Maurilio Tavera v. The State of Texas--Appeal from 82nd District Court of Falls County

IN THE

TENTH COURT OF APPEALS

No. 10-91-003-CR

MAURILIO TAVERA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 82nd District Court

Falls County, Texas

Trial Court # 6112

O P I N I O N

A jury convicted Maurilio Tavera of the offense of knowingly causing serious bodily injury to a child and sentenced him to ten years' probation. We affirm that conviction.

Maurilio and Mirna Tavera had four children Luis, Elida, and twins, Miguel and Manuel. Manuel began to suffer from severe health problems when he was about one-month old. On a routine visit, a Department of Human Services worker noticed that Manuel had significant bruises and that his head was much larger than his twin brother's, even though they were otherwise the same size. He was taken to the hospital where the doctors discovered that his brain was bleeding, bruised, and swollen. Shunts were inserted into his skull to drain off excess fluid. Approximately two months after Manuel had been in the hospital for surgery, he was taken back because he was having trouble breathing. He later died of pulmonary problems that were the result of his head and brain injuries. At the time of his death, he was four-months old. An autopsy determined the cause of death was "homicide." Maurilio Tavera was charged with intentionally causing serious bodily injury to Manuel by violently shaking him.

Tavera appeals on two grounds: insufficiency of the evidence and erroneously admitted expert testimony. He first alleges that the State failed to prove each element of the crime beyond a reasonable doubt, that the evidence is insufficient to support a guilty verdict, and that the evidence is insufficient to satisfy the conviction as authorized by the charge. Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 156-157 (Tex. Crim. App. 1991). Tavera first asserts that the state did not prove that the shaking caused the injury nor that the injury was caused purposely. He claims that the medical experts did not testify with certainty about the cause of Manuel's injuries.

Dr. Charles Odom, a Dallas County Medical Examiner who performed the autopsy on Manuel, testified that, in his medical opinion, severe shaking caused the craniocerebral trauma. He also testified that other possibilities for the injuries were blows to the head or a fall on an unyielding surface. Dr. Dennis Schellhase, who attended Manuel at Scott and White Hospital, testified that, "usually, the kind of trauma that causes the bleeding that we saw on the CT scan is due to shaking or direct trauma." He also said that it would have had to have been vigorous shaking. Mirna Tavera testified that Tavera had caused the injuries and had shaken and hit Manuel several times in her presence, starting when he was approximately one-month old. Tavera himself testified that the baby had never fallen out of a crib or off a table. We hold that a rational trier of fact could have found that the shaking caused the infant's injuries beyond a reasonable doubt. See id.

Addressing the assertion that the state failed prove that Tavera intentionally caused the injury, we believe that it is reasonable for a jury to infer intent because it knows that when an adult violently shakes a one-month-old infant the adult is aware that it will cause injury to the baby.

Tavera next asserts that the state failed to prove beyond a reasonable doubt that the offense occurred in Falls County. The State must prove venue by only a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 1977); Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983). Proof of venue may be demonstrated by either direct or circumstantial evidence. Id. Tavera testified that he lived in Marlin. His landlord, Richard Hancock, said that he lived there with his wife and children. Mirna Tavera testified that Tavera shook and hit Manuel in their home. Theresa Berru, a public health nurse for the Texas Department of Health, stated that she visited the family in their home in Marlin, which is in Falls County. We hold that the State proved the offense occurred in Falls County by a preponderance of the evidence. See Black, 645 S.W.2d at 790. Points one through three are overruled.

Tavera next complains that the court erred in allowing expert testimony from Dr. Ramon Aleman, who testified about the typical behavior patterns in a Mexican family and the superstitious belief in the "evil eye." Rule 52(a) of the Rules of Appellate Procedure states in part:

In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion.

Tex. R. App. P. 52(a). To avoid forfeiture of a complaint on appeal, a party must let the trial judge know what he wants, why he is entitled to it, and he must do so at a time when the court is in a position to do something about it. Id. When a party fails to effectively communicate his desire, a reviewing court should not hesitate to hold that the complaint arising from the event has been lost. Lankston v. State, No. 1094-90, slip op. at 2 (Tex. Crim. App. March 4, 1992). For an objection to be timely, it must be before the evidence is admitted, if possible, and must state the specific basis. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). The objection must be made each time the inadmissible evidence is offered, with two exceptions: (1) a "running objection" and (2) an objection outside of the presence of the jury to all testimony deemed objectionable. Id. at 858-859.

The specific point of error is that the trial court erred in allowing Ramon Aleman to testify as an expert witness. Tavera complains that, because the testimony offered was prejudicial only and was of no appreciable aid to the jury, it should have been excluded under Rule 403 of the Texas Rules of Criminal Evidence. See Tex. R. Crim. Evid. 403. He also asserts that it should have been excluded under Rule 404 because the testimony only showed that Tavera was acting in conformity with a stereotype. See id. at 404.

During the trial, the judge held a hearing outside the presence of the jury to determine the admissibility of Dr. Aleman's testimony. The following dialogue occurred during the course of that hearing:

THE COURT: And your objection?

MR. GAVITO: Your Honor, my objection first of all is that he's not qualified. What he said, I could say the same thing. My parents came across and my parents were down there longer. I lived in Mexico. I've got just as much to do but I couldn't claim myself to be an expert on the Mexican culture, and I probably have more ties than he does. I mean

The court then asked Mr. Gavito what he thought it takes to be an expert, and Mr. Gavito listed the qualifications he felt were necessary. The dialogue continued:

THE COURT: Any other objections? Your objection will be overruled.

MR. GAVITO: Okay. I have one other then. I also Mr. Tavera has been declared an indigent, Your Honor, and if they are going to use some Mexican expert, then I would need time to find my own and I would need the resources to find my own. . . .

The remainder of the objection contained a discussion of the merits of calling a similar witness on behalf of Tavera.

Dr. Aleman was then called as a witness and sworn in before the jury. During the course of his testimony, the only objections made were (1) that a question was leading and (2) that the only readings Dr. Aleman had were personal readings. The prejudicial nature of the testimony was never mentioned. The lack of probative value was never raised. That the evidence could show Tavera acted in conformity with a stereotype was never brought up. No running objection on these matters was requested.

The trial judge cannot be expected to rule on a matter which is never brought to his attention. See Lankston, No. 1094-90, slip op. at 2. Because the objection made does not comport with the point on appeal, we hold that the error was waived and nothing is presented for our review. See Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App. 1986); White v. State, 543 S.W.2d 366, 369 (Tex. Crim. App. 1976); Bouchillon v. State, 540 S.W.2d 319, 322 (Tex. Crim. App. 1976). We overrule point of error four.

The judgment is affirmed.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed May 13, 1992

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