Derrick Shaun Langley v. The State of Texas--Appeal from Crim Dist Ct of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-126-CR

DERRICK SHAUN LANGLEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court

Dallas County, Texas

Trial Court # F94-03750-UH

O P I N I O N

Appellant was indicted for the capital murder of fifteen month old Anthony "Chocki" Crawford. Tex. Pen. Code Ann. 19.03(a)(8) (Vernon 1994). The jury convicted him of the lesser-included offense of intentional or knowing injury to a child and assessed punishment at 30 years' confinement in the Texas Department of Criminal Justice, Institutional Division. Tex. Pen. Code Ann. 22.04(a)(1). He comes to this court on seven points of error. We overrule all of the points and contentions and affirm the judgment.

Appellant's contention in his first point is that the evidence is insufficient to establish his guilt for the lesser-included offense of injury to a child 14 years of age or younger, citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Turner v. State, 805 S.W.2d 423 (Tex. Crim. App.), cert. denied, 502 U.S. 870, 112 S. Ct. 202, 116 L. Ed. 2d 162 (1991) and other Texas cases following the reasoning in Jackson v. Virginia. The appellate test for determining sufficiency of the evidence is the constitutional test set out in Jackson v. Virginia, supra, to-wit: "Whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." This test enunciated by our United States Supreme Court has been followed in Texas. Jackson v. State, 672 S.W.2d 801, 803 (Tex. Crim. App. 1984). This test is the same for both direct and circumstantial evidence cases. Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992). The "exclusion of every other hypothesis" analytical construct for circumstantial evidence cases was rejected by our Court of Criminal Appeals in Geesa v. State, 820 S.W.2d, 154, 157-61 (Tex. Crim. App. 1991).

The indictment charged that on April 17, 1994, Appellant knowingly and intentionally caused the death of Anthony Crawford by striking him against a floor, a deadly weapon, against a bathtub, a deadly weapon, and with and against an object, the exact nature of which is unknown to the grand jury, a deadly weapon, and said Anthony Crawford was at the time of his death under six years of age.

Traci Forte, Chocki's twenty-one-year-old mother, and Appellant met in December 1993 and began living together in February 1994. On Sunday, April 17, 1994, Chocki awoke at 7:30 a.m. and appeared fine. Although Appellant did not work on Sundays, Traci did and Appellant took Chocki with him to drop her off at work. Traci called home around 9:15 that morning to check with Appellant. Appellant was "kind of upset and frantic" and told her that Chocki had fallen off of the couch, hitting his head on a table, and was "limp and still." Traci asked him to bring Chocki to her at work. Appellant took thirty minutes to make the usual ten minute trip to her work place with Chocki.

When Appellant and Chocki arrived at Traci's work place, Chocki was alive but lay limp and gasping, making little "huh" noises. Appellant and Traci immediately drove to the hospital. First Traci and then Appellant attempted to resuscitate Chocki during the drive.

On arrival at Baylor Richardson Hospital, they turned Chocki over to Nurse Estelle Brennan. Nurse Brennan testified that the emergency room staff unsuccessfully attempted to save Chocki's life with CPR and life support equipment. Chocki died in the major trauma room of the hospital shortly after his arrival. Nurse Brennan described Chocki's injuries as dried blood on the corner of his mouth and recent bruises on his chest and abdomen. She also testified that his rectum was distended and had a whitish-yellow dried substance on it.

After Chocki died, the police were called and Detective Cecilia Hinojo was assigned to interview Traci and Appellant. Both Traci and Appellant went to the police station to give statements concerning Chocki's death. Appellant first gave a statement in which he claimed that he did not see Chocki fall but saw him injured on the floor of the apartment. He attempted to revive Chocki by pushing and hitting on his chest and splashing cold water on him. When that effort failed, he claimed that he called Traci and picked her up on the way to the hospital.

After comparing Appellant's statement with Traci's, Detective Hinojo concluded that he was not being truthful and advised him of his Miranda // rights. In response, Appellant gave a second statement in which he claimed that, after Chocki fell off of the couch, he took him into his room. As Appellant entered the room "[he] was kinda up set, so [he] pitched [Chocki] in the air and inside the room. [His] intentions were to catch [Chocki] but [he] missed [and Chocki] landed near his bed, about 5 1/2 feet away." Chocki was stiff and Appellant "beat" on his chest and stomach to make sure he was still breathing. While placing Chocki in the bathtub to run water over him, Appellant lost his grip and Chocki's head bumped the side of the tub. After changing Chocki's diaper, he went to pick up Traci and on to the hospital.

Pursuant to a consent to search form signed by Traci, Dallas Police Officer Daniel Cannon searched Traci and Appellant's apartment. He stated that he found what appeared to be blood on a sponge in the kitchen, on a toddler's tennis shoe, on several articles of children's clothing, on the child's bed and bed sheets, and in several places on the carpet in the apartment.

Chocki's body was sent for an autopsy and the State presented evidence from Dr. Joseph Guileyardo, the Deputy Chief Medical Examiner for Dallas County. Dr. Guileyardo described Chocki's external injuries as consisting of a fresh bruise on the front of his forehead; several fresh bruises over his chest; several bruises over his abdomen; a half an inch tear in the front of his tongue right under his upper teeth as if those teeth had bitten into the tongue; abrasions or scrapings around his shoulders; a healing scrape on the front, side and back of his left ankle with a forming scar; very red tissue in his rectum; and a scrape on the upper part of his lower lip.

During his internal examination, Dr. Guileyardo noted injuries to Chocki's head and body. He listed the head injuries as a two inch bruise under the scalp at the front of his skull; a one inch bruise at the back of his head; a fresh bruise on the left side of his head; a four inch skull fracture which ran down the side of Chocki's head from the area of the recent bruise into an area of an older bruise; bruising of the brain itself under the forehead and back of the head. When he examined Chocki's chest and abdomen region he noted approximately 25 cc's of blood in the abdominal cavity; torn liver and small intestines; a pale, apparently injured, left kidney; fractured and healing ribs; and further bruises to the buttocks area. He recorded the cause of death as blunt-force injuries and the manner of death as homicide.

As an expert witness, Dr. Guileyardo testified that the injuries sustained by Chocki were not consistent with the explanations given by Appellant. He stated that the four inch skull fracture was at least several days old at the time of Chocki's death. He believed that the fatal injures were not caused by striking a hard object because the skin was not torn. He stated it was unlikely a fall from a couch would generate sufficient force to cause Chocki's head injuries.

Also as an expert witness, Dr. Guileyardo testified about "battered child syndrome." According to Dr. Guileyardo, "the main feature [ of the syndrome] is the presence of injuries of different ages in the same child with all sorts of different explanations offered about why this child got all of these different injuries." The doctor stated that Chocki was a battered child based on the injury to his ribs, the different ages of the injuries to his head, his broken leg, injuries to his internal organs, and the injury to his rectum.

The State elicited testimony from Traci describing Appellant's relationship with Chocki. About 1 to 2 weeks before Chocki's death, Appellant offered to bathe and dress Chocki all the time. He also complained about Chocki's whining and said that Chocki was a mama's boy and should get a whipping "for all that whining."

Traci testified about three specific instances where Chocki was injured while in the care or control of Appellant. The first instance occurred in the middle of March. Chocki and Appellant had gone to the washateria in the apartment complex where they lived to move clothes from the washing machine to the dryer. When they returned, Appellant told Traci that Chocki had jumped from the top of a machine where Appellant had placed him to avoid the wet floor. Appellant claimed that he had partially caught Chocki, but that Chocki's feet had hit the floor. The next day, after Chocki complained when Traci was attempting to put his shoes on him, they took Chocki to the hospital where it was discovered that one of his legs was fractured. In the second episode, Traci stated that she had gone outside to warm up the car on a cold morning, leaving Chocki sitting on the couch and Appellant in the bathroom. When she returned, Chocki was sitting on the floor with a "busted lip" and Appellant was coming out of the bathroom. Appellant told Traci that Chocki had fallen off of the couch. Finally, Traci testified about an incident where Appellant and Chocki were sitting on the floor together while Appellant played a video game on the TV. When Traci came out of the bathroom from combing her hair, she saw Chocki fall head first to the floor. Appellant's hands were by Chocki's ankles and Traci stated that it appeared that Chocki's "legs had been pulled from under him." Appellant told Traci that the had been attempting to catch Chocki.

Appellant testified in his own defense. He stated that in each of the instances testified to by Traci, he did not cause the injury to Chocki but merely happened to be in the vicinity when the injury occurred. However, Appellant admitted that he was "reasonably convinced" that Chocki's death was caused by his failure to catch him when he threw him in the air and that he was "responsible" for Chocki's death because "[Chocki] was under [his] care and [he was] the one that pitched him and missed him." He admitted that he had lied to Traci and to the police, but explained that he was afraid they would discover his role in Chocki's death.

Appellant argues that we should not consider evidence which he claims was erroneously admitted in our sufficiency analysis. However, when reviewing the legal sufficiency of the evidence, it is well-settled that the reviewing court must consider all the evidence presented at trial, including evidence that was improperly admitted. Green v. State, 893 S.W.2d 536, 538 (Tex. Crim. App. 1995). After reviewing the evidence in the light most favorable to the verdict, we conclude that the verdict is supported by ample evidence. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Green, 840 S.W.2d at 401; Turner, 805 S.W.2d at 427. Appellant's first point of error is overruled.

By his second point of error Appellant contends the trial court materially erred and abused its discretion in admitting extraneous offense evidence in the State's case-in-chief. First, Appellant complains of the trial court's admission into evidence of the three instances where Chocki was injured while under Appellant's care testified to by Traci. The trial court held a pretrial hearing on the admissibility of the evidence of these three prior acts. In each instance the injury occurred while Appellant was alone with Chocki. Appellant argues that the evidence failed to show that he (Appellant) was the cause of Chocki's injuries beyond a reasonable doubt. Our Court of Criminal Appeals has held that the trial court must determine that the jury could find beyond a reasonable doubt that the defendant committed the extraneous offense before admitting the evidence. See Harrell v. State, 884 S.W.2d 154, 160 (Tex. Crim. App. 1994). This was done here.

Next, Appellant contends that the trial court failed to do a Rule 403 balancing test, that is to say, balancing the probative value against the prejudicial effects as provided for in Rule 403 of the Texas Rules of Criminal Evidence. There is no showing in the record that Appellant ever requested or asked the trial court for such a balancing test; therefore, Appellant has waived this complaint. Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991).

Moreover, the record reflects that Appellant did not make timely objections to the admissibility of these three incidents and has, therefore, waived any objections to their admissibility.

However, regardless of whether Appellant waived his objections to the admissibility of these three occasions, we hold the evidence on these three occasions is admissible under Tex. Penal Code Ann. 19.06 (now Tex. Code Crim. Proc. Ann. art. 38.36 (Vernon Supp. 1996)) and Rule 404(b), Texas Rules of Criminal Evidence, to rebut Appellant's "accident" defense. Appellant's contention that Chocki's death was caused by an accident in his failure to catch Chocki after throwing him into the air is directly rebutted by showing these extraneous acts. When the accused claims accident, as here, the State may show other violent acts where the accused was the aggressor in order to rebut the defense theory. Robinson v. State, 844 S.W.2d 925, 929 (Tex. App. Houston [1st Dist.] 1992, no pet.).

Appellant further complains of the admission into evidence of Chocki's rib and rectum injuries. Here again, the record shows that Appellant failed to timely object to this evidence and these objections are waived. Tex. R. App. P. 52(a); Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 116 S. Ct. 106, ___ L.Ed.2d ___ (1995) and the cases therein cited at page 355. Additionally, Appellant further waived any objections to evidence of the rib and rectum injuries because he stipulated to submit the medical and hospital records, which also contained the information concerning the rib and rectum injuries. Stoker v. State, 788 S.W.2d 1, 12 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990). This is known as the doctrine of curative admissibility.

In addition to all the above, Appellant nowhere in his brief points out in the record where it shows he preserved his asserted error. Tex. R. App. P. 52(a); Harris v. State, 827 S.W.2d 949, 958 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 113 S. Ct. 381, 121 L. Ed. 2d 292 (1992). We overrule Appellant's second point of error.

Appellant's third point of error asserts the trial court erred and abused its discretion in failing to include the requested lesser-included offense of negligent homicide in the court's charge. This point has no merit because Appellant did not request a charge on "criminally negligent homicide," as he contends; but instead requested a charge on criminally negligent injury to a child. Tex. Penal Code Ann. 22.04(a) and (g) (Vernon 1994). Having failed to object to the charge on the grounds for which he appeals, any charge error results in reversal only if "egregious" harm is shown that denied Appellant a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Such harm is not present.

Appellant was entitled to a charge on negligent homicide if there was evidence that he (Appellant) failed to perceive a substantial and unjustifiable risk that Chocki's death would result from his actions. There is simply no evidence of this kind in the record that he did not understand the risk association with throwing a child into the air. Appellant admitted on cross-examination that he knew a child is a fragile creature; that you can't be throwing them around the room; that you can't throw children five, six, or eight feet; that a child can get killed from falls to the ground caused by throwing children five, six, or eight feet where they hit the ground; and that "everybody knows" that you don't treat children that way because they can be killed more easily than adults. That is to say, Appellant plainly understood the risk associated with his behavior. Therefore, Appellant was not "egregiously" harmed by the lack of the negligent homicide instruction, and we overrule his third point of error.

By his fourth point of error, Appellant contends the trial court erred and abused its discretion in failing to instruct the jury that a specific intent to kill is required for a verdict of capital murder and a specific intent to cause bodily injury is required for a verdict of injury to a child fourteen years of age or younger.

Appellant argues that the trial court failed to limit the definitions of the mental state to the result of the conduct. In reply, the State argues that Appellant's objection constitutes a request for an instruction which merely restates an element (intent) of the State's case and instructs the jury to acquit if that element is not proved. We agree with the State's position, and find that the trial court properly denied Appellant's request. Green v. State, 566 S.W.2d 578, 584 (Tex. Crim. App. 1978); Cox v. State, 843 S.W.2d 750, 757 (Tex. App. El Paso 1992, pet. ref'd).

Moreover, intentional murder is a "result of conduct" offense, as is intentionally and knowingly causing injury to a child. Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994); Kelly v. State, 748 S.W.2d 236, 239 (Tex. Crim. App. 1988); Beggs v. State, 597 S.W.2d 375, 377 (Tex. Crim. App. [Panel Op.] 1980). The court's instructions to the jury in result-oriented offenses should limit the abstract definitions of the culpable mental states to the result of the defendant's conduct. Id. Here, the trial court did just that. The definitions in the court's charge read as follows:

A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.

A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

In summary, the charge is correct. We overrule Appellant's fourth point of error.

Appellant asserts by his fifth point of error that the trial court erred and abused its discretion in failing to apply the voluntary act definition to the facts of the case.

A defendant is entitled to a charge on every defensive issue raised by the evidence. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987). However, in the case at bar, there is no evidence raising the issue of the voluntariness of Appellant's conduct. Therefore, Appellant was not entitled to any instruction on the issue.

An abstract definition of "voluntary conduct" appears in the charge as follows:

A person commits an offense only if he voluntarily engages in conduct, including an act or omission. Conduct is not rendered involuntary merely because the person did not intend the results of his conduct.

At trial, defense counsel requested the trial court to apply the voluntary act definition to the facts of this case. The trial judge denied this request.

The act which Appellant admitted to the jury caused Chocki's death was the act of pitching him into the air. Appellant admitted he intended to throw Chocki up in the air. There is not a scintilla of evidence suggesting that this act was anything but voluntary or that any other act causing injury to Chocki was in fact involuntary. Thus, the issue of involuntary conduct is not raised by the evidence and the court did not err when it refused to apply the definition of voluntary conduct in its jury charge. Joiner v. State, 727 S.W.2d 534, 537 (Tex. Crim. App. 1987); Moreno v. State, 821 S.W.2d 344, 356 (Tex. App. Waco 1991, pet. ref'd). We overrule Appellant's fifth point of error.

By his sixth point of error, Appellant says the trial court erred and abused its discretion in admitting statements of Appellant to law enforcement authorities in violation of State and Federal law. This point of error is without merit for two reasons: (1) Appellant's affidavit was not a product of custodial interrogation and (2) Appellant may not complain of the admission of his affidavit because his own testimony before the jury contained the very same information as was contained in the affidavit.

The trial court held a pretrial hearing on the voluntariness of Appellant's confession. At such a suppression hearing, the trial court is the judge of the credibility of the witnesses and the weight to be given to their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The judge may choose to believe any or all of the witnesses' testimony. Meek v. State, 790 S.W.2d 618, 620 (Tex. Crim. App. 1990). If the record supports the court's findings, they will not be disturbed. Romero, 800 S.W.2d at 543. If the findings are supported by the record, the only question on appeal is whether the court properly applied the law to the facts. Id.

When determining if a defendant is in "custody" at the time a statement was made, four factors are examined: (1) the existence of probable cause to arrest the person at the time of the statement; (2) if the defendant has become the "focus" of the investigation; (3) the subjective intent of the police officers; and (4) the subjective belief of the defendant. Wicker v. State, 740 S.W.2d 779, 786 (Tex. Crim. App. 1987), cert. denied, 485 U.S. 938, 108 S. Ct. 1117, 99 L. Ed. 2d 278 (1988).

Detective Hinojo testified at the suppression hearing. She met Traci and Appellant at the hospital and, pursuant to the police department's standard procedure in instances where a child has died, requested that they accompany her to the police station. Traci and Appellant went in different cars to the station, with Appellant riding with Hinojo. Hinojo explained to him that he was not under arrest. When Hinojo first requested a statement from Appellant, she knew that Chocki had died, but did not know if his death was an accident or a homicide. She asserted that Appellant was not the "prime suspect," was not handcuffed, was left alone in an unlocked room at the station during the period before he gave his first statement, and did not appear to be intoxicated or impaired. She testified that she did not make any threats or promises to Appellant in relation to his statement. Only after comparing Appellant's statement to Traci's did Hinojo form the opinion that Appellant was lying. At that point, she believed that Appellant was no longer free to leave and administered the Miranda warnings to him. Appellant did not testify at the suppression hearing.

Based on Hinojo's testimony at the pretrial hearing, the court could have concluded that at the time Appellant gave his first statement there was no probable cause to arrest him, he was not the focus of a criminal investigation, and Hinojo did not intend for Appellant to be restrained. Thus, the court did not abuse its discretion by denying Appellant's motion to suppress his statements. Id.; see also Tex. Code Crim. Proc. Ann. art. 38.22, 5; Parra v. State, 743 S.W.2d 281, 285 (Tex. App. San Antonio 1987, pet. ref'd).

Because Appellant's affidavit did not stem from custodial interrogation, the affidavit was admissible. Moreover, since Appellant took the witness stand and testified to substantially the same things the affidavit contained, he cannot complain. When a defendant offers the same evidence to which he earlier objected, he is not in position to complain on appeal. McGlothlin v. State, 896 S.W.2d 183, 189 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 116 S. Ct. 219, ___ L.Ed.2d ___ (1995). We overrule Appellant's sixth point of error.

Appellant's seventh and last point of error contends the trial court erred and abused its discretion in entering an affirmative finding that a deadly weapon was used or exhibited during the commission of the offense.

Since Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985), it has been well-settled that in a jury trial, a trial court is authorized to enter a deadly weapon affirmative finding in three situations, one of which is as follows: Where the jury has found guilt as alleged in the indictment and the deadly weapon has been specifically pled as such using "deadly weapon" nomenclature in the indictment, then the trial court is authorized to enter an affirmative finding that a deadly weapon was used or exhibited during the commission of the offense. Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim. App. 1995).

In the case at bar, all the above requirements have been complied with. The indictment contains the "deadly weapon" allegation as follows:

That Appellant did "knowingly and intentionally cause the death of an individual, Anthony Crawford, by striking said Anthony Crawford against a floor, a deadly weapon, against a bathtub, a deadly weapon, and with and against an object, the exact nature of which is unknown to the grand jury, a deadly weapon, and said Anthony Crawford was at the time of his death an individual under six years of age."

Likewise, the application paragraph in the jury charge for the lesser-included offense of injury to a child tracks the wording of the indictment and authorized conviction if the jury so found.

The verdict form in the guilt phase of the trial refers back to the indictment as follows:

"We the jury find the defendant guilty of intentionally or knowingly causing serious bodily injury to a child fourteen years of age, or younger, as included in the indictment."

The judgment recites that defendant "used or exhibited a deadly weapon during the commission of said offense, to wit, bathtub/floor." See Ex parte Poe, 751 S.W.2d 873, 875 (Tex. Crim. App. 1988). In the case at bar, the trial court acted properly in entering the deadly weapon finding, and this point of error is overruled.

Although Appellant's seventh point of error does not include it, Appellant argues under this point that "the evidence is, as a matter of fact, insufficient to allow a jury to find a deadly weapon was used or exhibited in the commission of the offense." Further on in his brief, Appellant says "there was no testimony that the `object' or `weapon' was a deadly weapon." Because Appellant has not cited case law to support his argument, we cannot determine if he is alleging "factual" insufficiency or "legal" insufficiency. Therefore, Appellant has waived this subpoint by failing to brief the issue, and the point presents nothing for review. Hutchins v. State, 650 S.W.2d 412, 414 (Tex. Crim. App. 1983); McEntyre v. State, 717 S.W.2d 140, 150 (Tex. App. Houston [1st Dist.] 1986, pet ref'd).

We overrule Appellant's seventh and last point of error. The judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed August 30, 1996

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