Woodard v. State

• Decision Date: 10 July 1985
• Docket Number: No. 05-84-00504-CR,05-84-00504-CR
• Citation: 696 S.W.2d 622
• Parties: Charles Ray WOODARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 622

696 S.W.2d 622

Charles Ray WOODARD, Appellant, v. The STATE of Texas, Appellee.

No. 05-84-00504-CR.

Court of Appeals of Texas,

Dallas.

July 10, 1985.

Rehearing Denied July 30, 1985.

E. Brice Cunningham, Dallas, for appellant.

Elizabeth L. Phifer, Asst. Dist. Atty., Dallas, for appellee.

Before SPARLING, WHITHAM and DEVANY, JJ.

DEVANY, Justice.

The jury found Charles Ray Woodard guilty of inflicting serious bodily injury on a two and one-half year-old child by immersing her in scalding water and assessed punishment at thirty-three years imprisonment. Appellant contends that the trial court erroneously allowed the child's mother to testify concerning an extraneous offense and permitted improper jury argument. He also challenges the admissibility of hearsay testimony and photographs of the child taken before and after this incident. Finally, he claims that the evidence is not sufficient to support the conviction. Finding all contentions without merit, we affirm appellant's conviction.

In his first three grounds of error, appellant complains that photographs depicting the child's injuries should have been excluded because witnesses testified to the same information contained in the photos. He argues that, in view of this testimony, the pictures added nothing to the State's case and were offered solely to prejudice the jury against him. We cannot agree. The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly injured the child. Tex.Penal Code Ann. § 22.04(b) (Vernon Supp.1985). The incident occurred while appellant was alone with the child. Appellant claimed that the child climbed into the bathtub while he was out of the room. He testified that he was preparing to bathe the child when he left the child alone in the bathroom to carry out the garbage, and that he found the child in the bathtub when he returned. He explained that he must have accidentally turned on only the hot water faucet before leaving the child alone in the bathroom. To rebut appellant's claim that the child was scaled accidentally, the State introduced both testimonial and photographic evidence that the location and extent of the child's injuries could not have been inflicted accidentally. Although witnesses testified that the burns were inconsistent with appellant's version of the incident, "the photographic representation of the injuries tend to establish this ... in a way testimony ... could not as accurately portray." Lanham v. State, 474 S.W.2d 197, 199 (Tex.Crim.App.1971). These pictures graphically illustrate the sharp demarcation of the burned areas from those unburned. They demonstrate that the child's arms, hands, head, neck and trunk of her body above the level of her nipples were unharmed while, below that line, she suffered third degree burns over her entire body except for those areas that were unexposed to the water when the child was in a sitting position. Expert witnesses testified that the location of the burns and the sharp demarcation between burned and unburned areas indicated that the child was restrained while immersed in the water. Consequently, the photographs were appropriate circumstantial evidence that the child was burned intentionally rather than accidentally. See Terry v. State, 491 S.W.2d 161, 163 (Tex.Crim.App.1973) (photographs of the victim admissible to rebut the claim of accident).

Further, the pictures were not so gruesome that their prejudicial effect outweighed their tendency to establish the fact of the injury and that they were inflicted with a culpable mental state. The photos were taken in clinical surroundings and emphasize nothing other than the nature, location and severity of the child's injuries. See Bailey v. State, 532 S.W.2d 316, 321-22, 323 (Tex.Crim.App.1975). Because the testimony concerning the child's appearance was admissible to illuminate the general nature of the incident, see Campbell v. State, 525 S.W.2d 4, 7 (Tex.Crim.App.1975), a photograph of her appearance was also admissible. See Luck v. State, 588 S.W.2d 371, 374 (Tex.Crim.App.1979). Accordingly, appellant's first three grounds of error are overruled.

Appellant next insists that two photos of the child's appearance before she was burned were inadmissible because the State did not establish the proper predicate and because they were inflammatory and prejudicial. Appellant cites no authority supporting his argument that the predicate was improper; therefore, it presents nothing for review. McWherter v. State, 607 S.W.2d 531, 536 (Tex.Crim.App.1980); Tex.Code Crim.Proc.Ann. art. 40.09(9) (Vernon Supp.1985). We also find appellant's argument that the pictures were inflammatory and prejudicial without merit. They merely establish that the child was alive and well before this incident. Consequently, these photos were admissible to establish that the burns were not caused by some previous misfortune. See Sims v. State, 638 S.W.2d 605, 607 (Tex.App.--Dallas 1982, no pet.). Appellant's fourth ground is overruled.

Appellant next claims that the prosecutor improperly argued his case to the jury. Two of the three grounds of error attacking the jury argument complain of more than one incident; therefore, they present nothing for review because they are multifarious. ¹ Euziere v. State, 648 S.W.2d 700, 703 (Tex.Crim.App.1983); Tex.Code Crim.Proc.Ann. art. 40.09(9) (Vernon Supp.1985). In his seventh ground of error, appellant argues that the trial court should have granted his request for mistrial after sustaining his objection to and instructing the jury to disregard the prosecutor's argument that the child's mother gave appellant "a second chance and you see what it got her." Apparently, appellant is contending that this statement referred to the mother's testimony that she noticed that the child had previously suffered burns that appellant claimed were accidental. ² If so, the comment was a reasonable deduction from the facts in evidence and therefore not improper. Denison v. State, 651 S.W.2d 754, 762 (Tex.Crim.App.1983). However, even if the argument were improper, the trial court's instruction to disregard the comment was sufficient to cure any error. Hodge v. State, 631 S.W.2d 754, 756 (Tex.Crim.App.1982). Accordingly, we overrule grounds of error five through seven.

A social worker who interviewed the child soon after her arrival at the hospital testified that the child, in response to questioning, told her that appellant burned her with hot water in the bathtub. Appellant contends this testimony was inadmissible hearsay. The State argues that the child's statements to the social worker were admissible under the spontaneous exclamation exception to the hearsay rule. Hearsay is admissible under this exception if the statement concerned a startling or exciting event, was made while the declarant was influenced by the event, and was made under circumstances that preclude falsification. Martinez v. State, 533 S.W.2d 20, 23 (Tex.Crim.App.1976). "[I]t is a well recognized exception ... that statements made while in the grip of violent emotion, excitement or pain which relate to the exciting event are admissible...." King v. State, 631 S.W.2d 486, 491 (Tex.Crim.App.1982).

The social worker testified that the child was restless, crying and fighting the intravenous medication during the interview. In light of the child's statements, their proximity to the time of injury, the severity of her injuries and the child's behavior, the State has sufficiently shown that her statements were made under the influence of the exciting event. Nevertheless, appellant argues that, because these statements were elicited through questioning, they were not "spontaneous." However, merely because the statements are answers to questions does not necessarily render them not spontaneous. Graves v. State, 115 Tex.Cr.R. 85, 29 S.W.2d 379 (1930). Rather, it is only a fact that is weighed in determining whether the statement was spontaneous. 1A C. McCormick & R. Ray, Texas Law of Evidence Civil and Criminal 914 (Texas Practice 3d ed. 1980). The social worker's questions were not leading or suggestive. The child was only two and one-half years old, frightened and in pain. Because of the improbability that the child's answers were falsified, we hold that, merely because these statements were made in response to questioning, the trial court was not required to exclude them. Appellant's eighth ground of error is overruled.

Appellant next claims that the medical examiner's testimony concerning the child's cause of death and other facts was inadmissible hearsay because it was based on an autopsy report prepared by the medical examiner's assistant. In these two grounds of error, appellant directs us to a motion in limine, which the trial court denied in part, and his objection at trial. However, a motion in limine does not preserve error. Basham v. State, 608 S.W.2d 677, 679 (Tex.Crim.App.1980); Romo v. State, 577 S.W.2d 251, 252 (Tex.Crim.App.1979). Also, the trial judge did not rule when appellant re-urged his objections during a hearing outside the jury's presence; therefore, in the absence of an adverse ruling to a timely objection, nothing is presented for review. See Dunavin v. State, 611 S.W.2d 91, 94 (Tex.Crim.App.1981).

Nevertheless, because appellant challenges the sufficiency of the evidence, we must determine whether the medical examiner's testimony was admissible under an exception to the hearsay rule. If it was admissible, it may be considered when reviewing the record to determine whether the evidence was sufficient to support the conviction because evidence admissible under a hearsay exception has probative value. ³ Crocker v. State, 573 S.W.2d 190, 203 (Tex.Crim.App.1978).

Appellant first contends that the business records exception contained in Tex.Rev.Civ.Stat.Ann. art. 3737e (Vernon Supp.1985) does not apply when the medical examiner testifies from an autopsy report prepared by...