Thornton v. State, 2-98-348-CR

• Decision Date: 27 May 1999
• Docket Number: No. 2-98-348-CR,2-98-348-CR
• Citation: 994 S.W.2d 845
• Parties: (Tex.App.-Fort Worth 1999) ANGELA CHRISTINE THORNTON, APPELLANT v. THE STATE OF TEXAS, STATE
• Court: Texas Court of Appeals

Page 845

994 S.W.2d 845 (Tex.App.-Fort Worth 1999)

ANGELA CHRISTINE THORNTON, APPELLANT v. THE STATE OF TEXAS, STATE

No. 2-98-348-CR

Court of Appeals, Second District of Texas

May 27, 1999

FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

OPINION

LIVINGSTON, Justice.

In fifteen points, appellant Angela Christine Thornton challenges her conviction for serious bodily injury to a child by omission. Points one through three are challenges to the sufficiency of the evidence. In points four and five, she complains the trial court allowed the State to commit the jury to a specific set of facts for a specific punishment. In points six through eleven, she contends the court improperly admitted "back-door" hearsay. In points twelve through fifiteen, she contends the trial court improperly admitted an edited transcript from a talk show despite insufficient indicia of authenticity and reliability. Because the evidence is legally and factually sufficient and because there was no error during voir dire or in the admission of evidence, we affirm the trial court's judgment.

I. BACKGROUND

Appellant's two children C.T. and J.T. attended a public day care center (Center) in Arlington. The Center noticed C.T. smelled of urine and was concerned that he was not receiving proper nutrition. Because of these concerns, the Center contacted the Texas Department of Protective and Regulatory Services (DPRS) and reported possible neglect. Cynthia Tranquilli, a Child Protective Specialist with the agency, investigated. On October 10, 1996, Tranquilli visited the Center and spoke with appellant's four-year-old son C.T. After this interview, Tranquilli contacted appellant and scheduled a home visit on October 14. On October 11, the day after Tranquilli's phone call, appellant removed both C.T. and J.T. from the Center.

During the home visit, Tranquilli completed a Child Safety Evaluation Plan that appellant signed. ¹ Tranquilli explained to appellant the importance and possible consequences of failing to abide by the plan. Tranquilli did not see appellant again until November 11, 1996. ²

On November 10, appellant took C.T. to the emergency room. There, doctors discovered that C.T. had a string wrapped tightly around his penis. Doctors estimated the string was affixed ten to fourteen days earlier. Moreover, the string was tied so tightly that it cut all the way through the urethra causing it to grow into surrounding tissue. The string also cut off circulation to the tip of the child's penis. The subsequent lack of blood destroyed surrounding tissue and necessitated removal of the necrotic tissue.

II. DISCUSSION

A. Legal and Factual Sufficiency

Appellant was charged and convicted with injury to a child by omission. In points one and two, appellant argues the evidence is insufficient to support either the trial court's denial of her request for an instructed verdict or proof she committed the offense. Point three poses a challenge based on factual insufficiency.

Appellant asserts the evidence establishes that her boyfriend, Chuy Hernandez, fastened the string without her knowledge. She also asserts that she was unaware of the string during the ten to fourteen-day period because she did not see C.T. "nude" during that period. Lastly, appellant claims that immediately after discovering the string, she took C.T. for medical care.

The pertinent portion of the indictment charged appellant with "INTENTIONALLY OR KNOWINGLY, BY OMISSION, CAUS[ING] SERIOUS BODILY INJURY . . . BY FAILING TO PROVIDE TIMELY ADEQUATE MEDICAL TREATMENT . . . ." See Tex. Penal Code Ann. § 22.04(a)(1) (Vernon 1994) (injury to a child, elderly individual, or disabled individual). Because appellant is charged with failure to seek medical treatment for C.T., determination of who affixed the string is immaterial. Similarly, there is no dispute that C.T.'s injury was a "serious bodily injury" or that appellant had a duty to act. See Tex. Penal Code Ann. §§ 1.07(46); 22.04(b) (Vernon 1994). Thus, our review will focus on whether the State proved appellant's intentional or knowing conduct (omission) resulted in serious injury to C.T. See Dusek v. State, 978 S.W.2d 129, 133 (Tex. App.-Austin, 1998, pet. ref'd) (injury to a child is a "result of conduct" offense).

It is not sufficient if the State simply proved appellant failed to provide medical care for a serious injury. See id. We must determine whether the State proved appellant acted "intentionally" by failing to act "either with the conscious objective or desire to cause serious bodily injury." Tex. Penal Code Ann. § 6.03(a) (Vernon 1994); see also Dusek, 978 S.W.2d at 133. Alternatively, we must determine whether the State proved appellant acted "knowingly" by failing to act with an "awareness that serious bodily injury was reasonably certain to result." Tex. Penal Code Ann. § 6.03(b); Dusek, 978 S.W.2d at 133.

1. Standard of Review

A challenge to the denial of a motion for instructed verdict is actually a challenge to the legal sufficiency of the evidence. See Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 954 (1991). In reviewing the legal sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the verdict. See Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 975 (1993). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.), cert. denied, 118 S. Ct. 125 (1997). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. See Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

In reviewing the factual sufficiency of the evidence to support a conviction, we must look to all of the evidence "without the prism of `in the light most favorable to the verdict.'" Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (citing Stone v. State, 823 S.W.2d 375, 381 (Tex. App.-Austin 1992, pet. ref'd, untimely filed)). However, our review is not unfettered, for we must give "appropriate deference" to the fact finder. Id. at 136. We may not impinge upon the fact finder's role as the sole Judge of the weight and credibility of witness testimony. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Dimas v. State, 987 S.W.2d 152, 155 (Tex. App.-Fort Worth 1999, no pet.). The jury, as fact finder, was the Judge of the facts proved and of reasonable inferences to be drawn therefrom. See Kirby v. Chapman, 917 S.W.2d 902, 914 (Tex. App.-Fort Worth 1996, no pet.). The weight given to contradictory testimonial evidence is within the sole province of the jury, because it turns on an evaluation of credibility and demeanor. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). Thus, we must defer to the fact finder's weight-of-the-evidence determinations. See id. at 408. Consequently, we may set aside a verdict for factual insufficiency only when that verdict is so against the great weight and preponderance of the evidence so as to be clearly wrong and unjust. See Clewis, 922 S.W.2d. at 134-35.

2. The Evidence

Dr. Charles Mann, a pediatric surgeon with twenty-six years' experience, treated C.T. in the emergency room. He testified that the string was tied on between ten and fourteen days earlier. He based this estimate on the length of time it would take the urethra to heal and grow into the surrounding tissue.

Dr. Mann also testified that the injury was readily observable and would have been so for many days. His testimony reveals that there would have been apparent manifestations of the injury. He stated that as the string cut off circulation, C.T. would have been in excruciating pain. Other signs included significant spotting of blood. Finally, Dr. Mann testified that he was unsure how long it took the string to cut through the urethra. He stated that it could have taken several days or occurred in a matter of hours. Notwithstanding the possibility that the string cut through the urethra in a matter of hours, Dr. Mann stated it would have taken several days before the surrounding tissue and nerves died.

Dr. Leah Lamb, a pediatrician with Cooks Children's Physicians Network concurred in much of Dr. Mann's testimony. She stated that healing around the string indicated that it had been in place approximately ten days to two weeks. She also agreed that there would have been indications of injury. She testified that the child would have experienced "intense discomfort," due to his inability to urinate. This discomfort would have persisted until C.T.'s urethra "emperiz[ed]" allowing him to urinate from the side of his penis. Dr. Lamb testified that based on the length of time the string remained affixed and the resulting injuries, there was clearly a failure to seek timely medical treatment.

In addition to the expert testimony, appellant testified at trial that she did not know of the string until the morning she took C.T. to the emergency room. She claimed that she had tried to get the string off, but was unable to do so. Although she had laundered C.T.'s clothing, appellant contended that she had not noticed blood stains in C.T.'s clothing. Similarly, she claimed that C.T. always bathed and clothed himself; thus, she contended that she had not seen C.T. nude during the period in question.

In contrast, Melody Lancaster, C.T.'s foster parent following this incident, testified that C.T. was unable to bathe, shampoo or "wipe" himself. She stated that because of C.T.'s age, she had to assist him in these activities.

An edited transcript from the March 5, 1997 Geraldo Rivera Talk Show (Geraldo) was also introduced. In that interview, appellant acknowledged that C.T. had a bed-wetting...