VALERIE STEELE, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM; Opinion issued May 18, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00177-CR
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VALERIE STEELE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause No. F07-30564-X
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OPINION
Before Chief Justice Wright and Justices Myers and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant Valerie Steele appeals her twenty-year sentence for having knowingly caused serious bodily injury to her 4-year-old great-nephew, Amari.   See Footnote 2  In this appeal, we are presented with a single point of error: that the trial court's failure to properly instruct the jury regarding the applicable culpable mental state constitutes fundamental reversible error. For reasons that follow, we overrule appellant's point of error and affirm.
Factual Background
 
        Appellant was charged by indictment which reads, in relevant part, that Steele on or about the 21st day of May, 2007,
 
. . . did unlawfully then and there intentionally and knowingly cause serious bodily injury to AMARI COLLINSWORTH, a child 14 years of age or younger, hereinafter called complainant, by STRIKING COMPLAINANT WITH AND AGAINST AN UNKNOWN OBJECT, A DEADLY WEAPON, THE EXACT NATURE AND DESCRIPTION OF WHICH IS UNKNOWN TO THE GRAND JURY . . . .
 
Appellant pleaded not guilty before a jury. The jury found appellant guilty and assessed her punishment at twenty years' imprisonment. By amendment nunc pro tunc, an affirmative finding of the use of a deadly weapon was entered on the judgment with the jury's verdict. A motion for new trial was overruled by operation of law. This appeal ensued.
        In 2006, Myra Davis assumed custody of her granddaughter's four children to keep them from becoming wards of the State. Amari, who was four years old at the time of his death in 2007, was one of those children. Davis, who is appellant's mother, developed heart problems, had stents put in, and had to go to cardiac rehabilitation. Thereafter, appellant helped Davis by taking the two youngest children, Amari and Akari, to stay with her. Most days, however, Amari still stayed with Davis. On May 24, 2007, Amari died as a result of a closed head injury or subdural hematoma. Evidence presented at trial showed that Amari's brain was damaged by blunt-force trauma which must have occurred on the morning of May 21, 2007, during a time when appellant had sole access to Amari.
        Appellant gave a lengthy statement to the police that is included in the record. In her statement, appellant described her activities beginning on the evening of May 18, when she “got Amari,” through May 21. Appellant said Amari was sleeping on the couch while appellant was at her computer. At 11:00 a. m. or a little after, Amari got up to use the bathroom. Appellant heard a big bang. She jumped and turned around to see that Amari was falling. As appellant was asking if he was alright, Amari hit the floor and began shaking. Appellant ran over to Amari, calling his name. Appellant put her fingers in Amari's mouth and her thumb on his top teeth. After asking him what was wrong, appellant picked him up and carried him to the kitchen sink. She ran cold water on Amari's face. Amari was limp. Appellant put Amari “back down” and called 911. Appellant did not know what time it was when the ambulance arrived.
        Detective Greisinger, who is with the Child and Sex Crimes Division of the Grand Prairie Police Department, investigated Amari's case. Based upon his investigation, and specifically a videotape obtained from Walmart, Greisinger concluded the injury to Amari must have occurred on the morning of May 21, 2007, during a time when appellant had sole access to him. During his investigation, Greisinger interviewed appellant and obtained her written statement. Greisinger told appellant what the doctors believed about Amari's injuries, i.e., they were not caused by an accident and had to have been inflicted by someone. Appellant responded by saying, “[I] didn't hit him.” Appellant also said that whoever “did it” used a “killing blow.”
        Photographs that were taken of appellant's apartment were admitted into evidence at trial. No physical evidence relevant to the offense was obtained from the apartment. According to Greisinger, the photographs showed that if someone were sitting at the computer, that person would not be able to see the bathroom. Medical testimony concluded that Amari's injury was a “high velocity injury” that could not have happened spontaneously, nor could it have been accidentally self-inflicted.
Analysis
 
        Appellant contends that because the trial court did not limit the definitions of the culpable mental states to the result of appellant's conduct in the jury instructions, the charge is clearly erroneous, and such error constitutes fundamental error. Appellant did not object to the court's charge at trial. The State contends no reversible error is shown, and requests we affirm the trial court's judgment. Both the State and the defense agree this case is controlled by Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984)(op. on reh'g). Although the State correctly recognizes this Court is not free to construe article 36.19 of the Texas Code of Criminal Procedure in a manner inconsistent with Almanza, it urges this court to point out to the court of criminal appeals why Almanza should be revisited by that court, stating it is in conflict with the later cases of Pennington v. State, 697 S.W.2d 387 (Tex. Crim. App. 1985) and Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993).   See Footnote 3 
        Appellant was charged with intentionally and knowingly causing serious bodily injury to a child. Such offense is a result-oriented crime. Lee v. State, 21 S.W.3d 532, 540 (Tex. App.-Tyler 2000, pet. ref'd). The court's charge to the jury for a result-oriented crime should limit the statutory mental state definitions to the result of the conduct. Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994); Delgado v. State, 944 S.W.2d 497, 498 (Tex. App.-Houston [14th Dist.] 1997, pet. ref'd).
        The court's jury instructions read, in relevant part, as follows:
 
        A person acts intentionally, or with intent, with respect to the nature of her conduct when it is her conscious objective or desire to engage in the conduct or cause the result.
 
 
 
        A person acts knowingly, or with knowledge, with respect to the nature of her conduct or to circumstances surrounding her conduct when she is aware of the nature of her conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of her conduct when she is aware that her conduct is reasonably certain to cause the result.
 
Here, because the court's jury charge did not limit the abstract culpable mental state definitions, there was error in the court's charge to the jury.
        When error in the court's jury charge is found, the next inquiry is whether the erroneous instruction constitutes reversible error. Cook, 884 S.W.2d at 490. Under Almanza, the degree of harm necessary for reversal depends on whether appellant objected to the charge. Almanza, 686 S.W.2d at 171. When there is no objection to the charge, this court will review the error but will not reverse unless the record shows “egregious harm.” Id.
        Because appellant did not object to the charge, we review the record to determine whether the jury-charge error resulted in egregious harm to appellant. In our review, we consider the charge itself, the state of the evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. Id. “Egregious harm” is present when a reviewing court concludes that the case for conviction was actually made clearly and significantly more persuasive by the error. Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991).
        Appellant agrees that we must consider the application paragraph of the charge in considering the charge as a whole. The application paragraph of the court's charge reads as follows:
        
 
        If you find and believe from the evidence beyond a reasonable doubt that the defendant, Valerie Steele, on or about May 21, 2007, in Dallas County, Texas, unlawfully and intentionally or knowingly caused serious bodily injury to Amari Collinsworth, a child 14 years of age or younger, by striking him with or against an unknown object, a deadly weapon, the exact nature and description of which is unknown, you will find the defendant guilty of injury to a child, as charged in the indictment. If you do not so find, or if you have a reasonable doubt thereof, you will find her not guilty.
 
Appellant also agrees that the application paragraph correctly instructed the jury on the law. Appellant argues, however, that when the state of the evidence and the arguments of counsel are considered, the case for conviction was made clearly and significantly more persuasive by the court's error. The State, of course, disagrees.
        We find guidance in Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995). In Patrick, the court of criminal appeals was confronted with a similar issue. In overruling appellant's point of error, that court stated, in relevant part:
 
        Although the definitions of “intentionally” and “knowingly” indiscriminately set forth the three alternative conduct elements, when those terms are viewed in their factual context, it becomes apparent which conduct element applies to which element of the offense. Hughes, 897 S.W.2d at 297. For instance, the application paragraph states that appellant “did intentionally cause the death of [the victim.]” The term intentionally directly modifies the phrase “cause the death.” Referring back to the definitions of culpable mental states, it is obvious that the “result of conduct” and cause the result language are the applicable portions of the full code definitions. See id. We conclude that because the facts, as applied to the law in the application paragraph, pointed the jury to the appropriate portion of the definitions, no harm resulted from the court's failure to limit the definitions of culpable mental states to proving the conduct element of the underlying offense. See id.
 
Patrick, 906 S.W.2d at 493. And so it is here. The application paragraph of the court's charge to the jury states “intentionally or knowingly caused serious bodily injury to [the victim].” The terms intentionally or knowingly directly modify the phrase “caused serious bodily injury.” And referring back to the abstract definitions of the culpable mental states, it is obvious that the “result of conduct” and “cause the result” language are the applicable portions of the full code definitions. Consequently, we conclude, as did the court in Patrick, that because the facts, as applied to the law in the application paragraph, pointed the jury to the appropriate portion of the definitions, no egregious harm resulted from the court's failure to limit the definitions of culpable mental states to proving the conduct element of the underlying offense. See id. We disagree with appellant that consideration of the state of the evidence and the arguments of counsel requires us to find appellant suffered egregious harm.
        Concluding no reversible error is shown, we affirm.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
090177F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Amari died despite medical efforts to save his life.
Footnote 3 The State's position is that because no complaint about the definition of “knowingly” was made to the trial court, the complaint is not subject to appellate review, and that Almanza's “strained construction” of article 36.19 of the Texas Code of Criminal Procedure is outdated and should be revisited. The State contends that once such conflict is resolved, the “Almanza exception” to the “unassigned error” doctrine would disappear. The State urged this court to point out to the court of criminal appeals that Almanza should be revisited by that court. We decline the State's invitation to make its argument for it and simply apply Almanza's holding in our resolution of this case.

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