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

No. 04-99-00718-CR
Hazel TOLLIVER,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-6481
Honorable James Barlow, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: January 3, 2001

AFFIRMED

The appellant, Hazel Tolliver ("Tolliver"), appeals her conviction of a two count indictment for the offenses of Murder and Injury to a Child. Tolliver raises three points of error, contending: (1) the evidence is legally and factually insufficient to support her conviction; (2) the evidence is legally and factually insufficient to support her conviction of injury to a child; and (3) the indictment charging her with murder and injury to a child for failing to provide attention, care, and sustenance is void. We affirm the trial court's judgment.

Statement of Facts

Tolliver's first two points of error address the factual sufficiency of the evidence. Tolliver was charged with Injury to a Child and Murder of her child. On or about December 14, 1997, Tolliver delivered a baby boy, Christopher, in the bathroom of her home. She then put the baby in a trash bag on the floor of her closet. Christopher suffocated to death.

Tolliver had carried the baby to either late in the second trimester or early in the third trimester without anyone discovering her pregnancy. When Tolliver's mother discovered her lying on her bedroom floor after the delivery, she took her to the hospital. Blood tests revealed that Tolliver was either currently pregnant, or had very recently been pregnant. When confronted, Tolliver said, "Mom, you can't get pregnant if you don't have sex." She also denied the pregnancy when medical staff questioned her.

Medical tests confirmed that Tolliver had recently delivered a baby nearly at full term. Tolliver's uterus was markedly enlarged, she had stretch marks on her abdominal wall, and her vagina had lacerations consistent with someone who had just delivered a baby.

When confronted again, Tolliver admitted to having been pregnant six weeks earlier and confessed that she had passed a "blob." She said she flushed the "blob" down the toilet. This account did not prove credible. According to the medical testimony offered at trial, Tolliver's body would have rid itself of the remnants of that pregnancy, or she would have bled to death much earlier.

Tolliver was asked again by the doctors if she had suffered any trauma or assault that could have caused her stretch marks, vaginal lacerations, or any of the other injuries, and she replied, "no." Eventually, Tolliver's mother talked to her and told her that the doctors knew there was a baby and asked Tolliver where the baby was. Tolliver told her, and Tolliver's mother found the baby on the closet floor. By now the baby had been in the closet for about 36 hours and was dead. After the baby was found, Tolliver admitted to delivering the baby three days prior and to naming him Christopher. The evidence was uncontroverted that Christopher was laid in an open plastic bag and that the closet door was left partially open.

The autopsy revealed that Christopher's weight (7.35 pounds) and length (20 inches) were consistent with a full term baby. Christopher had died sometime within the last 36 hours, perhaps as recently as eight hours prior to being found. There were no significant injuries. The medical examiner concluded that Christopher was born alive and breathing. After birth, however, Christopher developed a mild case of bronchopneumonia, which was likely caused by the aspiration of fluids at birth. With proper medical treatment, he would not have aspirated those fluids, and more than likely would not have contracted the pneumonia. Even had Christopher contracted the pneumonia, it was treatable. There was little likelihood that he would have died from the level of pneumonia found.

The medical examiner concluded that, due to Christopher's treatment after the birth, the baby died from suffocation, or asphyxia. The cause of death, in his opinion, was the combination of asphyxia and a lack of adequate care and attention.

Tolliver testified that she became aware that she was pregnant in late June. In December, she was sick with vomiting and diarrhea for two weeks. On the night she delivered, she woke up and felt like she had wet the bed and needed to go to the bathroom. As Tolliver sat on the toilet and pushed, she realized that she was not going to the bathroom, but was, in fact, delivering Christopher. She then moved from the toilet to the floor and completed the delivery. Tolliver testified that she placed Christopher on some towels that she had placed on the floor.

Tolliver stated that she felt sick and dizzy and that she had lost a lot of blood. She testified that she did not remember anything after she gave birth. The evidence demonstrated, however, that the bathroom was cleaned up and the baby was in the closet, exactly where Tolliver said it would be found. Detective Damiani testified that when he went into the bathroom after Christopher was discovered, there was nothing unusual. There was no blood or other evidence indicating that a child had been born. The evidence also showed that Tolliver was calm and stable at the hospital, and all of her vital signs were normal. There was no evidence of Tolliver's having lost a great amount of blood, and any blood Tolliver was passing was old.

During cross-examination, Tolliver admitted to telling a hospital counselor that she had given birth to Christopher in the bathroom, wrapped him in towels, placed him in a bag, and then put the bag in the closet. Tolliver testified, however, that she only said those things because that was what everyone wanted to hear.

Standard of Review

A. Legal Sufficiency

When deciding a challenge to the legal sufficiency of the evidence, we must review all evidence, both direct and circumstantial, in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998). We must determine whether a rational trier of fact could have found all of the essential elements of the offense to arrive at the challenged finding, beyond a reasonable doubt. Id. The jury is the exclusive judge of the credibility of witnesses and the weight to be given to their testimony. Whitaker, 977 S.W.2d at 598; McFarland v. State, 928 S.W.2d 482, 496 (Tex. Crim. App. 1996); Sonnier v. State, 913 S.W.2d 511, 514 (Tex. Crim. App. 1995). The jurors may choose to believe all, some, or none of the witness's testimony, and have the same discretion with all other evidence presented. McFarland, 928 S.W.2d at 496; Sonnier, 913 S.W.2d at 514.

B. Factual Sufficiency

The general standard for factual sufficiency of the evidence concerning a criminal conviction

was established in Clewis v. State. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Under the Clewis standard we must view all of the evidence, 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 Texas Court of Criminal has outlined three guiding principles to use in this review. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

First, we must review the jury's deliberation and weighing of the evidence in a deferential manner in order to avoid substituting our judgment for the jury's. Id. Our evaluation of the evidence may not impermissibly intrude upon the jury's role as the sole arbiter of the weight and credibility to give witness testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Any weight given to contradictory testimonial evidence is within the sole discretion of the jury, because it turns on the jury's 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 decide ultimate facts. In re V.M.D., 974 S.W.2d 332, 346-47 (Tex. App.-San Antonio 1998, no pet.); Kelley v. State, 968 S.W.2d 395, 398 (Tex. App.-Tyler 1998, no pet.). Even where conflicting evidence is presented, a jury verdict is typically presumed conclusive unless the verdict "shocks the conscience," is "manifestly unjust," 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, if we find factual insufficiency, we must support such a ruling with a detailed explanation to enable the Court of Criminal Appeals to ensure that proper deference was accorded to the jury's finding. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In order to reverse a lower court's decision, we must state in what manner the contrary evidence greatly outweighs the evidence in support of the jury verdict. Id.

Finally, the evidence must be reviewed 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.

Discussion

Tolliver asserts that the evidence is legally and factually insufficient to support a jury finding of murder and injury to a child. We disagree.

The State charged Tolliver with murder for "intentionally or knowingly caus[ing] the death of an individual." Tex. Penal Code 19.02 (b)(1) (Vernon 1994). Tolliver was also charged with injury to a child pursuant to Tex. Penal Code 22.04 (a), which provides in part that "[a] person commits an offense 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...if the actor has a legal duty or statutory duty to act..." Tex. Penal Code 22.04(a) & (b) (Vernon 1996). Examining the evidence under the legal sufficiency standard, and considering only the evidence in support of the verdict, we find ample evidence to uphold the jury's verdict. Tolliver kept Christopher's existence and whereabouts a secret for three days, even when repeatedly questioned by medical personnel. She delivered Christopher alone, put him in a plastic bag, and then hid him in a closet. There was no evidence that Tolliver made any effort to feed or care for Christopher before she was taken to the hospital. The medical examiner testified that the combination of Tolliver's lack of adequate care and poor treatment of Christopher, caused him to asphyxiate and die. While at the hospital, she repeatedly denied being pregnant or recently delivering a child, despite medical evidence to the contrary. Tolliver testified that the reason she was inattentive to Christopher was because she did not remember anything after the birth and had lost a lot of blood. The evidence demonstrated that Tolliver had been able to clean up the bathroom enough to eliminate all signs of Christopher's birth, including the copious amounts of blood she claimed to have lost. Tolliver's lack of memory claim was further controverted by the fact that Christopher was found where she said he was.

Tolliver's testimony presented some evidence that she lacked the necessary intent. The weight given to that evidence, and whether she should be believed, however, are all issues solely within the province of the jury. Based upon the entirely of the evidence presented, we conclude that the jury's finding was not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Clewis, 922 S.W.2d at 129. The evidence is factually sufficient to support the jury's finding on both murder and injury to a child. After viewing the evidence in the light most favorable to the verdict, we also conclude that a rational trier of fact could have found the essential elements of both the murder and the injury to a child crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Whitaker, 977 S.W.2d at 598. Tolliver's first two points of error are overruled.

Tolliver's third point of error contends that a portion of the indictment is void for failing to allege a relationship between Tolliver and Christopher giving rise to a statutory duty to protect and care for the child. The record indicates that Tolliver did not raise this objection to the form of the indictment earlier, and has failed to preserve it for appeal. Defect of form or substance in an indictment is waived if no objection is made before the date trial commences. Tex. Code Crim. Proc. Ann. art. 1.14 (b) (Vernon Supp. 1999); State v. Murk, 815 S.W.2d 556, 557 (Tex. Crim. App. 1991); Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim App. 1990). Tolliver's third point of error is overruled.

Conclusion

The trial court's judgment is affirmed.

Phil Hardberger, Chief Justice

DO NOT PUBLISH