Jennifer Ann Nixon v. The State of Texas--Appeal from 392nd District Court of Henderson County

NO. 12-07-00004-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JENNIFER ANN NIXON, APPEAL FROM THE 392ND

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Jennifer Ann Nixon appeals her conviction for recklessly causing serious bodily injury to a child, for which she was sentenced to imprisonment for seven years. Appellant further appeals her convictions for two counts of recklessly or with criminal negligence causing injury to a child and one count of recklessly causing injury to a child for which she was sentenced to imprisonment for two years for each conviction. In two issues, Appellant argues that (1) the evidence was factually insufficient to support the element of serious bodily injury and (2) the trial court improperly refused to admit certain evidence during the guilt-innocence phase of trial. We affirm.

Background

Appellant and Jimmy Nixon were married in 2002. A.H., Nixon s son from a previous marriage, came to live with Nixon and Appellant when A.H. was approximately eighteen months old. After living with Nixon s family for several months, Appellant, Nixon, and A.H. moved to a house in Tool, Texas.

On July 26, 2004, Appellant and A.H. awakened early to drive Nixon to his new job. Afterwards, Appellant and A.H. arrived back at their home sometime after 6:00 a.m. Appellant instructed A.H. to use the toilet before returning to bed. A.H. complied and remained in the bathroom for approximately ten minutes. Appellant stated that during that time, she saw A.H. stumble forward, but could not tell whether he hit his head.

Appellant took A.H. from the bathroom and began to take him to his bedroom. As the two made their way to the bedroom, A.H. was initially walking slowly, but eventually came to a halt and abruptly sat on the floor. Appellant carried A.H. toward his bed and began to remove his shirt. At this time, Appellant noticed that A.H. had a glazed look on his face and was clenching his teeth. After a failed attempt to get A.H. to react, and after attempting in vain to pull A.H. s clenched teeth apart, Appellant called 9-1-1.

Medical personnel arrived at approximately 7:05 a.m. Emergency Medical Technician Rick Williams noted that A.H. was taking between six and eight breaths per minute, had a heart rate of between sixty-two and sixty-eight beats per minute, and was cyanotic 1 and blue around the lips and eyes. A.H. was taken by ambulance to East Texas Medical Center ( ETMC ) in Athens, Texas where he was examined, intubated, and placed on an IV. Furthermore, a CT scan was performed on A.H. s brain. At ETMC, Appellant, Nixon, and Nixon s mother briefly visited with A.H. where he was alert and able to communicate with them.

A.H. was transported by helicopter to Children s Medical Center in Dallas, Texas for further evaluation and treatment.2 It was ultimately determined that A.H. had multiple injuries to his body including a subdural hematoma located on the back of his head in the parietal region of the brain. A.H. was released from the hospital within five days of his arrival.

Appellant was charged by indictment with one count of intentionally and knowingly causing serious bodily injury to a child, four counts of intentionally and knowingly causing bodily injury to a child, and one count of recklessly causing bodily injury to a child and using or exhibiting a deadly weapon during her commission of the offense. Appellant pleaded not guilty and the matter proceeded to jury trial. Ultimately, the jury found Appellant guilty of recklessly causing serious bodily injury to a child, two counts of recklessly or with criminal negligence causing injury to a child, and one count of recklessly causing injury to a child. Following a trial on punishment, the jury assessed Appellant s punishment at imprisonment for seven years and a $1,000 fine for recklessly causing serious bodily injury to a child and imprisonment for two years and a $500 fine as to each of the three remaining counts. This appeal followed.

Factual Sufficiency

In her first issue, Appellant argues that the evidence is factually insufficient to support that she caused serious bodily injury to A.H. When an appellant raises a contention that the evidence is not factually sufficient to support the jury s verdict, we must first assume that the evidence is legally sufficient under the Jackson3 standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. SeeSantellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App. El Paso 1996, pet. ref d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the jury s verdict).

Serious bodily injury is bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. See Tex. Penal Code Ann. 1.07(a)(46) (Vernon Supp. 2007). When considering whether there exists serious bodily injury, the relevant inquiry is the extent of the bodily injury as inflicted, not after the effects have been ameliorated or exacerbated by medical treatment. See Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. [Panel Op.] 1980), overruled on other grounds, Hedicke v. State, 779 S.W.2d 837 (Tex. Crim. App. 1989).

In the instant case, in addition to our presumption that the evidence is legally sufficient, we also note the testimony of board certified pediatrician Matthew Cox. Cox testified, in pertinent part, as follows:

Q. What was the most the injury of most concern for you on [A.H.]?

A. The most critical injury was the fact that he had intracranial hemorrhage. He had a head injury that brought him into medical care.

Q. Describe to the jury what records you reviewed to support that and what you saw on the child s head to support that.

A. So he had a CAT scan that was done as part of his evaluation. A CT scan of his head. The CT scan of his head showed that he had areas of bleeding around the surface of his brain. They specifically note he had what we call interhemispheric blood.

Interhemispheric our brain has two halves much like a walnut. And that area between the two areas of the brain, between the hemispheres are interhemispheric. And they noted there was blood in the middle and in the posterior aspect there. So in the middle of the brain and the back of the brain ... between the two halves of the brain there was blood.

....

Q. Tell the jury what you mean .... Is it normal to have blood in these areas?

A. So this is hemorrhage. This is areas of abnormal bleeding. The blood should be within the blood vessels. And in [A.H.] s case, the blood was outside the blood vessels and layering on top of the surface of the brain, and the blood should not be there. So that was an abnormal finding. The blood is what we call subdural hematoma. That s blood within a certain space that surrounds the brain tissue, and blood should not be there. So that was an abnormal finding of having bleeding or hemorrhage around the surface of the brain.

....

Q. Doctor, is it your understanding that the legal term serious bodily injury means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement or protracted loss or impairment of a function of any bodily member or organ?

....

A. Yes.

Q. Based upon your review of [A.H.], the review of his reports[,] and your training and experience, do you have an opinion as to whether or not [A.H.] had suffered serious bodily injury when you met him?

A. He did suffer serious bodily injury, yes.

Q. And can you explain to the jury what that serious bodily injury was?

A. The head injury is the main serious bodily injury. Because of the head injury, he required excessive medical care. He required ventilatory support. They had to put him on a breathing tube and a breathing machine for a while because he wasn t breathing normally. So without medical intervention, there was a chance he would have died as a result of the injury.

So that s why I believe it meets that definition is because the head injury caused him to breathe abnormally which is a sign and symptom of a head injury. And that breathing abnormality potentially could have caused him to have more significant effects, including death.

....

Q. Does that in any way the fact that once he got oxygen he started acting better, does that in any way lessen the severity of the injuries he had?

A. I don t believe so because he still required intubation. They still when he got to the hospital they put a breathing tube in him. He still had signs of a significant head injury. So it didn t lessen the injury.

Appellant argues that the subdural hematoma Cox described was not one that rose to the level of creating a substantial risk of death, but rather merely amounted to there being an area of the brain where an amount of blood accumulated due to a blow to the head. Appellant notes that Cox testified with regard to a more severe head injury associated with subdural hematomas where there is associated swelling of the brain caused by edema, which was not present here. However, Cox s testimony that injury to brain tissue could be made worse by such swelling does not serve to lessen the severity of A.H. s serious bodily injury. As Cox stated, the subdural hematoma suffered by A.H. resulted in a breathing abnormality that could have caused A.H. to die had there been no medical intervention.

Appellant further notes that (1) A.H. s mother testified that in the two and a half years since the event, A.H. had suffered no long term effects from the head injury, (2) A.H. was consciously communicating with his grandmother prior to being transported to Children s Medical Center in Dallas, (3) there were no recorded incidents during his treatment in Dallas indicating that he was in danger of expiring, and (4) he was discharged from Children s Medical Center in only five days. However, we iterate that when considering whether there exists a serious bodily injury, the relevant inquiry is the extent of the bodily injury as inflicted, not after the effects have been ameliorated or exacerbated by medical treatment. See Brown, 605 S.W.2d at 575.

Finally, Appellant discusses evidence that A.H. s breathing was limited to eight breaths per minute. Appellant notes that the record indicates that when medical personnel assessed A.H. s breathing, his teeth were clenched, indicating, according to Appellant, that he was possibly seizing and taking breaths only when necessary. Appellant further notes that A.H. s respiration rate had increased dramatically by the time he arrived at ETMC.

We have reviewed the record in its entirety. We iterate that our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96. Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury s verdict. Appellant s first issue is overruled.

Admissibility of Evidence

In her second issue, Appellant argues that the trial court erred in denying during the guilt-innocence phase of trial the admission into evidence of a journal Appellant kept concerning the events of A.H. s life with Appellant and Nixon. The State objected to the journal s admission arguing that it was not relevant and contained hearsay. Appellant argued that the journal was being offered for the purpose of showing Appellant s mental state, to show her feelings for and relationship to A.H., and to rebut any attempt by the State to show that she was the evil stepmother, who was uncaring toward her stepchild. Appellant further argued that the journal fell under the recorded recollection exception to the hearsay rule.4 The court sustained the State s objection and refused to allow admission of the journal or further testimony pertaining thereto.5 Appellant made no offer of proof regarding the journal.

The State first argues that Appellant waived the issue by her failure to make an offer of proof. We agree. Before an appellate court may consider a complaint concerning the exclusion of evidence, the proponent must have perfected an offer of proof or a bill of exceptions. See Tex. R. Evid. 103(b); Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). Absent a showing of what such evidence would have been or shown, nothing is preserved for review. Guidry, 9 S.W.3d at 153. The record must be developed before the charge on guilt is read to the jury. See Tex. R. Evid. 103(b); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). Moreover, allowing evidence adduced in the punishment phase to suffice as an offer of proof regarding evidence excluded during the guilt-innocence stage precludes the trial court from reconsidering the guilt-innocence stage ruling in light of the actual evidence and, therefore, defeats an important purpose of the offer of proof. See Baumgarton v. State, No.14-99-01188-CR, 2001 WL 1218532, at *2 n.4 (Tex. App. Houston [14th Dist.] Oct. 11, 2001, pet. ref d) (not designated for publication); see also Ludlow v. DeBerry, 959 S.W.2d 265, 270 (Tex. App. Houston [14th Dist.] 1997, no pet.). Therefore, since Appellant failed to make an offer of proof, she has not preserved the error, if any, of which she now complains. Appellant s second issue is overruled.

Disposition

Having overruled Appellant s first and second issues, we affirm the trial court s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered March 31, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 Cyanosis is a bluish discoloration of the skin, resulting from inadequate oxygenation of the blood. See The American Heritage Dictionary 359 (2nd College Ed. 1982).

2 ETMC personnel contacted Child Protective Services to report the case as one of potential child abuse. CPS Officer Jim Dietsch arrived at ETMC and detained Appellant and Nixon to obtain information regarding A.H. s injury. When Appellant and Nixon arrived in Dallas, they were prohibited from seeing A.H.

3 See Jackson v. Virginia, 443 U.S. 307, 315 16, 99 S. Ct. 2781, 2786 87, 61 L. Ed. 2d 560 (1979).

4 See Tex. R. Evid. 803(5).

5 The journal was later admitted during Appellant s trial on punishment.