JASON PUMPHREY, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM and Opinion Filed July 19, 2007

In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00726-CR
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JASON PUMPHREY, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-01500-OV
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OPINION
Before Justices O'Neill, Lang-Miers, and Mazzant
Opinion By Justice O'Neill
        Appellant appeals his conviction for capital murder of a child under six years of age. After a jury found appellant guilty, the trial court assessed a mandatory life sentence. In five points of error, appellant generally contends the evidence is legally and factually insufficient to support his conviction and the trial court erred in overruling his Batson objection. For the following reasons, we affirm the trial court's judgment.
        The victim in this case was a five-year old girl. Appellant was married to the child's mother. On August 18, 2004, Mother and appellant took the child to the hospital. She was not breathing and her entire body was covered in marks and bruises. The child's injuries were numerous and severe. She had a broken arm, two black eyes, and swelling to her head. Her genitals were bruised and her back had whip marks. The child also had several internal injuries, including injuries to her lungs and multiple rib fractures. The child's injuries were inflicted over a period of weeks. At the hospital, the child never regained consciousness. She was later taken off life support and died. The cause of death was determined to be homicidal violence, including complications from blunt force injuries. Because of the number of injuries the child suffered, there were several manners and means that could have, individually or in combination, caused the child's death.
        The grand jury indicted both Mother and appellant for capital murder. Appellant was tried first. His theory was that Mother caused the child's death and that he was not involved. Mother testified for appellant, admitted her conduct caused the child's death, and claimed appellant was not responsible.
        The jury was charged that it could find appellant guilty of capital murder either as a principal or as a party. With respect to party liability, the jury was charged it could find appellant guilty if he had the intent to promote or assist commission of the offense and (1) solicited, encouraged, directed, aided or attempted to aid Mother to commit the offense or (2) had a legal duty to prevent commission of the offense and failed to make a reasonable effort to prevent its commission. The jury found appellant guilty. This appeal followed.
        In his first four points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. Thus, we will discuss the evidence presented at trial in more detail. The State showed that in the weeks before her admission to hospital, the child was a victim of numerous severe beatings and other instances of abuse. During this time period, the child was in the possession of Mother and appellant, who were apparently the only individuals that saw the child. Specifically, during this time frame, friends and neighbors testified the child, who they previously saw on a somewhat regular basis, suddenly disappeared. One neighbor testified that the child's disappearance was so abrupt that she had assumed the child had gone to live with her grandparents.
        When the child was ultimately taken to the hospital, Mother claimed the child had fallen in the bathroom. When questioned about the child's multiple injuries, which clearly could not have been explained by a fall, Mother and appellant both claimed that they believed the child had recently become possessed by demons. Appellant specifically claimed that he had witnessed demons having sexual intercourse with the child.
        Appellant later admitted Mother had been severely beating the child. Mother would bang the child's head against a wall, punch and kick her in the stomach, and beat her legs with a broom. Appellant admitted he was present during these beatings. Several days before the fatal injury, appellant had seen Mother twist the child's arm until it broke. Appellant further told police that he himself hit the child in the stomach and whipped the child with a belt. In a written statement, appellant minimized his own involvement in the child's abuse, but acknowledged that he was aware that Mother beat and whipped the child.
        The State also presented evidence that the first person Mother called when the child stopped breathing was her friend and employer Carolyn James. When James learned of the child's injuries, she immediately called appellant. She discovered appellant was with the child and was waiting for Mother to take a shower before taking the unconscious child to the hospital.
        After appellant and Mother took the child to the hospital, police searched their residence. Officer Roosevelt Holiday participated in the search. When he entered the apartment, he immediately noticed a very strong scent of bleach. The bathroom floor was covered in water and a bucket of bleach water and a mop were in the living room. Holiday also found traces of blood throughout the apartment.         Mother testified in appellant's favor and accepted full responsibility for the child's death. According to Mother, appellant was not home when the child lost consciousness. She said when appellant returned, he performed CPR on the child and drove her to the hospital. She admitted that she had been beating the child, but claimed she did so without appellant's knowledge. On the few occasions that appellant did see her beat the child, appellant would stop her. According to Mother, the only injury appellant observed was the child's broken arm. On cross-examination, Mother admitted telling police that appellant had hit the child in the stomach and had beat her with an extension cord. At trial, however, she claimed appellant had only “tapped” the child. She insisted he was not “involved” in the child's death.
        In this appeal, appellant asserts the evidence is both legally and factually insufficient to support his conviction. His primary argument is that the State's evidence showed Mother's conduct caused the child's death and the State failed to prove he was guilty as a party. We apply well-known standards when reviewing challenges to the sufficiency of the evidence. See Jackson v. Virginia, , 319 (1979); Lane v. State, , 191-92 (Tex. Crim. App. 2004). In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Sanders v. State, , 820 (Tex. Crim. App. 2003). In reviewing challenges to the factual sufficiency of the evidence, we review the evidence in a neutral light and reverse only if the finding of guilt is clearly wrong or manifestly unjust. See Watson v. State, , 417 (Tex. Crim. App. 2006). The difference between the two standards is that under a legal sufficiency review, we defer to the factfinder's credibility determinations, but under a factual sufficiency review, we may disagree with the factfinder's credibility determinations, but only if we can say with some objective basis in the record that the great weight and preponderance of the evidence contradicts the finding of guilt. See Marshall v. State, , 625 (Tex. Crim. App. 2006).
        Because the jury was charged on the law of parties, it could have reached its verdict by deciding Mother committed each element of the offense and that appellant was criminally responsible for Mother's acts. According to appellant, the State failed to prove he was guilty as a party under the provisions of section 7.02(a)(2) of the penal code which provides for party responsibility when a person solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). However, the jury was also charged it could find appellant guilty as a party under section 7.02(a)(3) of the penal code which provides for party responsibility when a person has a legal duty to prevent commission of an offense and fails to make a reasonable effort to prevent commission of the offense. See Tex. Pen. Code Ann. § 7.02(a)(3) (Vernon 2003). Appellant completely fails to discuss party liability under that provision of the penal code. Instead, without mentioning section 7.02(a)(3), he suggests he could not be found guilty for any omissions because (1) he was not indicted under an omission theory, and (2) he had no duty to prevent the murder. See Tex. Pen. Code Ann. § 6.01(c) (Vernon 2003). It is well-settled that the law of parties need not be pled in the indictment. See Vodochodsky v. State, , 509 (Tex. Crim. App. 2005); Raspberry v. State, 757 S.W.2d 885, 888 (Tex. App.,-Beaumont 1988, pet. ref'd). Additionally, appellant, as the child's stepfather who had exercised care, custody and control over the child, did have a duty to protect the child. See Tex. Pen. Code Ann. § 22.04(b)(2) (Vernon 2003); see also Hawkins v. State, , 258-59 (Tex. Crim. App. 1994).
        Appellant further asserts the evidence is legally and factually insufficient to show he had the requisite intent. For the State to prove the intent requirement under a party theory, the evidence must show that, at the time of the offense, the parties were acting together, each contributing some part towards the execution of their common purpose. See Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App.1986). In determining whether a defendant participated in an offense as a party, the factfinder may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to commit the offense. Id.
        We conclude there was legally sufficient evidence from which the jury could find appellant had the intent to promote or assist Mother's commission of the offense. The evidence showed the child was severely and brutally beaten and whipped all over her body in the weeks before she was taken to hospital. The child's injuries would have been obvious to anyone that saw her. During this same time period, appellant and Mother were the only people who saw the child. Appellant admitted awareness of serious abuse inflicted by Mother and also admitted hitting the child himself. Appellant also attempted to explain some of the child's injuries by claiming he had witnessed the child having sexual intercourse with a demon. Additionally, neighbors had overheard appellant yelling from the apartment and specifically telling Mother to do something about the child's misbehavior. Further, when the child stopped breathing, appellant did not call 911, and instead waited until the unconscious child was dressed and Mother took a shower before driving her to the hospital. We conclude there was legally sufficient evidence from which the jury could infer appellant had the intent to promote or assist Mother's commission of the offense. See Qualley v. State, 151 S.W.3d 655, 660 (Tex. App.-El Paso 2004), rev'd on other grounds, (Tex. Crim. App. 2006).
        We have also reviewed the evidence in a neutral light. Appellant relies primarily on evidence that his conduct did not cause the child's death and Mother's testimony attempting to exonerate him. Despite evidence favorable to appellant, we conclude he has not shown the jury's finding of guilt was so against the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. We resolve the first four issues against appellant.
        In his third issue, appellant contends the trial court erred in overruling his Batson objection. See Batson v. Kentucky, , 96 (1986). Under Batson, there is a three-step process for evaluating an objection to peremptory strikes. Hernandez v. New York, , 358 (1991). First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory strikes on the basis of race. Id. The burden then shifts to the prosecutor to articulate a race-neutral explanation for the strikes. Id. at 358-59. The State's explanation is not required to be persuasive or even plausible. See Bausley v. State, 997 S.W.2d 313, 316 (Tex. App.-Dallas 1999, pet. ref'd) (citing Purkett v. Elem, , 768 (1995)). It will be deemed race-neutral unless its discriminatory intent is inherent. Id. After the State provides a race-neutral explanation, the defendant must rebut the State's explanation or show that the explanation was merely a pretext. The defendant has the ultimate burden to establish racial discrimination. See id. In reviewing a Batson objection, we examine the record in the light most favorable to the trial court's ruling and reverse only when the ruling is clearly erroneous. See id. at 315.
        Appellant asserts the prosecutor struck venireperson twelve because of his race. At the Batson hearing, the prosecutor stated that he struck the venireperson because he expressed some hesitation about an automatic life sentence and because he was wearing sunglasses during the first half of the morning and the prosecutor could not tell if he was awake or asleep.
        The record supports the prosecutor's reasons. Specifically, during voir dire the venireperson initially indicated that he did not know if he could find someone guilty knowing that the result would be an automatic life sentence. Further, defense counsel did not dispute the venireperson was wearing sunglasses, but stated only that the venireperson was not sleeping. Defense counsel made no other effort to show the reasons given were a pretext for racial discrimination. The prosecutor provided race neutral reasons for the strike. Appellant has done no more than disagree with those reasons. We conclude appellant has not shown purposeful discrimination. We resolve the fifth issue against appellant.
        We affirm the trial court's judgment.


                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060726F.U05

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