COREY JAMAYNE TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued August 28, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-04-01799-CR
............................
COREY JAMAYNE TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th District Court
Dallas County, Texas
Trial Court Cause No. F04-01530-QR
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OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Bridges
        Corey Jamayne Taylor appeals his reckless injury to a child conviction. A jury convicted appellant and sentenced him to seventeen years' confinement. In five issues, appellant argues the state improperly struck a potential juror on the basis of race, the evidence is factually insufficient to support his conviction, and the trial court erred in overruling his objections to certain testimony. We affirm the trial court's judgment.
        At 5:30 a.m. on November 4, 2003 appellant and Erica Owens' three-month-old daughter, J.T., woke up crying. Appellant got J.T. out of her baby bed and took her downstairs. She stopped crying two to five minutes later. As Owens lay in bed, “it was like something that came over” her, and she went downstairs to find J.T. on her stomach on one end of the couch and appellant on the other end of the couch. Appellant told Owens that J.T. had gone back to sleep. Owens went back upstairs and slept. At approximately 6:15 a.m., appellant came upstairs and said it was time to get Owens' three boys ready for school.
        Owens woke two of her sons to dress them but her other son was sick with fever. At approximately 6:40 a.m., appellant came upstairs and said J.T. was sleeping hard, and Owens said he should let her sleep a little longer so she could get the other kids dressed. At approximately 7 a.m., Owens' mother called on the telephone. Appellant said J.T. was sleeping hard and brought her upstairs. Appellant said, “look.” J.T.'s head was back, her eyes were closed, and her mouth was open. Appellant put J.T. behind Owens, and Owens picked her up. J.T. felt “real heavy.” Owens did not hear a heartbeat or breathing and began screaming. Owens' mother told Owens to hang up the phone and call for an ambulance, which Owens did. Owens ran downstairs and ran outside looking for help and saw Eric McDuffie, a neighbor, who came in and attempted CPR on J.T. Eric breathed through J.T.'s nose and told appellant to place his hands over J.T.'s chest and press down, but not too hard. J.T. never appeared to regain consciousness.
        An ambulance arrived and took J.T. and Owens to Baylor hospital. Paramedic Antoine Howard thought J.T. had not been breathing for a while because she was pale and had some stiffness. Her skin was cool to the touch. Howard stated it takes a body 30 minutes to an hour to lose its circulation and warmth. J.T.'s hands were clenched, which also indicated a lack of circulation. After getting J.T. into the ambulance, they were never able to obtain any signs of life. Dr. Steven Burgher was working in the emergency room when J.T. was brought in by ambulance. J.T. was pale and cool and had no spontaneous respiration or heartbeat, and Burgher pronounced her dead. Because the case involved the unexplained death of a child, both a social worker and Child Protective Services became involved. Appellant was subsequently charged with intentionally or knowingly causing serious bodily injury to a child younger than fourteen. A jury convicted appellant of recklessly causing serious bodily injury to a child, and this appeal followed.         In his first issue, appellant argues the State struck an African-American member of the venire in violation of the equal protection clause. See Batson v. Kentucky, 476 U.S. 79 (1986). Under Batson, there is a three-step process for evaluating an objection to peremptory strikes. See Hernandez v. New York, 500 U.S. 352, 358 (1991). First, the defendant must make a prima facie showing of discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995). The burden of production then shifts to the prosecutor to articulate a race-neutral explanation for the strikes. Id. If the prosecutor gives a race-neutral explanation, the trial court must decide whether the defendant has proven purposeful discrimination. Id. at 767. The ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. Id. at 768.
        The trial court's determination on the issue of intentional discrimination is a finding of fact entitled to great deference on appeal. See Herndandez, 500 U.S. at 364-65; Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999); Whitsey v. State, 796 S.W.2d 707, 726 (Tex. Crim. App. 1990) (op. on reh'g). In reviewing the trial court's determination, we view the record in the light most favorable to the trial court's ruling. Kemp v. State, 846 S.W.2d 289, 304 (Tex. Crim. App. 1992). We cannot reverse merely because we would have weighed the evidence differently had we been sitting as the trier of fact. Mandujano v. State, 966 S.W.2d 816, 819 (Tex. App.-Austin 1998, pet. ref'd). Rather, we reverse only if the trial court's determination is clearly erroneous. Whitsey, 796 S.W.2d at 726. A finding is clearly erroneous, even if evidence exists to support it, if our review of the record leaves us with the definite and firm conviction the trial court made a mistake. Whitsey, 796 S.W.2d at 721.
        The record shows the State struck juror number twenty-two, an African-American man named Lakeith Curry. The trial court took judicial notice that Curry was African-American. Appellant objected that Curry was struck for a racially-motivated reason, he “didn't state very much during either side's voir dire,” but he did agree with the prosecutor that “anger should not lessen a person's guilt.” Without formally making a finding that appellant had made a prima facie case of racial discrimination, the trial court called on the prosecutor to give race-neutral explanations for striking Curry. The prosecutor stated Curry was twenty-one years old and the youngest member of the panel. The prosecutor stated she was “five foot two,” and Curry was shorter than her, looked “about the age of twelve years old,” and was “very boy-like.” The prosecutor said the State had “looked at all jurors in relevance to their age and experience with children,” and appellant was a “single man that indicated he had never - no experience with children.” Thus, “the State struck him foremost, because of his age in relation to the case.”
        Appellant's counsel questioned the prosecutor concerning Curry's jury questionnaire on which he indicated he “didn't have children himself, but has been a caretaker of a baby.” The prosecutor stated she had reviewed the last half of the questionnaires and was not familiar with Curry's questionnaire, but it was Curry's “age more than anything” that led to him being stricken. The “other big issue,” the prosecutor stated, was that she had to ask Curry “several times on the issue of anger or would anger mitigate.” The prosecutor was unable to understand Curry's answer and “could not understand what he was saying.” When the prosecutor was talking to Curry, she was “feeling this pouty little boy.”
        The record reflects that, during voir dire, the prosecutor told the panel that the law says “Just because you're angry or intoxicated, that does not mitigate your mental state. That does not mean you are less guilty of the offense.” The prosecutor asked the panel if there was anyone who could not follow that law or anyone who felt that “it should lessen guilt.” The prosecutor was “looking at Mr. Curry” and asked him if he was “saying no.” Curry gave an inaudible response to this question, and the prosecutor asked him if “You wouldn't find them guilty?” Curry responded, “Right.” The prosecutor restated the question whether, if Curry “found that person was angry at the time or frustrated, would that cause you to believe that they shouldn't be guilty of knowingly or intentionally causing the crime?” Curry responded that “It shouldn't lessen their guilty [sic.].” The prosecutor restated, “It should not lessen?” and Curry responded, “Right.” The trial court denied appellant's Batson motion.
        In his brief, appellant argues the balance of the record reveals the State struck Curry because of his race, and his case for purposeful discrimination was abundantly clear. However, as the party making the Batson challenge, appellant had the burden to show that the explanation given by the State was merely a pretext for discrimination. Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002). A party's failure to offer any real rebuttal to a proffered race-neutral explanation can be fatal to his claim. Id. Here, the State presented race- neutral reasons for its use of peremptory strikes, and appellant failed to show that the explanations given were merely a pretext for racial discrimination. See id. Under these circumstances, the record in this case does not leave us with a firm conviction that a mistake has been made. See Whitsey, 796 S.W.2d at 721. We conclude the trial court's decision to overrule appellant's Batson challenge was not clearly erroneous. We overrule appellant's first issue.
        In his second issue, appellant argues the evidence is factually insufficient to support his conviction. Specifically, appellant argues the evidence shows “at most” that he is guilty only of negligent injury to a child, and he never meant to injure J.T. and had no motive to injure her. In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford “due deference” to jury's determinations). Unless the record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        A person commits injury to a child if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child serious bodily injury. Tex. Pen. Code Ann. § 22.04(a)(1) (Vernon Supp. 2006). A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. Tex. Pen. Code Ann. § 6.03(c) (Vernon 2003). The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. Id. Reckless conduct involves conscious risk creation; that is, the actor is aware of the risk surrounding his conduct or the result of his conduct, but consciously disregards that risk. Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975).
        In contrast, a person acts with criminal negligence, or is criminally negligent, with respect to the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the result will occur. Tex. Pen. Code Ann. § 6.03(d) (Vernon 2003). A person's failure to perceive the risk is the key to criminal negligence. Nash v. State, 664 S.W.2d 343, 345 (Tex. Crim. App. 1984); Lewis, 529 S.W.2d at 553. In other words, there must be evidence in the record that appellant was unaware of the risk of his conduct. See Nash, 664 S.W.2d at 345.
        A defendant's relevant culpable mental state can be proven by circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978). Ordinarily, it must be inferred from the acts, words, and conduct of the accused and the surrounding circumstances. Stadt v. State, 120 S.W.3d 428, 438 (Tex. App.-Houston [14th Dist.] 2003) aff'd 182 S.W.3d 360 (Tex. Crim. App. 2005). The issue of whether one is aware of the risk or simply fails to perceive it is a conclusion to be drawn through inference from all the circumstances by the trier of fact. Id.
        Here, the record shows J.T. was crying when appellant took her downstairs but stopped crying two to five minutes later. J.T. never regained consciousness and did not appear to be breathing or have a heartbeat when appellant brought her upstairs. Dr. Sheila Spotswood, the medical examiner who examined J.T., testified J.T.'s ribcage showed seventeen old fractures that were in the process of healing and six new or recent fractures. Some of the fractures were most commonly seen where babies had been squeezed. There were also numerous pinpoint hemorrhages in all of J.T.'s chest organs, thymus, heart, and lungs. Spotswood testified these hemorrhages correlated strongly with asphyxiation of some type. J.T.'s cause of death was listed as due to “homicidal violence, including mechanical asphyxia and blunt force injuries.” Spotswood testified mechanical asphyxia can be caused in an infant less than three months of age by squeezing about the rib cage area. This would also explain the rib cage fractures, Spotswood testified. The act of squeezing could also cause death by preventing the lungs from obtaining oxygen for a sufficient amount of time. The most likely thing used to squeeze a baby to cause these fractures would be someone holding the baby with their hands. The location of J.T.'s fractures was consistent with being squeezed but was not consistent with being inflicted by CPR. Judging from the number of fractures, Spotswood would have expected J.T. to be in constant pain over a long period of time. According to Spotswood, a person might not know they had broken a child's rib if the person was squeezing the child to get the child to stop crying or soothe the child.
        Appellant testified at trial that he would change J.T., burp her, and squeeze her when she would cry. Appellant never intended to hurt J.T. and did not know that what he was doing would restrict her oxygen. The squeezing was generally a last resort. Appellant testified he squeezed J.T. four to five times and believed this comforted J.T. However, he never showed Owens this technique. In hindsight, appellant stated, he should have known what he was doing would hurt J.T. On the morning of November 4, 2003, J.T. was crying in a way that suggested something was wrong with her. At approximately 5:25 a.m., appellant picked up J.T. and held her for one or two minutes. Appellant took J.T. downstairs and fixed her a bottle, but she was not receptive. Appellant tried burping and changing J.T., but she continued crying. Appellant was frustrated that he was unable to help J.T. Appellant exerted pressure on J.T.'s back for a minute and a half to two minutes in an on-and-off manner. J.T. did not respond in the first minute but thereafter her crying thinned out and stopped.
        According to appellant, J.T. appeared normal, she did not struggle or flail, and her complexion remained the same. Appellant laid J.T. on her stomach on the couch and went into the kitchen to make bottles for her. When he returned, he thought J.T. was asleep, and he sat on the couch for approximately ten minutes. Appellant twice went upstairs but Owens told him both times to let the kids sleep a little longer, and he went back downstairs and fell asleep. Both times, J.T. was still sleeping. Around 6:45 a.m., appellant took J.T. back upstairs to get her ready for daycare. J.T. felt warm and normal to appellant, her complexion was the same, and he thought she was still asleep. Owens asked to look at J.T., and appellant gave J.T. to Owens, who thought J.T. was not breathing. Appellant thought J.T. was breathing because her mouth was open. Owens took J.T. downstairs and appellant followed and later helped McDuffie attempt CPR on J.T.
        Thus, the evidence shows appellant intentionally squeezed J.T. to “comfort” her and stop her crying. Looking back, appellant admitted he should have known that what he was doing would hurt J.T. J.T. suffered seventeen old fractures that were in the process of healing and six new or recent fractures. Dr. Dawn Johnson, a pediatrician at Children's Medical Center and an assistant professor at the University of Texas Southwestern Medical School, testified that, since a baby's ribs are more difficult to fracture than an adult's, “significant violent force” was necessary to cause the type of damage exhibited by J.T.'s body. Viewing all the evidence, we conclude the jury was free to believe that appellant was aware of but consciously disregarded a substantial and unjustifiable risk that J.T. would suffer serious bodily injury when he repeatedly exerted “significant violent force” to J.T.'s ribs. See Nash, 664 S.W.2d at 345; Lewis, 529 S.W.2d at 553. Accordingly, the evidence was factually sufficient to show appellant recklessly caused J.T. serious bodily injury. See Johnson, 23 S.W.3d at 8. We overrule appellant's second issue.
        In his third issue, appellant complains the trial court erred in overruling his hearsay objection to the affidavit of Dr. Dawn Johnson. Specifically, appellant complains the affidavit is untrustworthy because it was prepared with an eye towards future litigation and was, therefore, inadmissible under the business records exception to the hearsay rule. In his fourth issue, appellant argues the trial court erred in overruling his speculation objection to Spotswood's testimony that a reasonable person could tell the difference between someone who was asleep and someone who was losing consciousness.         A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). Hearsay is a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex. R. Evid. 801(a). Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove. Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (any error in admitting evidence cured where same evidence comes in elsewhere without objection).
        Over appellant's hearsay objection, the trial court admitted Johnson's affidavit stating her opinion regarding J.T.'s death. Johnson subsequently read the contents of her affidavit into the record. In addition, Johnson testified at length, both on direct and cross examination, about the same matters contained in her affidavit. Johnson gave additional details concerning why a frustrated parent squeezing a crying infant is the most common cause of broken ribs, how squeezing a baby does not allow the baby to breathe and makes the baby stop crying, and how this behavior toward a crying baby is so violent that an individual performing it would recognize it as dangerous and likely to cause significant harm to the baby. Appellant did not object to this testimony. Assuming without deciding that Johnson's affidavit was improperly admitted, we conclude the error, if any, was cured by Johnson's expansive testimony, without objection, on the same matters contained in her affidavit. See Mayes, 816 S.W.2d at 88; Duncan, 95 S.W.3d at 672.
        Similarly, appellant objected that Spotswood's testimony was too speculative when Spotswood testified reasonable people can tell the difference between someone who is sleeping and someone who is unconscious. Nevertheless, appellant's counsel asked Spotswood on cross- examination whether, “to the untrained eye, you should be able to tell a difference between a sleeping baby or an unconscious baby,” and Spotswood answered, “Yes.” We conclude the error, if any, in Spotswood's opinion testimony was cured by appellant's counsel's elicitation of the same opinion on cross-examination. See Mayes, 816 S.W.2d at 88; Duncan, 95 S.W.3d at 672. We overrule appellant's third and fourth issues.
        In his fifth issue, appellant argues the trial court erred in overruling appellant's relevance objection to testimony regarding the death of Owens' mother. Specifically, appellant complains of the following exchange between the prosecutor and Owens:
 
PROSECUTOR: Now, your mother - you said you were on the phone with your mother as all of this was going on. She is not still living, is she?
 
 
 
OWENS: No.
 
 
 
PROSECUTOR: Where was she back in November of 2003 when all of this happened?
 
 
 
OWENS: She was in the hospital.
 
 
 
PROSECUTOR: And when did she pass away?
 
 
 
APPELLANT'S COUNSEL: Objection to relevance, Your Honor.
 
 
 
THE COURT: Overruled.
 
 
 
OWENS: She passed away on March 2nd.
 
Appellant argues this exchange was an attempt by the prosecutor to suggest that the charged offense somehow caused the death of Owens' mother. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. The record shows Owens was on the telephone with her mother when appellant brought J.T. upstairs, and Owens' mother told Owens to call 911. Reviewing in context the prosecutor's question concerning the death of Owens' mother, it appears the prosecutor could have been seeking to establish why Owens' mother would not be testifying, even though she was talking to Owens at the time J.T. appeared unconscious, and she told Owens to call 911. The record shows the prosecutor merely established that Owens' mother had died and proceeded to question Owens about her actions after appellant brought J.T. upstairs. The prosecutor made no reference to the cause of death of Owens' mother. Under these circumstances, we cannot conclude the trial court abused its discretion in overruling appellant's relevance objection to the testimony concerning Owens' mother's death. See Tex. R. Evid. 401; Torres, 71 S.W.3d at 760. We overrule appellant's fifth issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
041799F.U05