Ortiz v. State, No. 03-02-00520-CR (Tex. App. 3/11/2004)
| Decision Date | 11 March 2004 |
| Docket Number | No. 03-02-00520-CR,03-02-00520-CR |
| Parties | GUADALUPE GARZA ORTIZ, Appellant v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the District Court of Williamson County, 368th Judicial District, No. 01-1021-K368, Honorable Burt Carnes, Judge Presiding.
Affirmed.
Before Chief Justice LAW, Justices KIDD and ONION*.
Appellant Guadalupe Garza Ortiz appeals his conviction for intentionally and knowingly causing serious bodily injury to a child. Tex. Pen. Code Ann. § 22.04 (West 2003). The jury found appellant guilty and assessed his punishment at ninety-nine years' imprisonment. The jury also found that a deadly weapon had been used as alleged in the indictment.
Appellant advances five points of error. First, appellant urges that the trial court erred in excluding evidence "relevant to appellant's defense." Second, appellant contends that the trial court erred in refusing to grant a mistrial after the admission of an extraneous offense during the guilt/innocence stage of the trial. Third, appellant complains that the trial court violated section two of article 37.07 of the Texas Code of Criminal Procedure by submitting a charge allowing the jury at the guilt/innocence stage of the trial to consider the effect of their verdict on the issue of punishment. Fourth and fifth, appellant asserts that he was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 10 of the Texas Constitution.
Appellant does not challenge either the legal or factual sufficiency of the evidence to sustain his conviction. A recitation of the pertinent facts will, however, place the points of error in proper perspective.
Appellant Ortiz and Lori Carbajal had an on-and-off relationship. They never married. On June 5, 2001, appellant took Lori to the hospital to await the birth of their son, Daniel Carbajal. Appellant was not present at the birth because he left the hospital, began consuming alcohol and cocaine, and never returned.
On October 1, 2001, they were living at the trailer home of appellant's parents near Jarrell. That morning, Lori announced that she did not have a babysitter for Daniel and would not go to work. Appellant insisted that she go to work in Austin. He stated that he would take care of the almost four-months-old Daniel. He asked Lori to call his new place of employment and report that he was sick. Appellant was "stressed out" because of his parental responsibilities, his relationship with Lori, and his unstable employment situation. Appellant had begun a self-rehabilitation program in attempting to withdraw from the use of heroin.
Late in the afternoon, Lori arrived home from work and found appellant and Daniel in bed. Appellant told her that Daniel was not feeling well as he had fallen when appellant was changing his diaper. Lori observed that Daniel appeared to be having a seizure. Lori took Daniel and ran to the car. Appellant proceeded to drive to a hospital, but along the way the car struck the curb of the highway and a flat or blow-out of a tire disabled the vehicle. A man named Lopez gave them a ride in his vehicle until they encountered Deputy Sheriff Jack Tomlinson directing traffic at a Georgetown construction site. Tomlinson, in view of Daniel's condition, called for EMS and Starflight. Starflight transported the child to the Scott and White Hospital in Temple.
At the hospital, Daniel was placed on a ventilator to assist his breathing. There were bruises on his face, neck, arms, thighs, and buttocks. He had experienced subdural and retinal hemorrhaging. Daniel's brain was swollen and the brain gave indications that it had been deprived of oxygen. Daniel continued to experience seizures because of the brain injuries. The medical personnel did not expect Daniel to live. The current prognosis is that Daniel will have "severe neurological impairment" the rest of his life. He lost a significant amount of brain tissue as a result of his injuries. It is unlikely, according to medical experts, that he will ever be able to see or walk and will always be mentally retarded.
After appellant's arrival at the hospital, he gave a written statement to Deputy Sheriff J.R. Hicks that Daniel had been with Catherine, a baby sitter, that day and when Lori brought Daniel home he was weak and limp. In the early morning hours of the next day, October 2, appellant gave a second written statement in which he admitted that he lied in his first statement because Lori did not want her family to know that they were living together. Appellant admitted that he had been the baby sitter; that while he was changing the child's diapers at noon-time he reached for the baby powder and the child's body swayed and fell out of his hands onto a child's car seat; and that the child's bottom hit first and his head struck the car seat. It was afternoon before appellant observed the child appeared weak and limp.
The investigation continued. On October 4, 2001, officers armed with a search and an arrest warrant went to the home of appellant's parents where appellant lived. There, they obtained a third written statement and a tape recorded statement from appellant. In these statements, appellant admitted that Daniel was crying and that he (appellant) had been under a lot of stress, so he spanked Daniel several times. At one point, Daniel, during a spanking, fell out of appellant's hands and hit the dresser and bounced off the floor. Appellant put Daniel to bed. After appellant woke up from a nap, Daniel was crying again. Appellant picked up the child and shook him and threw him onto a bed. Appellant noticed that the child's eyes rolled back into his head. The child emitted a low moan and his body went limp. All of appellant's statements were admitted into evidence. All three medical experts who treated Daniel testified that his injuries were consistent with "shaken baby syndrome" and the brain injuries were severe and would be prolonged.
Appellant, testifying in his own behalf, repudiated all of his previous statements. He stated that the statements were given to protect Lori knowing that he could endure jail time better than she could. Appellant then gave a different version of what occurred on October 1, 2001. Appellant told the jury that after Lori left for work he discovered severe bruises on Daniel's bottom. When Lori returned home from work, he confronted her about the bruises. Lori threatened to leave him. Appellant then announced that he would keep Daniel. A struggle ensued, with Lori physically trying to pull Daniel from appellant's arms. While both were pulling on Daniel, appellant let go, and Daniel's head hit the dresser.
Appellant acknowledged that at the time he had been trying to get off drugs for about a month; that on the day in question he was using a prescription drug, Flexeril, a muscle relaxant, that he had obtained from a friend, not a doctor. Appellant admitted that he had taken fifteen to twenty doses on October 1, 2001, at the rate of two or three an hour.
In rebuttal, the State called Kenneth Adair, once a cell mate of appellant's in the Williamson County jail. Adair related that appellant told him that he (appellant) was going to "make up" a story about the child falling during a struggle with Lori, who was pulling on the child; that he would say his earlier versions were given only to protect the mother of his child. Adair stated that appellant indicated that he wanted to implicate Lori because she had not contacted him since he had been incarcerated.
In rebuttal, appellant acknowledged that he had been in jail with Adair, had discussed his case with Adair, and at one point told Adair about his (appellant's) dilemma in "coming forward with the truth" and the struggle with Lori. He recalled that Adair responded, "Go ahead and fry the bitch."
In his first point of error, appellant urges that the "trial court erred in refusing to admit evidence relevant to appellant's defense." In order to properly respond, we shall consider the contention in two parts. We do this because appellant contends that the trial court excluded relevant evidence pertaining to (1) reasons for giving false statements to the police and (2) a "meaningful defense." The evidence excluded is the same for both purposes.
Following a recess taken while appellant was on direct examination and in the jury's absence, appellant's counsel inquired of the trial court about offering evidence that Lori had a family violence assault arrest and that it had affected appellant's "judgment in the decision he made regarding the statements in the case." Counsel pointed out that it was "a critical issue about why he [appellant] would make these false statements about his own behavior," and that appellant would testify that he believed if he "took the fall, it would be better for all of us." The trial court responded that appellant "had already said that." Counsel, however, wanted to be more specific about appellant's reasons for making the statements. Upon this offer of proof, see Tex. R. Evid. 103(b), the trial court, after colloquy, ruled that the evidence, if relevant, had little probative value and was substantially outweighed by extremely prejudicial matters. See Tex. R. Evid. 403. The trial court nevertheless authorized the perfection later of an informal bill of exception.
As appellant's direct examination continued, he stated that he had given the first written statement to the police for Lori's sake so she "could save face with her family." Appellant related that he gave the second written statement to prevent the State from taking Daniel away and Lori going to jail. "I knew she wouldn't be able to handle it . . . so I figured I'd take all the blame and that I'd go to...
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