Bradley Phillip Hogue v. State of Texas--Appeal from 32nd District Court of Nolan County

Opinion filed December 6, 2007

In The

Eleventh Court of Appeals

____________

 No. 11-06-00024-CR

__________

 BRADLEY PHILLIP HOGUE, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 32nd District Court

Nolan County, Texas

Trial Court Cause No. 10142

O P I N I O N

The jury convicted Bradley Phillip Hogue of the offense of injury to a child causing serious bodily injury, a first degree felony under Tex. Penal Code Ann. ' 22.04 (Vernon Supp. 2007). The jury assessed punishment at confinement for eighty-five years and a $10,000 fine. We affirm.

Appellant presents two issues for review. In the first issue, he challenges the legal and factual sufficiency of the evidence. In the second issue, he complains of the admission of prior convictions during the punishment phase of the trial.

Sufficiency of the Evidence

In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, we must determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. We must also give due deference to the jury=s determinations of fact, particularly those determinations concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 8-9.

The record shows that appellant was home alone with the victim and an infant when the victim sustained a spiral fracture to the middle of the femur in her left leg (the large thigh bone). The victim was two and one-half years old. Appellant told the paramedic and an investigator that the victim was riding her bike on the sidewalk and that, when she attempted to turn around, she fell. The bike, a small bike with training wheels, was taken into custody and introduced at trial.

Dr. Andrew Stoebner, an orthopedic surgeon who treated the victim in the emergency room, testified that the victim=s injuries were apparent and that, upon sustaining the fracture, the victim would have been in immediate pain. Dr. Stoebner performed surgery on the victim=s leg, placing a small metal rod through the middle of the bone to hold it in position, and then placed the leg in a long cast. In addition to the spiral fracture, the victim had eight to ten fingertip-size bruises on her chest, various bruising of different ages, fingernail marks mid-thigh on the broken leg, elevated liver enzymes likely caused by blunt trauma, and an adrenal mass. Dr. Stoebner testified that the marks on the victim=s thigh seemed to correlate with somebody gripping her leg in that position and twisting it. Even though he admitted that it was possible to incur a twisting break on a bicycle, he did not think that could have happened under the circumstances in this case. Dr. Stoebner stated that the thigh bone is difficult to break and that the victim=s bike accident would not have created enough force to cause the break. Dr. Stoebner concluded that the victim=s spiral fracture was not the result of an accident and that it constituted serious bodily injury because, if left untreated, such a fracture could lead to severe deformity and a limp.

Pediatrician Dr. Paige LeMasters also examined the victim in the emergency room and performed a full physical exam of the victim except for her broken leg, which was in a splint at the time. Dr. LeMasters observed numerous bruises and abrasions on the victim, including an abrasion on her left ear, bruises on her forehead, numerous bruises on her abdomen and chest, a bruise on her left arm, some bruising on her back, and a bruise on her nose. The results of the victim=s lab and radiology tests contained significant abnormal findings, including elevated liver enzymes, blood in the urine, and an adrenal mass. Dr. LeMasters described the adrenal mass as a hematoma B a bruise on the inside of the body. The elevated liver enzymes were determined to have been caused by trauma B most likely caused by a blow of significant force to the abdomen or back. Dr. LeMasters reiterated that significant force would be required to cause a spiral fracture of the femur and that, in her opinion, such a fracture could not be caused by a two-and-one-half-year-old falling from a bike. The symptoms from the victim=s fracture would have been immediately apparent, and the victim would not have wanted to ride a bike after the fracture. In Dr. LeMasters=s opinion, the victim=s fracture was the result of abuse. Dr. LeMasters testified that her opinion regarding the cause of the fracture was not based upon the victim=s other injuries. These other injuries, however, played a role in the doctor=s determination that the victim was an abused child and suffered from battered child syndrome. Dr. LeMasters also testified that the fracture constituted serious bodily injury because, without treatment, the fracture would have led to permanent disability and possible disfigurement.

A nurse from the hospital testified about an incident that occurred while the victim was in a hospital room equipped with a security camera. The nurse heard the victim screaming and looked up and saw appellant standing in front of the victim blocking the camera=s view of the victim. The nurse went into the room and noticed that the victim had moved as far away from appellant as she possibly could. Appellant turned and looked at the nurse and then left the room.

Appellant called Dr. Lloyd White, a forensic pathologist, as an expert witness. Dr. White examined the victim=s medical records and determined that the victim=s fracture was nonspecific, meaning it could have resulted from an accident or abuse. Dr. White testified that the victim could have sustained her broken leg from a bike accident if she fell in such a way that her leg got caught and twisted. Dr. White strenuously disagreed with any doctor=s definitive conclusion regarding the cause of the fracture or the marks on the victim=s leg. Dr. White agreed that the victim would be crippled and her leg deformed if the fracture had not been treated. Dr. White also agreed that, taking the case as a whole, he would regard the victim=s injuries as suspicious for child abuse.

Evidence regarding the cause of some of the victim=s other injuries was introduced. Amber Malanitch, who was the victim=s mother and appellant=s girlfriend, testified that appellant was a very loving father to both of Malanitch=s daughters. Malanitch admitted that she had accidentally bruised the victim=s abdomen and chest area while they were playing. According to Malanitch, the victim bruised easily. Malanitch also testified that the victim=s bike was wobbly and that she had ridden off the porch and hurt herself within days before breaking her leg. Malanitch testified that the victim was a difficult child and that she threw fits during which she would often self-inflict injuries. Malanitch stated that the victim liked to bang her head on things when she did not get her way. Malanitch admitted holding the victim down until she stopped.

Appellant=s mother, Verna Campbell, testified that appellant was awesome with the victim and that he was the victim=s primary caregiver. Campbell confirmed that the victim=s bike was not sturdy because it had a piece missing from one of the training-wheel areas. Campbell testified that, the day before she broke her leg, the victim had ridden her bike off the porch and hurt her lower back. Campbell also testified that the victim threw fits all the time, often throwing herself on the floor and banging her head.

Malanitch=s and Campbell=s testimony regarding the victim throwing fits was substantiated by a videotape made by a foster parent while the victim was in foster care. Approximately fifteen minutes of the tape was introduced into evidence and played for the jury; it depicted the victim throwing a tantrum in which she screamed almost nonstop, threw herself down on the mattress repeatedly, hit her head on the crib several times, and slammed into the wall.

After reviewing all of the evidence, we hold that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Thus, the evidence is legally sufficient to support appellant=s conviction. Viewing all of the evidence in a neutral light, we hold that the evidence supporting the verdict is not so weak as to cause the verdict to be clearly wrong and manifestly unjust and that the verdict is not against the great weight and preponderance of the conflicting evidence. Thus, the evidence is factually sufficient. Appellant=s first issue is overruled.

Prior Convictions B Punishment Phase

In his second issue, appellant argues that the trial court abused its discretion in admitting several prior convictions into evidence during the punishment phase of trial. Appellant complains of the lack of a proper predicate showing his identity as the person convicted in those cases. These prior convictions were not alleged as enhancements.

The record shows that the State offered into evidence several exhibits regarding punishment. The State first offered State=s Exhibit No. 20, appellant=s booking report that was signed by him as being correct when he was booked into the Nolan County jail. The booking report contained appellant=s name, physical description, identification or driver=s license number from Washington, date of birth, and social security number.

The State then offered State=s Exhibits Nos. 21-27, each containing a certified copy of an out-of-state judgment of conviction. Six of these convictions were from Washington, where appellant had lived prior to moving to Texas; one was from Oregon. None of these exhibits contained a photograph. All except for No. 23 were convictions from Benton County, Washington, and bore appellant=s name, date of birth, and social security number. No. 23, the Oregon judgment, contained appellant=s name and date of birth but no social security number. Nos. 21, 22, 25, and 26 contained the same Washington ID or driver=s license number that was shown on No. 20, the Nolan County booking report. Nos. 21-26 contained no fingerprints, and the quality of the fingerprints on No. 27 was too poor for comparison. Appellant repeatedly objected to the admission of Exhibits Nos. 21-27, but the trial court overruled appellant=s objections and admitted the exhibits into evidence.

Also introduced by the State was Exhibit No. 29, a certified copy of another judgment from Benton County, Washington. This exhibit contained the same name, date of birth, and social security number as the previous exhibits. Exhibit No. 29, however, also contained the fingerprints of the person convicted. An expert fingerprinted appellant on the morning of the punishment hearing and compared these known prints to the fingerprints on No. 29. The expert testified that appellant=s right index finger matched the print from No. 29. Appellant does not complain that the trial court erred in admitting No. 29 into evidence. The record shows that Exhibit No. 29 contained the same AFBI@ and ASID@ numbers as two of the other exhibits B Nos. 24 and 27 B and listed the offenses shown in No. 27 as part of appellant=s criminal history.

Exhibit No. 25 listed the complaining witness as AVerna Campbell,@ appellant=s mother, who reported that her Ason, Bradley P. Hogue was very intoxicated and violent@ and was damaging items inside the residence. Exhibit No. 22 listed the complaining witnesses as the defendant=s mother and sister: Verna Sue Hensley and Jessica Dawn Hensley. It was established during appellant=s trial that his sister=s first name was Jessica. In Exhibit No. 26, AHogue=s mom, Verna Hensley,@ reported that her son had assaulted his girlfriend and had damaged the apartment rented by Verna.

Prior convictions are admissible during the punishment phase of trial without showing that the defendant is guilty of those crimes beyond a reasonable doubt. Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004); see Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (Vernon Supp. 2007). Once guilt has been established beyond a reasonable doubt, it need not be reproved during the punishment phase of another trial. Bluitt, 137 S.W.3d at 54. Identity, however, must be shown. Id.; Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986); Vessels v. State, 432 S.W.2d 108, 116-17 (Tex. Crim. App. 1968). The State must show by independent evidence that the defendant is the same person that was previously convicted. Beck, 719 S.W.2d at 210. The Court of Criminal Appeals has approved various nonexclusive ways of proving such identity, including (1) the defendant=s admission or stipulation, (2) testimony of a witness who personally knows the defendant and the fact of his prior conviction and identifies him, and (3) documentary proof such as certified copies of a judgment and sentence and authenticated copies of prison records including fingerprints B supported by expert testimony identifying the prints as belonging to the defendant B or photos. Flowers v. State, 220 S.W.3d 919, 921-22 (Tex. Crim. App. 2007); Littles v. State, 726 S.W.2d 26 (Tex. Crim. App. 1984); Beck, 719 S.W.2d at 209-10. The question in this case is not one of sufficiency but, rather, one of admissibility. See Perez v. State, 21 S.W.3d 628, 630 (Tex. App.CHouston [14th Dist.] 2000, no pet.).

We hold that the trial court did not abuse its discretion in admitting Exhibits Nos. 22, 24, 25, 26, and 27. The certified copies of these judgments and sentences were admissible and were sufficiently linked to appellant so that they became relevant to appellant=s punishment hearing. Exhibits Nos. 24 and 27 were linked through Exhibit No. 29, which was linked to appellant through fingerprint identification. Exhibits Nos. 22, 25, and 26 were linked to appellant by his identifying information and the complaining witnesses. Although we would not recommend the means used to link these exhibits to appellant, we hold that they were sufficient under the totality of the evidence admitted to show that appellant was the person convicted in those cases. See Flowers, 220 S.W.3d at 922-23. The jury was free to weigh the credibility of these exhibits based upon the evidence as presented.

With respect to Exhibits Nos. 21 and 23, however, the State failed to show that appellant was the person convicted as shown in those judgments. No. 23 was linked to appellant only by his name and date of birth. No. 21 was linked only by name, date of birth, social security number, and driver=s license number. The witnesses through whom the State offered the punishment exhibits agreed that somebody else could have been arrested, charged, and convicted using appellant=s identifying information such as his name, date of birth, and social security number and that they could not say beyond a reasonable doubt that appellant was the person convicted in those prior cases. Because the State failed to introduce sufficient independent evidence linking Exhibits Nos. 21 and 23 to appellant, the trial court abused its discretion in allowing the jury to consider these convictions.

Having found error, we must determine whether the error warrants reversal. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). A nonconstitutional error must be disregarded unless it affects substantial rights. Tex. R. App. P. 44.2(b); Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). Substantial rights are not affected by the erroneous admission of evidence Aif the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.@ Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).

We hold that the admission of Exhibits Nos. 21 and 23 does not warrant reversal. Exhibit No. 21 contained a judgment and sentence from Benton County, Washington, for criminal trespass and criminal attempt. Exhibit No. 23 contained an Oregon judgment for a misdemeanor assault and showed that the defendant received a suspended sentence of probation for twenty-four months. No details of the assault, other than the victim=s name, were revealed in Exhibit No. 23. In light of the nature of the crime in this case; the fact that appellant was the only adult with the child at the time; the evidence establishing that the child suffered from battered child syndrome; and the properly admitted prior convictions for assault/domestic violence, possession of drug paraphernalia, escape from community custody, domestic violence/malicious mischief, destruction of property, arson, reckless burning, and theft, we cannot say that the improper admission of Exhibits Nos. 21 and 23 would have had more than a slight effect on the jury=s verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Thus, we cannot find that the error constituted reversible error under Rule 44.2(b). Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

December 6, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.