Scott v. State, 522-86

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 732 S.W.2d 354
• Docket Number: No. 522-86,522-86
• Parties: Brenda Ann SCOTT v. The STATE of Texas, Appellee.
• Decision Date: 10 June 1987

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732 S.W.2d 354 Brenda Ann SCOTT
v.
The STATE of Texas, Appellee. No. 522-86. Court of Criminal Appeals of Texas,
En Banc. June 10, 1987.

James H. Anderson, Dallas, for appellant.

John Vance, Dist. Atty., and Donald G. Davis, Marston Alexander and Mark Nancarrow, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted by a Dallas County jury of first degree murder. V.T.C.A., Penal Code, § 19.02(a)(1). The indictment alleged that appellant on or about April 9, 1981, "knowingly and intentionally" caused the death of her son, Russell Scott, by striking him "with her hand and by manner and means unknown to the Grand Jurors." The trial court sentenced appellant to 25 years' imprisonment. Appellant appealed her conviction to the Court of Appeals, alleging in two points of error that the evidence was insufficient to support her conviction. A panel of the Court of Appeals, in an unpublished opinion, with one justice dissenting, agreed with appellant's contentions and reversed the judgment of the trial court. Scott v. State (No. 05-84-00109-CR, delivered January 23, 1986). The cause was remanded to the trial court with instructions to enter an order of acquittal under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). We granted State's petition for discretionary review to determine whether the Court of Appeals incorrectly concluded that no corpus delicti was established.

The record reflects that on April 9, 1981, L.D. "Bo" Pitts became ill at work and returned home around 9:00 a.m. He lived in the Meadow Creek Apartments in Dallas. When Pitts arrived he noticed flames coming out of the second floor window of a studio apartment, and immediately ran to the manager's apartment to report the fire. After calling the fire department Pitts ran back to the burning apartment, where he discovered appellant sitting on the steps holding her oldest son Thomas Scott, Jr.

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Pitts testified that appellant was crying and saying: "My baby, my baby." Appellant continued to cry when Pitts asked whether another child was trapped upstairs. Pitts tried to run upstairs, however, the strong smoke and flames prevented him from reaching the bedroom. He succeeded in getting appellant and her son out of the apartment with the help of a neighbor, and informed the fire chief that a child might still be upstairs. According to Pitts, no one else was in the apartment except appellant and her son, Thomas.

Mary Hart, the apartment manager, testified that appellant lived in apartment # 135 with her husband and two children. Russell, the deceased, was two years old at the time. Hart stated that on three different occasions she heard appellant scream at Russell using very loud profanity. On the morning of April 9, 1981, Hart was notified by Pitts of the fire in appellant's apartment. Hart ran up to the apartment and urged appellant to get her children and get out of the apartment. Hart later spoke with appellant, and related the following: "Well, she [appellant] said, 'Russell's gone, Russell's gone,' and she was crying very hard. And then she asked me if there was anything left of the baby." Hart also noted that appellant's husband was contacted at work by another apartment manager, and that he arrived at the scene about 30 minutes later. On cross-examination Hart agreed that appellant was "crying and hysterical," but that her husband, Thomas Scott, Sr., "wasn't as upset as she was."

Captain Donald Benda, an investigator with the Dallas Fire Department, testified that he arrived on the scene at approximately 9:20 a.m. on April 9, 1981. Benda was notified that there was a casualty and he described what "appeared to be a young child, approximately two to three years old, and was severely burned, the extremities burned off, and deeply charred." Samples of burned debris were taken from the room "at a later date" to determine if any accelerant was used to enhance the fire. ¹ According to Benda, no residue of any type of flammable liquid was detected, ² although flammable lighter fluid, gasoline, and insecticide were found in the apartment. It was Benda's opinion that the fire had "an intensity of unusual proportion in the area that could have been caused by an accelerant." His opinion was based on burn patterns on the floor and wall of the bedroom, which indicated that the fire had been set intentionally with some form of accelerant. Benda identified a photograph which indicated the fire had a higher intensity in the vicinity where the crib was located and where the body was found. Benda also found it unusual that there was no clothing in the closet of the bedroom where the body was found. All accidental causes were ruled out due to the way the fire burned. It was also Benda's personal opinion was that "the fire was probably intentionally set to conceal the death of Russell Scott." Nevertheless, no arson complaint was ever filed against appellant.

Fannie Parks, a friend of the appellant, testified that she babysat for appellant's children on many occasions. She testified that appellant seemed "distant" toward her youngest son and "she would always say that he was a bad child and he was stubborn or he rolled his eyes a lot and she said he was just plain mean." Parks noticed scars all over the body of the deceased, and voiced her concern to the appellant, as well as the child welfare department. With respect to appellant's treatment of the deceased, Parks testified as follows:

"Q. Mrs. Parks, let me ask you if during the time that you were with Brenda and her children, did she ever--did you ever see her scream at Russell?

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"A. Yes.

"Q. Did you ever hear her make threatening remarks regarding Russell?

"A. Yes.

"Q. Would you tell the members of the jury what those threatening remarks were that she made to Russell Scott?

"A. She would always say that 'One of these days, you're going to make me kill you.'

"Q. 'One of these days, you're going to make me kill you.'

"A. Uh-huh.

"Q. Did she say that in your presence to him few or many times?

"A. Many times."

Parks also testified that on April 2 she babysat the deceased and while changing his diaper noticed bruises "from the base of his neck to the bottom of his booty," which looked old, but were light purple and pink colored.

On cross-examination Parks agreed that appellant had complained of her husband's brutality toward her and the children.

Doris Davis also testified that she used to babysit for appellant's children. She stated that appellant acted as if she did not love the deceased and "always treated the oldest one better than she did the youngest one." Davis related an incident in which she and appellant went to a restaurant during the July 1980 heat wave in Dallas, and that appellant left the deceased in the car with the windows rolled up for 45 minutes or more. Also in 1980, Davis observed appellant having problems "potty training" the deceased, and as a result appellant threw the child up the stairs and then back down the stairs. Just as Fannie Parks had testified, Davis acknowledged that appellant said to the deceased: "You're going to make me kill you." Davis also explained that she once observed appellant combing the deceased's hair with a "cake cutter," and that she was hitting him in the head with it. Together, Davis and Parks contacted a mutual friend, Theola Franklin, who called the child welfare department.

Linda Lydia, a social worker for the Texas Department of Human Resources, testified that during her four visits to the Scott family there was "really no interaction" between appellant and the deceased, "whereas there was quite a bit [of interaction] between [appellant] and the older child." Lydia observed the deceased to be very quiet and withdrawn, and noticed the scars on his body. Lydia also testified that the deceased was taken to Chester Clinic in November and December of 1980, and that x-rays were taken of the child's back and chest. According to Lydia the x-rays were "negative." ³

Dr. Patrick Besant-Matthews, medical examiner for Dallas County, conducted an autopsy on the deceased on April 9, 1981, and testified that the body was "severely burned," thus "completely obliterat[ing] any findings that there might have been on the skin." An internal examination of the body revealed no evidence that the child was alive at the time the fire started. Dr. Besant-Matthews explained:

"That is to say there was no soot in the windpipe which would have been breathed in if the child had been breathing at the time the fire was burning, and the chemistry lab further confirmed this in that there was no carbon monoxide in the blood which you would expect for somebody who had been breathing fire fumes."

The autopsy revealed a relatively recent fracture of the right thigh bone (femur). It was determined that this fracture occurred prior to the child's death, because there was some blood in the soft tissues adjacent...