Jessica Wright Gerloff v. The State of Texas--Appeal from 8th District Court of Franklin County

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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-05-00146-CR
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JESSICA WRIGHT GERLOFF, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court
Franklin County, Texas
Trial Court No. 7731
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION

Jessica Wright Gerloff appeals from her conviction by a jury for the capital murder of Corbin Gerloff, her infant son. Her punishment was automatically assessed at imprisonment for life, (1) and she was sentenced accordingly. On appeal, she contends: 1) a statement in which she confessed to the murder was involuntary and therefore inadmissible; 2) there was no evidence she intentionally harmed the child; and 3) the trial court erred by denying her motion for continuance.

To provide a context for our review, we briefly set out the facts of this case. Deputy Sheriff Kirby Gerald responded to a medical emergency call at a home. On arrival, he found Dewayne Gerloff doing CPR on Dewayne (2) and Jessica's two-month-old son, Corbin, who was lying on the floor by the door. Gerald assisted until medical personnel arrived and took the child to the hospital. Jessica arrived home and then went to the hospital. The evidence showed that the child had a bruise on his back and blood in his diaper, and medical testimony was that he had died after suffering a blunt force trauma to the head and fractured ribs.

Both Dewayne and Jessica were arrested. Dewayne was ultimately charged with causing injury to the child by failing to seek medical attention. He pled guilty to the offense and was sentenced to prison. Jessica was charged with the murder. She gave a written statement in which she confessed that she "kinda forcefully hard put him on the couch. I had him underneath his armpits and put him on the couch. I guess that might have been when his ribs were crushed & he got the head trauma." She also stated the infant died at approximately 2:30 p.m. At the time, Dewayne was not at the house; he returned from seeking employment at approximately 3:00 p.m. Jessica left (according to her statement) at approximately 4:45 p.m. to pick up another woman from her job (whose young children Jessica was keeping). Dewayne called for assistance at 5:30 p.m.

Jessica first contends the court erred by admitting her statement because, at the time she gave the statement, she was ill, under great stress, and depressed. She also argues she was under the false impression that giving her statement would get her husband out of jail. Jessica filed a motion to suppress the statement. The court conducted a hearing on her motion, outside the presence of the jury, during the trial. The testimony at that hearing showed that Jessica had voluntarily presented herself at the police station stating she wanted to talk to someone about the death of her child. Although Jessica was not then under arrest, the officer who took the statement gave her the required warnings, (3) and Jessica then gave the written statement at issue.

Jessica's counsel asked the officer several questions focused on the way in which he interacted with Jessica while she was writing the statement. None of the issues now raised on appeal were placed before the trial court for consideration. Jessica's issue and argument on appeal does not comport with her initial objections. Thus, they were not preserved for our review. See Tex. R. App. P. 33.1; Mumphrey v. State, 155 S.W.3d 651, 656 (Tex. App.--Texarkana 2005, pet. ref'd). The contention of error is overruled.

Jessica next contends the evidence is insufficient to show intent to harm. Intent may be directly proven, or it may be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Jessica contends the evidence may show recklessness, but does not rise to the level of showing that she intentionally killed her child. The jury was provided with the options of capital murder, manslaughter, or criminally negligent homicide, and was provided with the necessary definitions and instructions for those allegations.

In reviewing the legal sufficiency of the evidence, we view the relevant 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong and manifestly unjust or whether the great weight and preponderance of the evidence is contrary to the verdict. Id.; see Watson v. State, No. PD-469-05, 2006 Tex. Crim. App. LEXIS 2040, (Tex. Crim. App. Oct. 18, 2006); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).

The jury was charged that a person acts intentionally, or with intent "when it is his conscious objective or desire to engage in the conduct or cause the result." See Tex. Penal Code Ann. 6.03(a) (Vernon 2003).

Walter Kemp, M.D., a forensic pathologist who performed the autopsy on Corbin's body, testified that Corbin (although with no skull fractures) had brain hemorrhaging and bleeding around the optic nerve as the result of head trauma and that Corbin had multiple rib fractures. Kemp stated that Corbin's injuries were consistent with shaken baby syndrome and that Corbin died sometime between minutes to six hours after the injuries were inflicted. Kemp further stated that all the injuries were very recent and were inflicted at the same time. The head trauma would alone be lethal, and he testified that the fractured ribs could also cause or contribute to the death. He testified that all the injuries were consistent with holding the baby under the armpits, shaking him, and putting him down in a forceful manner on something like a sofa. Kemp emphasized that normal handling could not cause such a result, nor even accidental drops from a low height--such injuries require a "significant" amount of force to be applied.

There was also testimony that Jessica called a long-time family friend, Christine Adams, and told her that she had confessed to the murder and that she had killed her son. (4)

This evidence is supportive of a conclusion by the jury that it was Jessica's conscious desire to engage in that conduct. It does not necessarily require the intent to cause the result: death. It only requires that the action itself be intentionally done. Further, the charge also allowed conviction for capital murder if the act was done knowingly or with knowledge.

A person acts knowingly or with knowledge, with respect to the nature of his or her conduct when that person is aware of the nature of the conduct. A person acts knowingly, or with knowledge, with respect to a result of his or her conduct when that person is aware that the conduct is reasonably certain to cause the result. See Tex. Penal Code Ann. 6.03(b) (Vernon 2003). The evidence would also support a conclusion that Jessica acted knowingly when she took the actions--and there is evidence that those actions resulted in the child's death.

The arguments to the contrary consist of nothing more than speculation and surmise. There is no evidence to connect Dewayne, or any other person, to the injuries to the child. The evidence is legally and factually sufficient to support the verdict.

Jessica next complains that the court erred by denying her motion for continuance so that she could attempt to obtain additional witnesses. The two witnesses had been subpoenaed for a prior setting, but no additional subpoenas had been issued for the instant trial, and the witnesses did not appear. The motion for continuance was made orally. The Texas Court of Criminal Appeals has held specifically that a motion for continuance must be made in writing, and must be sworn--otherwise, any complaint is waived. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999). The contention has not been preserved for our review.

We affirm the judgment.


Donald R. Ross

Justice


Date Submitted: August 14, 2006

Date Decided: November 21, 2006


Do Not Publish

1. See Tex. Penal Code Ann. 12.31(a) (Vernon Supp. 2006).

2. To avoid confusion, we will use first names for those persons with a common last name.

3. See Tex. Code Crim. Proc. Ann. art. 38.22, 2 (Vernon 2005).

4. In an odd statement, Adams testified that Jessica called her, crying and very, very upset, and said, "I wrote a written confession. I said, do what. She said, I wrote a written confession. I killed Corbin. I said why are you saying that, why did you do that. She told me that God made her do it and that Dewayne was God. And I didn't want to hear anymore." Adams further testified that Jessica had Dewayne "wrapped around her finger," that Dewayne was not a controlling personality, and that she could make no sense of the "God" statement at all.