury convicted her of the lesser included offense of causing serious bodily injury to a child and assessed her punishment at ninety-nine years confinement and a $10,000 fine. We affirm.

I. Background Facts

Luna and Angel Victor Vasquez were common-law married. They had two daughters, four-year-old B.N.L.V. and two-year-old Natalie Vasquez. During the early morning hours of May 11, 2005, emergency officials were dispatched to Luna and Vasquez's house because of a report that a two-year-old child was having cardiac arrest. Paramedics arrived and administered CPR to Natalie. She had no electrical activity in response to an EKG, and so she was taken to the hospital. Because Natalie had numerous bruises, paramedics requested that a law enforcement officer meet them at the emergency room. Natalie was pronounced dead at the hospital. The medical examiner's office conducted an autopsy and determined that Natalie died of complications of blunt force trauma and neglect.

Luna and Vasquez were indicted for capital murder. The State alleged that they knowingly and intentionally caused Natalie's death by failing to provide her with medical care or adequate food. The State was subsequently allowed to amend the indictments to include a contention that Luna and Vasquez had a duty to act because they were Natalie's parents. Luna and Vasquez were tried together. The jury acquitted them of capital murder but found them guilty of the lesser included offense of intentionally or knowingly causing serious bodily injury to a child. The jury assessed each defendant's punishment at ninety-nine years confinement and a $10,000 fine.

II. Issues on Appeal

Luna challenges her conviction with six issues. Luna argues that the evidence was legally and factually insufficient, that the trial court erred by admitting autopsy photos, that the trial court erred by including a lesser included offense in the charge, that the trial court erred by admitting hearsay testimony, that the trial court erred by denying her motion to sever, and that the trial court erred by denying her motion to quash the indictment and by granting the State's motion to amend the indictment.

III. Analysis

A. Was the Evidence Legally and Factually Sufficient?

Luna argues that the evidence is insufficient because it does not establish that she was aware with reasonable certainty that Natalie's death could be prevented by taking her to the doctor. Luna argues that the evidence establishes that Natalie was in good health, that she was active, and that there was no indication immediately prior to her death that she needed medical attention. The State responds that the evidence is sufficient because Natalie died of malnutrition; because she had twenty-four scars, sixty-one bruises, and an open and infected ulcer that went to the underlying bone; and because Natalie's need for food and medical care was obvious.

1. Standard of Review.

To determine if the evidence is legally sufficient, we review all of the evidence in the light most favorable to the verdict and determine whether 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, 61 L.Ed.2d 560 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim.App.2000). The jury was the sole judge of the credibility of the witnesses and the weight to be given their testimony. TEX.CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). The jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim.App.1986).

To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Id. at 414-15.

The appellate court reviews the factfinder's weighing of the evidence and cannot substitute its judgment for that of the factfinder. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997); Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996). Due deference must be given to the factfinder's determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App.2000); Jones v. State, 944 S.W.2d 642 (Tex.Crim.App.1996).

A person commits an offense if she intentionally or knowingly causes injury to a child by act or by omission if he has a duty to act. TEX. PENAL CODE ANN. § 22.04 (Vernon Supp.2007). Parents have a duty to care for, to control, to protect, and to provide medical care to their children. TEX. FAM.CODE ANN. § 151.001(a)(2), (3) (Vernon Supp.2007). Injury to a child is a result of conduct offense. Alvarado v. State, 704 S.W.2d 36, 39 (Tex.Crim.App. 1985). Therefore, the State must prove not only that Luna failed to provide adequate food and medical care but must also prove that she intentionally or knowingly caused Natalie's injury. Johnston v. State, 150 S.W.3d 630, 634 (Tex.App.-Austin 2004, no pet.). A person acts intentionally when it is her conscious desire to engage in the conduct or to cause the result. TEX. PENAL CODE ANN. § 6.03(a) (Vernon 2003). A person acts knowingly with respect to a result of her conduct when she is aware that her conduct is reasonably certain to cause the result. TEX. PENAL CODE ANN. § 6.03(b) (Vernon 2003). Serious bodily injury is injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss of impairment of the function of any bodily member or organ. TEX. PENAL CODE ANN. § 1.07(a)(46) (Vernon Supp.2007).

2. Legal Sufficiency.¹

Natalie was born on December 2, 2002, and was a normal size baby. Dr. Gustavo Gross saw her for a two-week checkup. She was doing well, had gained some weight since birth, and weighed 7.7 pounds. Dr. Gross did not see her again as a patient until January 14, 2004. Even though Natalie was thirteen months old, she only weighed 13.4 pounds. Natalie appeared dehydrated, malnourished, and hyperglycemic. Dr. Gross made arrangements for Natalie to be hospitalized and seen by a specialist in Lubbock.

Dr. James V. Higgins was responsible for her treatment in Lubbock. Dr. Higgins testified that when Natalie arrived there were questions about her liver function because of test results but that over two days her liver enzymes had dropped dramatically. Dr. Higgins testified that essentially all they did was feed Natalie. During the forty-eight hours she was hospitalized, Natalie took in more food than expected, and she achieved a significant weight gain, going from 5.8 to 6.4 kilos. This equates to a weight gain of approximately 1.3 pounds. Dr. Higgins described Natalie as a hungry child who wanted to eat.

Dr. Higgins saw Natalie two weeks after her hospital discharge for a follow-up visit. She looked good. Dr. Higgins recommended replacing Natalie's milk with PediaSure to provide more calories. He did not recommend withholding solid food, but Luna began telling relatives that Natalie could not handle solid food. Later, Natalie was only allowed to eat small amounts of solid food.

Dr. Gross also saw Natalie shortly after her discharge. He testified that he stressed to Luna the need to keep any follow-up appointments with the specialist and that he told her to take Natalie back to the doctor if she started to lose weight. Dr. Gross next saw Natalie on April 26, 2004. Natalie had the worst case of impetigo that he had ever seen. Dr. Gross testified that he was concerned. He treated Natalie with an ointment and an oral antibiotic. He saw her for follow-up visits on April 27 and April 28. The April 28 visit was the last time he saw Natalie as a patient. Dr. Gross testified that, if he had seen a child that looked like Natalie did when she arrived at the emergency room, he would have called the authorities. Dr. Gross testified that Luna and Vasquez should have been extremely concerned about Natalie's weight, that he would have expected them to recognize impetigo when it returned, and that he would have expected them to seek medical treatment for it. He also testified that they were neglectful for not doing so.

Dr. Thomas Lloyd Kerr saw Natalie when paramedics brought her body to the emergency room. He testified that, if the authorities had not already been alerted, her injuries would have required him to do so. She had multiple bruises on her face, abdomen, back, hips, left leg, and behind her left ear. These bruises were too well-defined to have been caused by a fall. Natalie had a decubitus ulcer on her sacrum that went through the epidermis to the bone. It was infected, and it would have been painful for her. When Dr. Gross saw Natalie in April 2004, she weighed twenty-two pounds. When Natalie died on May 11, 2005, her weight had dropped to seventeen pounds.

Justice of the Peace Debra Boyd was called to the hospital. She saw Natalie's body and testified that a parent should have known Natalie needed medical attention. Sheriff Darren Jackson was one of the law enforcement officers dispatched to the hospital, and he too saw Natalie's body. He testified that she looked six months old; that he would have realized she needed medical attention; and that, if he had seen...