TIFFANY MICHELLE HARPER, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM; Opinion issued February 11, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00927-CR
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TIFFANY MICHELLE HARPER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 194th District Court
Dallas County, Texas
Trial Court Cause No. F06-44155-UM
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OPINION
Before Justices Bridges, Richter, and Mazzant
Opinion By Justice Bridges
        Tiffany Michelle Harper appeals her injury to a child conviction. Appellant pled guilty and, after the presentation of evidence in support of her guilty plea, a jury sentenced her to seventy-five years' confinement. In two issues, appellant argues the charging instrument was not a proper indictment and did not vest the trial court with jurisdiction, and the evidence is factually insufficient to support the jury's verdict on punishment. We affirm the trial court's judgment.
        On February 23, 2006, David Ivie, a paramedic with the Mesquite Fire Department, was called to an address in Mesquite where someone was having difficulty breathing. Upon his arrival, Ivie saw appellant talking on a telephone and R.C., a child less than two years old, lying on the living room floor. R.C. had agonal respiration, which Ivie described as “the body's last ditch effort to try to get air to supply oxygen to the body. Ivie knew agonal respiration was a sign R.C. was coming close to death. Ivie asked appellant what happened, and she said a rocking chair had fallen on R.C. Ivie grabbed R.C. and carried her to the ambulance to take her to the hospital. Appellant declined to accompany R.C. in the ambulance because she had to pick up children from school.
        R.C.'s mother, Autumn Beardsley, testified appellant called her on the day R.C. was injured and asked if she “was sitting.” Appellant said R.C. had been seriously injured and was taken to the hospital by paramedics. Appellant said R.C. had fallen off a rocking chair and had pulled a vacuum cleaner down on her. Appellant claimed she was out of the room taking care of her toddler son and heard a crash and discovered R.C. with the rocking chair and vacuum cleaner on top of her. Beardsley rushed to the hospital where R.C. had been placed in a medically-induced coma because of the severity of her injuries. Beardsley consented to having a surgeon drill a hole in R.C.'s skull to relieve the swelling on her brain even though “there was not a high likelihood of that working.” The next day, R.C. was declared brain dead, and she subsequently died from her injuries.
        Appellant was indicted on a charge of capital murder. Appellant subsequently entered a plea of guilty to injury to a child and elected to have her punishment decided by a jury. The plea agreement appellant signed provided that she waived her right to be tried on an indictment returned by a grand jury; any and all defects, errors, or irregularities, whether of form or substance, in the charging instrument; her right to a jury trial; and her right to remain silent. Appellant signed a judicial confession to the offense of injury to a child. Specifically, appellant judicially confessed to intentionally and knowingly causing serious bodily injury to R.C. by shaking her with appellant's hands, a deadly weapon, and by striking R.C. with her hand and against an unknown object.
        Appellant testified that a lot of her childhood was “blocked out”and she had “been through a lot of horrible things.” The first bad thing appellant remembered was being molested when she was younger than school age. When appellant was seven or eight, an uncle molested her, and her parents pressed charges against him. Appellant testified she was living with a drug dealer, “Daniel,” when she was fifteen, and she was pregnant when she was sixteen. Appellant realized Daniel was cheating on her and she told him she was leaving. Daniel said if appellant left him it would be “in a body bag.” Daniel left to go to the store and one of Daniel's friends stayed behind and shot appellant. When appellant got out of the hospital, she stayed with her parents and various family members and started dating Glen Harper. After her first child was born, appellant discovered she was bipolar. Appellant's relationship with Harper continued for almost ten years, and appellant had two children during the relationship. In the last few months before R.C. died, appellant was “in a severe spiral down,” and an uncle took her to MHMR where she had been previously treated. Appellant had been off her medications for “awhile,” and the doctors at MHMR wanted to commit her immediately. Appellant was “having a severe breakdown” and was “so hysterical” she did not remember everything the doctor said to her. Nevertheless, appellant refused hospitalization because her mother and grandmother were sick and she was worried about her children. After she left MHMR, appellant told R.C.'s parents that she “was having a hard time” and that “they wanted to put me in the hospital and stuff.” However, appellant did not tell R.C.'s parents everything the doctors said because she was “so hysterical” she did not remember everything.
        On the day R.C. was injured, appellant felt “okay.” Appellant had quit smoking marijuana and methamphetamine “about a week before” because of the “situation with the MHMR” and how out of control her emotions were there. Appellant got R.C. dressed and left her in the living room even though appellant knew better because R.C. “was like a little monkey” and “liked to climb on stuff.” Appellant was in another room and she heard “stuff falling” and she went into the living room and found R.C. climbing on the coffee table. Appellant told R.C. she couldn't “climb on stuff” and she was shaking R.C. Appellant was crying while she was shaking R.C. and telling her not to climb, but she did not know why she was crying. Appellant was not shaking R.C. easily, and she could not remember how long she shook R.C. or what made her stop shaking R.C. Appellant testified she knew when she shook R.C. that she could “hurt her bad” and that it was wrong to shake her. Appellant did not “recall ever hitting” R.C. and did not recall whether she dropped R.C. down on her back when she was done shaking R.C. Appellant testified she did not recall because she blacks out during traumatic events. Although appellant testified she did shake R.C., she had “no idea” whether or not R.C. “might have hit her head during that.”
        When appellant stopped shaking R.C., she was limp, and appellant's “first concern before anything else was to call 911 to try to get her some help.” Nevertheless, appellant first called her mother-in-law to tell her to pick up appellant's children from school before calling 911. Appellant was later surprised when she was told she called her mother-in-law first because she did not “remember a whole lot.”
        Dr. David Weakley, a pediatric opthalmologist at Children's Medical Center in Dallas, testified he examined R.C. and found hemorrhaging in R.C.'s retinas. Hemorrhages in the retina “is a very, very suspicious sign that there has been a shaking-type injury or nonaccidental trauma.” In a young child or a baby where a lot of the blood vessels in the eye are still developing and still very delicate, the back and forth concussive movement of shaking will cause the vessels to “pop and bleed and break.” Weakley testified R.C. also had a swollen optic nerve-a sign that increased pressure inside the head, which goes along with bleeding inside the head, transmitted pressure down the optic nerve and caused it to swell. Weakley testified R.C. had “pretty severe hemorrhages.” On a scale of one to ten, Weakley testified the injuries to R.C.'s eyes were an eight or nine. Weakley testified R.C.'s hemorrhages were one of the five worst he had seen out of “a couple of hundred over the last fifteen years.”
        Dr. Jill Urban, a Dallas County medical examiner, testified she performed an autopsy on R.C. during which Urban performed both an external and an internal examination. Externally, R.C.'s face was bruised, her lower eyelid was a discolored purple, her upper lip was scraped, and there were bruises next to her left eye, on the left side of her face, and in front of her left ear. Internally, Urban found an area of hemorrhage at the back of R.C.'s head consistent with an impact site. Urban testified this meant that “either the head in that area was struck with something or against something.” On R.C.'s upper arm near her shoulder were three blue-purple contusions consistent with a person gripping R.C.'s shoulder with a hand in a hard manner. In Urban's opinion, R.C. died as a result of blunt force head injury, and she was injured by both shaking and impact. The jury subsequently found appellant guilty and sentenced her to seventy-five years' confinement. This appeal followed.
        In her first point of error, appellant argues the charging instrument in this case did not vest the trial court with jurisdiction, and her conviction is therefore void. The indictment in this case charged appellant with capital murder. This indictment was signed by the foreman of the grand jury. Appellant subsequently entered a plea of guilty to injury to a child and elected to have her punishment decided by a jury. The plea agreement appellant signed provided that she waived her right to be tried on an indictment returned by a grand jury; any and all defects, errors, or irregularities, whether of form or substance, in the charging instrument; her right to a jury trial; and her right to remain silent. Appellant signed a judicial confession to the offense of injury to a child. Specifically, appellant judicially confessed to intentionally and knowingly causing serious bodily injury to R.C. by shaking her with appellant's hands, a deadly weapon, and by striking R.C. with her hand and against an unknown object.         Appellant's argument focuses on a second indictment, not signed by the foreman of the grand jury, charging appellant with injury to a child and alleging she caused serious bodily injury to R.C. Appellant points out that she entered a guilty plea to the offense of injury to a child and signed a judicial confession to the offense of injury to a child “exactly as alleged in the charging instrument.” However, appellant contends, the indictment for the offense of injury to a child is unsigned and there is no evidence it was ever filed. Thus, appellant argues, the indictment charging her with injury to a child was not an “indictment” and did not vest the trial court with jurisdiction.
        A trial court has no jurisdiction to convict a defendant of an offense not charged in an indictment unless that offense is a lesser included offense of the crime charged. McLeod v. State, 56 S.W.3d 704, 708 (Tex. App.-Houston [14th Dist.] 2001, no pet.). The greater offense, when properly alleged, necessarily includes all the lesser included offenses whether each of their constituent elements are alleged in the wording of the indictment on the greater offense or not. Allison v. State, 618 S.W.2d 763, 764 (Tex. Crim. App. [Panel Op.] 1981). Injury to a child is a lesser included offense of capital murder. Paz v. State, 44 S.W.3d 98, 101 (Tex. App.-Houston [14th Dist.] 2001, pet. dism'd). Thus, notwithstanding the presence in the record of an unsigned, unfiled indictment charging the specific offense of injury to a child, the signed and filed indictment properly charging the offense of capital murder included the offense of injury to a child. See Allison, 619 S.W.2d at 764; Paz, 44 S.W.3d at 101. We overrule appellant's first point of error.
        In her second point of error, appellant argues the evidence is factually insufficient to support the jury's verdict on the issue of punishment. A review of the evidence for factual sufficiency is inappropriate with respect to the assessment of punishment. See Bradfield v. State, 42 S.W.3d 350, 352 (Tex. App.-Eastland 2001, pet. ref'd) (declining to perform factual sufficiency review of punishment evidence); Kanouse v. State, 958 S.W.2d 509, 510 (Tex. App.-Beaumont 1998, no pet.) (same).
        We note that, in making her argument, appellant points out she was eligible to receive probation, the jury charge authorized the jury to recommend probation, and appellant took responsibility for the offense. Appellant testified she was sexually abused as a child, and this abuse continued through her teenage years. Appellant had a history of mental health problems and was diagnosed with bipolar disorder. Two months before she shook R.C. to death, appellant was in a “severe spiral down” and knew she needed help. However, appellant refused the advice of doctors at MHMR that she be committed and was not taking her medication at the time of the offense. Appellant testified she shook R.C. until she was limp, knew shaking R.C. could “hurt her bad,” and knew that it was wrong to shake her. Although appellant did not “recall ever hitting” R.C., Urban testified R.C. died as a result of blunt force head injury, and she was injured by both shaking and impact. The jury sentenced appellant to seventy-five years' imprisonment when it could have sentenced her to ninety-nine years' or life imprisonment. The general rule is that as long as a sentence is within the statutory range, it will not be disturbed on appeal. Kanouse, 958 S.W.2d at 510. Accordingly, we overrule appellant's second point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070927F.U05