Rickey Lynn Harrison, Sr. v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00155-CR

Rickey Lynn Harrison, Sr.,

Appellant

v.

The State of Texas,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2003-993-C

MEMORANDUM Opinion

ON PETITIONS FOR DISCRETIONARY REVIEW

As authorized by Rule 50 of the Rules of Appellate Procedure, we issue this modified opinion within thirty days after the State and Appellant filed petitions for discretionary review. Tex. R. App. P. 50. We are persuaded by some aspects of both petitions.

INTRODUCTION

Rickey Lynn Harrison was charged by indictment with murder and with injury to a child. A jury found him guilty of the lesser offense of manslaughter and the offense of injury to a child. The jury also found that Harrison used a deadly weapon in the commission of the offenses. The jury assessed punishment at fifteen-years confinement for manslaughter and twenty-years confinement for injury to a child.

BACKGROUND

Harrison was tried for murdering and causing serious bodily injury to his eight-month-old son. The baby lived with the baby s mother, grandmother, and his mother s brothers and sisters. The baby s mother testified that Harrison stayed at the house the night before the baby died. She had put the baby to bed in her room with Harrison while she took a shower. While she was showering, she heard the baby crying. When she returned to her room, the baby was having a hard time breathing and looked sleepy. A few minutes later, the baby vomited. The baby threw up twice more and also fell out of the bed during the night.

The following morning, the grandmother took the mother to school. The grandmother and one of the mother s brothers were taking the baby to the doctor when the baby stopped breathing. They stopped at a police station, and an officer attempted CPR on the baby. The baby was taken to a hospital.

A forensic pathologist testified that the baby died of blunt force trauma to the abdomen. He testified that the baby had many older injuries and bruises in addition to the trauma that resulted in his death. He estimated that the fatal injuries occurred within fourteen hours before the baby died. He said that after receiving this kind of injury, a baby would likely cry, have breathing difficulties, vomit, and appear sleepy.

Harrisondid not testify. A statement made by Harrison to police was admitted into evidence. In the statement, Harrison states that he and his son would play-fight and that Harrison would softly hit him in the body. The officer who took the statement testified that Harrison told him that he could have hit the baby too hard. A different officer testified that in the course of being taken to jail, Harrison mumbled I killed him under his breath.

After booking Harrison, that officer said to Harrison, Now you confessed to having killed your son, didn t you? Harrison responded, What are you what are you talking about? I didn t say anything like that. Two child witnesses for the defense testified that the baby s mother s youngest sister told them that she had killed her nephew.

Harrison brings five issues on appeal: (1) the trial court erred in allowing the State, during guilt-innocence, to ask questions about Harrison s prior assault convictions; (2) the trial court erred in entering the deadly-weapon finding because the State failed to give proper notice of its intent to seek a deadly-weapon finding; (3) the evidence was factually and legally insufficient to support a deadly-weapon finding; (4) the evidence was factually and legally insufficient to prove that the manner and means of inflicting the injury was unknown to the grand jury; and (5) the evidence was factually and legally insufficient to support both counts because of inconsistent findings.

We will reverse the judgment and remand the case to the trial court.

Deadly-Weapon Issues

Harrison s second issue argues that he did not receive adequate notice of the State s intent to seek a deadly- deadly "fied defendant was "he deadly-weapon finding and affirm.theweapon finding. The State responds that the indictment placed the defendant on notice because it charged Harrison with an act clearly dangerous to human life, to-wit: striking [victim] about the body with a blunt object unknown to the grand jury, that caused the death of [victim].

A defendant is entitled to notice that the State will seek an affirmative finding that a deadly weapon was used during the commission of the offense. Ex parte Brooks, 847 S.W.2d 247, 248 (Tex. Crim. App. 1993); see Grettenburg v. State, 790 S.W.2d 613, 614 (Tex. Crim. App. 1990) (accused is only entitled to notice, in some form, that use of deadly weapon will be a fact issue at trial). An allegation in the indictment that a weapon or object caused death or serious bodily injury is sufficient notice for a deadly weapon finding. Ex parte Beck, 769 S.W.2d 525, 526-27 (Tex. Crim. App. 1989).

Even if the object is not identified, a factfinder may affirmatively find that a deadly weapon was used. See Gordon v. State, 2005 WL 2158824 at *2 (Tex. App. Fort Worth Sept. 8, 2005, no pet. h.); Regan v. State, 7 S.W.3d 813, 819-20 (Tex. App. Houston [14th Dist.] 1999, pet. ref d); Stanul v. State, 870 S.W.2d 329, 333 n.3 (Tex. App. Austin 1994, pet. ref d); Mixon v. State, 781 S.W.2d 345, 346-47 (Tex. App. Houston [14th Dist.] 1989, aff d, 804 S.W.2d 107, 108 (Tex. Crim. App. 1991) (adopting part of court of appeals opinion that deadly weapon finding may be made even if object is not identified). A deadly weapon can be anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code 1.07(a)(17)(B) (Vernon 2003). The deadly character of a weapon may be shown by the character of the wound inflicted. See Mixon, 781 S.W.2d at 347. Objects that are not deadly weapons per se become so only upon evidence on the manner in which they are used. Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983).

In this case, the indictment provided sufficient notice to Harrison of the State s intent to seek a deadly-weapon finding. Id. We overrule Harrison s second issue.

His third issue asserts that the evidence is legally and factually insufficient to support the jury s deadly weapon finding. Pointing to the autopsy report s finding that the cause of death was blunt force injuries, Harrison claims that the evidence is insufficient to show that the cause of death was inflicted by any object and that the baby could have been injured by contacting the ground, a floor, or some other item not considered a deadly weapon.

We apply the established standards of review for legal and factual sufficiency on this issue. See Gordon, 2005 WL 2158824 at *1. When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). The standard is the same for both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of the fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Instead, our duty is to determine if the findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); Matson, 819 S.W.2d at 843.

In a factual-sufficiency review, we view all of the evidence in a neutral light and consider only whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). However, there are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Id.

Zuniga also reminds us that we must defer to the jury s determination. See id. at 481. (citing Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)). The jury determines the credibility of the witnesses and may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001). The evidence is not factually insufficient merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at 410.

An object qualifies as a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. Bailey v. State, 38 S.W.3d 157, 159 (Tex. Crim. App. 2001); Dotson v. State, 146 S.W.3d 285, 299 (Tex. App. Fort Worth 2005, pet. ref d). Anything that actually causes death is a deadly weapon. Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995). As noted above, a factfinder may affirmatively find that a deadly weapon was used even if the object is not identified. Gordon, 2005 WL 2158824 at *2; Regan, 7 S.W.3d at 819-20; Stanul, 870 S.W.2d at 333 n.3; Mixon, 781 S.W.2d at 346-47. The presence and severity of wounds on the injured party are factors to be considered in determining whether an object was used as a deadly weapon. Bethel v. State, 842 S.W.2d 804, 807 (Tex. App. Houston [1st Dist.] 1992, no pet.); Mixon, 781 S.W.2d at 347. A jury may consider all the facts of a case in determining whether a deadly weapon was used. Bethel, 842 S.W.2d at 807.

In a case where a child is injured while in the care of one person and there are no witnesses as to what occurred to cause the child s injury, the primary evidence of the manner of use of an object causing injury or death is evidence about the severity, scope, and nature of the child s injuries. See, e.g., Gordon, 2005 WL 2158824 at *6-7; Stanul, 870 S.W.2d at 330-31, 335. Objects not known as deadly weapons per se may become deadly upon evidence of the manner in which they are used. Mixon, 781 S.W.2d at 346. Even the floor can be a deadly weapon. See Johnston v. State, 150 S.W.3d 630, 639 (Tex. App. Austin 2004, no pet.); Cooper v. State, 773 S.W.2d 749, 750 (Tex. App. Corpus Christi 1989, no pet.).

In a statement to police, Harrison wrote that he and his son would play-fight and Harrison would softly hit him in the body. The officer who took the statement testified that Harrison told him that he could have hit the baby too hard. The pathologist testified that the injuries causing death would be consistent with an impact and compression of the abdomen like a severe punch, a kick, a stomp, or being unrestrained in a high speed car wreck, but would not be consistent with the baby s falling out of bed or off a chair. The baby died of blunt force injuries that would be consistent with being punched or kicked in the stomach by an adult male. The pathologist was familiar with what a deadly weapon was in the State of Texas and concluded that the blunt force object used to cause the injuries in this case would be a deadly weapon.

We hold that the evidence is both legally and factually sufficient to support the jury s deadly weapon finding in this case. Harrison s third issue is overruled.

His fourth issue complains that there was neither evidence nor a jury finding that identified the weapon used or that proved the weapon was, in fact, unknown to the grand jury, as alleged in the indictment. Because the grand jury s due diligence inquiry is not an essential element of the offense, the State was not required to prove it. See In re A.J.G., 131 S.W.3d 687, 694 (Tex. App. Corpus Christi 2004, pet. denied) (citing Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001) and Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); Richards v. State, 54 S.W.3d 348, 350 (Tex. App. Houston [1st Dist.] 2001, pet. ref d). Accordingly, Harrison s complaint is overruled.

Inconsistent Verdicts

In his fifth issue, Harrison argues that the jury s verdicts are inconsistent and demonstrate a lack of evidence of intent to commit serious bodily injury. Harrison contends that his conviction for recklessly causing the victim s death and his conviction for intentionally or knowingly causing serious bodily injury are irreconcilable. Inconsistent verdicts, however, do not of themselves require a finding of legal insufficiency to support the findings adverse to the criminal defendant. See Ruiz v. State, 641 S.W.2d 364, 366 (Tex. Crim. App. 1982). Instead of summarily finding the evidence legally insufficient to support the jury s verdict of guilt, we are to examine the legal sufficiency of the evidence to support the counts on which a conviction was rendered. Id.; Moranza v. State, 913 S.W.2d 718, 724 (Tex. App. Waco 1995, pet. ref d).

Harrison contends that there was no evidence that he intentionally caused serious bodily injury to the child. On the question of intent, the jury is called upon to review all the evidence and may reasonably conclude from the circumstantial evidence that the requisite mental state existed. Morales v. State, 828 S.W.2d 261, 263 (Tex. App. Amarillo 1992), aff d, 853 S.W.2d 583 (Tex. Crim. App. 1993).

The State presented evidence that the fatal injury occurred while Harrison was in the bedroom with the child. The pathologist testified that the injury was caused by a blunt object that was forceful enough to press the child s internal organs against his backbone. The child s injuries were not consistent with falling from a chair or from a bed, and the autopsy revealed several other, older internal injuries that were in various stages of healing. Medical evidence of this nature is sufficient for the jury to infer the defendant s intent to cause the child serious bodily injury. Id.; Moore v. State, 708 S.W.2d 484, 487-88 (Tex. App. Dallas 1986), rev d on other grounds, 749 S.W.2d 54 (Tex. Crim. App. 1988), overruled on other grounds by Awadelkariem v. State, 974 S.W.2d 721, 724 (Tex. Crim. App. 1998); Crouch v. State, 702 S.W.2d 660, 662 (Tex. App. Tyler 1985, pet. ref d).

Texascase law is replete with holdings that when an adult defendant has had sole access to a child at the time its injuries are sustained, the evidence is sufficient to support a conviction for injury to a child, or murder if the child dies. See Bryant v. State, 909 S.W.2d 579, 583 (Tex. App. Tyler 1995, no pet.) (where evidence showed child had been left alone with defendant and injuries to child occurred approximately thirty minutes prior to child being brought to emergency room, evidence was sufficient to support conviction); Elledge v. State, 890 S.W.2d 843, 846 (Tex. App. Austin 1994, pet. ref d) (undisputed medical testimony placing adult defendant alone with child when fatal injuries were sustained supported conviction for injury to a child); Butts v. State, 835 S.W.2d 147, 151 (Tex. App. Corpus Christi 1992, pet. ref d) (injuries sustained by child established by medical testimony to have occurred at time adult defendant admitted to sole possession of child).

Garcia v. State, 16 S.W.3d 401, 405 (Tex. App. El Paso 2000, pet. ref d).

Finding the evidence legally sufficient to support the verdict, we overrule this issue.

Prior Convictions

Harrison argues in his first issue that the trial court erred in allowing the State, during the guilt-innocence phase, to ask were you aware questions about Harrison s prior assault convictions (assault, assault on a public servant, and several class disruptions in high school). A trial court has wide discretion in admitting evidence of a defendant s prior convictions. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). We will not reverse the trial court s ruling absent an abuse of discretion. Id.

The defense called several witnesses to testify to what kind of father Harrison was and how he interacted with children. One of those witnesses testified as follows:

Question: Could you tell us how you know Rickey Harrison?

Answer: Well, I know Rickey through my son, Detrick Evans. They were

good friends. He was a sweet person, he was a good person. He used to stay the nights at my house. He done watched my kids and I didn t have a problem with him.

The prosecution argued at trial, and reasserts on appeal, that because the witness testified that Harrison was a good person and a sweet person, she opened the door for the State to rebut her opinion testimony with the prior convictions.

Do you know questions (or were you aware questions) are permissible under rules 405(a) and 404(a)(1) of the Texas Rules of Evidence. Tex. R. Evid. 404(a)(1), 405(a); Reynolds v. State, 848 S.W.2d 785, 788 (Tex. App. Houston [14th Dist.] 1993, pet. ref d); Bratcher v. State, 771 S.W.2d 175, 187 (Tex. App. San Antonio 1989, no pet.) ( were you aware questions acceptable for opinion witness). Rule 404(a)(1) allows an accused to offer general reputation or opinion testimony to prove character. Thomas v. State, 759 S.W.2d 449, 452 (Tex. App. Houston [14th Dist.] 1988, pet. ref'd). Rule 405(a) states that character witnesses may be cross-examined on relevant specific instances of conduct. Tex. R. Evid. 405(a). Reputation witnesses may be cross-examined with have you heard questions; opinion witnesses may be cross-examined with do you know questions. Reynolds, 848 S.W.2d at 788. Before such cross-examination can take place, the State must establish a two-part predicate for the question. First, there must be a factual basis for the incidents inquired about; and second, the incidents must be relevant to the character trait at issue. Murphy v. State, 4 S.W.3d 926, 931 (Tex. App. Waco 1999, pet. ref d).

Harrisondoes not argue that there was no factual basis for the prior convictions; nor does he argue that the prior convictions are irrelevant to the character traits of being a good or sweet person. Rather, he argues that (1) the witness s response went solely to the issue of how Harrison treated his child or the witness s children; and (2) the witness s answer was nonresponsive. We do not agree that the witness s statement that Harrison is a good and sweet person was limited to his interaction with children. The statement itself was not qualified, nor was it made in the context of a discussion of Harrison s interaction with children.

However, we do agree that the witness s answer was unsolicited and not responsive to any question asked. It is apparent from defense counsel s questions on direct examination that defense counsel sought the witness s observations of Harrison s interaction with his own child and with the witness s children:

Q. . . . . Could you tell us how you know Rickey Harrison?

. . . .

Q. Rickey stayed nights at your house?

. . . .

Q. Okay. And he d watch your kids?

. . . .

Q. Okay. And how old were your kids when Rickey was doing that?

. . . .

Q. Okay. Rickey ever beat up on your little babies?

. . . .

Q. Okay. Did you ever see Rickey as he interacted with his own baby . . . ?

. . . .

Q. Did he act like he liked the kid?

. . . .

Q. Did he ever did he ever hurt him?

. . . .

Q. Do you believe for even a minute that he would hurt him?

Defense counsel s questions did not solicit the witness s opinion as to Harrison s character or Harrison s reputation in the community.

The issue is whether the defense witness s volunteered and nonresponsive opinion testimony nonetheless placed Harrison s character at issue, thus opening the door for were you aware questions. Courts have found similar witness testimony insufficient to place the defendant s reputation at issue so as to allow the State to rebut with have you heard questions. See, e.g., Rutledge v. State, 749 S.W.2d 50, 51 (Tex. Crim. App. 1988) (witness testified defendant was impeccable, never drank, didn t curse, and was just a nice person); Stephens v. State, 660 S.W.2d 85, 86-87 (Tex. Crim. App. 1983) (wife of defendant testified her husband loved her family, supported family, held a steady job, and participated on a track team, basketball team, and community cleanup committee); Nixon v. State, 653 S.W.2d 443, 444 (Tex. Crim. App. 1983) (defendant s supervisor testified he was a hard worker, ideal employee, and "a very kind guy" who got along with everyone and often volunteered to help others); Smith v. State, 763 S.W.2d 836, 840 (Tex. App. Dallas 1988, pet ref'd) (witness testified have never known him [defendant] to be in any kind of trouble ); Powell v. State, 663 S.W.2d 465, 466-67 (Tex. App. Houston [1st Dist.] 1983, no pet.) (witness testified defendant was nice person who didn't create problems around apartment complex).

We conclude that the defendant did not place his character or reputation at issue through the witness s testimony. Therefore, the State should not have been allowed to ask the witness were you aware questions.

Having held that the were you aware questions about Harrison s prior assault convictions were improperly allowed, we must now determine whether Harrison was harmed by the error. Error under the rules of evidence in admitting evidence of extraneous offenses is nonconstitutional error governed by Texas Rule of Appellate Procedure 44.2(b). Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Rule 44.2(b) provides that a nonconstitutional error "that does not affect substantial rights must be disregarded." Substantial rights are not affected by the erroneous admission of evidence if, after examining the record as a whole, we have fair assurance that the error did not influence the jury, or had but a slight effect. Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003); Motilla v. State, 78 S.W.3d 352, 356 (Tex. Crim. App. 2002); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).

In conducting a harm analysis under Rule 44.2(b), we decide whether the error had a substantial or injurious effect on the jury verdict. Morales v. State, 32 S.W.3d 866, 867 (Tex. Crim. App. 2000). We consider everything in the record, including any testimony or physical evidence admitted for the jury s consideration, the nature of the evidence supporting the verdict, the character of the error and how it might be considered in connection with other evidence in the case[,] . . .the jury instruction given by the trial judge, the State s theory and any defensive theories, closing arguments, and voir dire if material to appellant s claim. Id. We also consider overwhelming evidence of guilt, but that is only one factor in our harm analysis. Motilla, 78 S.W.3d at 356-58.

The State s theory was that Harrison caused the baby s injuries on the evening before the baby died. The pathologist testified that the injury was consistent with a strong blow to the baby s abdomen and that the injury would not be consistent with the baby s falling out of bed or off a chair. He said that the symptoms the baby would display after receiving the injury would be crying, difficulty breathing, vomiting, and sleepiness. The child s mother testified to witnessing all of these symptoms that evening after she left the baby with Harrison. The officer who took Harrison s statement that he would play-fight with the baby testified that Harrison told him that maybe he hit the baby a little too hard.

Another officer testified that Harrison mumbled under his breath I killed him. But after booking Harrison, that officer said to Harrison, Now you confessed to having killed your son, didn t you? But he further testified that Harrison responded, What are you what are you talking about? I didn t say anything like that. Two child witnesses for the defense testified that the baby s mother s eleven-year-old sister admitted to them that she had killed the baby. The defense theory was that Harrison loved the baby very much, as evidenced by his having walked from Marlin to Waco to see the baby in the hospital right after his birth, and that he was a caring father who would not have committed this crime.

The jury was instructed that evidence regarding Harrison s prior convictions could not be considered as evidence of guilt and could be considered only with regard to the credibility of witnesses. However, the prosecution used the prior convictions not only to cross-examine the witness, but also to argue in closing that Harrison was an angry and violent person:

Think about the defendant s anger. I think this is important. He has previous assaultive behavior that you-all know about it now because you weren t going to be left with the impression that he was a good and sweet boy like their witnesses tried to make him out to be. He s got an anger problem. He punched holes in those walls. He was jealous of that baby, and that was why he got angry with [the baby s mother].

The character of the improperly admitted evidence Harrison s history of assaultive conduct flowed with the State s theory, supported the contested issues of intent and motive, and was emphasized by the State in closing argument. In a circumstantial evidence case such as this where there is substantial, but not overwhelming, evidence of guilt, we are constrained to conclude that the error probably did influence the jury or had more than a slight influence on its verdict. Finding that the erroneous admission of Harrison s prior assault convictions affected his substantial rights, we sustain his first issue.

CONCLUSION

The trial court s judgment is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion. Our opinion and judgment dated July 20, 2005, are withdrawn, and this opinion is substituted as the opinion of the court. Tex. R. App. P. 50. Harrison s and the State s petitions for discretionary review are dismissed by operation of law. Id.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Reversed and remanded

Opinion delivered and filed October 19, 2005

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