Matter of L.M.

• Decision Date: 15 April 1999
• Citation: 993 S.W.2d 276
• Parties: (Tex.App.-Austin 1999) In the Matter of L. M. NO. 03-97-00334-CV
• Court: Texas Court of Appeals

Page 276

993 S.W.2d 276 (Tex.App.-Austin 1999)

In the Matter of L. M.

NO. 03-97-00334-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

April 15, 1999

Rehearing Overruled May 20, 1999.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT, NO. J-15,956, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

[Copyrighted Material Omitted] Before Chief Justice Aboussie, Justices Jones and Yeakel

Reversed and Remanded

Lee Yeakel, Justice

A jury empaneled in the 98th District Court, sitting as the Juvenile Court of Travis County, found that appellant L.M., a child then eleven years of age, engaged in delinquent conduct by committing the offense of injury to a child. See Tex. Fam. Code Ann. 54.03 (West 1996 & Supp. 1999); Tex. Penal Code Ann. 22.04 (West 1994 & Supp. 1999). The juvenile court rendered a determinate sentence of twenty-five years' confinement. See Tex. Fam. Code Ann. 53.045(a)(7), 54.04(d)(3) (West Supp. 1999).¹ Appellant appeals the adjudication of delinquency.

BACKGROUND

Appellant lived with her grandparents, who are also her adoptive parents, along with several of her siblings. Appellant's grandparents routinely cared for several other unrelated children during the day. The victim in this case, two-year-old Jayla Belton, was one of those children.

On the morning of May 24, 1996, Jayla arrived at the grandparents' house. She appeared tired and feverish when she arrived, and she eventually became sick to her stomach. After Jayla vomited at the lunch table, appellant's eighteen-year-old sister suspected Jayla had a virus. The sister gave Jayla some over-the-counter medication and put Jayla to bed in a bedroom in the back of the house. Appellant's sister then got ready for work, said goodbye to Jayla, and told her grandfather to check on Jayla later because she was sick. When the sister left the house about 2:40 p.m., her grandfather was seated in the living room.

No one checked on Jayla or heard anything from her until late that afternoon. According to the grandfather, who remained in the living area of the house,² appellant came in from outside and went to the back of the house, near the bedroom where Jayla was sleeping. Shortly after that, he heard "thumping" noises in another room in the same area of the house. He assumed appellant was playing ball in her bedroom and eventually told her to stop. Soon afterward, appellant appeared in the living area and told her grandfather that something was wrong with Jayla, and that she had been throwing up and shaking. At his urging, appellant brought Jayla from the back bedroom to the living area. According to appellant's grandfather, Jayla appeared to be ill. He wiped Jayla's face with a wet cloth and told appellant to take Jayla outside to warm her.

About the same time or shortly thereafter, the mother of some other children cared for in the home arrived. She observed Jayla's condition and told appellant's grandfather to call 911. He refused, and suggested that she take Jayla to the hospital. When she refused, the grandfather and appellant took Jayla to the hospital. Jayla had no pulse or respiration when she arrived at the hospital; hospital personnel unsuccessfully attempted to revive her. After Jayla was pronounced dead, appellant was taken to the Child Advocacy Center, where she told personnel that she did not know what happened to Jayla.

During the autopsy, a medical examiner determined that Jayla died of a severe injury to her liver caused by a "massive blunt" blow to the abdomen. According to the examiner, the traumatic blow was so forceful that it broke four of her ribs and split her liver in two pieces, possibly by forcing the liver to compress against her spine. He concluded that Jayla died within five to fifteen minutes after receiving the blow to the liver. The examiner also observed some thirty bruises on Jayla's body, including bruises on the back of her head, over her ear, on her forehead, on her back, on her shoulder, below her abdomen, on her elbow, on her chest, and on the left side of her torso. The bruises on the left side of her torso formed two parallel lines, one longer than the other. The medical examiner concluded that Jayla's injuries had been intentionally inflicted and ruled Jayla's death a homicide.

The following day, law-enforcement authorities removed all the children from the grandparents' home. They placed appellant and one of her sisters in a private children's shelter that contracted with the Department of Protective and Regulatory Services (the "Department"). At the time the children were removed, they were thought to be in danger. After speaking with other members of the household, however, the focus of the homicide investigation shifted to appellant, or at least appellant and her sister. As a result, law enforcement authorities arranged to question both appellant and her sister at the shelter. On May 29, 1996, five days after Jayla's death and three days after appellant was removed from her grandparents' home, two police officers and a representative of the Victim Services Division of the Austin Police Department met with appellant in a room at the administrative offices of the children's shelter. Over a period of about two hours, appellant answered the officers' questions concerning the events surrounding Jayla's death. The interview was recorded. Near the end of the interview, appellant signed a written statement prepared by the officers implicating herself in Jayla's death.

The next day, appellant was taken into custody by law-enforcement authorities. The State petitioned for a determinate sentence, charging appellant with capital murder and injury to a child.³ See Tex. Penal Code Ann. 19.02(b)(1), .03(a)(8), 22.04(a)(1) (West 1994). The case was tried to a jury charged with deciding whether appellant committed capital murder or one of two lesser-included offenses, manslaughter or criminally negligent homicide. The jury was also charged with deciding whether appellant had committed injury to a child. The jury acquitted appellant of capital murder and manslaughter, but found her guilty of criminally negligent homicide and injury to a child. Appellant moved for a new trial. The juvenile court ordered a new trial, but on his own motion.

At the second trial, the State only charged appellant with injury to a child. The State's theory at trial was this: appellant had a propensity to act violently toward children; she bore the unenviable responsibility of cleaning the house on the day of the incident; Jayla vomited in the morning and appellant had to clean it up; when appellant checked on Jayla in the afternoon, appellant found that Jayla had thrown up again; appellant attacked Jayla out of anger by viciously kicking or stomping her, intentionally causing the fatal injuries but not intending Jayla's death; and appellant's family feigned ignorance of these events to protect appellant at trial. The State presented evidence that the parallel bruises on Jayla's left side matched parallel treads on the bottom of the shoes appellant was wearing on the day of the incident. Appellant, on the other hand, theorized as follows: Jayla was a chronically battered child with numerous old scars and bruises on her body; Jayla's mother's boyfriend had a propensity to act violently toward Jayla; he had inflicted an injury to Jayla that caused her liver to be partially damaged before she ever arrived at the grandparents' house; Jayla was sick all day because of that injury; appellant simply discovered an already dying Jayla in the back bedroom in the late afternoon; and hospital personnel caused Jayla's ribs to crack and her liver to become more severely injured when they attempted to resuscitate her.

The jury in the second trial found appellant guilty of injury to a child. The juvenile court rendered judgment adjudicating appellant delinquent, and ordering her to the custody of the Texas Youth Commission for a period of twenty-five years.⁴ Appellant appeals the adjudication of delinquency and disposition in fourteen issues.

DISCUSSION

Double Jeopardy

In her first issue, appellant contends that the double-jeopardy provisions in the Texas and United States constitutions barred the adjudication of guilt of injury to a child in the second trial. See U.S. Const. amends. V, XIV; Tex. Const. art. I, 14. Appellant's argument attempts to explain why the State's second prosecution constituted a violation of her double-jeopardy protection. First, she contends all three of the homicide theories included in the jury charge at the first trial were the same as the offense of injury to a child.⁵ By arguing that homicide of a child is the same offense as injury to a child, appellant seeks to establish that the acquittal of capital murder and manslaughter necessarily constituted an acquittal of injury to a child. She also contends that the finding of guilt on the criminally negligent homicide charge precluded the State from instituting a second prosecution for injury to a child.⁶

Appellant does not separately argue her state and federal constitutional claims, nor does she proffer argument or authority to support a holding that, in the context of this cause, the Texas Constitution's double-jeopardy clause differs meaningfully from the Fifth Amendment to the United States Constitution. She simply urges us to interpret the Texas Constitution more broadly without explaining the basis for her urging. The rules of appellate procedure require more. See Tex. R. App. P. 38.1(h) (appellant's brief must contain clear and concise argument with appropriate citations to authorities). We therefore overrule issue one insofar as it pertains to the Texas Constitution. See Queen v. State, 940 S.W.2d 781, 783 (Tex. App.-Austin 1997, pet. ref'd) (citing Ex parte Granger, 850 S.W.2d 513, 515 n.6 (Tex. Crim. App. 1993)). We will conduct our analysis only under the federal constitution.

The Fifth Amendment double-jeopardy provision embodies three types of...