Mark Maness v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

No. 04-97-00848-CR
Mark MANESS,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 97-CR-2400
Honorable Susan D. Reed, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: October 7, 1998

AFFIRMED

Appellant, Mark Maness, appeals his capital murder conviction. Maness raises two points of error, contending: (1) the evidence is factually insufficient to support his conviction; and (2) his trial counsel was ineffective in failing to move for the indictment to be dismissed as untimely. We affirm the trial court's judgment. Because Maness's first point of error complains of the factual sufficiency of the evidence, we will review that first.

Factual Background

Maness was charged with the capital murder of his five-week-old daughter, Brandi. After Brandi was discovered in her crib not breathing on November 26, 1996, she was taken to University Hospital by helicopter, where she died a few days later.

Stacy Young, Brandi's aunt, testified that she lived with her sister, Cindy, and Maness in a two-bedroom trailer in November of 1996. Stacy shared a room with Cindy and Maness's other daughter, Cebina, who was almost two-years-old at the time. On November 26, 1996, Stacy stayed home from work to care for Cebina while Cindy and her grandmother took Brandi to the hospital for a test on her kidney. Brandi had been born with a kidney defect. Maness left the house in the morning and was not present when Cindy and Brandi returned from the hospital around 10:00 a.m. Around 1:00 p.m., Cindy, Stacy, Cebina and Brandi met Maness at Wal-Mart. After returning to the trailer, Cindy and Stacy left Brandi with Maness and took Cebina with them to visit their mother, who lived at the other end of the trailer park. They were gone approximately thirty minutes to an hour. When they returned, Stacy went to work and did not return home until 9:00 p.m. Upon arriving home, Stacey took Cebina into their bedroom and went to sleep. Cindy later woke her when Brandi was found not breathing, and Stacy called 911, while Maness was performing CPR. The 911 operator instructed Maness regarding how to perform CPR correctly on an infant, and Stacy went outside to wait for the emergency personnel. Stacy was unclear regarding certain details of her testimony during cross-examination. She concluded by admitting that she did not know how Brandi got hurt.

Frank Middour, the assistant chief of the Bexar-Bulverde Volunteer Fire Department, was called to the location. He arrived within three to four minutes after receiving the call. Middour corrected the manner in which CPR was being performed, and began calling for additional assistance, while he observed the CPR being performed. Three to four minutes later, an EMT arrived and took over the CPR. Ten to fifteen minutes later, EMS arrived, and Brandi was airlifted to University Hospital. The person administering CPR told Middour that Brandi was discovered not breathing after a noise was heard on the baby monitor. Middour believed Cindy, Brandi's mother, had heard the noise over the baby monitor while she was in the living room but was uncertain.

After the medical and radiology records were admitted as evidence, Rosemary Glynn, the Airlife flight nurse, testified that they arrived at a location shortly before midnight after being called for a pediatric full arrest. At that time, Brandi had no pulse, no heart rate, and no blood pressure. During the course of her examination, Glynn noted that Brandi's fontanel (soft spot) was firm, which indicated that there was increased endocranial pressure. Through the use of various medical procedures, Glynn was able to obtain a heart rate, but Brandi was never able to breathe on her own. Glynn stated that she never looked at Brandi's back during her examination because Brandi was in full arrest, and she was concentrating on airway breathing and circulations. Glynn never spoke with the parents and did not know what caused Brandi's condition.

Cheryl Johnson, the hospital social worker, testified that she spoke with Cindy and Maness on the morning of November 27. Maness told Cheryl that he fed Brandi about 8:00 p.m. and put her in her bassinet. Around 9:00 p.m., he heard some gasps. Cindy was in the kitchen, so she did not hear them. Around 11:00 p.m., he checked Brandi and discovered that she was cold. Cheryl asked Maness if he shook Brandi. Both Maness and Cindy denied having shaken her. The only accident which either Maness or Cindy could recall was Brandi's sister, Cebina, picking her up a few days earlier and putting her on some pillows on the floor. Both Maness and Cindy also denied being abused as children. Cheryl noted that both parents seemed confused. After talking with Cindy and Maness, Cheryl called Child Protective Services because Brandi had severe injuries, and there was another sibling in the home.

Dr. Thomas Mayes was the pediatrician who began Brandi's care in the pediatric ICU. Mayes did his initial assessment on Brandi around 1:00 a.m. on November 27. Although Brandi had a pulse, an oxygen level and a normal blood pressure, Mayes noted that she was cold and very pale. Mayes did not pick Brandi up to look at her back because she was critically ill. A blood test revealed that Brandi had a blood loss of some sort or long-standing anemia, but there were no external sources of bleeding. Mayes noted that Brandi had a full fontenal, which often indicates increased pressure on the brain or fluid on the brain. Mayes obtained a CT scan which showed blood throughout the brain and significant severe swelling of the brain. Mayes spoke with the parents and was told that Brandi ate at approximately 8:00 p.m. and was found at 11:00 p.m. lifeless. Mayes was further told that the father initiated CPR and noted that the baby had vomited. Mayes noted that Brandi had a history of a cold but was not receiving medications. Mayes was told of the incident where Cebina picked Brandi up two days before, but Mayes stated that the incident could not have caused Brandi's injuries. Her injury was caused by massive trauma - something catastrophic - not something that would happen over time. Mayes further stated that if Brandi had the injuries at 8:00 p.m., she could not have fed. Mayes testified that the two possible causes of Brandi's injuries were severe shaking or being struck by or striking a blunt object. In addition to her head injury, Brandi had rib fractures on the left side of her chest, which Mayes stated were most often caused by squeezing - someone grabbing around the chest and holding with force. Mayes testified that improperly performed CPR would not have caused the rib fractures, because they were posterior, and rib fractures due to improper CPR would be anterior. During cross-examination, Mayes estimated that the time of the injury was minutes to hours before Brandi was admitted to the hospital. Mayes stated that it was not possible that Brandi's head injury resulted from a mild hemorrhage that developed and worsened over a period of time. Mayes further stated that Brandi's injury was not due to her kidney treatment earlier in the day. Although Mayes admitted that Brandi could have had a blood disorder that affected her ability to form clots in her blood which would result in severe hemorrhaging from an ordinary hit, Mayes stated that such a blood disorder would not cause rib fractures.

Cindy testified that she worked until Brandi was born on October 24, at which time she was laid off. Maness quit a job in January 1996, and was working off-and-on jobs. On November 26, Cindy got up at 6:00 a.m. to take Brandi to the hospital for a kidney test. Maness was in the kitchen, fixing Brandi a bottle. Cindy and her grandmother took Brandi because Maness was going to look for a job. They finished at the hospital around 10:00-11:00 a.m. and returned home. Around 12:00-12:30 p.m., Maness called, and Cindy, Stacy, Cebina and Brandi went to meet him at Wal-Mart. They returned home around 2:00-2:30 p.m. Between 3:00-4:00 p.m., Cindy and Stacy went to their grandmother's house on the other side of the trailer park to visit, taking Cebina with them. Brandi was asleep and stayed with Maness, who was in the bedroom watching television. Cindy's mother wanted to go to the grocery store, so Stacy and Cindy returned to the trailer to get the children ready. Maness, Cindy, her mother, Cebina and Brandi went to the store. Stacy went to work. Brandi slept while they were at the store, opening her eyes once when a stranger came up to see her. Maness, Cindy, Cebina, and Brandi returned home around 7:00 p.m. and ate dinner. Cindy called Maness's aunt, and Maness went to the bedroom to feed Brandi. Stacy arrived home and took Cebina into the bedroom to put her to sleep. Cindy stayed in the living room watching television. She went to bed around 10:00 p.m. When she walked by Brandi's bassinet, she saw that Brandi was sleeping. Maness was watching television in the bedroom. Around 11:00 p.m., Maness woke Cindy and told her Brandi was not breathing. Maness started CPR, and Cindy went to wake Stacy. Stacy called 911, and the emergency personnel arrived shortly thereafter. Cindy stated that Brandi was real quiet and sleepy the entire day. When Cindy spoke to the Child Protective Services caseworker, she stated that she did not hurt Brandi, and she never saw Maness or anyone else hurt Brandi. Cindy testified that Maness was a loving and caring father.

Robert Flores, a detective with the Bexar County Sheriff's Department, was present at Brandi's autopsy and was told that the cause of death was closed head injury to the brain, hemorrhaging. Flores went to the trailer park and asked Maness and Cindy to go to the station with him. They agreed. While Flores and another officer were in the process of obtaining a statement from Maness, Maness started telling Flores that he accidently hit Brandi's head on the desk by the bassinet. Flores stopped Maness and read him his Miranda rights. Maness voluntarily gave a statement.

In this statement, Maness stated that he gave Brandi a bottle around 7:30 p.m. Maness said that it took Brandi longer to finish her bottle than usual. He said that he might have hit Brandi's head on the desk as he was laying her in her bassinet because he heard a thump, but Brandi did not cry. Maness went to the living room, where his wife was watching television, but returned to the bedroom and stayed with Brandi. Maness stated that his wife came into the bedroom around 9:30 p.m., and he told her Brandi made couple of sighing sounds, and he thought she was asleep. Around 11:00 p.m., Maness looked at Brandi and noticed she was not breathing. He woke his wife and started giving Brandi CPR.

A few days later, Maness was arrested, and he gave a second statement. In this statement, Maness stated that on the night Brandi was taken to the hospital, he was playing too rough with her. Maness was tossing Brandi over her head and catching her, but one time he missed, and she fell on the bed on her left side but did not cry. Maness also shook Brandi on his lap for about 5-10 minutes, while he held her under her armpits. Her head went back and forth. Maness also held Brandi under her armpits and bumped her forehead with his about five times. He remembered hearing a loud thumping noise, so he stopped doing that, and returned to bouncing her and shaking her on his lap. He stated that he was upset because he could not find a job and took his anger out on Brandi. Maness stated he played too rough with Brandi out of anger and because she was a girl, and he wanted a boy. Maness admitted that his wife had told him not to play with Brandi that way when she caught him one time. Maness stated that he did not mean to hurt Brandi.

Dr. Micam Tullous, a pediatric neurosurgeon, examined Brandi prior to her death at the hospital. Dr. Tullous characterized the severity of the brain injury as a catastrophic traumatic injury. Dr. Tullous estimated that the injury occurred within an hour or two of Brandi being found lifeless. Dr. Tullous stated that Brandi could not have taken a bottle with those injuries. Dr. Tullous further testified that the injuries were not likely the result of merely shaking, but thought there may have been some impact. Dr. Tullous stated that the injuries could have been caused by shaking Brandi violently or vigorously against a soft object and were not necessarily caused by Brandi being struck with or against a blunt object. Dr. Tullous further testified that it was unlikely that a two-year-old could have caused Brandi's rib fractures and broken clavicle.

Dr. Vincent Di Maio, the chief medical examiner for Bexar County, testified that there was evidence of a tremendously hard blow or impact to Brandi's brain that caused bruising and hemorrhaging. Dr. Di Maio affirmed that the impact could have been against a desk or table and was most likely a flat surface. Brandi had six fractured ribs and fractures to her clavicle. Dr. Di Maio estimated that Brandi's head injuries occurred minutes to an hour or two before the emergency technicians were called. Dr. Di Maio discounted the possibility that Brandi's injuries resulted from being tossed into the air and caught or bounced on someone's knee. Dr. Di Maio estimated that the clavicle injuries occurred at around the time of the head injury based on the amount of hemorrhaging around the fracture. Dr. Di Maio further estimated that the rib fractures occurred after the head injury based on the absence of hemorrhaging around the fractures, which indicated that Brandi was in shock.

Dr. William Peche was the first witness called by the defense. Dr. Peche was Cindy's obstetrician when she delivered Brandi. Dr. Peche stated that he did not believe Cindy was happy about her pregnancy; however, Maness came with Cindy on her visits, and he seemed very happy. When Dr. Peche discovered that Cindy had gestational diabetes and the fetus had a problem with its kidney, he referred Cindy to a specialist but continued to consult with her throughout the pregnancy. Although Maness appeared happy after Brandi was delivered, Dr. Peche testified that something seemed to be missing in Cindy's response.

Dr. Byron Dean Elliott, the specialist who treated Cindy during her pregnancy, testified that Maness appeared to appreciate his services. Dr. Elliott stated that Cindy had difficulty understanding instructions but made every effort to comply.

Anne Miller, a nurse who worked with Dr. Peche, testified that Cindy was a little difficult to work with because she always asked that her husband be consulted or that things be explained to him so he could explain them to her. Miller testified that Cindy seemed detached, whereas Maness was always very concerned and attentive.

Theresa Dewitt, Cindy's friend, testified that she visited Cindy about a week before Brandi died. Dewitt stated that Brandi did not look normal. She had no color, had dark circles under her eyes, and her nose was red. When Dewitt mentioned this to Cindy, Cindy told her Brandi was on medication and had a kidney infection or failure or something. Dewitt did not notice anything in either Maness or Cindy that seemed unusual for a parent. Dewitt attended Brandi's funeral and noted that Cindy had tears in her eyes but did not completely fall apart.

Pamela Moreau, who worked with Maness in January 1996 and who was Cebina's godmother, testified that she visited Cindy, Maness and Brandi in the hospital when Brandi was born. Maness appeared proud, and Cindy appeared weak and was not talkative. Maness called Moreau when Brandi went into the hospital and told her that Brandi had stopped breathing. He later called her a few days later and told her Brandi had died. Maness told Moreau that he would never hurt his kids, and that Cebina had been taken away from them. Moreau stated that she tried to call a few days later and was later told that Maness had been arrested. Moreau testified that Cindy asked if she could help raise the money for bail. At the funeral, Moreau was bothered because Cindy did not show very much emotion.

Karen Klar, a neighbor of Maness and Cindy, testified that Maness showed Brandi to her at the grocery store where she worked. Klar testified that Maness appeared very proud, but Cindy appeared very distant. Klar stated that she held Brandi, and Brandi appeared normal. On cross-examination, Klar admitted that Cindy always seemed distant.

Margaret Briscoe, Maness's aunt, testified that Cindy called her on November 26 and told her Brandi was not acting right, she had not eaten or gone to the bathroom all day. Cindy also told her that Cebina had pulled Brandi off the bed onto the floor and that Brandi had not been acting right. Briscoe asked Cindy if she mentioned it to the doctor, and Cindy told her no.

Andrea Price, the case worker with Child Protective Services, testified that both Maness and Cindy informed her of the incident where Cebina took Brandi off the bed and placed her on a pillow. Price stated that neither Cindy nor Maness provided an explanation for Brandi's injuries. Price testified that Cebina was placed with Stacy and Cindy's mom temporarily, but she did not know whether custody had been restored to Cindy.

Maness testified in his own defense. He stated that Cindy, Brandi and he got up about 6:00 a.m. on November 26, because Cindy and Brandi were going to the hospital for tests. Maness fixed breakfast for himself and fed Brandi. Cindy did not eat. Maness testified that Brandi did not take her bottle very well. Maness had a job interview, and Cindy and her grandmother took Brandi to the hospital. Around 12:30-1:00 p.m., Maness met Cindy, Stacy, Cebina and Brandi at Wal-Mart. After leaving Wal-Mart, they went to Discount Tire, and Cindy told him about the tests and that Brandi had not been eating right and had just been laying there. Maness testified that Brandi had already been losing color and had not been crying as much. Maness then relayed the incident regarding Cebina, stating that Cindy told him she was in the kitchen and Brandi started screaming. When Cindy went into the bedroom, Brandi was on the floor with Cebina standing over her. Maness went into the house and picked Brandi up and noticed a popping sound in her left side shoulder area. Maness stated that Brandi did not want to stay in her stroller at the flea market that afternoon and would cry and moan at the slightest bump. Maness and Cindy discussed whether she should go to the doctor, but Cindy said she would tell the doctors when she went to the hospital for tests. Maness testified that Brandi was with Cindy most of the day Sunday, and he only tried to feed Brandi one bottle in the morning, which she did not take very well. On Monday, Maness tried to feed Brandi one bottle in the morning, which she again had a little problem drinking, and Maness was gone the rest of the day. Maness testified that he was looking for work because he quit his job in January at Cindy's urging. Returning to the day Brandi was hospitalized, Maness recalled that Brandi was pale and was not moving. When everyone returned home, Maness testified that no one left the trailer until Cindy's mother came by around 4:00 p.m. Although Maness acknowledged that Stacy and Cindy testified that they went to their grandmother's trailer with Cebina, Maness did not recall this occurring. After Cindy's mother came, Maness, Cindy, her mother, Cebina, and Brandi went to the grocery store. Brandi was asleep the entire time they shopped. They returned home, and Maness went to the back bedroom to feed Brandi after Maness and Cindy ate supper. After he finished feeding her, Maness stated that he changed her, and, when he went to place her in the bassinet, he thought he bumped her head on the desk. Although Brandi did not cry, Maness stated that she was responsive. Maness went into the living room for about fifteen minutes and returned to the bedroom to watch television. Around 9:00 p.m., he heard Brandi make some gasping noises, and he checked her. She was still breathing. Maness stated he did not mention this to Cindy when she came into the bedroom. Around 11:00 p.m., he checked Brandi, and she was not breathing.

With regard to his statements, Maness testified that the first statement accurately reflected what had occurred. With regard to the second statement, he testified that the officers asked him various questions and suggested the answers, for example, how he played with Brandi. With regard to the portion of the statement where he stated he took out his anger on Brandi and wished she was a boy, Maness testified that he never said those things. Maness stated he did not review the statement before he signed it.

Dr. Joel Rutman, a pediatric neurologist, testified that the trauma to Brandi's head could have occurred as much as 72 hours prior to the time the CT scan was taken. Dr. Rutman testified that the injury did not result from an accident, but was consistent with a major inflicted injury. The absence of exterior bruising indicated that Brandi was struck against a soft object or shaken. Dr. Rutman stated that he was not able to tell whether the rib and clavicle injuries occurred at the same time the head injury occurred. On cross-examination, Dr. Rutman admitted that his opinion as to the timing on the injury might change if there was evidence that Brandi had taken one to two ounces of formula between 7:30 and 8:00 p.m. on the night she was hospitalized. Dr. Rutman further admitted that his opinion that the injury to Brandi could have resulted from merely shaking would change if the pathology report showed impact points.

After Dr. Rutman testified, Dr. Mayes was called on rebuttal. Dr. Mayes restated his position regarding the cause of Brandi's injuries.

Factual Sufficiency

A. Standard of Review

Sufficiency of the evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The general standard for reviewing the factual sufficiency of the evidence to support a criminal conviction was announced by the Texas Court of Criminal Appeals in Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Under the general standard, we must view all the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. The Court later explained that three major principles guide us in conducting this review. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

First, we must review the jury's weighing of the evidence in a deferential manner to avoid substituting our judgment for that of the jury. Id. Our evaluation must not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). The weight to be given contradictory testimonial evidence is within the sole province of the jury, because it turns on an evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. The jury is also entitled to draw reasonable inferences from circumstantial evidence to ultimate facts. In re V.M.D., No. 04-96-00226-CV, 1998 WL 264739, at *15 (Tex. App.--San Antonio 1998, pet. filed); Kelley v. State, 968 S.W.2d 395, 398 (Tex. App.--Tyler 1998, no pet.). Where conflicting evidence is presented, the jury's verdict is generally regarded as conclusive unless the verdict is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Santellan, 939 S.W.2d at 165; Taylor v. State, 921 S.W.2d 740, 746 (Tex. App.--El Paso 1996, no pet.).

Second, we must support a finding of factual insufficiency with a detailed explanation of such a finding to enable the Texas Court of Criminal Appeals to ensure that we accorded proper deference to the jury's findings. Id. In the event we reverse a lower court's decision, we must state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. Id.

Third, we must review all of the evidence without viewing it in the light most favorable to the verdict. Id. at 408. "This differs from a legal sufficiency review, where the court of appeals considers only the evidence that supports the verdict." Id.

B. Application of Standard to Facts

Maness contends that all of the evidence in this case is circumstantial and that it would support capital murder charges against either of the other two adults that were in the home at the time Brandi was discovered injured. Maness asserts that when he was dozing between 10:00 p.m. and 11:00 p.m., when he discovered Brandi was not breathing, and one of the other adults could have injured Brandi. Since Maness summoned emergency assistance, Maness concludes he is the least likely to have injured the child.

Although we are required to review all of the evidence in a factual sufficiency review, we are not permitted to reweigh the evidence. We must defer to the jury findings, particularly those based on credibility determinations. Cain v. State, 958 S.W.2d at 407-09. Although at trial Maness denied having admitted in his second statement that he played too rough with Brandi and took his anger out on her on the night she stopped breathing, we must defer to the jury in its decision regarding the credibility of Maness's subsequent denial. We must also defer to the jury's determination of whether Maness's actions were merely rough play and what the cause of Brandi's death was in view of the conflicting expert testimony.

Although some of the evidence could have supported Maness's defense seeking to point the light of suspicion to another person, the jury was required to consider all of the evidence, including all of the expert testimony and the incriminating statements made by Maness. What weight should be given to the evidence, what reasonable inferences should be drawn, and who should and should not be believed are all issues that are within the sole province of the jury. In light of all of the evidence presented, we conclude that the jury's verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 129. The evidence is factually sufficient to support the jury's verdict. Maness's first point of error is overruled.

Indictment

In his second point of error, Maness contends he received ineffective assistance of counsel because his attorney failed to move to have the indictment dismissed as untimely. Maness states that he was arrested on December 2, 1996, but he was not indicted until May 28, 1997, after the second grand jury term following his arrest. The State responded by noting that the May 28, 1997 indictment was a re-indictment, and Maness was originally indicted for the offense on February 27, 1997. A supplemental clerk's record has been filed in support of the State's response. During oral argument, Maness's appellate counsel conceded that the filing of the supplemental record disposed of his argument with regard to the indictment. Maness's second point of error is overruled.

Conclusion

The trial court's judgment is affirmed.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

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